
    The State, ex rel. Millikan, v. Cook, Clerk of Courts.
    
      (Decided October 19, 1931.)
    
      Mr. W. H. Hill and Mr. M. W. D’Errico, for plaintiff.
    
      Mr. Bay T. Miller, prosecuting attorney, and Mr. E. P. Westenhaver, for defendant.
    
      Messrs. Garfield, Cross, MacGregor, Daoust & Baldwin, for the Cuyahoga County Savings & Loan League and the savings and loan companies named as defendants in relator’s petitions, amici curies.
    
    
      Messrs. Squire, Sanders é Dempsey, for the Society for Savings, amicus curies.
    
    
      Mr. Andrew B. Birney, for the Guardian Trust Company, amicus curies.
    
    
      Messrs. Sawyer, Cummings & Douglas, for the Cleveland Trust Company, amicus curies.
    
    
      Mr. Oliver Stamper, for the Union Trust Company, amicus curies.
    
    
      Mr. Carl W. Schaefer, for the Lorain Street Savings & Trust Company, amicus curies.
    
    
      Messrs. Needham S Smith, for the Central United National Bank, amicus curies.
    
   Vickery, J.

This is an original action filed in this court in mandamus to compel Thomas C. Cook, clerk of the courts of Cuyahoga county, to file without prepayment of or security for costs,. twenty suits brought by the state of Ohio, on the relation of William H. Millikan, for penalties which he alleges are due from the various banks of the city of Cleveland in failing to comply with the provisions of Sections 9864 to 9872, General Code.

To this petition in mandamus a demurrer was filed, which demurrer was later withdrawn and permission given to file an answer instanter, and from these pleadings and the evidence that was introduced under the issues thus raised the case has been submitted to us.

Before a court can issue a writ of mandamus, the right of the applicant therefor must be clear and unequivocal, and the officer sought to be compelled must have no option but to do the act. If there be a doubt, or the right be questionable, the court should hesitate to issue a writ.

One of the petitions which it was sought to have the clerk file without the prepayment of costs or the giving of security is before us, having been admitted in evidence. Apparently from an examination of this petition the pleader has confused two sets of statutes, for he brings his action on the relation of William H. Millikan, as though he were a taxpayer, and predicates his right to bring such a suit on the theory that the banks, the various defendants in the suits proffered, are withholding from the county money that is due the county, and in such event the statutes made in such cases provide that the prosecuting attorney shall bring the suit; and that upon the demand of any taxpayer, and the refusal of the prosecuting attorney, the taxpayer may himself bring the suit, and in the event of recovery in such case the taxpayer shall be allowed reasonable compensation for his attorney in such amount as the court granting the relief shall order paid out of the amount realized from the suit.

Now glancing at one of these petitions it will be apparent that the attorney fees were one of the paramount things in the minds of the lawyers who sought to file this petition, and one could not blame the filing clerk for refusing to file such a petition until rule No. 21 of the Cuyahoga county common pleas court should be complied with, which in effect is that whenever a taxpayer’s suit is brought in the name of a taxpayer after the prosecuting attorney has refused to bring such suit no such petition shall be filed unless security for costs be given, and the court under its rule has fixed the minimum amount at $25 in each case.

When these petitions were proffered the filing clerk called attention to rule 21, and refused to file the 'petitions until the rule had been complied with. The complainant, whatever his status, saw fit to refuse to comply, for to comply would have required the sum of $500 to- be put up for these twenty suits. Thereupon he brought this action in mandamus to compel the clerk to file the petitions without the prepayment of costs, or the giving of security therefor, and to issue summons in each case.

One could not blame the filing clerk for refusing to file these petitions without a compliance with the rule, thinking that this was a taxpayer’s suit; for all the allegations with respect to notice to the prosecutor, and his refusal, and the demand for attorney fees, come clearly within the taxpayer’s suit statutes, and the heading of the petition is the same as it would be in a taxpayer’s suit. Hence, we say, no one could blame a filing clerk for refusing to file the petitions, but upon an examination we find that this suit was not predicated on the taxpayer’s suit statutes, Sections 2921, 2922 and 2923, General Code, but under other statutes, to wit, Sections 9864 to 9872, General Code, inclusive, and we must discover whether from these statutes the party has a right to the writ of mandamus, for, as already stated, unless the right be clear and unequivocal a court should not issue the writ.

Let us examine these statutes, the first being Section 9864, General Code. That section provides that banks shall report to the probate court the deposits of unknown depositors each year, and Section 9865, General Code, defines who are unknown depositors. And here comes one of the difficulties. In Section 9865, General Code, the Legislature defined an “unknown depositor” to be one who has a deposit in a bank which during a period of seven years he has not added to nor taken from, and has not presented his bank book for such period of seven years to have the interest added to it. Such a depositor shall be “deemed an unknown depositor.” The vice of this definition will be alluded to a little later.

