Alf v. Hunsicker, Clerk

*51 OPINION By MATTHEWS, PJ.: The plaintiff was a deputy 'clerk in the office of the Clerk of Courts of Hamilton County under appointment by the defendant, acting under authority conferred upon him by §2871 GC, by which it is provided that: “The clerk may appoint one or more deputies to be approved by the court of common pleas if in session.” His appointment was approved by the court of common pleas. The plaintiff alleged in his petition that the defendant discharged him for the ostensible reason that he, the plaintiff had become dissatisfied with his position and his pay, had been hostile and non-cooperative and inattentive to duty, whereas the actual reason, in accordance with prior notice given to him by the defendant, was that he had become a member of a labor union; and, that in discharging him the defendant did not obtain or seek the approval of the court of common pleas. The plaintiff alleged that his discharge violated both §2871- GC, in that it was without the approval of the court of common pleas, and §6241-1 GC, which renders void every undertaking or promise between any individual, firm, company, association, or corporation and any employee or prospective employee, not to join or to withdraw from a labor organization. The plaintiff prayed in his petition for a declaratory judgment setting forth the rights, duties, and obligations, for a finding that he was entitled to a full hearing before impartial judges constituting a joint session of the court of common pleas to determine whether his discharge was for good cause, for a declaration that membership in a labor union was not a valid basis for a discharge and that the defendant was without power under §6241-1 GC, to discharge him for said reason, and “Further plaintiff prays - for re-instatement’ to his former position and for such other relief as the court may deem proper in the premises. Further that the court may make such further order either by injunction or otherwise as the court may deem necessary to make the declaration of this court effective.” The defendant filed an answer alleging various defenses, to which the plaintiff replied. The defendant then filed a motion for judgment on the pleadings. This motion was sustained. The court then coming to enter judgment “ordered, adjudged, and decreed that a judgment be entered in favor of the defendant, that the *52 petition of the plaintiff be dismissed and that the costs of the within action be awarded against the plaintiff.” This appeal is from that judgment. The motion for judgment was considered by the trial court as raising the same issues as would a general demurrer. 31 O. Jur., 876, et seq. We so consider it. The legal effect of sustaining the motion was a finding that the petition failed to state a cause of action. And the judgment that followed “is a judgment on the merits, and when sustained in favor of the one who. makes the motion, results in a final judgment in his favor.” Id., at page 884. By §9 GC, 'it is enacted that “A deputy, when duly qualified, may perform all and singular the duties of his principal. A deputy or clerk appointed in pursuance of law, shall hold the appointment only during the pleasure of the officer appointing him.” It is admitted that §9 GC, has never been expressly repealed. It is urged, however, that §2871 GC, and §6241-1 GC, are inconsistent with it, and operate to repeal it by implication. The members of this Court are unanimous in the opinion that neither of these sections conflict in any way with Section 9. Sec. 2871 GC, relates to the manner of' appointment of deputies, and has nothing to do with the manner of their discharge. Sec. 6241-1 GC, relates to contracts of hiring or employment by “any individual, firm, company, association, or corporation.” It has no relation to appointment or discharge of deputies by public officials. There can be no question, therefore, that the defendant as clerk was given the power to end the plaintiff’s tenure as his deputy, without assigning any reason therefor. The fact that he assigned reasons does not qualify the act of terminating plaintiff’s tenure. We are agreed upon that also. But the plaintiff urges that his action is for a declaratory judgment, and that, therefore, he is entitled, regardless of all other considerations, to a judgment in which is set forth expressly and in detail a finding by the court of the rights, duties, obligations of the parties. The majority of the court does not follow the plaintiff in this contention. We believe that position would be sound in a case in which no affirmative relief is prayed for or could be granted, and the declaration is desired against the time when a cause of action for affirmative relief would accrue, or in a case where the only relief sought or which in any event at any time could be granted, is a judgment declaring rights, such as, an action to remove a cloud from title; but this is not such an action. *53 .Whatever relief to which the plaintiff will ever be entitled, he was fully entitled to at the time this action was filed, and he filed his action in a court having jurisdiction to grant him that ultimate relief, and he prayed for it. The finding or declaration of his rights was of significance only as forming a predicate for the affirmative relief sought, that is, re-instatement as a deputy clerk. Now, instead of encumbering the record with a detailed finding as to each asserted right, the court made the general finding that he had none of the rights asserted by him, and refused him