The parties here have not demonstrated on the record that an actual, as opposed to an academic, controversy exists between them. The facts are that up to the time of the institution of this action, the directors of the Cleveland Trust Company have been consistently elected by the votes of an overwhelming majority of its outstanding shares, including those held by it in its fiduciary capacity. It has not been claimed that the future may produce a minority block of shareholders of a size sufficient to change that pattern so that the votes of the shares held in a fiduciary capacity would be the deciding factor if eliminated.
In view of this and the further fact, as mentioned in the opinion of the court, that the real parties in interest (the beneficiaries of the trusts involved) have not been joined in this action, the opinion of the court is advisory only and should not lie promulgated. Attempts to procure such rulings are not only unfair to other litigants who are engaged in legitimate controversies but to the judicial system itself, whose vitality depends, in part, upon the resolution of actual cases and controversies.
I would concur in a judgment expunging from the case the declaratory judgment of the court below and dismissing the action, leaving the parties in the position in which they were when the action was filed.
Herbert, J., concurs in the first paragraph of the syllabus and dissents from the judgment:In reading the statutes applicable to this appeal, I find the result reached by the majority to be contrary to the purpose of those enactments and in contravention of clear legislative intent.