State ex rel. Hunter v. Erickson, 39586

Decision Date27 April 1966
Docket NumberNo. 39586,39586
Parties, 35 O.O.2d 151 The STATE ex rel. HUNTER, Appellant, v. ERICKSON, Mayor, et al., Appellees.
CourtOhio Supreme Court

Appeal from Court of Appeals for Summit County.

The facts are stated in the opinion by Herbert, J.

Norman Purnell and Bernard R. Roetzel, Akron, for appellant.

R.C. Sheppard and Paul M. McKosky, Akron, for appellees.

PER CURIAM.

Four members of the court are of the opinion that the judgment of the Court of Appeals should be reversed, and the cause remanded with instructions to overrule the demurrer and for further proceedings according to law.

Judgment reversed.

TAFT, C.J., and ZIMMERMAN, O'NEILL and HERBERT, JJ., concur.

MATTHIAS, SCHNEIDER and PAUL W. BROWN, JJ., dissent.

HERBERT, Judge (concurring).

On July 14, 1964, the Council of the city of Akron passed ordinance No. 873-1964 which prohibits discrimination in the sale or rental of houses by reason of race, color, religion, national origin, or ancestry.

Section 2 of the ordinance provides that:

"To effectuate said policy there is hereby created in the office of the Mayor a Commission on Equal Opportunity in Housing, which shall consist of five members who shall be appointed by the Mayor ***."

The Council of the city of Akron later adopted ordinance 926-1964 amending section 6 of the original ordinance, as follows:

"Section 1. That section 6 of ordinance 873-1964, passed July 14, 1964, be and the same is hereby amended to provide as follows:

"Section 6 Enforcement Procedure

"(a) A complaint charging a violation of this ordinance may be made by the commission itself or by an aggrieved individual.

"(b) The commission shall make a prompt and full investigation of each complaint of an unlawful housing practice.

"(c) If the commission determines after investigation that a probable cause exists for the allegations made in the complaint, it shall attempt to eliminate the alleged unlawful housing practice by means of conciliation and persuasion. ***"

Section (d) provides for a public hearing in the event of a failure to eliminate "the alleged unlawful housing practice charged in the complaint by means of conciliation or persuasion ***." The power of subpoena is conferred upon the commission, and at such public hearing it may be proposed that a full and complete investigation be made. The ordinance then proceeds:

"(e) If upon all the evidence presented, the commission finds that the respondent has not engaged in any unlawful housing practice, it shall state its findings of fact, dismiss the complaint. If upon all the evidence presented the commission finds that the respondent has engaged or is engaging in an unlawful housing practice, it shall state its findings of fact and shall issue such order as the facts warrant.

"(f) In the event the respondent fails to comply with any order issued by the commission, it shall certify the case and the entire record of its proceedings to the city Director of Law for appropriate action to secure enforcement of the commission's order."

On the 26th and 27th of January 1965, relator caused the Mayor and members of the commission to be served with copies of an affidavit alleging among other averments "that in her efforts to locate desirable housing, relator was discriminated against because of her race, color, and ancestry, which discrimination" was in violation of the provisions of the amended ordinance.

Relator made written request to respondents to perform their duties pursuant to the provisions of the amended ordinance, but on January 30, 1965, the commissioners refused to "process" relator's complaint. On February 1, 1965, relator made demand upon the respondent city Director of Law to bring an action in mandamus to compel the commissioners and the Mayor to enforce the provisions of the amended ordinance. The respondent city Director of Law refused to bring the requested action, whereupon relator commenced an action in mandamus in the Court of Appeals of the Ninth Appellate District, seeking the issuance of a writ to compel respondents to perform the duties of their offices in the enforcement of the provisions of such amended ordinance.

The respondents demurred to relator's amended petition, contending that the amended ordinance was contrary to the Constitution of the state of Ohio.

The Court of Appeals sustained the demurrer, relying solely upon the case of Porter v. City of Oberlin, 1 Ohio St.2d 143, 205 N.E.2d 363.

The cause is now before this court upon appeal by relator as a matter of right.

The record in this cause raises the query whether the respondents have sufficient standing in a court of law to question the constitutionality of the ordinance.

The rule now quite firmly established in Ohio answers the question in the negative.

State ex rel. State Bridge Commission v. Griffith, Secy. of State (1940), 136 Ohio St. 334, 25 N.E.2d 847, is well in point.

