Opinion
No. 29258
Decided February 10, 1943.
Taxation — Exemption — Application may be filed prior to December 31 — Consideration by Board of Tax Appeals limited to year application filed — Public property exempt only when used exclusively tor public purpose — Sections 5616 and 5351, General Code — Section 2, Article XII, Constitution.
1. Under the provisions of Section 5616, General Code, an application for the exemption of property from taxation for any year may be filed with the Board of Tax Appeals of Ohio at any time prior to the thirty-first day of December of that year; and the consideration and decision of the board as to that application is limited to that year.
2. Under the provisions of Section 5351, General Code, and Section 2 of Article XII of the Constitution of Ohio, relating to the exemption from taxation of public property used for a public purpose, such use must be exclusive.
APPEAL from the Board of Tax Appeals.
The appellants are the members of the board of trustees of the public library of the city of Akron, Ohio.
The appellees are the members of the Board of Tax Appeals of Ohio, the city of Akron, the Tax Commissioner of the state of Ohio and the auditor of Summit county.
The appellants started two proceedings. First they filed an application with the auditor of Summit county on November 20, 1940. Thereafter the pertinent statutes were amended by the General Assembly, and the appellants then filed their application with the Board of Tax Appeals April 22, 1941. It is this second application upon which the instant controversy is bottomed.
The appellants seek the exemption of certain realty purchased by them in the year 1940.
The Board of Tax Appeals held the property taxable for the year 1941 and denied the exemption for the reason that during that year the property was not used exclusively for a public purpose.
The case is in this court for review on the ground that the decision of the Board of Tax Appeals is unreasonable and unlawful.
Mr. A.F. O'Neil, director of law, and Mr. Clyde B. Macdonald, for appellants.
Mr. Thomas J. Herbert, attorney general, Mr. Aubrey A. Wendt, Mr. Alva J. Russell, prosecuting attorney, and Mr. William A. Spencer, for appellees.
The appellants' claim for the exemption of their newly purchased realty is based upon the provision of Section 5351, General Code, that "public property used for a public purpose shall be exempt from taxation."
The first complaint of the appellants is procedural. They insist that the Board of Tax Appeals was in error in limiting its consideration and decision to the year 1941. That this was not erroneous is shown by the following decisive provision of cognate Section 5616, General Code:
"Any person, board or officer authorized by this act to file complaints with the county board of revision may complain to the Tax Commission of Ohio [now to the Board of Tax Appeals] at any time prior to the thirty-first day of December in any year, of the determination of a county auditor respecting the liability of any property to taxation in that year, or its exemption therefrom." (Italics supplied.)
As previously stated, the appellants filed their application with the Board of Tax Appeals April 22, 1941, and under the plain, unambiguous terms of the statute the determination of the Board of Tax Appeals with reference to that application was limited to "that year." Furthermore, the application itself states simply that it "is hereby made for the exemption from taxation for the tax year."
The substantive complaint of the appellants is that the Board of Tax Appeals misconstrued and misapplied the above quoted provision of Section 5351, General Code. They insist that the statutory language "public property used for a public purpose" does not mean public property used exclusively for a public purpose, as held by the Board of Tax Appeals. There are several answers to this contention. In the first place, the clear wording of the statute is that the property must be used for a public purpose. Nothing is said about property used in part for a public purpose; and it is axiomatic that exemptions from taxation are not favored by the law. Such an intention must be expressed clearly. Secondly, in construing this statute the Board of Tax Appeals followed the views repeatedly expressed by this court. Columbus Metropolitan Housing Authority v. Thatcher, Aud., 140 Ohio St. 38, 42 N.E.2d 437. And finally, this provision was enacted by the General Assembly under favor of Section 2 of Article XII of the Constitution of Ohio that general laws may be passed to exempt from taxation "public property used exclusively for any public purpose." If there were doubt as to the meaning of the statutory language it is completely removed by the inescapable limitation placed in the Constitution by the people of this state when they employed the simple and universally understood word "exclusively." Obviously, "used exclusively" does not mean "used in part."
A study of the record in this case discloses no evidence indicating that the realty in question was used exclusively for a public purpose during the year 1941. The undisputed facts are that at no time during that year was the public library of Akron located on this property; that the library was not moved to this property until February of the following year; and that during the year 1941 the basement and the first floor of the building were undergoing a process of remodeling, while the third floor was occupied by commercial tenants from whom a rental of $1262.26 was received.
Under these circumstances the decision of the Board of Tax Appeals manifestly was neither unreasonable nor unlawful and must be affirmed.
Decision affirmed.
MATTHIAS, HART, ZIMMERMAN, BELL, WILLIAMS and TURNER, JJ., concur.