Summary
In Lindblom v. Board of Tax Appeals, 151 Ohio St. 250, 85 N.E.2d 376, this court held that "there is no right of appeal from a decision of a statutory board or a judgment of a legally constituted court except as provided by statute."
Summary of this case from Miller v. B.U.COpinion
Nos. 31598, 31599, 31600, 31601, 31602, 31603, 31604 and 31605
Decided March 30, 1949.
Taxation — Conservancy district preliminary tax — Section 6828-43, General Code — Complaint by public utility to board of revision that personal property taxed — Appeal from board of revision to Board of Tax Appeals — Taxpayer may not appeal unless party to complaint — Section 5610, General Code — Right of appeal statutory, when.
1. Where a public utility has filed with a county board of revision a complaint not based on any alleged overvaluation of real property but solely on the inclusion of personal property in a tax levied under Section 6828-43, General Code, a taxpayer who was not a party to the complaint before the board of revision is not authorized under Section 5610, General Code, to appeal to the Board of Tax Appeals from the decision of the board of revision.
2. There is no right of appeal from a decision of a statutory board or a judgment of a legally constituted court except as provided by statute.
APPEALS from the Board of Tax Appeals.
Upon application of counsel for appellant, the above numbered eight cases, on appeal as of right from the Board of Tax Appeals, were consolidated into one case for purposes of filing briefs and records and presenting oral argument.
The Scioto-Sandusky Conservancy District, under authority of Section 6828-43, General Code, levied a preliminary tax of three-tenths of a mill upon the property in the district for the purpose of paying the expenses of organization, et cetera. This tax was levied in all the counties in the district upon all the real and personal property of public utilities.
The complaints in all these proceedings were of the same nature and were filed with the boards of revision of the various counties, including Franklin, by The Chesapeake Ohio Railway Company; The Union Depot Company; The Baltimore Ohio Railroad Company; The Pennsylvania Railroad Company as lessee of The Pennsylvania, Ohio Detroit Railroad Company, The Pittsburgh, Cincinnati, Chicago St. Louis Railroad Company and The Little Miami Railroad Company; The New York Central Railroad Company as owner of The Cleveland, Cincinnati, Chicago St. Louis Railway Company; The New York Central Railroad Company as owner of The Toledo Ohio Central Railroad Company; and The Norfolk Western Railway Company.
The complaints were based on the claim that there had been included in the property against which the tax had been levied elements of value of personal property and that the tax was applicable only to real property in the district. The prayer of each complaint was that the "assessment * * * be corrected and reduced to the value of real estate used in operation and buildings and structures * * *."
Upon hearings by the board of revision of Franklin county, the complaints in all these consolidated proceedings were sustained and no appeal was taken from that action by any party to the hearing before the board of revision.
Thereafter, the appellant herein, who was not a party to the proceedings before the board of revision but who represented himself as a taxpayer residing in Franklin county, filed an appeal to the Board of Tax Appeals from the decision of the board of revision of Franklin county and claimed the right to do so by reason of Sections 5609, 5609-1 and 5610, General Code.
Upon motion of the board of revision the appeal was dismissed by the Board of Tax Appeals upon the ground that appellant was without capacity to maintain the appeal.
Mr. E.W. Dillon and Mr. Allen I. Pretzman, for appellant.
Mr. Herbert S. Duffy, attorney general, and Mr. W.H. Annat, for appellee Board of Tax Appeals.
Mr. Ralph J. Bartlett, prosecuting attorney, and Mr. D.B. Sharp, for appellee county auditor.
Mr. C.G. Siegman and Mr. Harrison W. Smith, for the appellee railroad companies.
It is agreed by all parties to these consolidated appeals that the sole question involved is whether a taxpayer not a party to the proceedings before a county board of revision may, by reason of the provisions of Sections 5609, 5609-1 and 5610, General Code, appeal from the decision of the Franklin county board of revision to the Board of Tax Appeals.
Section 5609, General Code, so far as it affects the question with which we are concerned, provides:
"Any taxpayer may file such complaint as to the valuation or assessment of his own or another's real property, and the county commissioners, the prosecuting attorney, county treasurer, or any board of township trustees, any board of education, mayor or council of any municipal corporation, in the county shall have the right to file such complaint."
Section 5609-1, General Code, provides:
"Whenever a county board of revision renders a decision on a complaint filed under the provisions of Section 5609 of the General Code, it shall by registered mail certify its action to the person in whose name the property is listed, or sought to be listed, and to the complainant in the event the complainant be a person other than the person in whose name the property is listed or sought to be listed."
Section 5610, General Code, so far as it applies to the question before us, reads as follows:
"An appeal from the decision of a county board of revision may be taken to the Board of Tax Appeals by the county auditor or any of the persons or public officials authorized by Section 5609 of the General Code of Ohio to file complaints against valuations or assessments with the county auditor, within thirty days after notice of the decision of the board of revision is mailed as provided in Section 5609-1 of the General Code of Ohio."
Appellant contends that under Section 5609, General Code, he as a taxpayer had authority to file a complaint as to the valuation of the real property of the various complainants before the board of revision. Although appellant filed no such complaint, he contends that since Section 5610, General Code, provides that an appeal from the decision of a county board of revision may be taken to the Board of Tax Appeals by any of the persons authorized by Section 5609, General Code, to file a complaint, and he as a taxpayer was authorized to file such complaint, he has the right to appeal from the decision of the board of revision.
There is no right of appeal from a judgment of a court or decision of a statutory board except as it is conferred by law.