Sections 9871 and 9872, General Code, provide as follows:

“Sec. 9871. The penalty so imposed shall be recovered by action in the name of the state, before any court of competent jurisdiction; and when collected, shall be paid to the treasurer of the county in which the judgment therefor is recovered. One-half thereof shall be by such treasurer credited to the general fund of such county, and one-half thereof be by him held for the use of the state.
“Sec. 9872. The action provided by the preceding section may be instituted and prosecuted to judgment by any citizen of the state. The prosecuting attorney of such, county hereby is required to institute and prosecute such action against every bank, company, association or person so designated, and located in such county, who fails to comply with the foregoing provisions.”

Now it will be noticed that any citizen may institute and prosecute this suit to final judgment. The same section provides that the county prosecutor shall be required to institute and prosecute this suit.

The section which disposes of the proceeds after they are collected is unequivocal and provides that one-half shall be paid into the state treasury and one-half into the county treasury, and there is no allowance for attorney fees in any way, shape or manner, as there is in the taxpayer’s suit statute for moneys that are withheld from the county. In that event, as already stated, the taxpayer may recover his attorney’s fees. By the statutes under consideration the money is all disposed of and the taxpayer’s counsel has no right to any compensation.

Now it is interesting to note that there are more than two' hundred different statutes in our General Code providing for the assessing of penalties and the collection thereof, and in the instant case there are petitions which contain as many as one hundred and ten different causes of action, and if collections were made all the suits that are attempted to be filed would bring in from one-half to one million, dollars to be divided equally between the state and the county.

Some of the petitions go back to the origin of the law more than forty years ago, and have a cause of action against certain banks and their constituent members by reason of consolidations which amount in one case to one hundred and ten different causes of action. Now the mere costs, to say nothing of the time of public officers it takes to handle this sort of litigation, surely demand some consideration as to where the costs are coming from in the event that the party who loses cannot pay. In the instant case it is frankly admitted* that the party who brings this suit, or whose name is used, is not a taxpayer. He does not pay a dollar’s worth of taxes, and therefore he would be execution proof if he failed to win and the costs should be assessed against him. It is equally true that he is a citizen, and under Section 9872, General Code, he has the right to institute and prosecute to judgment a cause of action, but that, taken in connection with the latter half of the section, which provides that such suits shall be instituted and prosecuted by the prosecuting attorney of Cuyahoga county, seems to imply that the person whose name is used is nothing more than an accusing witness or informer, and his lawyer must of necessity be the prosecuting attorney, and I apprehend that if such a suit were maintainable at all, and the prosecuting attorney refused to bring such a suit, he could be compelled by mandamus to institute the suit.

I know it is argued that in forcing an unwilling prosecutor to bring a suit, the best results might not be obtained, but that is aside from the question.

Now we think there are several reasons why this right in the instant case is neither clear nor unequivocal. In the first place, the suit is not rightly prosecuted. It should not be prosecuted in the name of the state, on the relation of the individual. The suit should be brought by the state of Ohio — not on the relation of anybody. Nobody’s name should be coupled with the suit any more than an informing witness or prosecuting witness should be named in an indictment. The party is the state of Ohio; the state of Ohio created the penalties and the state of Ohio is the only one that can enforce the,penalties.

There is an illuñiinating case decided by Judge Jones way back in 1879 when Judge Jones occupied the common pleas bench of Cuyahoga county, and it is reported in 2 Cleve. L. Rep., 44, 4 Dec. Rep., 369, entitled Gause v. L. S. & M. S. Rd. Co. This action was under a different statute, but it was for the collection of a penalty, and much more in point than the instant case. That was under a statute which provided that railroad trains when heated must have such a heating apparatus that upon the overturning of the car the fire would immediately be put out, and that if a railroad should run a train of cars without such heating equipment the railroad company would be liable to a penalty. The statute further provided that upon recovery of this penalty, the informer should have 50 per cent, and 50 per cent, should be paid into the county treasury of the county in which the railroad was located. Under this statute a suit was brought by an informer in his own name, to recover a penalty. A demurrer was filed upon several grounds, and the case was carefully considered by Judge Jones, and while he overruled the contentions of the demurrant in some particulars, he did sustain it on the ground that the party had no capacity to bring the suit. In the course of his decision he remarked as follows: “But there are a large number of authorities in other States which hold with almost unvarying unanimity, that where a penalty is given by a statute, either in whole or in part, to an informer, that he cannot for that reason maintain the action; but can only do so when he is expressly authorised by the statute to maintain the action in his own name, and this evidently so on principle, as well as authority. The State mahes the law, creates the penalty, owns and enforces the collection of it, and it only can maintain an action for it, unless it has delegated the right to some one else in distinct terms to sue for and collect in his own name.”

Judge Jones held that although the statute then under consideration provided that the informer was entitled to one-half the penalty, yet inasmuch as the statute did not expressly authorize him to maintain the suit he could not maintain it in his own name, nor on the relation of the state, but that the suit must be prosecuted by the state of Ohio for the reasons that he decided, and sustained the demurrer and dismissed the complaint.

