Driskill v. City of Cincinnati

• Decision Date: 22 November 1940
• Citation: 66 Ohio App. 372,34 N.E.2d 241
• Parties: DRISKILL v. CITY OF CINCINNATI et al.
• Court: Ohio Court of Appeals

34 N.E.2d 241

66 Ohio App. 372

DRISKILL v. CITY OF CINCINNATI et al.

Court of Appeals of Ohio, First District, Hamilton.

November 22, 1940

Syllabus by the Court.

1. A petition for a declaratory judgment is not sufficient against demurrer if there is not alleged facts which would give rise to a right-duty relation between the parties; which relationship is in dispute and which places the plaintiff in a position of peril or insecurity.

2. A declaratory judgment can be rendered only in cases where there is a real controversy between adverse parties in a matter which presents a justiciable dispute.

John D. Ellis, city solicitor, and Nathan Solinger, both of Cincinnati, for appellant.

John A. Thorburn, John W. Driskill, and Milton B. Schott, all of Cincinnati, for appellee.

DOYLE Judge.

John W Driskill, the appellee, filed in the court of common pleas of Hamilton county a petition which prayed for a declaratory judgment under Section 12102-2, General Code.

He alleged that he 'is the owner and/or lessee or valuable personal property, instruments and devices which could be used for the purpose of gambling and might be kept for such purpose in the city of Cincinnati, including four telephone instruments * * *, a buzzer and automatic connection therewith, and three radio sets, all of which personal property is owned, used and operated in the city of Cincinnati, Ohio, for plaintiff's business and pleasure.

'Defendant the city of Cincinnati is a municipal corporation under the laws of the state of Ohio.

'Defendant the Cincinnati & Suburban Bell Telephone Co. is an Ohio corporation doing business in the city of Cincinnati and state of Ohio, and the owner and/or lessor of the telephone instruments and equipment referred to herein.

'Plaintiff states the city of Cincinnati, allegedly pursuant to its corporate authority and Article XVIII, Section 3, of the Constitution of Ohio, by its regularly elected and qualified council, has duly enacted an ordinance, being number 576 of the code of ordinances of the city of Cincinnati, reading as follows:

"Whenever the city manager ascertains, or receives satisfactory information, that there is any instrument or device used for the purpose of gambling, kept for such purpose in the city of Cincinnati, he shall forthwith issue an order to the chief of police to cause said instrument or device to be seized, and when so seized to be destroyed by burning or otherwise.'

'Plaintiff states that Section 576 of the code of ordinances of the city of Cincinnati is involved in the following respects: * * *

'Plaintiff states his rights, status and legal relations are affected by Section 576 of the code of ordinances of the city of Cincinnati, Ohio.

'Wherefore plaintiff pays for a judgment declaring Section 576 of the code of ordinances of the city of Cincinnati, Ohio, * * * null and void, and for such other relief as may be proper or necessary.' (Italics ours.)

The two named defendants filed demurrers to the petition. The city of Cincinnati demurred on the ground that the petition 'does not state facts which constitute a cause of action.' The telephone company demurred for the same reason, and, in addition thereto, on other grounds.

The judgment of the court on the demurrers is recorded in the following language:

'This cause having come on for hearing on demurrers of the defendants to the petition, and the court being fully advised in the premises, the said demurrers are hereby overruled.

'The demurrers to the petition herein having been overruled and the defendants not desiring to plead further, it is hereby ordered, adjudged and decreed that Section 576 of the code of ordinances of the city of Cincinnati, Hamilton county, Ohio, reading as follows: * * * is unconstitutional, null and void.'

The defendant, the city of Cincinnati, has brought into this court for review this judgment, by the procedure of an appeal on questions of law.

While the determination of the constitutionality or unconstitutionality of the ordinance is of academic interest to the members of this court, there must first be considered in this appeal the right of the plaintiff to such a determination under his petition.

The statute granting the right to a...