49 N.E.2d 674

THE URSULINE ACADEMY OF CLEVELAND, APPELLANT v. BOARD OF TAX APPEALS ET AL., APPELLEES.

No. 29405Supreme Court of Ohio.
Decided June 9, 1943.

Taxation — Application for exemption — Jurisdiction of Board of Tax Appeals — Unpaid taxes, penalties and interest remissible, when — Property belonging to institutions of learning exempt, when — Sections 5349 and 5353, General Code — Exclusive use for charitable purpose at time exemption sought. Existing statutes not changed by amendment of Section 2, Article XII, Constitution — Existing legislation not affected until legislation enacted making constitutional amendment effective, when — Adoption of constitutional amendment not helpful in interpreting prior legislation.

1. Under the proviso in Section 5570-1, General Code, the Board of Tax Appeals has jurisdiction to consider an application for exemption from taxation where the application or evidence before the board discloses that the only unpaid taxes, penalties and interest due on the property sought to be exempted are such as may be remitted by the county auditor with the consent of the Board of Tax Appeals if the board consents to the exemption.

2. Under Section 5349 or Section 5353, General Code, property belonging to a public college, academy or institution of learning not publicly owned may be exempted from taxation only if

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used exclusively for a charitable purpose at the time the exemption is sought.

3. The amendment of Section 2 of Article XII of the Constitution of Ohio, effective January 1, 1931, did not change or enlarge the meaning of either Section 5349 or Section 5353, General Code, both of which sections were enacted prior to such amendment.

4. A constitutional amendment which is not self-executing does not affect existing legislation until the enactment of legislation putting the amendment into effect.

5. The adoption of an amendment to the Constitution cannot be helpful in the interpretation of the meaning of legislation enacted prior to such amendment.

APPEAL from the Board of Tax Appeals.

Appellant is an Ohio nonprofit corporation, the purpose of which is the education of females. It conducts several schools in Cuyahoga county, all of which are open to the public without discrimination.

In 1928 appellant acquired a 50-acre parcel of land situated in the village of Pepper Pike, Cuyahoga county, Ohio. This property has no physical connection with any other property of appellant. In 1928 an application for exemption of this property from taxation was filed with the county auditor of Cuyahoga county. On April 21, 1928, the auditor of Cuyahoga county declined to exempt this property for the reasons given in the following letter to appellant’s counsel:

“In regard to the application for exemption from taxation of property situated in Pepper Pike village owned by The Ursuline Academy of Cleveland, it seems that this property if exempt at all must be exempted as property belonging to charitable institutions. We do not think that it qualifies under the statutes as a public college or academy.

“So far as its exemptibility as property belonging to a charitable institution is concerned, we find that it

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is not property belonging to institutions used exclusively for charitable purposes.”

No appeal was taken from the auditor’s refusal.

Appellant again filed with the county auditor its application for exemption from taxation of the same property. Such application was transmitted to the Board of Tax Appeals. In this application it is shown that the property was purchased for the purpose of development of educational institutions of the type operated by The Ursuline Academy of Cleveland. It was also contemplated that it would be used as a homesite for the teachers who are members of the community. Up to the present time the necessary funds have not been made available for these purposes. Appellant has been engaged in educational activities in Cuyahoga county for more than ninety years and is officially recognized by the Tax Commission of Ohio [sic] as a public institution of learning. It is alleged that the land for which exemption is requested is connected with the corporation’s activities and is not used with a view to profit.

The county treasurer’s certificate attached to the application shows that “taxes, assessments, penalties and interest on the within described premises have not been paid in full to and including April 28, 1942.”

In the course of the hearing before the Board of Tax Appeals it was suggested that counsel for the applicant should secure from the county treasurer a certificate showing just what taxes have not been paid. Attached to the transcript is a certificate of the county treasurer dated August 19, 1942, which discloses unpaid taxes and penalties on the property here in question in the amount of $1,163.42. No delinquent assessments are shown.

