Summary
In Columbus Metropolitan Housing Authority v. Thatcher, Aud., 140 Ohio St. 38, 42 N.E.2d 437, this court held that apartment buildings owned by an instrumentality of the United States, including several retail storerooms leased to the highest bidders for private business purposes, were not exempt as "used exclusively for a public purpose."
Summary of this case from Cleveland v. CarneyOpinion
No. 29019
Decided June 3, 1942.
Taxation — Public property not exempt, when — Use exclusively for public purpose and public ownership to coincide — Exemption not to contravene constitutional provision for equal protection and benefit — Section 2, Article I, Constitution.
1. Public property may not be exempted from taxation unless it is used exclusively for a public purpose. The exclusive use for a public purpose must coincide with public ownership of property to entitle such property to exemption from taxation. ( City of Cincinnati v. Lewis, 66 Ohio St. 49, approved and followed.)
2. No property may be exempted from taxation where such exemption would contravene the equal protection and benefit provision of the Constitution of Ohio (Section 2, Article I). ( State, ex rel. Struble, v. Davis, 132 Ohio St. 555, approved and followed.)
APPEAL from the Board of Tax Appeals.
Appellant, Columbus Metropolitan Housing Authority, is a body politic and corporate duly organized and existing under the Housing Authority Law (Section 1078-29 et seq., General Code).
Appellant is the owner of 22 1/2 acres of land in the city of Columbus, popularly known as Poindexter Village, on which it has erected 426 dwelling units which are leased to families selected by appellant at rents ranging from $18.25 per month to $19.25 per month.
Appellant made application for exemption from taxation of its real property. In its application, appellant said, inter alia:
"Poindexter Village occupies what was a definite slum area, and there were 379 dwelling units therein. The authority demolished and removed all such dwelling units acquired by it from the area. The work of demolition began on April 3, 1939, and was completed on August 24, 1939. The authority has erected on the cleared area 426 new dwelling units of which 396 are now occupied. [All were occupied at the time of the hearing.] There are now more applicants than there are vacancies. The erection of said dwelling units was begun June 12, 1939, and was completed on July 25, 1940. The first dwelling unit was occupied May 1, 1940, and additional families have been moving in as fast as conditions permitted. * * *
"* * * In general, dwelling units are rented only to families of low income, and the authority has followed the definition of that term, found in Section 1078-49 (d) as follows: 'The term "families of low income" shall mean persons or families who lack the amount of income, which is necessary as determined by the authority undertaking the housing project, to enable them, without financial assistance, to live in decent, safe and sanitary dwellings without overcrowding.' Further, preference is given to families who lived in the area before demolition, to families with children, to families living under housing conditions most injurious to health, safety and morals. Tenants will not be admitted whose monthly salary exceeds five times the monthly rents charged. Families to be admitted must have lived in and moved from a substandard home. * * *
"The above described premises, since date of acquisition, has been used exclusively for a public purpose, to wit: the preservation of the public health, morals, safety and welfare by the elimination of slum conditions, and the renting of said dwelling units to families of low income, as hereinbefore set forth. * * *"
The county auditor recommended that the property should be exempted from taxation beginning with the duplicate year 1939-1940 and appellant sought the consent of the Board of Tax Appeals to such exemption (Section 5570-1, General Code).
Ralph J. Bartlett, as prosecuting attorney of Franklin county, Ohio, and Francis M. Thompson, a taxpayer, each filed with the Board of Tax Appeals a complaint and protest against such exemption from taxation, alleging that the real estate and improvements "in truth and in fact are now being used, and will at all times in the future, be used for rental purposes, for private living quarters for any persons and their families, who are able to qualify, and are selected by said authority according to standards of family, employment and income as fixed by statute and by said authority."
Messrs. Bartlett, Thompson and Francis Baehr, a taxpayer, were made parties to the application by the board.
Hearing was had before the Board of Tax Appeals on stipulation of facts, exhibits and oral evidence, to which reference will be made in the opinion.
The board denied appellant's application for exemption from taxation.
The case comes to this court by appeal under Section 5611-2, General Code, filed by Columbus Metropolitan Housing Authority, appellant.
Upon leave, the attorney general appeared in this court on behalf of the Tax Commissioner (Sections 1465-9 and 5624-8, General Code).
Mr. William Harvey Jones, Mr. George S. Marshall and Messrs. Squire, Sanders Dempsey, for appellant.
