Syllabus by the Court.
1.
A municipal ordinance requiring all persons, firms or
corporations, engaged in the business of dry cleaning and
pressing, to secure a license, and, when a dry cleaning and
pressing establishment is located outside of the
municipality, as a prerequisite to the issuance of a license
requiring the owner or operator thereof to give a $1,000 cash
bond, conditioned that all property removed from the
municipality will be accounted for, imposes an excessive and
unjustifiable burden on dry cleaning establishments located
outside the municipality and violates both Section 1, Article
I of the Ohio Constitution, and Section 1 of the Fourteenth
Amendment to the federal Constitution.
2.
An action for a declaratory judgment being a special
statutory proceeding, not cognizable in chancery, is not
appealable on questions of law and fact, but if the
allegations in a petition state a cause of action for
affirmative relief in equity by way of injunction, an appeal
on questions of law and fact is proper in such action
notwithstanding the fact that the prayer of the petition asks
for a declaratory judgment.
GUERNSEY
Judge.
This is
an appeal on questions of law and fact from a judgment of the
Court of Common Pleas of Defiance county, Ohio.
In his
petition the plaintiff asks for a declaratory judgment that
certain provisions of an ordinance of the city of Definance,
entitled 'An ordinance regulating dry cleaning, dyeing,
pressing, carpet cleaning, laundering and
hat cleaning establishments and solicitors,' are
unconstitutional and void in that these provisions are in
excess of the legislative power of the council of the city;
are unreasonable, arbitrary and oppressive; are
discriminatory and constitute class legislation; and are
designed to exclude competition and the conducting of
business by those other than residents of Defiance, Ohio. It
is further alleged that the ordinance does not effect the
purpose in its title or bear any real or substantial relation
thereto; and that the provisions of the ordinance are in
contravention of the constitutional rights of the plaintiff
as guaranteed to him by the Constitution of the state of Ohio
and of the United States. Although a declaratory judgment was
sought, the allegations of this petition are broad enough to
entitle the plaintiff to affirmative relief by way of
injunction against the enforcement of these provisions. The
prayer of the petition, in addition to asking for declaratory
judgment as mentioned, asks for such other and further relief
as the plaintiff may be entitled to either in law or in
equity.
An
action for declaratory judgment, being a special statutory
proceeding not cognizable in a court of chancery, is not such
an action as may be appealed to this court on questions of
law and fact under the provisions of Section 6, Article IV of
the Constitution. But as the petition in the instant action,
although asking for a declaratory judgment, states a cause of
action for affirmative relief in equity, the action
constitutes a chancery case appealable to this court on
questions of law and fact, and the appeal will be so
considered.
By
agreement of the parties the case is submitted to this court
on an agreed statement of facts which, omitting the caption
and exhibit thereto attached, is as follows:
'It is stipulated and agreed by and between C. H. Myers
d. b. a. Myers Cleaners, plaintiff herein, and Erwin Clemens, as legal counsel and city solicitor of
Defiance, Ohio, that this cause is hereby submitted to the
court upon the pleadings and the following statements;
however, it is agreed that this stipulation shall be
considered and made a part of the proceedings and record in
this action.
'Stipulations.
'That on or about the 2nd day of October 1934, the
council of the city of Defiance, Ohio, duly passed ordinance
No. 1024, titled 'An ordinance regulating and licensing
dry cleaning, dyeing, pressing, carpet cleaning, laundering
and hat cleaning establishments and solicitors,' which
said ordinance now appears as being in full force and effect
in said city, and is in the words and figures, as follows, to
wit:
"Ordinance
No. 1024.
"An ordinance regulating and licensing dry cleaning,
dyeing, pressing, carpet cleaning, laundering and hat
cleaning establishments and solicitors.