On December 4, 1942, the Board of Tax Appeals found “that the premises sought to be exempted are not used exclusively as a ‘public college or academy

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or a public institution of learning not used with a view to profit’ within the meaning of Section 5349, General Code,” and accordingly denied the application.

The cause is here following an appeal under Section 5611-2, General Code.

Mr. Richard J. Lamb, for appellant.

Mr. Thomas J. Herbert, attorney general, Mr. Perry L. Graham
and Mr. Frank T. Cullitan, prosecuting attorney, for appellees.

TURNER, J.

The Attorney General challenges the jurisdiction of the Board of Tax Appeals under Section 5570-1, General Code, to consider the application for exemption for the reason that there is no certificate or affidavit executed by the county treasurer certifying that the taxes, assessments, penalties and interest levied and assessed against the property sought to be exempted had been paid in full to the date upon which the application for exemption is filed.

The application for exemption is filed under Section 5349, General Code, and in respect of such section, Section 5570-1, General Code, provides in part:

“* * * The Board of Tax Appeals shall not consider an application for exemption of property under any of the sections enumerated herein unless the application has attached thereto a certificate or affidavit executed by the county treasurer certifying that taxes, assessments, penalties and interest levied and assessed against the property sought to be exempted had been paid in full to the date upon which the application for exemption is filed.

“Provided, however, that taxes, penalties and interest which have accrued after the property began its use for the exempt purpose but in no case prior to the date of acquisition of the title to said property by applicant,

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may be remitted by the county auditor, with the consent of the Board of Tax Appeals.”

Section 1464-1, General Code, provides in part as follows:

“The Board of Tax Appeals shall exercise the following powers and perform the following duties of the Department of Taxation: * * * ”

“8. To adopt, and to promulgate in the manner provided by this act, all rules of the Department of Taxation relating to the procedure of the board in administering the laws which it has the authority or duty to administer, and to the procedure of officers or employees of the department whom the board may appoint.”

Form 23 of the Board of Tax Appeals of the Department of Taxation of Ohio (which is the form used in this case) in respect of the treasurer’s certificate contains the following instruction:

“In the event the exemptable [sic] use of the premises herein described began in a year prior to that in which this application is filed, this certificate need not be signed and a separate application for remission of taxes and penalties from the date of acquisition and use to the present date should be filed.”

The premises in question were acquired by appellant in 1928.

The record shows that the taxes have been paid up to and including the 1940 taxes but were delinquent for the 1941 taxes with a penalty on the first half of 1941.

Under the above quoted proviso of Section 5570-1, General Code, these taxes may be remitted by the county auditor with the consent of the Board of Tax Appeals if it be found that the premises in question were being used on tax lien day 1941 for an exempt purpose.

As the county auditor had refused exemption in 1928 and in the application for exemption here under consideration

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had declined to make any recommendation for or against the exemption, the orderly procedure would necessarily be to have the right of exemption determined prior to the application to the county auditor for remission of the unpaid taxes. If the Board of Tax Appeals consents to the exemption it would be unnecessary to require the unpaid taxes to be paid and then refunded. The record discloses no unpaid assessments.

Under the circumstances of this case, we hold that the Board of Tax Appeals had jurisdiction to consider the application for exemption.

The record discloses that appellant is an institution used exclusively for charitable purposes within the meaning of Section 2 of Article XII of the Constitution. See Gerke, Treas., v. Purcell, 25 Ohio St. 229. However, as pointed out in Wehrle Foundation v. Evatt, Tax Commr., ante, 467, the extent to which the General Assembly has acted under the Constitution is to exempt property belonging to an institution provided such property is used exclusively for charitable purposes. In respect of this property appellant’s president testified that it was acquired January 24, 1928; that except for a small house it was vacant property; that there was no stipulated revenue derived from it; that the reason for acquiring the property was that at that time appellant hoped to build a mother house and high school for girls; and that as soon as possible for appellant to do so it is still intended to build a high school and mother house there.

Appellant claims exemption by virtue of Section 5349, General Code, which provides in part as follows:

“* * * public colleges and academies and all buildings connected therewith, and all lands connected with public institutions of learning, not used with a view to profit, shall be exempt from taxation.”

