
    No. 366
    HAWTHORNE v. FISH, TREAS.
    U. S. Dist. Court, S. D. Ohio, W. D.
    No. 134 in Equity.
    Decided Jan. 16, 1925.
    923. PLEADINGS—Allegation in bill of complaint that certain act is “unlawful and unconstitutional” is mere conclusion of law and no cause of action exists.
    Attorneys—Alexander R. Hawthorne for Hawthorne; Kenneth Little for Fish; both of Troy.
   HICKENLOOPER, DJ.

This case came on to be heard upon motion to dismiss the bill of complaint of Hawthorne, upon the ground that the constitutional question raised has been fully adjudicated by the U. S. and the Ohio Supreme Courts. Hawthorne alleged that he as taxpayer brought the original suit in behalf of the city of Troy. It seems that a tax or assessment had been levied against Troy by Wm. Fish, treasurer of Miami county, which is claimed by Hawthorne to be unlawful as abridging the privileges and immunities of citizens of the United States as written in its constitution. The Court in granting Fish the motion to dismiss, held:

1. The bold statement of violation of a constitutional right, which in effect, is no more than a conclusion of law, is wholly insufficient to raise the bond fide constitutional question necessary to confer jurisdiction upon the court.

2. Numerous courts have held that the enactment has been a valid exercise of the constitutional power of the legislature. Miami County v. Dayton 92 OS. 215.  