"Be It Resolved by the Council of the City of Defiance,
State of Ohio:
"Section 1. It shall be unlawful for any person, firm or
corporation to engage in the business of dry cleaning,
pressing or laundering of clothing, wearing apparel,
household furnishings, linens or wash goods of any kind, or
to solicit any such business in the city of Defiance, Ohio,
without first applying to the mayor for a license to do so,
which application shall state the name under which such
business is operated and the names of the officers or
individuals conducting the same, together with the place of
business and the location of the establishment at which the
work is actually done, and the name of the person, firm or
corporation that owns or operates the establishment where
said work is actually carried on. The fee for such license to
be the sum of five ($5) dollars per annum, which license
shall be obtained on or before the first day of June each year and expiring at midnight on the 31st day
of May of each year.
"Section 2. In all instances where it appears from the
application that the establishment, where such work is
carried on and such cleaning, pressing or laundering done, is
owned or operated by any other person than the applicant, it
is mandatory that the applicant in the conduct of such
business and in any and all advertising of every kind and
nature, state that said applicant is acting only in the
capacity as agent for the person, firm or corporation
actually doing the cleaning or pressing and stating the
location of said establishment; and where it appears from the
application that neither the establishment where such
cleaning or pressing or both are carried on is located in the
city of Defiance, Ohio, it shall be necessary for such
applicant, Before a license may be issued, to deposit with
the city treasurer a bond in the sum of not less than one
thousand dollars ($1,000) cash, conditioned that such
applicant, person, firm or corporation, shall well and truly
account for all property removed from the city of Defiance,
Ohio, for either cleaning or pressing purposes, or both, and
in case of loss or destruction indemnify owners of such
property for the value thereof.
"The provision requiring a cash bond shall not apply
however to any person, firm or corporation who maintains and
operates in the city of Defiance, Ohio, an establishment
where either the cleaning or the pressing or both are carried
on. The said bond shall remain in the hands of the treasurer
for ninety days after the last day of operation by said
person, firm or corporation in said city of Defiance.
"Section 3. If applicant is a corporation and does not
have its office and principal place of business in Defiance,
Ohio, or if any individual or partnership and such individual
and all of said partners do not reside in said city of
Defiance, the applicant shall give the
name and address of such adult person, resident of the city
of Defiance, Ohio, upon whom service of summons can be had in
any civil action brought against said applicant by any
resident of the city of Defiance, Ohio. Said applicant shall
expressly agree in said application that service of summons
upon the agent so designated in any civil action brought
against said applicant by any resident of said city of
Defiance, Ohio, shall be service upon the principal and shall
be recognized in any court of law in Defiance county, Ohio,
as good and valid service upon said principal.
"Section 4. Any person, firm or corporation violating
any of the provisions of this ordinance shall be deemed
guilty of a misdemeanor and fined not to exceed three hundred
($300) dollars, or by imprisonment in the county jail for not
to exceed thirty (30) days, or by both such fine and
imprisonment.
"Section 5. If any section of the ordinance shall be
declared null and void, the other sections shall nevertheless
remain in full force and effect.
"Section 6. This ordinance shall take effect and be in
force from and after the earliest period allowed by law.
"Passed: October 2nd, 1934.
"Approved: October 2nd, 1934. Joe C. Krutsch, Mayor.
"Attest: W. A. Hull, Clerk.
"John K. Bridenbaugh,
"President of Council.
"I, W. A. Hull, clerk of council of the city of
Defiance, Ohio, hereby certify that the above and foregoing
ordinance No. 1024 was duly and regularly published in The
Defiance Crescent News, an independent paper, published and
of general circulation in the city of Defiance, Ohio, on
October 6th and 13th, 1934.'
'That the first license as issued under ordinance No.
1024 in said city of Definance, Ohio, to any firm, person, partnership, or corporation was issued as
of the 20th day of September 1938.
'That on or about the 9th day of September 1938, Joe C.
Krutsch, mayor of the city of Definance, Ohio, forwarded by
mail to Myers Cleaners at 516 Clinton street, Defiance, Ohio,
a letter or notice, in the words and figures, to wit:
"September
9th, 1938.
"To:
Myers Cleaners
"516
Clinton St., City.
"Honorable Personnel:
"You are hereby notified that it is the intention of the
city of Defiance to enforce ordinance No. 1024, regulating
and licensing dry cleaning, dyeing, pressing, carpet
cleaning, laundering and hat cleaning establishments and
solicitors
...
