SEBASTIANI v. YOUNGSTOWN, 60 Ohio St.2d 166 (1979)

398 N.E.2d 558

No. 79-398Supreme Court of Ohio.
Decided December 26, 1979.

Declaratory judgments — Unconstitutionality of ordinance alleged — Attorney General required party — Cause dismissed, when.

APPEAL from the Court of Appeals for Mahoning County.

Plaintiffs are truck drivers, a truck owner who leases a garage, and the lessor thereof. They commenced this action in the Court of Common Pleas against the city of Youngstown and certain of its officials for, inter alia, “a declaratory judgment under Section 2721.03 of the Ohio Revised Code, declaring that Youngstown Municipal Ordinance Number 92311, as written and construed by the defendants, is inapplicable to plaintiffs, or that it is void, unconstitutional, ineffective, without force of law, violative of the equal protection, and violative of the due process clauses of the Fourteenth Amendment” and for a “permanent injunction enjoining defendants from enforcing said Ordinance Number 92311 against plaintiffs***.”[1]

The Court of Common Pleas granted a permanent injunction against the city of Youngstown prohibiting the enforcement of Ordinance No. 92311 against any of the plaintiffs or any of their employees or tenants in the operation of empty trucks with three axles or more on the streets used by plaintiffs in proceeding to and from the garage.

Defendants appealed to the Court of Appeals, and plaintiffs cross-appealed. Defendants’ motion to dismiss the appeal and vacate judgment and plaintiffs’ motion to remand, because the court lacked jurisdiction, were overruled. The

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Court of Appeals held the ordinance unconstitutional and affirmed the judgment of the Court of Common Pleas.[2]

The allowance of a motion to certify the record brings the cause to this court for review.

Mr. A. Robert Steiskal and Mr. Frank P. Anzellotti, Jr., for appellees.

Mr. Harold Stein, director of law, and Mr. Carl G. James, for appellants.

Per Curiam.

R.C. 2721.12 provides:

“When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration. ***In any proceeding which involves the validity of a municipal ordinance or franchise, the municipal corporation shall be made a party***, and if any*** ordinance***is alleged to be unconstitutional, the attorney general shall also be served with a copy of the proceeding and shall be heard.” (Emphasis added.)

In Malloy v. Westlake (1977), 52 Ohio St.2d 103, this court held, in the syllabus, that “[f]ailure to serve the Attorney General under R.C. 2721.12 with a copy of the proceeding in a declaratory judgment action which challenges the constitutionality of an ordinance precludes a Court of Common Pleas from rendering declaratory relief in that action.”

In this cause, the Attorney General was not made a party to the action in the Court of Common Pleas, in compliance with the provisions of R.C. 2721.12.

Accordingly, on authority of Malloy v. Westlake, supra, the judgment of the Court of Appeals is reversed and the cause is dismissed.

Judgment reversed and cause dismissed.

CELEBREZZE, C.J., W. BROWN, DOWD, SWEENEY, LOCHER and HOLMES, JJ., concur.

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HERBERT, J., dissents for the reasons stated in the dissenting opinion in Malloy v. Westlake (1977), 52 Ohio St.2d 103, 108, 370 N.E.2d 457, 460.

DOWD, J., of the Fifth Appellate District, sitting for P. BROWN, J.