Opinion
Nos. 32476 and 32477
Decided June 20, 1951.
Taxation — Exemption — Real property of metropolitan housing authority — Property used exclusively for public purpose — Sections 5356 and 1078-36, General Code — Section 2, Article XII, Constitution.
APPEALS from the Board of Tax Appeals.
These two cases are in this court on appeals from a decision of the Board of Tax Appeals granting an application for exemption from taxation of certain real property located in the Cincinnati taxing district and owned by the Cincinnati Metropolitan Housing Authority, a corporation organized under favor of the Housing Authority Law (Section 1078-29 et seq., General Code).
The property in question is being operated by the Cincinnati Metropolitan Housing Authority as a low-rent housing project, but no accommodations are provided on a purely charitable basis.
The Board of Tax Appeals held the property to be exempt under authority of Section 5356, General Code, which provides in part that "property of housing authorities created and organized under and for the purposes of the Housing Authority Law, which property is hereby declared to be public property used exclusively for a public purpose * * * shall be exempt from taxation."
The question presented to this court on an appeal from a decision of the Board of Tax Appeals is whether the board's decision is unreasonable or unlawful. In making such determination in the instant cases, the court is confronted with the issue of whether Sections 5356 and 1078-36, General Code, as amended effective October 6, 1949, declaring property of housing authorities to be public property and exempt from taxation, are violative of Section 2 of Article XII of the Constitution of Ohio.
WEYGANDT, C.J., MIDDLETON, MATTHIAS, HART and MONTGOMERY, JJ., are of the opinion that the decision of the Board of Tax Appeals should be reversed on the ground that the property in question is not "public property used exclusively for any public purpose."
Their view is that under the controlling provisions of Section 2, Article XII of the state Constitution, public property is not exempt from taxation unless used exclusively for a public purpose; that where dwelling units are erected and leased for the purpose of private homes and are so used and occupied, such use is private and not public; that the General Assembly of Ohio is without power to amend the state Constitution by a declaration of the meaning of its terms, or to declare a use of property to be a public use which in fact is not; and that Section 5356, General Code, wherein it provides that property of housing authorities "is hereby declared to be public property used exclusively for a public purpose," and Section 1078-36, General Code, wherein it provides that such property "shall be public property used exclusively for a public purpose within the meaning of Article XII, Section 2, of the Constitution, and shall be exempt from all taxation," are unconstitutional, being violative of Section 2 of Article XII of the state Constitution. Columbus Metropolitan Housing Authority v. Thatcher, Aud., 140 Ohio St. 38, 42 N.E.2d 437; Dayton Metropolitan Housing Authority v. Evatt, Tax Commr., 143 Ohio St. 10, 53 N.E.2d 896, 152 A.L.R., 223.
ZIMMERMAN, J., is of the opinion that Sections 5356 and 1078-36, General Code, are constitutional, on the basis of the reasoning in his dissenting opinion in the case of Dayton Metropolitan Housing Authority v. Evatt, Tax Commr., 143 Ohio St. 10, at page 33, 53 N.E.2d 896, 906, 152 A.L.R., 223, 237.
TAFT, J., is of the opinion that:
1. By Sections 5356 and 1078-36, General Code, as amended in 1949, the General Assembly has expressly provided that the property, for which tax exemption is sought in the instant cases, is to be exempted from taxation.
2. The General Assembly did not make compliance with Section 1078-30 or 1078-42 a, General Code, a condition of such tax exemption.
3. After the 1929 amendment of Section 2 of Article XII of the Constitution, the legislative power of the General Assembly, vested in it by Article II of the Constitution, included a power to determine exemptions from taxation limited only by Article I of the Constitution. See dissenting opinion in City of Cleveland v. Board of Tax Appeals, 153 Ohio St. 97, at 116 to 124, inclusive, 91 N.E.2d 480, at 490 to 493, inclusive.
4. The classification of low-rent housing projects for tax exemption is a reasonable classification. See cases collected in annotations in 130 A.L.R., 1079, and 172 A.L.R., 971. Cf. State, ex rel. Struble, v. Davis et al., Tax Comm., 132 Ohio St. 555, 9 N.E.2d 684.
Mr. W. Ray Skirvin, for appellant Ethel M. Skirvin.
Mr. Stewart S. Cooper, for appellant Cincinnati Real Estate Board.
Mr. Jerome Goldman and Mr. Robert A. Goldman, for appellant Carl A. Strauss.
Mr. Francis T. Bartlett, Messrs. Taft, Stettinius Hollister, Mr. John R. Bullock, Mr. David G. Gamble and Mr. Roger K. Sibbald, for appellee Cincinnati Metropolitan Housing Authority.
Mr. Henry M. Bruestle, city solicitor, and Mr. Maurice W. Jacobs, for appellee city of Cincinnati.
Mr. C. Watson Hover, prosecuting attorney, Mr. William J. Schmid and Mr. Francis X. Schwegmann, for appellee auditor of Hamilton county.
Mr. C. William O'Neill, attorney general, Mr. Robert E. Leach and Mr. Hugh A. Sherer, for appellee state of Ohio.
Although a majority of the members of this court are of the opinion that Sections 5356 and 1078-36, General Code, are unconstitutional, two members of the court do not concur in that view.
Section 2, Article IV of the Constitution, provides in part: "No law shall be held unconstitutional and void by the Supreme Court without the concurrence of at least all but one of the judges, except in the affirmance of a judgment of the Court of Appeals declaring a law unconstitutional and void." The instant cases do not involve a judgment of that court declaring a law unconstitutional.
Five members of this court not being a sufficient number to declare Sections 5356 and 1078-36, General Code, unconstitutional, the real property in question is exempt from taxation.
Decision affirmed.
ZIMMERMAN and TAFT, JJ., concur.
MONTGOMERY, J., of the Fifth Appellate District, sitting by designation in place of STEWART, J.