#### The State, ex rel. Yontz, *v.*West, Registrar of Motor Vehicles.

*390(Decided February 27, 1939.)

*Mr. Stanley A. Silversteen,*for relator.

*Mr. Herbert S. Duffy,*attorney general, and *Mr. Theodore B. Ochs,*for respondent.'

Geiger, J.

This matter is before the court upon the application of the relator herein that the court fix the reasonable attorney’s fees to be taxed as costs and paid out of the fund created, to compensate the attorney, Stanley A. Silversteen, for services rendered and expenses incurred, and that such costs be taxed against the defendant and be ordered paid out of the fund created.

This matter was before the court in the original action in *State, ex rel. Yontz,*v. *West, Registrar, ante,*382. In the original action the relator filed a petition in mandamus in which he alleged that the respondent Frank West, registrar of motor vehicles, had refused to collect the license tax from the owners and operators of cement-mixing motor conveyances, and relator prayed that a writ of mandamus issue against the respondent requiring him to collect the license tax on such vehicles. In that action the court held that such vehicles were motor vehicles upon which the tax should be collected.

It was agreed between the parties that the respondent had not collected the license tax and that there were approximately 400 such cement-mixing vehicles, taxed for the year 1937 — 1938, upon which a motor-vehicle tax of approximately $80,000 was paid. After *391the attorney general had made the ruling that such vehicles were not subject to the license fee the registrar ceased to collect the same for the succeeding year, but there had already been paid in the sum of about $23,000 which remained in the hands of the treasurer until it was determined whether it should be refunded to those having paid the same.

The instant question is whether this court may order the fund, either already in the hands of the treasurer or that which may in the future be collected, to be subject to the payment of costs including attorney’s fees. The attorney general takes the position that there is no power residing in this court to grant the payment of attorney’s fees out of the fund, and asserts that the only method in which such fees may be collected is through the allowance of the claim by the Legislature. The attorney general bases his contention upon Section 29, Article II of the Constitution:

> *u* **# nor gkajq any money be paid, on any claim, the subject-matter of which shall not have been provided for by pre-existing law, unless such compensation, or claim, be allowed by two-thirds of the members elected to each branch of the General Assembly.”

This at once raises the question as to whether or not the fund, created as a result of the action of the court in sustaining the relator’s position, falls within the constitutional inhibition. Section 6309, General Code, provides that the registrar shall pay registration fees to the treasurer of state, the amount to be distributed to the counties and districts as provided. The treasurer shall be the *custodian*of the funds to be distributed to the counties and districts, and shall disburse the same in the manner provided in Section 6309-2, General Code. The last-mentioned section provides for the distribution of the fund and directs how certain percentages thereof shall be paid, 23 per cent to be paid by the registrar into the state treasury *392to the credit of the state maintenance and repair fund as provided in Section 6309, General Code.

It is quite evident that under the provisions of these sections the funds collected by the registrar in the various districts do not, at least to an extent of not over 23 per cent, go into the state treasury, and that the state treasurer is the custodian only of the fund for distribution as provided by law.

This matter has been passed upon by the Supreme Court. See *State, ex rel. Ach,*v. *Braden,*125 Ohio St., 307, 314, 181 N. E., 138. In *Fisher Brothers Co.*v. *Brown, Secy, of State,*111 Ohio St., 602, 624, 146 N. E., 100, the court, speaking through Judge Allen, says, in reference to the article of the Constitution referred to, “that part of the taxes apportioned to the districts of registration does not enter the state treasury as other taxes, but is placed in the custody of the state treasurer, to be disbursed ** * *.*However, since none of this 50 per cent of the receipts from the taxes enters the state treasury, Article II, 'Section 22, does not apply, and hence is not violated.”

This case is interesting and is conclusive upon the question before us in reference to the nonapplication of Section 22 of the Constitution.

The case of *Village of Bedford*v. *State, ex rel. Thompson, Hine & Flory,*123 Ohio St., 413, 175 N. E., 607, holds that where a taxpayer has successfully prosecuted an action to recover money, such action possesses equitable characteristics and the trial court, in the exercise of equitable powers, may allow a reasonable attorney fee to the attorney for the taxpayer out of the funds so created. The court at the outset states that the taxpayers had no statutory authority to bring their action. It is conceded that in the case at bar there was no statutory authority to bring the action. Nevertheless the case cited is authority for the assertion that the court, in the exercise of equitable powers, may allow a reasonable attorney fee. *393There is in the fund at least $23,000, and there will be added to the fund about $80,000 a year under the present statutory provision as interpreted by this court. It is proper that the attorney, acting for the citizen, be compensated for his services. It is desirable that there be a public alertness as to the action of public officials which diminish the amount of money legally due the public treasury. If no compensation is allowed the citizen will be slow to assert a right on behalf of the public, preferring to suffer a small personal loss rather than to embark in litigation which may be costly to him.

Having determined that this court has jurisdiction to allow an attorney fee, the next question of importance is as to the proper amount of the fee. The court is of the opinion that counsel should be adequately compensated, but at the same time is not inclined to make a successful lawsuit, brought on behalf of the public, an occasion for the allowance of an excessive fee.

We are of the opinion that $4,000 in addition to costs actually expended, such as traveling expenses and kindred expenses should be allowed to the attorney to be taxed as costs to be paid out of the fund either presently existing or if no such fund is at present in the hands of the treasurer, then out of the funds that may hereafter be collected.

*Judgment accordingly.*

Hornbeck, P. J., and Barnes, J., concur.