concurring in the judgment. I concur with the view of the majority that Section 3 of the ordinance is constitutionally repugnant and is severable from the remainder of the ordinance, although I am of the opinion that the function of the court to make even that determination in this case hangs by a brittle thread.
The single plaintiff here is a citizen of, a taxpayer in, and an owner of two parcels of real estate in the city of Oberlin. Only one parcel contains a dwelling, and that is a single-family home occupied by the plaintiff. But, the plaintiff is neither an “owner” nor an “agent” nor a “lending institution” as defined in the ordinance. He does not allege or prove that he has any intention of coming within the purview of those terms, nor does he make any complaint that he might be unable, upon the future sale of his property, to engage a broker or agent who would be unfettered by the restrictions of the ordinance. Consequently, as an individual he is not in any way subject to or affected by any of the provisions of the ordinance, to any greater extent than all the other citizens and taxpayers in that city generally. Of. dissenting opinion of Mr. Justice Butler in *158Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U. S. 118 (holding complainants did not show required interest and sustaining dismissal of bill), at page 152, where he criticizes the decision of the court for not recognizing that plaintiffs ‘ ‘ are not asserting a right held, or complaining of an injury sustained, in common with the general public” but a right peculiar to themselves.
The plaintiff brings this suit solely as a taxpayer, after request upon the city solicitor to bring the action and the refusal of that request, pursuant to Section 733.59, Revised Code. He therefore has the same right of action as the city solicitor if the latter had commenced the action initially or after request. Cincinnati Street Bd. Co. v. Smith, 29 Ohio St. 291. See, also, City of Cincinnati v. Kellogg, City Mgr., 86 Ohio App. 518, affirmed, 153 Ohio St. 291.
We are thus concerned with the question of whether this is an action which the city solicitor could have brought under Section 733.56, Revised Code, which reads as follows:
“The solicitor shall apply, in the name of the municipal corporation, to a court of competent jurisdiction for an order of injunction to restrain the misapplication of funds of the municipal corporation, the abuse of its corporate powers, or the execution or performance of any contract made in behalf of the municipal corporation in contravention of the laws or ordinance governing it, which was procured by fraud or corruption.”
At the outset, we can eliminate the third ground for the action stated in the statute. And, I would have preferred to dispose of the first statutory ground for the action under the maxim, “He minimis non ciorat lex” (see Dennison West 25th Street Improvement Co. v. Great Atlantic & Pacific Tea Co., 46 Ohio Law Abs. 246), by holding that the purported expenditure of public funds is either so indefinite or would be so insubstantial as not to afford a basis for the action, because the record shows only that, in the enforcement of Section 3 of the ordinance, there is merely a possibility that secretarial employees of the city might be utilized, that a number of postage stamps and some stationery belonging to the city might be used or consumed, and that notices might have to be served.
*159However, a majority of this court has removed Section 3, and the ordinance thus shorn of its investigative procedure stands as a bare criminal sanction, entailing the expenditure of no more public funds than might be involved in any prosecution conducted by the city’s police and law departments.
At this juncture, my concurrence with the majority opinion ends because I am unable to perceive any propriety in proceeding to determine the constitutionality of the remainder of the ordinance at the instance of a party whose property rights or business interests will not be touched thereby, much less irreparably damaged.
The court proceeds on the theory that this action raises a question of “abuse of * # * corporate powers” of the city of Oberlin and on the advice of counsel for both parties that such a question permits a determination of constitutionality. It hardly deserves repeating that neither the parties nor their counsel by agreement can confer jurisdiction on the court.
The proper question to be determined is: Does the phrase, “abuse of its corporate powers,” as used in Section 733.56, Revised Code, contemplate an action to determine the constitutional validity of an ordinance in a suit brought by a solicitor at his own instance or at the instance of one not directly affected thereby? If the answer is in the affirmative, then the plaintiff here is a real party in interest, substituting for the solicitor who refused his request to proceed. If the answer is in the negative, he is not.
Apart from those cases involving substantial expenditures claimed to be illegal, actions have been maintained by corporate counsel or taxpayers, on the basis of abuse of power, to contest the validity of a city’s failure to adopt and use a system of rates for power plants pursuant to statute (Butler v. Karb, Mayor, 96 Ohio St. 472); of a council’s permission to lay pipes in a public street (Kumler v. Silsbee, 38 Ohio St. 445); of the vacation of a public street (Zetzer v. Lundgard, 95 Ohio App. 51); of the appropriation of a street for private use without council’s permission (City of Wilmington v. Buckley, 86 Ohio App. 117); of an act claimed to be in violation of the trust upon which title to a public street was held (United States Bung Mfg. Co. v. City of Cincinnati, 73 Ohio App. 80); and of an *160ordinance authorizing a single councilman to execute a development contract (Sharon Realty Co. v. Westlake, 90 Ohio Law Abs. 175, 184).
State, ex rel. Sergi, v. City of Youngstown, 68 Ohio App. 254, states that any attempt to circumvent the Constitution amounts to an abuse of power. The action was brought by a taxpayer not specially interested, but the court held that an ordinance carrying penalties for the failure to obtain a license for games of skill intended to be operated by the insertion of a slug or coin (which games could easily be converted into gambling devices), not for the use of such devices, was invalid as contravening state law.