In the instant case there is no such present use. Use must be read into any statute enacted prior to the

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amendment of Section 2 of Article XII, effective January 1, 1931. Compare Columbus Metropolitan Housing Authority v Thatcher, Aud., 140 Ohio St. 38, 43, 42 N.E.2d 437.

Whether appellant’s claimed exemption comes under Section 5349, General Code, as contended by appellant or under Section 5353 as suggested by appellee, the test is the same viz., the present use.

Appellant relies upon two propositions:

(1) The law here applicable was settled by the case o Kenyon College v. Schnebly, Treas., 12 C. C. (N.S.), 1, 21 C. D., 150, affirmed without opinion, Schnebly, Treas., v. Kenyon College, 81 Ohio St. 514, 91 N.E. 1138.

That case was decided in 1909, the facts of course arising prior to the 1912 amendment of Section 2 of Article XII of the Constitution. In the case of Jones, Treas., v. Conn et al., Trustees, 116 Ohio St. 1, 10, 155 N.E. 791, Judge Allen pointed out that the 1912 amendment changed the emphasis from ownership of property to the manner of its use. However, in th Kenyon College case, use was made a test of the right to exemption as shown by the first branch of the syllabus and the language of the opinion.

(2) Appellant’s second reliance is the amendment adopted following the joint resolution of the General Assembly of March 19, 1929 (113 Ohio Laws, 790). By this amendment there was incorporated in Section 2 of Article XII the following language, effective January 1, 1931:

“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 * * *.”

It is the contention of appellant that by virtue of this amendment the power of the General Assembly in respect of exemptions has been restored to what it

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was under the Constitution of 1803, to wit: Without restriction (except as to the specific restrictions contained in the section). For this position appellant relies upon the case o State, ex rel. Struble, v. Davis, 132 Ohio St. 555, 9 N.E.2d 684, in which it was said by Judge Matthias (page 560):

“As amended, the Constitution itself now provides that the enumeration of certain classes of property which may be exempted does not take away or limit authority of the Legislature to make other exemptions.”

However, the effect of the fourth paragraph of the syllabus of that case should not be overlooked, to wit:

“4. The provisions of House Bill 674, passed July 1, 1933, and Amended Senate Bill 23, passed March 5, 1935, insofar as they provide for the exemption of taxes, the assessment of which had been completed at the time such acts respectively became laws, are violative of the provisions of Section 28 of Article II of the state Constitution, providing that ‘the General Assembly shall have no power to pass retroactive laws.’ ”

The Struble case was limited to the exemption of personal property, no real estate being involved. Furthermore, the exemption there in question was contended for under legislation passed subsequent to the amendment. This legislation had for its purpose the classification of personal property. The instant case instead of involving personal property only is limited to real property. For reasons that will follow we do not deem it necessary at this time to determine whether this last-mentioned amendment of Section 2 of Article XII in respect of exemption applies as well to real property.

Appellant claims exemption under Section 5349, General Code. This is a very old legislative enactment, the last amendment thereof having been passed May 9, 1908 (99 Ohio Laws, 449). (The last amendment

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of Section 5353 was in 1923, 110 Ohio Laws, 77.) The Codifying Commission did change the phraseology.

We agree with appellant that the foregoing amendment of Section 2 of Article XII widened the power of the General Assembly in respect of exemptions. However, such amendment is not self-executing as to any exemption not therein specified. In respect of our question here this amendment simply authorized the General Assembly to act in some cases where it was formerly forbidden so to do. But the General Assembly has not acted in pursuance of that authorization. The schedule to this amendment does not make reference to any previously or then existing exemption law (113 Ohio Laws, 790).

