State ex rel. Hunter v. Erickson, 39586
Decision Date | 27 April 1966 |
Docket Number | No. 39586,39586 |
Parties | , 35 O.O.2d 151 The STATE ex rel. HUNTER, Appellant, v. ERICKSON, Mayor, et al., Appellees. |
Court | Ohio 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.
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.
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 (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:
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:
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:
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