There, the relator, the State Bridge Commission, brought an action in mandamus originally in this court, seeking the issuance of a writ to compel the Secretary of State to attest a temporary bridge bond pursuant to a statute requiring such bond to be signed by the Governor and the chairman of the commission and to be under the state seal and attested by the Secretary of State. The respondent, Secretary of State, demurred to the petition, claiming that the statute under which the action was brought was unconstitutional. This court, in a per curiam opinion, held that the respondent, Secretary of State, did not have the right to interpose such a defense as he would not be personally liable since the statute merely required him to perform a ministerial duty. However, by reason of the importance of the issue to the state of Ohio and its urgency and there being no other adequate legal remedy available to the relator, this court did consider the question relative to the constitutionality of the statute, held the statute to be a valid legislative enactment and ordered the writ to issue.

At page 336, at page 848 of 25 N.E.2d, in the per curiam opinion the court addresses the following question to itself:

"The first question concerns the right of the Secretary of State to raise the question of constitutionality of these statutes (Sections 1084-1 to 1084-17, General Code). Does he have such an interest in the execution of these bonds that he may contest their validity?

"Section 1084-10, General Code, requires the bonds to be signed by the Governor and the chairman of the commission, under the Great Seal of the state of Ohio, and attested by the Secretary of State. The word 'attested' means, in its general sense, 'witnessed' or 'certified.' Used as it is in this section, it does not imply that his signature is in any way an act on behalf of the state, for which he may be liable. Rather, it is a certification of the signatures of the other two signers, and is clearly a ministerial action; and he clearly has no interest in this controversy. See 25 Ohio Jurisprudence, 986, Section 14. However, where a question of general public interest is raised, some courts have taken the view that an officer may make such a defense in a mandamus suit, even where there is some doubt that the respondent has any rights in the matter." (Emphasis added.)

To the same effect is the holding in State ex rel. Lynch v. Rhodes et al., Ohio Sinking Fund Commrs., 176 Ohio St. 251, at page 253, 199 N.E.2d 393, at page 395, where, in a per curiam opinion, the court, speaks as follows:

"In determining who may question the constitutionality of a statute or ordinance, the pertinent general rules are summarized in 10 Ohio Jurisprudence (2d) 217, Constitutional Law, Section 138, as follows:

" 'It is a well-settled rule that in order to question the constitutionality of a statute or ordinance the one assailing the law must have a direct personal [pecuniary] interest in the...

To continue reading

Request your trial
5 cases
  • Board of Sup'rs of Linn County v. Department of Revenue
    • United States
    • United States State Supreme Court of Iowa
    • February 22, 1978
    ...403, 405-406, 360 N.E.2d 1086, 1088 (1977); Appeal of Martin, 286 N.C. 66, 209 S.E.2d 766, 771-773 (1974); State v. Erickson, 6 Ohio St.2d 130, 216 N.E.2d 371, 373-374 (1966); Buse v. Smith, 74 Wis.2d 550, 247 N.W.2d 141, 147 (1976); 16 C.J.S. Constitutional Law §§ 76b, 82 and 300 et seq.; ......
  • Hunter v. Erickson
    • United States
    • United States Supreme Court
    • January 20, 1969
    ...... court initially held the enforcement provisions of the fair housing ordinance invalid under state law, but the Supreme Court of Ohio reversed, State ex rel. Hunter . Page 388 . v. Erickson, 6 Ohio ......
  • Clermont Environmental Reclamation Co. v. Wiederhold, 82-280
    • United States
    • United States State Supreme Court of Ohio
    • December 15, 1982
    ......)(3), which prohibits any political subdivision of the state from [442 N.E.2d 1279] requiring any additional zoning or ... St.2d 53, 233 N.E.2d 584 [42 O.O.2d 100]; State, ex rel. Hunter, v. Erickson (1966), 6 Ohio St.2d 130, 216 N.E.2d ......
  • State ex rel. Hunter v. Erickson
    • United States
    • United States State Supreme Court of Ohio
    • December 27, 1967
    ...the Akron ordinance, this court by a vote of four to three reversed the judgment of the Court of Appeals. See State ex rel. Hunter v. Erickson, 6 Ohio St.2d 130, 216 N.E.2d 371. On remand to that court, respondents filed an answer alleging that the voters of Akron had, in November 1964, ado......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT