Opinion
No. 28579
Decided March 4, 1942.
Appeal — Injunction denied in action instituted by city solicitor at taxpayer's request — Sections 4311 and 4814, General Code — Taxpayer not entitled to prosecute appeal, when — Section 12223-1, General Code.
APPEAL from the Court of Appeals of Lorain county.
J.C. Aldrich, a taxpayer of the village of Amherst and a consumer of electric energy distributed by its electric system, made demand upon the solicitor of the village to enjoin the board of trustees, its clerk, the mayor and the village clerk from entering into a contract for the construction of an electric generating plant.
The city solicitor instituted an injunction proceeding in the name of the municipality against the officers named. The defendants demurred to the petition, the demurrer was sustained, the petition was dismissed and bond fixed for appeal. Aldrich made written request upon the solicitor to appeal to the Court of Appeals from the judgment rendered by the Court of Common Pleas, to which request the solicitor refused to accede.
Aldrich, without having made application to intervene in the trial court, gave due notice of appeal upon questions of law and fact and furnished proper bond. The defendants moved to dismiss the appeal upon the ground that Aldrich did not have the legal capacity to appeal the cause. The Court of Appeals sustained that motion and dismissed the appeal.
The cause is before this court, following the allowance of a motion to certify the record.
Mr. D.W. Myers and Mr. L.R. Ashenbach, for appellant.
Mr. Milton Friedman, for appellees.
This litigation was instituted originally by virtue of Sections 4311 and 4314, General Code, upon request of a taxpayer.
Neither those sections nor the Appellate Procedure Act (Section 12223-1 et seq., General Code) confer upon the taxpayer in the instant case the right to prosecute an appeal. City of Middletown v. City Commission, 138 Ohio St. 596, at page 603 et seq., 37 N.E.2d 609.
Judgment affirmed.
WEYGANDT, C.J., TURNER, WILLIAMS, MATTHIAS, HART and ZIMMERMAN, JJ., concur.
BETTMAN, J., not participating.