
    Zumstein, Treasurer v. The Consolidated Coal & Mining Co., et al. The Same v. Lysle et al.
    
      Taxation of real estate — Lands owned by municipal corporation— L'eased for more than fourteen years — Section 3733, Revised Statutes.
    
    Lands owned by a municipal corporation and leased for more than fourteen years, not subject to re-valuation, are under the? provisions of section 2733, Revised Statutes, taxable only to the extent of the lessee’s interest therein.
    (Decided March 17, 1896.)
    
      Error to the Circuit Court of Hamilton county.
    In these eases the treasurer of Hamilton county brought suit to charge different parcels of wharf property belonging to the city of Cincinnati, but leased to other defendants with taxes, in one case for the years 1881 to 1887, inclusive, and in the other for the years 1883 to 1887, inclusive, which had been accidentally omitted from the tax duplicate. The cases were tried in the circuit court ■on appeal, and the facts material to the present controversy were found to be as follows:
    The lands are owned by the city in fee, are within its corporate limits, and are for wharf purposes. Not being needed for those purposes for the time being, the city leased one portion of the lands for twenty years from November 23, 1881, and the other for fifteen years from March 18, 1882. The defendants are the city, its lessees and others acquiring interests by leases or assignments from or through the original lessees. Shortly before the bringing of the suits it was discovered that said lands had been omitted from the duplicates of real estate in the county, and that no taxes had been paid thereon for the years aforesaid. Thereupon the auditor proceeded to determine the value of the fee in said lands, and after giving notice to the lessees of his intention to place the same upon the duplicate, and giving them an opportunity to be heard, placed the same upon the duplicate. The values of said parcels were properly ascertained. No taxes had been paid thereon for any of the years mentioned. The property was not, by the terms of the leases, subject to revaluation, nor did the lessees undertake to pay taxes thereon.
    
      The circuit court, as its conclusion of law, found that the lands are not taxable. The reversal of its judgment is the object of this petition in error.
    
      Fredenck S. Spiegel, county solicitor; Mathews da Cleveland, Harry L. Burgoyne and Coppoch da Gallagher., for plaintiff in eri-or.
    It will probably not be claimed that the property of the city of Cincinnati is exempt, unless it is fairly covered by some statute exempting it.
    This court has uniformly held that in the strongest language that the constitution is imperative as to taxing all property, not exempted and that its provisions preclude any other exemptions than those indicated. Zanesville v. Richards, 5 Ohio St., 590.
    It is further held that the statutes of exemption shall be strictly construed, and shall not be considered as including any species of property which does not fairly fall within their provisions. Cincinnati v. State, 19 Ohio St., 110.
    The only exemption which can be claimed to apply to the property involved in this case is paragraph eight, of section 2732, Revised Statutes.
    It is evident, we think, that the laws relating to the taxation of real property in the state, do not deal with a less interest than the fee. If the legislative intent, as expressed in section 2733, had been to impose a tax upon the leasehold merely, surely such intent would have been plainly expressed. A construction so opposed to the whole tax system cannot be upheld unless warranted by the specific language of the statute. Hitherto our argument has been based upon the language of the statute itself, without reference to any judicial interpretation which has been given to the statute.
    
      We find, however, that this court, in the case of Bentley v. Barton, 41 Ohio St., has given to section 2733, the construction for which we contend. In that case, lands owned by the state, and leased for a term exceeding fourteen years, were held to be taxable in the name of the lessee, and a sale of the lands was ordered, upon the petition of the county treasurer, to recover the amount of the tax. Lee, Treas., v. Sturges, 46 Ohio St., 159; Zanesville v. Richards, 5 Ohio St., 590; Cincinnati College v. State, 19 Ohio, 110; Library Association v. Pelton, 36 Ohio St., 258; Sturges v. Carter, 114 U. S., 521; 30 Ohio St., 234; 41 Ohio St., 410; Ludlow v. Brewster, 3 C. C., 82.
    The general exemption statute is section 2732, and the eighth subdivision of that section is the only one which it can be claimed relates to the case at bar. It follows, therefore, that lands belonging to the city of Cincinnati, when leased, and devoted to a private use and occupancy, are taxable, as they would be if they were the property of a private individual.
    We submit, first: That section 2733 authorizes the taxation of these lands in the name of the lessee. Second: That even in the absence of section 2733, the lands would-be taxable under the general tax laws of the state, as they do not come within the provisions of any exempting statute.
    
