Opinion
No. 31348
Decided June 9, 1948.
Taxation — Exemption — Real property of board of education held for school purposes — Funds expended and improvements made preparatory to constructing school buildings — Section 2, Article XII, Constitution — Section 4834-16, General Code.
Real property, title to which is vested in and held by a board of education for school purposes and upon which funds have been expended and improvements made preparatory to the construction of school buildings thereon, may be exempted from taxation pursuant to the provisions of Section 2, Article XII of the Constitution, and of Section 4834-16, General Code, even though no schoolhouse has been constructed on such property.
APPEAL from the Board of Tax Appeals.
This case comes to this court on appeal from a decision of the Board of Tax Appeals denying applications of the appellant, Board of Education of the City School District of the City of Cincinnati, to exempt certain real property from taxation.
Between December 20, 1946, and March 13, 1947, the board of education acquired title to nine parcels of real property, comprising approximately 50 acres of land contiguously situated within the corporate limits of the city of Cincinnati, for the purpose of constructing thereon a new central vocational high-school building together with stadium and athletic field. The property involved in this proceeding constitutes a part of a 16-million-dollar-building program heretofore authorized by the electors of the city.
On or about March 21, 1947, the board of education let a contract for grading and sewering the entire area, involving an initial improvement expenditure of approximately $131,000. Work under this contract was commenced about April 1, 1947, and concluded in August or September 1947. On September 23, 1946, the board of education employed architects to prepare plans and specifications for the construction of the proposed high-school building to be located on these lands and such plans and specifications were accepted on December 8, 1947. On the latter date, the board of education employed the same architects to prepare plans and specifications for the construction of an athletic field and stadium on the same lands, which plans were to be completed and submitted to the board by March 1, 1948. The necessary funds for construction were appropriated.
On November 3, 1947, the board of education filed five separate applications with the auditor of Hamilton county to ex empt this property from taxation. Upon inspection of the property the county auditor found that each parcel should be exempted beginning with the duplicate year of 1947. The Board of Tax Appeals refused to follow the recommendations of the auditor, whereupon a hearing was had upon these applications before the board on December 10, 1947.
As of the date of the hearing before the Board of Tax Appeals, a contract had been let for the construction of the stadium, and it is admitted that it will require a considerable period of time to complete the construction of the stadium and building.
At no time after the date of the purchase of the prop. erty and the taking of title to it by the board of education was any part of it rented or otherwise used for income or gain.
On January 15, 1948, the Board of Tax Appeals rendered its decision denying the exemption of the property in question from taxation, holding that a schoolhouse must be in existence on the property before it can be so exempted.
Mr. Henry M. Bruestle, city solicitor, Mr. Robert J. White and Mr. Maurice W. Jacobs, for appellant.
Mr. Hugh S. Jenkins, attorney general, and Mr. Daronne R. Tate, for appellee.
The sole issue is whether real property, title to which is vested in and held by a board of education for school purposes and upon which funds have been expended and improvements made preparatory to the construction of a school building thereon, may be exempted from taxation pursuant to the provisions of Section 2, Article XII of the Constitution, and of Section 4834-16, General Code, even though no schoolhouse has been constructed on such property, or whether such real property must remain taxable until a schoolhouse is actually erected thereon.
The board of education takes the position that, pursuant to the provision of Section 4834-16, General Code, real property purchased by the board for public-school purposes constitutes public property and as such is eligible for exemption from taxation as and when it is wholly devoted to public use, and that this occurs as soon as the board begins to develop the property for school purposes and all other use of the property has come to an end.
On the other hand, the Board of Tax Appeals takes the position that, under Section 2, Article XII of the Constitution, even though property is owned by a board of education for public-school purposes it may not be exempted from taxation until such time as a schoolhouse actually exists upon the property.
Section 2, Article XII of the Constitution, so far as pertinent to this case, provides:
"* * * Land and improvements thereon shall be taxed by uniform rule according to value. All bonds outstanding on the 1st day of January, 1913, of the state of Ohio or of any city, village, hamlet, county or township in this state, or which have been issued in behalf of the public schools of Ohio and the means of instruction in connection therewith, * * * shall be exempt from taxation, and without limiting the general power, subject to the provisions of Article I of this Constitution, to determine the subjects and methods of taxation or exemptions therefrom, general laws may be passed to exempt * * * public school houses, * * * and public property used exclusively for any public purpose * * *." (Italics supplied.)
Section 4834-16, General Code, provides as follows:
"Real or personal property vested in any board of education shall be exempt from taxation and from sale on execution or other writ or order in the nature of an execution." (Italics supplied.)
The provisions of the Constitution authorizing the exemption from taxation of public schoolhouses and public property used exclusively for any public purpose are not self-executing. The exemption must be provided for by legislative enactment. Wehrle Foundation v. Evatt, Tax Commr., 141 Ohio St. 467, 49 N.E.2d 52. The General Assembly in the enactment of Section 4834-16, General Code, exercised its constitutional power so granted, and at the same time gave legislative interpretation of such grant of power. The question arises whether, in the enactment of Section 4834-16, General Code, the General Assembly exceeded its constitutional grant of power.
The exemption from taxation sought by the board of education was for the year 1947. The record discloses that the property in question became vested in the board of education for school purposes not later than March 13, 1947. This court concludes from the record that improvements on the property necessary for its use for school purposes were begun before April 13, 1947, tax lien day; that such improvements were necessary and proper in the dedication to and in the use of the property for school purposes; that in the acquisition and improvement of this property it became public property used exclusively for a public purpose; and that it was from that time forward devoted to no other use.
In the opinion of this court, a distinction must be made in the exemption of private property which is ultimately used for a charitable purpose and property purchased by public authorities for a public purpose and being prepared to serve the public use. The property in question was purchased by the board of education, a public entity engaged in a governmental function for the benefit of the public. Under a clear interpretation of Section 4834-16, General Code, the property became subject to exemption from taxation when title vested in the board of education. The board was without authority or power to purchase it for any other purpose than a public use. Section 4834, General Code.
This property not only became public property but was used exclusively for a public purpose and was exemptible from taxation under the express provisions of the Constitution and statutes. Board of Education of Cincinnati v. Volk, 72 Ohio St. 469, 74 N.E. 646; Dayton Metropolitan Housing Authority v. Evatt, Tax Commr., 143 Ohio St. 10, 16, 53 N.E.2d 896, 152 A. L. R., 223.
The decision of the Board of Tax Appeals is reversed and the proceeding remanded with instruction to grant exemption.
Decision reversed.
TURNER, SOHNGEN and STEWART, JJ., concur.
WEYGANDT, C.J., MATTHIAS and ZIMMERMAN, JJ., dissent.
In my opinion the decision of the Board of Tax Appeals is not unlawful or unreasonable.
Although the precise situation has not been involved in cases heretofore decided, the decision of the Board of Tax Appeals is in harmony with previous decisions of this court.
Concededly public ownership of property is not sufficient to warrant its exemption from taxation; a public use of the property is essential and mere possible public benefit, present or future, is not sufficient; nor does prospective use of the property for an exempted purpose warrant its present exemption from taxation.
WEYGANDT, C.J., and ZIMMERMAN, J., concur in the foregoing dissenting opinion.