Otto v. Somers, 15565.
| Decision Date | 05 June 1964 |
| Docket Number | No. 15565.,15565. |
| Citation | 332 F.2d 697 |
| Parties | Walter OTTO, a taxpayer of the City of Dayton, Ohio, Plaintiff-Appellant, v. Hon. Frank R. SOMERS, Mayor of the City of Dayton, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Walter Otto, in pro. per.
W. Erwin Kilpatrick, Asst. City Atty., Dayton, Ohio, Herbert S. Beane, City Atty., Dayton, Ohio, on brief, for appellees.
Before MILLER and EDWARDS, Circuit Judges, and McALLISTER, Senior Circuit Judge.
Plaintiff-appellant brought a class action, as a taxpayer of the City of Dayton, Ohio, against the Mayor, the City Commissioners, and the Director of Finance of that city, for deprivation of his civil rights and for the deprivation of the civil rights of all other taxpayers of Dayton. He alleged that jurisdiction of the action was founded on Article 3, Section 2, of the Constitution of the United States; on the Fourteenth Amendment to the Constitution of the United States; on Title 28 U.S.C.A. § 1348; and on Title 42 U.S.C.A. §§ 1983 and 1988. He claimed a judgment against the defendants in the amount of $4,000; "reasonable compensation to plaintiff therefrom, for expenses and services herein; and the special amount of $0.03 therefrom for damage to plaintiff; and injunction to enjoin defendants from threatened payment in the amount of $2,000; and costs."
The District Court dismissed appellant's complaint for want of jurisdiction.
It appears that the facts giving rise to plaintiff's claim are as follows: The Mayor and city officials of Dayton desired to conduct a secret investigation with regard to suspected corruption involving the police force of the municipality. In carrying out their investigation, they employed private detectives; they approved and ratified payment for such services in the amount of $4,000; and they will ratify the payment of a further sum of $2,000 for the services rendered by the private detective firm. Plaintiff claims that the Mayor and city officials acted in concert under color of state law, adopting resolutions to carry out their purposes and ratifying such necessary expenditures; that no record of any public proceeding appears upon the minutes and journal of the Commission of the City of Dayton in the office of the Clerk of the Commission, showing that the Commission had, prior to its resolution "recorded its contemplation of the purpose and necessity of said services, and the probable cost thereof," and that, in sum, the resolution ratifying the payment of the expenditures was legally void and the payment unauthorized because it did not comply with certain charter provisions, namely, that the resolution was not signed by the Mayor or two Commissioners; that it contained more than one subject, which was not clearly stated in the title; that certain expenditures were made before adoption of the resolution became effective; that the resolution was not published at least once within ten days after its final passage; that a written contract for the services involved was not prepared as required by the city charter; and that the services of the private detectives investigating the Police Department were provided without direction and control of the City's Chief of Police. Numerous other similar violations of the charter provisions are set forth in the Complaint, and are not necessary to be here recounted.
The chief provision of the United States Constitution relied upon by appellant is Amendment XIV, Section 1, which provides:
The principal statutes upon which appellant relies are Title 28 U.S.C.A. § 1343, and Title 42 U.S.C.A. §§ 1983, 1985, and 1988.
Title 28 U.S.C.A. § 1343, insofar as herein applicable, provides that the district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person because of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in Section 1985 of Title 42; to redress the deprivation under color of State law, statute, ordinance, regulation, custom or usage, of any right secured by the Constitution of the United States, or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; and to recover damages or secure equitable or other relief under any Act of Congress providing for the protection of civil rights.
Title 42 U.S.C.A. § 1983, provides, insofar as herein applicable, that every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Title 42 U.S.C.A. § 1985, insofar as herein applicable, provides that if two or more persons in any State conspire to deprive another of the equal protection of the laws, the party so injured or deprived, may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.
Title 42 U.S.C.A. § 1988, is not relevant to the issues raised in the present case.
Section 1 of the Fourteenth Amendment has no application to this case. There is no law, statute or ordinance, here involved, which abridges the privileges or immunities of citizens of the United States, nor have any of the ordinances of the City of Dayton, upon which appellant relies, deprived any person of life, liberty, or property without due process of law, nor have they denied to any person within its jurisdiction, the equal protection of the laws. Certainly, appellant has not been denied the equal protection of the laws as he is in the same situation as all other citizens and taxpayers of the municipality involved. "The prohibition of the Equal Protection Clause goes no further than the invidious discrimination." Williamson v. Lee Optical Co., 348 U.S. 484, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563. "The equal protection clause of the Fourteenth Amendment is not violated unless there is shown the element of intentional or purposeful discrimination." Hughes v. Heinze, 268 F.2d 864, 870 (C.C.A.9).
Title 42 U.S.C.A. § 1983, is relied upon, in this case, to grant redress, for that which is condemned and forbidden by Section 1 of the Fourteenth Amendment to the Constitution of the United States....
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Moor v. County of Alameda 8212 10
...a federal cause of action for the violation of federal civil rights. See Pierre v. Jordan, 333 F.2d 951, 958 (CA9 1964); Otto v. Somers, 332 F.2d 697, 699 (CA6 1964); Post v. Payton, 323 F.Supp. 799, 802—803 (EDNY 1971); Johnson v. New York State Education Dept., 319 F.Supp. 271, 276 (EDNY ......
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Baskin v. Parker
...a federal cause of action for the violation of federal civil rights. See Pierre v. Jordan, 333 F.2d 951, 958 (CA9 1964); Otto v. Somers, 332 F.2d 697, 699 (CA6 1964); Post v. Payton, 323 F.Supp. 799, 802-803 (E.D.N.Y.1971); Johnson v. New York State Education Dept., 319 F.Supp. 271, 276 (E.......
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Ridenour v. Collins
...864 F.2d 97, 98 (10th Cir.1988); Harding v. American Stock Exchange, Inc., 527 F.2d 1366 (5th Cir.1976). See also Otto v. Somers, 332 F.2d 697, 699 (6th Cir.1964) (per curiam) (§ 1988 irrelevant to issues raised in taxpayer suit against municipal officials in absence of deprivation of feder......
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Bussie v. Long, Civ. A. No. 3345.
...excess of $10,000 * * *." See, also, Olan Mills, Inc. of Tennessee v. Opelika, Alabama, 207 F.Supp. 332 (M.D. Ala., 1962); Otto v. Somers, 332 F.2d 697 (CA 6, 1964), cert. den. 379 U.S. 1002, 85 S.Ct. 723, 13 L.Ed.2d 703; Gray v. Morgan, Commissioner, etc., 251 F. Supp. 316 (W.D.Wis., 1966)......