City of Toledo v. Lucas County Budget Commission

Paul W. Brown, J. Appellee’s motion for dismissal must be overruled. R. C. 5717.04 provides that appeals from a decision of the Board of Tax Appeals shall be by appeal to the Supreme Court or the Court of Appeals for the county in which the property taxed is situate or in which the taxpayer resides. That section goes on to provide that “in all other instances, the proceeding to obtain such reversal, vacation or modification shall be by appeal to the Court of Appeals for Franklin County.” We are [64] asked to decide that the inclusion of the quoted language detracts not only from the jurisdiction of Courts of Appeals in which the property is situate or in which the taxpayer resides, but also detracts from what we conceive to be the grant of concurrent appellate jurisdiction to this court. It must be conceded that the statute is poorly drawn. It does, however, contain clear language stating that the appeal from a decision of the Board of Tax Appeals is “to the Supreme Court.” This language precedes the conjunction “or” which, according to Webster’s Third New International Dictionary, is to be used as a “function word to indicate (1) an alternative between different or unlike things.” R. C. 5717.04 has had its present language since 1953. Prior to that time, exclusive jurisdiction in such appeals was in the Supreme Court. Had it been the intention of the General Assembly to terminate direct appeals from the Board of Tax Appeals to the Supreme Court it could have stated that “appeals from the Board of Tax Appeals shall be to the Court of Appeals of the county in which the property is situate or to the Court of Appeals for Franklin County.” In addition, there would seem to be no reason for giving the Supreme Court concurrent jurisdiction with Courts of Appeals only in cases in which the taxed property was situate or in which the taxpayer resided outside of Franklin County, and the Tenth Appellate District where this court is of course located. This is the effect of the statutory language as interpreted by the appellee. It seems more reasonable that the change in the statute was dictated by a purpose to give Courts of Appeals concurrent jurisdiction with the Supreme Court, thus dividing the case load of those who opted for the intermediate appellate court among those courts so that the presence of the taxed property or the residence of the taxpayer within an appellate district dictated its selection as the most convenient Court of Appeals, while in other cases, the Tenth District Court of Appeals was arguably more convenient. [65] The appellant’s arguments with reference to the actual allocation of the fund are answered by following the language of R. C. 5739.23(C), as amended by Senate Bill 539, effective May 28, 1970 (133 Ohio Laws 1471).1 “The commission shall determine the combined total of the estimated expenditures * * * from the general fund and any special funds2 * * * as shown in the subdivision’s tax budget for the ensuing calendar year.” That language clearly authorizes the inclusion of estimated expenditures from special funds in the computation of expenditures when the budget commission computes total needs of subdivisions for the purpose of allocating the county local government fund. It is interesting that this inclusion is also indicated as a proper one in the suggested form for such computation contained in R. C. 5747.52, effective December 20, 1971 (134 Ohio Laws H475). The appellant’s argument that the estimated' expenditures from the special funds were erroneously included upon the Board of Tax Appeals’ work sheets under the heading, “General Fund Expenditures,” merely concerns the form of the work sheets. The total entered under that heading was, as a matter of fact, the correct total estimated expenditure required by the statute. The appellant’s argument that the income of three of the four specifically voted levies was not included as additional revenue and deducted from total expenditures in determining need is also without merit. The exclusion of this ineome was authorized by the language of R. C. 5739.23 (E) (4), which directs the deduction of revenues shown in the general funds and any special fund ‘ ‘ except those which a subdivision receives from an additional tax or service charge voted by its electorate.” [66] Appellant admits that the approximately 5.3 million dollars in special funds was for the Board of Mental Retardation, the Children’s Services Board and the Community Mental Health and Retardation Fund and resulted from specially voted levies, which funds are within the quoted statutory exception. We therefore hold that the decision of the Board of Tax Appeals was neither unreasonable nor unlawful, and it is, therefore, affirmed. Decision affirmed. O’Neill, C. J., Corrigan, Celebrezze and W. Brown, JJ., concur. Herbert and Stern, JJ., dissent. Footnotes [1] his amendment does not appear in the current supplement to Page’s Ohio Revised Code. However, that section, as amended, did contain the same language as R. C. 5747.51, which became effective December 20, 1971, and which does appear in current code supplements. [2] statutory language that is not included concerns special funds, which are excepted, but not applicable here.