Unless otherwise provided, a constitutional amendment does not validate or enlarge any previously enacted legislation for which there was no constitutional authority at the time of enactment. A case in point is that of Hawley v. Anderson, Judge, 99 Ore., 191, 190 P. 1097, wherein the Supreme Court of Oregon had before it the contention that a bond limitation contained in a previously enacted statute was removed by reason of the later adoption of a constitutional amendment. In answer to this contention the court said, at page 198: “It appears to be the uniform holding of the courts that a constitutional provision which is not self-executing does not affect existing legislation until the enactment of legislation putting it into effect.”

Even in cases where the constitutional provision is not self-executing but contains a mandatory provision requiring the legislature to adopt a provision there is no remedy if the legislature fails to obey such constitutional mandate. 16 Corpus Juris Secundum, 80, Section 40, page 96, Section 45. See, also, ibid, pp. 100, 122 and 11 American Jurisprudence, 642, 690.

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In the case of Turnverein “Lincoln” v. Board of Appeals, 358 Ill. 135, 192 N.E. 780, the Supreme Court of Illinois held:

“Constitutional provision for exemption of property from taxation is not self-executing, and exemptions within the limitations prescribed exist only when created by a general law enacted by the legislature.” See, also, Leser v. Lowenstein, 129 Md. 244, 98 A. 712.

It is a fundamental rule of construction that statutes are to be read in the light of attendant conditions and the state of law existent when enacted. In other words, statutes are to be construed as they were intended to be understood when enacted. 25 R. C. L., 959, Section 215; 37 Ohio Jurisprudence, 50 et seq., Section 274 et seq.

Appellant’s contention in the instant case is aptly answered by the language of Judge Robinson in Industrial Commission v Cross, 104 Ohio St. 561, 564, 136 N.E. 283:

“But it cannot be contended that the subsequent adoption of this provision of the Constitution could in any way be helpful in the interpretation of the meaning of legislation enacted prior thereto.”

Appellant’s brief contains the following statement:

“It is significant that Article XII, Section 2, of the Constitution was amended in 1912 so as to require ‘use’ as a condition of exemption of charitable property.”

As we have stated above, the existing exemption statutes under which appellant might qualify its property for exemption limit the property of art institution to such as is used exclusively for charitable purposes.

As there is no present use of the property in question for a charitable purpose, the decision of the Board of Tax Appeals should be and hereby is affirmed.

Decision affirmed.

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MATTHIAS, HART and ZIMMERMAN, JJ., concur.

WEYGANDT, C.J., and BELL, J., dissent.

WILLIAMS, J., not participating.

BELL, J., dissenting.

I dissent from the conclusion reached in this case for the reason that in my judgment this case is controlled by the decision rendered in the companion case of Ursuline Academy of Cleveland v. Board of Tax Appeals, ante, 559.

The power to exempt property from taxation is granted by Section 2, Article XII of the Ohio Constitution which reads in part as follows:

“* * * General laws may be passed to exempt burying grounds, public school houses, houses used exclusively for public worship, institutions used exclusively for charitable purposes, and public property used exclusively for any public purpose. * * *”

Pursuant to this grant of power the present Section 5570-1, General Code, was enacted and reads in part as follows:

“* * * The Board of Tax Appeals shall not consider an application for exemption of property under any of the sections enumerated herein unless the application has attached thereto a certificate or affidavit executed by the county treasurer certifying the taxes, assessments, penalties and interest levied and assessed against the property sought to be exempted have been paid in full to the date upon which the application for exemption is filed.”

Section 5349, General Code, under which this application for exemption was made is specifically mentioned in Section 5570-1, General Code.

In the case of Ursuline Academy v. Board of Tax Appeals, supra, Judge Turner says:

“The treasurer’s certificate attached to appellant’s application for exemption shows that the taxes, assessments, penalties and interest levied and assessed

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against the property sought to be exempted have not been paid. Under the statute above quoted a certificate of the county treasurer certifying that such taxes, assessments, penalties and interest have been paid in full to the date upon which the application for exemption is filed is a condition precedent to the consideration of the application by the Board of Tax Appeals.”

The statute above quoted in Judge Turner’s opinion is Section 5570-1, General Code.

That statement clearly and correctly states the law.