Now if that was true under that statute it is much more true under the statute now under consideration. In our judgment the party who brings this suit has no interest in the outcome of it, no financial interest, no other interest. He simply is an accusing witness, or an informer, and in a criminal prosecution he would be the complaining witness, and that is all he is in this instance; and had he brought the information to the prosecutor, and had the prosecutor refused to bring the suit, as is provided in the same section which authorizes the citizen to bring the suit, the prosecutor would have been compelled, if the law were a valid law, to maintain the suit, but the declining on the part of the prosecutor would not give the informer the right to* maintain the suit. Therefore, the party filing these suits having no right to maintain them in the manner and form in which they were brought, no court will mandamus the clerk to file a paper when on its face there is no right for it to be filed.

But over and beyond that, a reading of this law will show the utter confusion in which the Legislature was when it passed it. As already stated, it was passed more than forty years ago, and, strange as it may seem, there has not been a single adjudication under this law during the entire period that it has been on the statute books. There has been no construction of it by any court decision in so far as we now learn, nor has one been pointed out to us. Now the reason for that apparently is that nobody had any faith in this law. A more confused piece of legislation one could hardly find. For example, it says a citizen may institute a suit (note the statute says may) and prosecute to judgment, while in the very same section of the statute it says the prosecuting attorney “is required to institute and prosecute such action.” Now that word “such” refers to the former part of the section; that is, it makes the citizen nothing more than an informer, or prosecuting witness, if you please, to call the attention of the prosecuting attorney to the bringing of this suit; and the officer is the only person who could use the name “The State of Ohio” to maintain the suit. Therefore, there is confusion in that respect, and the argument is strongly for the construction that we put upon this statute: That no one but the prosecuting attorney could maintain this suit. And inasmuch as all the money is appropriated hy the statute, one-half to the state and one-half to the county, no allowance being made for attorney fees, the prosecuting attorney being the legal adviser and being paid by a salary must perform these services gratuitously along with the other duties he must perform as an officer. If. any other conclusion could be reached, then any citizen can mulct the state of Ohio into large costs without its consent.

But that is only a minor confusion. Note the definition of who are unknown depositors. Note the manner in which the Legislature seemed to appropriate and confiscate the property of a depositor. To illustrate: A person wishing to provide a sum for his future needs deposits a sum in a bank, intending to leave it there, to forget it, if you please, until some time in the future. He does not add to it; he does not draw the interest; he does not do a thing with it. He is in and out of the bank every day. He has other accounts that are workable and alive. The bank officials see him every day and know him, and yet under this statute he is an “unknown depositor,” and that deposit after seven years must be reported under a penalty of $500 to the probate judge, and after eight years' it must be transferred, to the county treasury without the depositor’s knowledge, without his consent, and thenceforth, when he wants to reclaim it, the interest has ceased — he can only recover the sum which the bank turned over to the county treasury. In other words, his money is taken from a source where he thought it would be safe and drawing interest, a source upon which he relied for his future welfare, and, without his knowledge or consent, it is put in the hands of another custodian, which may or may not be good; but in any event, his right to interest, after the county treasury receives it, has been cut off.

We say that this violates the Constitution of the State of Ohio and the Constitution of the United States. It interferes -with the freedom of contracting. It alters and changes the obligation of a contract. It violates the principle laid down in the Dartmouth College case and hundreds of cases since that time. Do not think that this is a fanciful notion, for I have in mind now an instance in which a party, wishing to provide a fund to take care of funeral expenses and such things at her decease, deposited a certain sum in one of the Cleveland banks some twenty years ago. The party has been in and out of that bank ever since, and has had other deposits in that bank, and yet, according to that statute, this person is an unknown depositor and the money could be taken and deposited with the county treasury and her interest in this fund would cease after it had been deposited.

I have two other cases in mind in this county where these very things are taking place. The depositors are no more unknown than any other depositor who goes in the bank every day. The Legislature cannot by a mere statute make white black or black white. Because the Legislature says that under a certain sunlight a black object shall be white, that does not make it white; it is black just the same, and so when it defines an unknown depositor it cannot make someone known unknown by a mere definition.

As there are other defects and flaws in this statute and the statute is so uncertain in its terms, so contradictory, so unjust, and so utterly incapable of enforcement, we have no hesitancy in declaring the statute invalid and of no effect. Now if that be so, then the party filing these suits has no right to mandamus the clerk, and the court would be doing wrong to mandamus him to file them.

It would seem that in all the forty-odd years that this law has been on the books, if it had any force or efficacy, it would have been invoked long years ago, and there would have been a decision upon it. We think it is very inopportune and very unwise at this time, if it was ever wise, which we doubt, to bring such suits. The uncertainty of finances is not made any better by bringing suits against financial institutions for one-hálf to one million dollars in so-called penalties when the right is not clear; and the right of the party to maintain these suits is surely anything but clear. We think it is clear that the way these suits are predicated they cannot be maintained. If they are maintained at all it must be by the state of Ohio, and they must be prosecuted by the prosecuting attorney. And if an action were predicated in mandamus against the prosecuting attorney, and the law itself were valid, he might be mandamused to file a suit, but the clerk cannot be compelled by mandamus to receive these petitions, either with or without costs.

The conclusion that we have come to, therefore, is that the writ of mandamus will be refused and the petition dismissed.

Writ refused.

Levine, P. J., and Weygandt, J., concur.  