the affirmative relief for which he had prayed. Having reached the conclusion that he was not entitled to re-instatement as a deputy clerk, a detailed finding of asserted rights would serve no purpose and would have been "a declaration upon a moot issue, which was not intended by the declaratory judgment act. We have been required to construe and apply the Declaratory Judgment Act (§12102-1, et seq GC) in several cases. We refer to two — Bruckman v The Bruckman Co., 60 Oh Ap, 361, and Samuels v The United States Holding Co., 76 Oh Ap, 163. In the former, we reversed a judgment for defendant entered on sustaining a demurrer to the petition, and in the latter we affirmed a judgment for plaintiff entered upon a motion for judgment at close of plaintiff’s opening statement. The only finding in both judgments was a general one on the issues in favor of the party for whom judgment was rendered. The reason for the difference in the result is found in the issues raised in the cases. The Bruckman case was by a dissenting stockholder and raised the question of his rights upon an amendment of the articles of incorporation under §8623-72 GC. If the corporation had complied with all the provisions relating to amendments of the articles of incorporation, it was entitled to proceed. If the amendment was such as to give the plaintiff as a stockholder the option to insist on their fair cash value, then to avail himself of that option, it was necessary for him to comply with all the conditions imposed by law. The statute provided a special procedure for fixing the value of the stock in the event of disagreement. Furthermore, the corporation could withdraw from the program and thus terminate the right of the dissenting stockholder to have the fair cash value of his stock. If can be seen from.this, that the facts in- that case called for a declaration of rights, because the rights of the parties had not become definitely fixed at the time. A different situation existed in Samuels v The United States Holding Company, supra. In that case the plaintiff stockholder sought to require a liquidation of a corporation’s affairs *54 ■contrary to the desires of its board of directors. There was no conceivable future purpose .to be served by entering a judgment, detailing the rights and duties growing out of the relation existing between a stockholder and a corporation and its ■directors. Accordingly, we held that a general finding was .sufficient. What we said there, we think pertinent here, and, •therefore, quote it: “But it is said that this is an action for a declaratory judgment, and that no matter what view the court might take on the merits of the plaintiff’s contention, he is ¡entitled to a •declaration of rights. “This is an action for a declaratory judgment only in the sense that every action seeking immediate relief involves a finding of law as well as of fact. What the plaintiff seeks is a •distribution of assets at once — not a declaration of rights to control future action. Under such circumstances it would seem that a dismissal of the action upon the opening statement would be a sufficient declaration that on the merits he has shown no cause of action. “Assuming, however, that the case can be classified as one .for a declaratory judgment in the strict sense, the court is not bound under all circumstances to make a declaration. In Walker v Walker, 132 Oh St, 137, 5 N. E. (2d), 405, the court, at page 139 said: “ ‘The declaratory judgment act is a salutary, remedial measure and should be liberally construed and applied, but, as in the instant case it does not require a court to. render a futile judgment that ‘would not terminate’ any ‘uncertainty •or controversy’ whatsoever. Under the circumstances here present it was proper for the trial court to dismiss the plaintiff’s petition.’ “In 16 American Jurisprudence, 287; Section 14, it is stated: “ ‘It is' generally considered that the jurisdiction to render a declaratory judgment is discretionary in character.’ “And at page 288: “ ‘In general, the courts refuse to grant declaratory judgments unless it appears that such a judgment will fulfill the .purpose of the declaratory judgments act by being of some practical help in ending the’controversy or stabilizing disputed legal relations.’ “See, also, Schaefer v First National Bank of Findlay, 134 Oh St., 511, 18 N. E. (2d), 263. “The dismissal upon the opening statement was a declaration that the plaintiff has no cause of action for relief upon any theory of law applied to the facts. And as to a finding or *55 declaration on the subject of trust relationship, the petition does not allege such a relationship. As to the relation of shareholder and corporation, that status was never in dispute. Not only was it admitted, but it was also found by the court. Under such circumstances, a declaratory judgment could be no more specific or efficacious than the Corporation Code itself.” It should be said in conclusion that as the pleadings-allege no accrued or inchoate Cause of action for other relief, no possible prejudice could result to the plaintiff from failure to make an express affirmative declaration of rights, duties,, and status in relation to the situation portrayed .in the pleadings. This Court is only justified in reversing a judgment for prejudicial error. For the foregoing reasons, the judgment is affirmed. MATTHEWS, PJ, & HILDEBRANT, J, concur in syllabus, opinion & judgment. ROSS, J, dissents in separate memorandum, but concurs-in the 1st and 4th paragraphs of the syllabus.