In the case of City of Middletown v. City Commission of Middletown, 138 Ohio St. 596, 37 N.E.2d 609, Judge Zimmerman in writing the opinion of the court said, on page 603:
"The right of appeal is not an inherent or inalienable right, but must be conferred by authority upon the person who would enjoy it. 2 American Jurisprudence, 847, Section 6. It is unknown to the common law. 4 Corpus Juris Secundum, 81, Section 18. The Constitution of Ohio prescribes the jurisdiction of certain courts, but is silent as to who may prosecute an appeal. It is therefore necessary to turn to the statutory law of the state."
City of Middletown v. City Commission of Middletown, supra, was cited in support of the per curiam opinion in Village of Amherst v. Wragg, 139 Ohio St. 371, at 372, 40 N.E.2d 149.
It follows both from reason and authority that unless the statutory law clearly gives appellant a right to appeal in the present case, the decision of the Board of Tax Appeals must be affirmed.
Section 5610, General Code, does provide for an appeal by a person authorized by Section 5609 to file a complaint with the county auditor against valuations or assessments of real property. However, Section 5609-1 provides that when a board of revision renders a decision on a complaint filed under the provisions of Section 5609, the board shall certify its action by registered mail to the person in whose name the property is listed or sought to be listed and to the complainant in the event the complainant be a person other than the person in whose name the property is listed or sought to be listed.
According to Section 5610, General Code, an appeal must be taken within 30 days after the notice of the decision of the board of revision is mailed, as provided in Section 5609-1. Such a provision would seem to limit the right of appeal to the taxpayer who was authorized to file the complaint and who had done so.
There is another potent reason for holding that the appellant had no capacity to appeal in the present case. Section 5609, General Code, provides that any taxpayer may file a complaint as to the valuation or assessment of his own or another's real property.
When analyzed, the complaints of the railroads before the county board of revision were not as to the valuation or taxation of real property. There was no complaint as to overvaluation of real property. The complaint was limited to a prayer that the assessment be reduced to the value of the real property by eliminating the personal property which had been taxed.
Even under his strongest claim appellant had no capacity to appeal to the Board of Tax Appeals except as to the valuation or assessment of real property. It is a query as to the authority of a county board of revision to concern itself with the question of the assessment or valuation of personal property. In fact, that very question was raised by the attorneys for the appellant in the present case when they appeared as amici curiae before the board of revision upon a hearing of the complaints of the railroads.
Mr. Pretzman stated to the board of revision as follows:
"I merely want to raise this question for consideration of you gentlemen who have to decide this question, and that is the point that the board of revision does not have jurisdiction to entertain the matters requested in these complaints numbers one to seven, inclusive, because it does not confine itself to the question of whether the valuation assessed on the real estate of the railroads is excessive or not. It becomes a question of determining whether there is an assessment upon personal property and whether that assessment is properly made under the General Code sections mentioned, particularly 6828-1, and this board has no jurisdiction of the determination as to whether personal property is assessed or can be assessed by the conservancy district. Mr. Siegman has mentioned, of course, the point that they raise here, namely, that the real property is excessively assessed because of the inclusion of personalty. Well, now, I believe that the lands and buildings used in operation are not excessively assessed according to the schedule that comes down, and that means, therefore, that this board in order to entertain the relief asked for here will have to come into a construction of General Code 6828-1 and make a determination as to whether the assessment is on personal property and whether or not personal property is included in this assessment."
No taxpayer may file a complaint pursuant to Section 5609, General Code, except as to the valuation or assessment of his own or others' real property and, therefore, it would appear that, with reference to the complaints involved in the present case, appellant herein would not have had a right under Section 5609 to file a complaint with reference to the personal property of complainants herein. As to whether the complainants had such a right is not now before this court, no party to the complaint having perfected an appeal from the decision of the board of revision.
It follows, therefore, that the decision of the Board of Tax Appeals that appellant was without capacity to appeal from the decision of the board of revision of Franklin county was not unreasonable or unlawful.
Decision affirmed.
WEYGANDT, C.J., ZIMMERMAN, TURNER and TAFT, JJ., concur.
MATTHIAS and HART, JJ., dissent.
The record in this case discloses that the appeal of the railroad companies to the board of revision involved no question of the valuation of their real or personal property. The valuations thereof previously determined by the Tax Commissioner of Ohio and the determination by him of the portions to be allocated to Franklin county, under authority vested by Sections 5423 to 5430, inclusive, General Code, were introduced in evidence and accepted by all parties as a final determination of such valuations. The jurisdiction of the board of revision to hear complaints relating to the valuation or assessment of real property, conferred by Section 5609, General Code, was not invoked by this appeal. Likewise, no complaint alleging erroneous classification of the property of the railroad companies as real or personal property was made herein. Therefore, no lawful jurisdiction of the board of revision was invoked by the complaints and the determination by that body of any question of the exemption of the personal property of the railroad companies from the tax levied by the conservancy district was without authority in law and is invalid.
The majority opinion holds that a taxpayer cannot appeal from the action of the board of review involved herein, since he was not a party to the complaints before the board of revision. It would necessarily follow that neither the county commissioners, prosecuting attorney, county treasurer, board of township trustees, board of education, mayor nor municipal council may prosecute an appeal unless they were parties, although until that action was taken its adverse character and effect could not be known or anticipated.
It is my opinion that, as a result of the interpretation of Section 5610, General Code, by the majority, no remedy is left to either the elected officials named or any taxpayer or opportunity to complain of any illegal action or faulty performance of the duties by the board of revision.
HART, J., concurs in the foregoing dissenting opinion.