
    American Can Co., Appellee, v. Bowers, Tax Commr., Appellant. American Can Co., Appellant, v. Bowers, Tax Commr., Appellee. Philip Morris, Inc., Appellee, v. Bowers, Tax Commr., Appellant. Holland Furnace Co., Appellee, v. Bowers, Tax Commr., Appellant. Champion Spark Plug Co., Appellee, v. Bowers, Tax Commr., Appellant. Copeland Refrigeration Corp., Appellant, v. Bowers Tax Commr., Appellee.
    (Nos. 35675, 35676, 35705, 35749, 35750 and 35807 —
    Decided April 1, 1959.)
    
      
      Messrs. Graydon, Head & Ritchey and Mr. Bruce I. Petrie, for the American Can Company.
    
      Messrs. George, Greek, King & McMahon, for Philip Morris, Inc., and Holland Furnace Company.
    
      Messrs. Marshall, Melhorn, Bloch & Belt and Mr. Lynn H. Gressley, for Champion Spark Plug Company.
    
      Mr. Harry K. Forsyth, Mr. Carlton 8. Dargusch, Mr. Carlton 8. Dargusch, Jr., and Mr. Jack H. Bertsch, for Copeland Refrigeration Corporation.
    
      Mr. William 8axbe and Mr. Mark McElroy, attorneys general, and Mr. John M. Tobin, for Stanley J. Bowers, Tax Commissioner.
   Per Curiam.

As to the appeal of the American Can Company, we believe that the syllabus of the Grinnell case, supra, requires the conclusion that the property involved was not in storage because it was “located * * * at the place where it was manufactured into a product.”

As to the Tax Commissioner’s appeals, all involve very close questions. Apparently, the Board of Tax Appeals endeavored to apply the guides specified in the Grinnell case. We do not believe that the board’s conclusions are unreasonable or unlawful.

As to the Copeland appeal, we reach the same conclusion except so far as the conclusions of the Board of Tax Appeals relate to raw materials and semifinished products to be employed in production and to be transported over city streets from separate warehouses a distance of one to two miles. To that extent, the board’s decision seems to be inconsistent with parts of the board’s prior decisions involved in the Tax Commissioner’s appeals in the American Can and Champion cases referred to herein. If, as we are holding, the decisions of the board in those cases were not unreasonable and unlawful, the board should, in order to be consistent and therefore to be reasonable, reconsider the foregoing portion of its decision in the Copeland ease.

Decisions affirmed in eases Nos. 35675, 35676> 35705, 35749 and 35750.

Decision remanded in case No. 35807.

Weygandt, C. J., Zimmerman, Stewart and Taet, JJ., concur.

Herbert, J.,

concurs except as to case No. 35705 in which he dissents.

Matthias and Bell, JJ., dissent.

Bell, J.,

dissenting. The basic concept by which the Tax Commissioner, the Board of Tax Appeals and this court are to be guided in determining questions arising under the tax exemption here under consideration is whether particular tangible property is “used in business” in Ohio. In my opinion, the General Assembly, being aware of the limitations upon its power to impose a tax on goods in interstate commerce, intended to exempt from the tax only that property which it knew it could not tax, i. e., property belonging to a nonresident and held temporarily in storage only in Ohio while enroute to a destination outside Ohio.

I am aware that this court has specifically rejected this theory. I am equally of the opinion, however, that the rejection of that theory has led to the development of artificial and in many instances unworkable formulae such as those based on distance and the use of public highways as set out in the Grinnell case.

In my opinion, “material, parts, products, or merchandise” is “kept on hand” if it is to be used in manufacturing by the taxpayer, whether snch use is to be in a plant next door to where the goods are stored (kept on hand) or in a plant across the street or in a plant one, two, five or a hundred miles away. In any of those cases, the “material, parts, products, or merchandise” is being kept by the taxpayer to be used by the taxpayer in business or manufacturing in Ohio.

Consequently, I dissent from the judgment agreed upon by the majority in each of the present cases.

Matthias, J.,

concurs in the foregoing dissenting opinion.  