Mr. Henry L. Holden and Mr. Robert P. Barnhart, for appellee, Newton A. Thatcher, auditor.
Mr. David B. Sharp and Mr. Francis M. Thompson, for appellees, Ralph J. Bartlett, prosecuting attorney, and Francis M. Thompson.
Mr. Francis P. Howard, Mr. Edward J. Kirwin and Mr. W. Ray Skirvin, for appellee, Francis Baehr.
Mr. Thomas J. Herbert, attorney general, and Mr. Perry L. Graham, for Department of Taxation.
We cannot accept appellant's statement of the question of law involved, to wit:
"The question of law involved is whether the property belonging to Columbus Metropolitan Housing Authority is exempt from taxation as public property used for a public purpose * * *."
The question before the Board of Tax Appeals was whether the property belonging to appellant is used exclusively for any public purpose. Unless the property is exclusively so used, it may not be exempted from taxation.
As said by Judge Shauck in City of Cincinnati v. Lewis, Aud., 66 Ohio St. 49, 55, 63 N.E. 588: "That the public ownership of property was not alone thought sufficient to exempt it from taxation is made obvious by the requirement that an exclusive use for a public purpose shall coincide with such ownership."
The question now before us is whether the decision of the Board of Tax Appeals is reasonable and lawful (Section 5611-2, General Code).
The Board of Tax Appeals being limited to determining whether the present use of the property is exclusively for any public purpose, we are not concerned with the former use of the property or the reasons for the change. Therefore, such subjects as slum clearance, the right of condemnation, housing conditions, and health and sanitary measures are not before us. Admittedly, the property is no longer slum property and the housing, health and sanitary conditions there obtaining are not now a ground of complaint.
The case of State, ex rel. Ellis, City Solicitor, v. Sherrill, City Manager, 136 Ohio St. 328, 25 N.E.2d 844, is not in point here. In the case of State, ex rel. Bartlett, Pros. Atty., v. Thatcher, County Aud., 138 Ohio St. 235, 34 N.E.2d 440, it was held in respect of the Sherrill case: "The majority opinion and decision did not take into consideration the question of tax exemption."
Appellant claims exemption under Section 5351, General Code. While this section reads, "Real or personal property belonging exclusively to the state or the United States, and public property used for a public purpose shall be exempt from taxation," yet this language is to be read in the light of the Constitution of Ohio and this court will not assume that the Legislature intended to violate any constitutional limitation.
Section 2 of Article XII of the Constitution of Ohio provides, in part:
"Land and improvements thereon shall be taxed by uniform rule according to value * * * 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 property used exclusively for any public purpose * * *." (Italics ours.)
All land and improvements must be taxed except such as may be exempted by general law. Such general law must observe the constitutional mandate of equal protection. State, ex rel. Struble, v. Davis, 132 Ohio St. 555, 9 N.E.2d 684.
The word "exclusively" may not be read out of this section and any statute which intentionally disregarded this feature would be unconstitutional.
That it is the duty of this court to give a statute a constitutional construction, if possible, needs no citation of authority. If we were to hold Section 5351, General Code, invalid, appellant would fail. However, we hold that Section 5351 is not invalid and that it authorizes the exemption only of public property used exclusively for any public purpose.
Before the Board of Tax Appeals it was stipulated that appellant is a body politic and corporate, duly organized and existing under the housing laws of the state of Ohio.
Under the stipulations entered into before the Board of Tax Appeals, we assume that appellant comes within the term "housing authority" as used in Section 1078-36, General Code, which provides in part as follows: "All property, both real and personal, acquired, owned, leased, rented or operated by the housing authority shall be deemed public property for public use * * *." It will be noted that the Legislature has not attempted to declare that such property shall be deemed public property used exclusively for any public purpose. Here again, we assume that the Legislature was mindful of the constitutional limitation.
It would hardly be contended that the property of a limited dividend housing company created under the state housing law (Section 1078-1 et seq., General Code) would be exempt from taxation. Yet, in respect of such corporations it is provided in Section 1078-15, General Code, that the articles of incorporation shall contain a declaration that the corporation has been. organized to serve a public purpose and "that all real estate acquired by it and all structures erected by it, shall be deemed to be acquired for the purpose of promoting the health and safety and subject to the provisions of the state housing law * * *."
