The ordinance and lease under which a declaratory judgment and injunction are asked by plaintiffs expired prior to the case being filed for trial de novo in the Court of Appeals. Hagerman,Dir., v. City of Dayton, 147 Ohio St. 313, 71 N.E.2d 246, 170 A.L.R., 199.
If the question were before us, I would concur thoroughly with the statement of the majority of this court that a city in providing recreational facilities for the people within its jurisdiction cannot discriminate on the basis of race or color. All citizens are entitled to equal protection under the law.
I am not convinced, however, that the record establishes bad faith on the part of the public officials of the city of Warren in renting the swimming pool to the Veterans Swim Club. It seems from the record that the pool had been operated at a loss for a number of years and that the city, through its duly elected and qualified council concluded that there were not sufficient funds available to run the pool at city expense. If, in fact, the pool could not be used as a part of the city's recreational facilities and the city council, acting within its sound discretion, determined to sell it or lease it, under the provisions of Section 3631, General Code, council would have the legal right to do so. The sale or lease of such facility or property must have been *Page 399 conducted in absolute good faith and such method cannot be used as a means of avoiding the constitutional obligations of the city to afford all citizens the equal protection under the law.
HURD, P.J., MORGAN and SKEEL, JJ., of the Eighth Appellate District, sitting by designation in the Seventh Appellate District.