The Board of Tax Appeals has exclusive authority to declare property exempt. See State, ex rel. Methodist Book Concern, v Guckenberger, Aud., 133 Ohio St. 27, 10 N.E.2d 1001.

The auditor has the power to remit taxes, interest and penalties, with the consent of the Board of Tax Appeals.

As far as I have been able to find there is no authority, either constitutional or statutory, granting any board or public officer power to remit assessments.

In the instant case it is said that the Board of Tax Appeals has jurisdiction by reason of the proviso in Section 5570-1, General Code. This proviso reads as follows:

“Provided, however, that taxes, penalties and interest which have accrued after the property began its use for the exempt purpose but in no case prior to the date of acquisition of the title to said property by applicant, may be remitted by the county auditor, with the consent of the Board of Tax Appeals.”

The application for exemption was filed with the Board of Tax Appeals on May 28, 1942; the record discloses that no certificate or affidavit executed by the county treasurer certifying that taxes, assessments, penalties and interest levied and assessed against the property sought to be exempted have been paid in

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full to the date upon which the application for exemption was filed. On the contrary the certificate of the treasurer which is a part of the application for exemption reads as follows:

“May 16, 1942

“Treasurer’s Certificate.

“I hereby certify that taxes, assessments, penalties and interest on the within described premises have not been paid in full to and including April 28, 1942.

“John J. Boyle, County Treasurer,

“Frank M. Brennan, Deputy.”

By agreement an additional certificate was secured from the county treasurer and introduced as Exhibit 7. This certificate shows that the taxes for the year 1942 were unpaid; that there was $720.23 representing delinquencies prior to 1941 and $443.19 for 1941 making a total of $1,163.42 due and unpaid, exclusive of taxes for the year 1942, at the time of the filing of the application. The figures submitted do not disclose that any part of that amount due is for assessments.

In my judgment there are four reasons why the Board of Tax Appeals did not have jurisdiction to consider this application.

First. The certificate or affidavit of the county treasurer must certify that the taxes, assessments, interest and penalties have been paid to the date of the application. In the proviso contained in Section 5570-1, General Code, there is no grant of power to remit assessments; therefore, even if the taxes, interest and penalties had been remitted by the county auditor with the consent of the Board of Tax Appelals, the certificate or affidavit of the county treasurer would be necessary to disclose that all assessments had been paid as a condition precedent to the attaching of jurisdiction to entertain and determine the application.

Second. This record discloses not only that the county auditor never remitted any taxes, interest or

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penalty but affirmatively discloses that no application was ever made to the auditor to grant such relief.

Third. Under the proviso the only taxes that may be remitted are those which accrued after the property began its use for the exempt purpose. No such claim was or could be made for the reason that this property, being vacant land, has not as yet begun its use for any exempt purpose.

Fourth. The Board of Tax Appeals is without authority to enlarge its jurisdiction by rule or to pass any rule which conflicts with general law.

In the majority opinion Section 1464-1, General Code, is quoted in part as follows:

“* * * The Board of Tax Appeals shall exercise the following powers and perform the following duties of the Department of Taxation * * *.

“8. To adopt, and to promulgate in the manner provided by this act, all rules of the Department of Taxation relating to the procedure of the board in administering the laws which it has the authority or duty to administer, and to the procedure of officers or employees of the department whom the board may appoint.”

The majority opinion proceeds upon the theory that the Board of Tax Appeals may and did, under this provision of the General Code, pass a rule dispensing with the certificate of the county treasurer. There can be no question that the Board of Tax Appeals, by virtue of this section, is granted rule-making power. However, the board has no power to make any rule in conflict with a statute. If the construction placed on the rule quoted in the majority opinion is correct then the board has passed a rule which supersedes the statute. This cannot be done.

For these reasons in my opinion the Board of Tax Appeals was without jurisdiction to consider this application for exemption. The decision should be reversed

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and the cause should be remanded with instructions to dismiss the application for want of jurisdiction.

WEYGANDT, C.J., concurs in the foregoing dissenting opinion.