In Ohio, it is axiomatic that exemptions from taxation are to be strictly construed. As said by Judge Spear in Lee v. Sturges, 46 Ohio St. 153, 159, 19 N.E. 560: "Intent to confer immunity from taxation must be clear beyond a reasonable doubt, for, as in case of a claim of grant, nothing can be taken against the state by presumption or inference."
We see no reason for a distinction being made in the case of publicly owned property. In the recent case of In re Estate of Taylor, 139 Ohio St. 417, 40 N.E.2d 936, it was held:
"A right to exemption from taxation must appear with reasonable certainty in the language of the Constitution or valid statute and must not depend upon a doubtful construction of such language."
We pointed out in the Taylor case that this was not a declaration of ally new or novel principle. From the earliest history of our state down to the present time, there has been no presumption favorable to the exemption of property from taxation. As stated by Judge Matthias in the case of Cullitan, Pros. Atty., v. Cunningham Sanitarium, 134 Ohio St. 99, 100, 16 N.E.2d 205:
"On the contrary, the right to such exemption must be shown 'indubitably to exist.' "
This brings us to an examination of the facts before the Board of Tax Appeals to determine whether the decision of the board was unlawful or unreasonable. It was stipulated before the board, inter alia:
"7. The authority has erected within the limits of the village 426 dwelling units, together with a recreation center, central heating plant and playground. The erection of said dwelling units was begun June 12, 1939, and was completed June 25, 1940. Of the 426 new dwelling units 208 contained 3 1/2 rooms each, 159 contained 4 1/2 rooms each and 59 contained 5 1/2 rooms each.
"8. The first dwelling unit was occupied May 1, 1940, and by September 26, 1940, 97% of the dwelling units were rented and occupied. The last unit was rented and occupied October 5, 1940. * * *
"10. The lowest rent charged, including utilities is, per month $18.25. The highest rent charged, including utilities is, per month $19.25. The average shelter rent is, per month $12.40. 'Shelter rent' as used herein shall mean the gross rent for a dwelling unit less the amount charged for utilities.
"Average charges for utilities for the 426 dwelling units is $6.18 per unit per month, which includes heat, light, gas, water and sewer services.
"11. The present use of said dwelling units is for rental purposes, for private living quarters for such persons and their families as are admitted by the authority, who are able to qualify according to standards as to family, employment, income and living conditions, as are fixed by the statutes, and by the authority."
Under paragraph 15 of the stipulation it was shown that upon a valuation of $800,000 for the project costing approximately $2,000,000 the taxes would add $3.13 per month to the rent for each unit. The rents, exclusive of taxes and utilities, are fixed at approximately fifty per cent of the cost of the service.
In addition to the stipulation of facts, Mr. O.A. Corzelius, a director and secretary of appellant, testified orally before the Board of Tax Appeals.
The following selections from the testimony of Mr. Corzelius throw light upon the present use of the property:
"Q. Mr. Corzelius, the only people you take in the property are the ones that can afford to pay the rent; isn't that correct? A. That is right, either from their own income or any definite aid that they might be getting.
"Q. In other words, if they can't pay the rent, you don't take them? A. That is right.
"Q. And I understand you to say that 85 of the people that were in the original project were on direct relief, and, therefore, you couldn't take them; isn't that correct? A. That is right. However, on relief families, if some agency will definitely guarantee the rent, we will take the poor families in the project.
"Q. That is where you get a definite guarantee, but for instance I understood you to say there were 85 families getting direct relief that were in the project, and for that reason they were ineligible? A. We considered them ineligible until they could prove otherwise. * * *
"Q. Don't you have a rule like this, every tenant shall have an income which is sufficient to pay the rent and provide for necessary living expenses? A. We do."
"Q. And if a tenant can't pay his rent, you give him a notice to move just the same as a private land owner might, don't you? A. That is right.
"Q. He either has to move or you evict him? A. That is right. * * *
"Q. In the event any of the tenants fail to pay their rent, how soon after due date is notice served for vacation? A. We send them a notice within 10 days. We send a notice of delinquency usually within five days, and not to exceed ten, and if they run over 30 days they are given notice to vacate.
"Q. Upon failure to comply with that order, what do you do? A. We would have to evict them; but so far we have not had any of that to do. We have served notice on them and the families have moved. Since we have started occupancy, families have moved out owing less than $100 total. We have had 17 turnovers; 17 families have moved out, and the 17 families owe us less than $100."
