OPINION
On Application for Rehearing.
By THE COURT:Submitted on the application of plaintiff-appellant for rehearing. Four reasons are assigned.
1. The Court does not specifically state whether .or not the judgment of the Common Pleas Court of Montgomery County, Ohio, in the within cause was affirmed or reversed.
Such a determination would not be proper on this appeal which is on law and fact. A judgment will be entered in this court as upon de novo trial. We recognize that the action here for declaratory judgment is at law and that the questions decided are law questions. But, as the appeal is noted upon questions of law and fact and no objection was made to proceeding as upon this type of appeal, we have so considered it.
2. The Court wholly ignored and failed to pass upon the fact that Ordinance 15937 of the City of Dayton, Ohio, deprives a public servant of his constitutional right to an appeal from the decision of the Common Pleas Court of Montgomery County, Ohio.
This is the first and only time that this question has been suggested. Without respect to the effect of the provisions of the ordinance, plaintiff-appellant has had full and unrestrict*147ed right to present and have his appeal adjudicated upon the one issue which was subsisting at the time the appeal was presented to this court.
3. The Court in effect has ruled upon the validity of an ordinance not in effect at the time of the institution of the present action.
We have stated fully our reasons for the refusal to determine what we have found to be a moot question; see also 2 O. Jur., 586, 587, 588. Any further discussion would be a work of supererogation. Obviously, the city, by the enactment of the new ordinance, having yielded and acceded to the judgment of the Common Pleas Court, could not be heard to urge the invalidity of the ordinance in this respect in any future proceeding.
4. At the instance and demand of the Court, counsel in the within cause were required to stipulate in regard to matters which did not affect the parties hereto at the time of the filing of this action but which does affect taxpayers of the City of Dayton and parties to another legal action which has not been heard upon its merits and is not at present before this Court.
We are of the opinion that the stipulation was appropriate in this cause for the reasons stated in our original opinion.
Our attention is again directed to Grant v The Village of Hyde Park, 67 Oh St 166, and City of Cleveland v Division 268, etc., 30 OO 395. We did not discuss these cases because we do not feel that the law therein enunciated is dispositive of any question presented on this appeal.
The application for rehearing will be denied.
HORNBECK, P. J., MILLER and WISEMAN, JJ„ concur.