Elyria Gas & Water Co. v. City of Elyria, 57 Ohio St. 374, states in the last sentence of paragraph six of the syllabus that an “abuse of corporate powers” within the purview of Section 1777, Revised Statutes (now Section 733.56, Revised Code), includes the unlawful exercise of powers possessed by the corporation, as well as the assumption of power not conferred. But this statement cannot be taken as the law of the case because the questions involved were whether ordinances to pur- ' chase waterworks and to erect new ones could be combined, and whether the power of determining when bonds should be issued for such purposes could be delegated to the mayor or another person by council. So the questions decided related to the unlawful exercise of powers possessed by the corporation rather than the assumption of power not conferred.
On the other hand, extensive research discloses no Ohio case authorizing a solicitor to contest the constitutionality of a criminal ordinance as an “abuse of corporate powers” in the absence of the question of an expenditure of funds, nor does that research disclose any case authorizing a taxpayer or any other person to raise the constitutional question, where such person claims no special interest or damage to himself or to his property or claims no misapplication of public funds. Indeed, it is impossible to support the logic of plaintiff’s position that the city of Oberlin has “abused” a power which he claims it constitutionally cannot possess.
By the holding that Section 3 of the ordinance is unconstitutional, the remainder of this action is removed from the scope *161of Section 733.56, Eevised Code. Consequently, it is beyond the scope of Section 733.59, and it amounts to a casual request that chancery enjoin the enforcement of a criminal enactment by one who neither alleges nor proves a probability or likelihood of enforcement against him or of injury to him. I cannot believe that the majority of this court would countenance the action if it were so labeled, nor do I believe it should do so in this case. Troy Amusement Co. v. Attenweiler, 137 Ohio St. 460; Olds v. Klotz, 131 Ohio St. 447; Jacob Kauffman Brewing Co. v. McElligott, Collr., 259 F. 525; Burton v. City of Toccoa, 158 Ga. 63, 122 S. E. 603.
As to criminal ordinances, the solicitor is not the defender of the public’s interest. On the contrary, it is his duty to enforce them. It seems palpably unfair to one who immediately is subject to the sanctions of a newly enacted criminal ordinance that we should permit the law department of a municipal corporation first to bring the enactment to court for its stamp of constitutionality, thus foreclosing the right of the prospective defendant to raise the question of its validity on facts and circumstances peculiar to his own case. If this should be the rule, we open wide the door to serious abuses in our criminal processes.
Speaking of the “self-denying ordinance” of the Supreme Court of the United States that it will exercise its jurisdiction to pronounce a statute void as irreconcilable with the Constitution only as it is called upon to adjudge the legal rights of litigants whose interests entitle them to raise the question in actual controversies (Liverpool, New York & Philadelphia Steamship Co. v. Commissioners of Emigration, 113 U. S. 33, 39, Blair v. United States, 250 U. S. 273, 279), Professor Freund finds its rationale in a “conviction that the framework of a traditionally adversary proceeding furnishes a safeguard against premature or ill-advised decisions in the constitutional field. Especially is this true of issues of constitutionality which turn, as they increasingly do, on questions of fact and degree and application to persons and circumstances.” Freund, The Supreme Court of the United States (Meridian Press), page 17.
This court would be well advised not only to retain this small measure of self-restraint, but also to attend the further *162advice of Mr. Justice Matthews in Liverpool, supra, at page 39:
“* * * In the exercise of that jurisdiction, it [the court] is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other, never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. These rules are safe guides to sound judgment. It is the dictate of wisdom to follow them closely and carefully.”
Before speculating that the Supreme Court of the United States has observed these rules more often in the breach than in their observance, the concurring opinion of Mr. Justice Brandéis in Ashwander v. Tennessee Valley Authority, 297 U. S. 288, at page 341, and the multitude of cases cited therein, should be consulted, especially at page 347, where the following appears:
“5. The court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. Tyler v. The Judges, 179 U. S. 405; Hendrick v. Maryland, 235 U. S. 610, 621. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained. Columbus & Greenville Ry. v. Miller, 283 U. S. 96, 99-100. In Fairchild v. Hughes, 258 U. S. 126, the court affirmed the dismissal of a suit brought by a citizen who sought to have the Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, 262 U. S. 447, the challenge of the federal Maternity Act was not entertained although made by the Commonwealth on behalf of all its citizens.”
See, also, 16 Corpus Juris Secundum, Section 94 (Constitutional Law). For another collection of cases wherein the Supreme Court of the United States has adhered to these rules, see note 46, at 16 Corpus Juris Secundum 315.
I am not unmindful that the prayer of the petition also seeks a declaratory judgment. I do not dispute that a solicitor may obtain the benefit of Chapter 2721, Revised Code, in a proper case under Section 733.56. It follows that a taxpayer *163may likewise seek a declaratory judgment in a proper case under Section 733.59. However, I have already set forth my view that the plaintiff, both individually and as a taxpayer, is a stranger to the issues herein, and the Declaratory Judgment Act retains the rule that an action may be brought only by one who shows that his rights, status, or other legal relations will be affected. Section 2721.03, Revised Code.
I would modify the judgment of the Court of Appeals to the extent of requiring that court to issue an injunction restraining the enforcement of Section 3 of the ordinance, and affirm that part of the judgment denying an injunction against enforcement of the remainder of the ordinance, for the reasons stated above. To this extent, I concur in the judgment but differ as to its basis. I do not refrain to express an opinion on the reasoning of the majority simply from choice, but from what I deem to be the profound duty of a member of this court.