"Q. Let me ask you this one question. Has any direct relief client ever been admitted as a tenant in this project? A. We have direct relief clients in this project, but the relief department will not guarantee a sufficient amount to cover the cost and unless the tenant can show that he can pay the difference, he would not be admitted. After admittance, if they go on relief, and a tenant can show he can continue to pay his rent, with what he can get through relief, we don't give him a notice to vacate. * * *
"Q. * * * Did I understand you to say there were 30 former site tenants now in this project? A. The latest count was 27. I think there were 30 out of the 60 that made application who could qualify, but some of them, for some reason or other, after they were notified, didn't want to — * * *"
"Q. And when you talk about substandard dwellings, that is an altogether different thing than slum dwellings, isn't it? A. Not necessarily.
"Q. No. In other words a slum dwelling might be a substandard, but all substandard dwellings might not be slums; is that correct? A. That is right.
"Q. For example, if there is not hot and cold water in the house, that would be substandard under your rules, wouldn't it? A. That is right.
"Q. If there isn't an inside private tub and shower, that would be substandard under your rules, wouldn't it? A. That is right. * * *
"Q. And if the rooms were without electric outlets, that would constitute a substandard dwelling, wouldn't it? A. It would have to have electric lights, yes."
The Board of Tax Appeals had before it evidence which shows that the appellant selects, not from slums, but "regardless of where they formerly lived," tenants from what appellant considers substandard dwellings.
Appellant's resolution establishing rental schedules, policies and standards provides that for the purpose of determining housing conditions under which applicants for dwellings in the project are living, such dwellings should be scored by appellant's own scoring system.
Out of the residents of 379 dwellings replaced by appellant's project, but 30 families were found eligible to become tenants and only 27 became tenants.
The evidence shows that the premises in question are leased to private families for renewable terms and that the tenants must have sufficient income to assure that the rentals will be paid.
If it had been necessary to do so, the Board of Tax Appeals might have taken notice as a matter of common knowledge of the fact that under appellant's substandard housing score sheet and the explanation thereof a very large portion if indeed not a majority of the houses in this state could be declared substandard.
It seems to us clear that where dwellings are leased to family units for the purposes of private homes, the use of such dwellings is private and not public. Under Anglo-Saxon law and tradition, there is nothing more private than one's home. Broom's Legal Maxims (9 Ed.), 283; Semayne's Case, 5 Coke, 91, 77 Eng. Rep. R., 194. That every man's house is his castle has not yet been erased from our laws.
Furthermore, a tax advantage equal to $3.13 per month on home rental given to a selected few persons who are not paupers and who are not aged, infirm or without means of support is violative of the provisions of Section 2 of Article XII and Section 2 of Article I of the Constitution of Ohio. Such tax exemption would shift the tax burden to other home owners and taxpayers.
After hearing and upon consideration of the record and evidence before the Board of Tax Appeals, this court is of the opinion that the decision of the Board of Tax Appeals appealed from is reasonable and lawful and, therefore, affirms the same.
Decision affirmed.
WEYGANDT, C.J., MATTHIAS, HART and BETTMAN, JJ., concur.
WILLIAMS and ZIMMERMAN, JJ., dissent.
In the instant case the project executed by the Columbus Metropolitan Housing Authority was the acquisition of a slum area, the demolition of the existing buildings and the erection thereon of safe and sanitary dwellings, rented exclusively to families which lived in unsafe and unsanitary homes and could not afford to pay the rent demanded by private owners for the same character of living accommodations.
The slum clearance and low rent housing program is essentially in the public interest, being a cooperative effort on the part of the federal and local authorities to solve a vital social problem. Its underlying objective is to protect and safeguard an entire community by lessening potent causes of disease, immorality and crime.
The conclusion therefore seems inescapable that the property of the Columbus Metropolitan Housing Authority here involved is "public property used exclusively for any public purpose" within the contemplation of Section 2, Article XII of the Constitution of Ohio, and Section 5351, General Code, that the property is consequently entitled to exemption from taxation on that basis and that the decision of the Board of Tax Appeals in refusing exemption is unreasonable and unlawful and should be reversed. Such action would be in harmony with the decision in the case of State, ex rel. Ellis, City Solicitor, v. Sherrill, City Manager, 136 Ohio St. 328, 25 N.E.2d 844.
WILLIAMS, J., concurs in the foregoing dissenting opinion.