      Frederick Hertenstein, William H. Whittaker, Fit■ tridge, Wilby da Simmons, Herbert Jenny, Van Seggern, Phares da Be Wald and Ramsey, Maxwell da Ramsey, for defendants in error.
    This case depends on the construction to be given to section 2733, Revised Statutes. We claim that the property is exempt from taxation, being public property, and the revenue being .devoted to a public use. The fact that it has been leased does not deprive it of the exemption. Dillon, Mun. Corp., 4th ed., section 773; State v. Gaffney, 34 N. J. L., 131.
    The statute requires the lessee to pay the taxes. Looking at the history of the statutory legislaton upon this subject, it would appear that the lessee only is liable for the taxes. Daugherty v. Thompson, 71 Texas, 192.
    The original petition- was hied by John Zumstein. We hnd an entry made April 11, 1892, substituting Reuben B. Brooks, as plaintiff. On the day following an amended petition was hied in the name of R. B. Brooks. The city and the other defendants hied answers to the amended petition, not to the original petition.
    An appeal was taken, and the finding of facts shows that since the amended petition was hied in this case, said John Zumstein, county treasurer, has retired from office, and Leo Schott has become treasurer of Hamilton county, state of Ohio, in his stead and place, and “is entitled to have this action revived in his name.” We claim, therefore, that the court has no jurisdiction in the premises, the petition in error having been hied in the name of John Zumstein, treasurer, and not in the name of his successor in office. Smetters v. Rainey, 13 Ohio St., 568; 14 Ohio St., 287; Kennard v. Kennard, 35 Ohio St., 660.
    There are four distinct irregularities in the listing and valuation of this property, each of which is sufficient to render the whole assessment void.
    
      Lessee of Perkins v. Dibble, 10 Ohio, 434; Burchard v. Hubbard, 11 Ohio, 316.
    
      But this duplicate does not even contain a sufficient descriptionof the parcel of tract of land.
    The Ohio cases in point, other than the two already cited, are: Massie's Heirs v. Long, 2 Ohio, 287; Lafferty v. Byers, 5 Ohio, 458; Lessee v. Emerick, 6 Ohio, 391; Douglass v. Dangerfield, 10 Ohio, 152; Hamel's Lessee v. Smith, 15 Ohio, 134; Turney v. Yeoman, 16 Ohio, 24; Stewart v. Aten's Lessee, 5 Ohio St., 257; Winkler v. Higgins, 9 Ohio St., 599; Humphries v. Huffman, 43 Ohio St., 395; Worthington v. Hewes, 19 Ohio St., 75; Thompson v. Gotham, 9 Ohio, 175; Lafferty's Lessee v. Byers, 5 Ohio, 458; Cooley on Taxation, 470.
   Shauck, J.

Whether a tax may be assessed upon these lands or any interest therein must be determined by a construction of the appropriate subdivision of section 2732, Revised Statutes, which relates to exemptions from taxation, and of section 2733, which relates to the taxation of lands belonging to the state or to a municipal corporation, and leased for a term exceeding fourteen years.

The exemption from taxation provided for in the eighth subdivision of section 2732, is of “all market houses, public squares, or other public grounds, town or township houses, or halls used exclusively for public purposes, and all works, machinery and fixtures belonging to any town, and used exclusively for conveying water to such town.

Section 2733 provides that “All lands held under lease for any term exceeding fourteen years, and not subject to revaluation belonging to the state or any municipal corporation, or to any religious, scientific or benevolent society, or institution, whether incorporated or unincorporated, or to trustees for free education only, and school and ministerial lands, shall be considered for all purposes of taxation as the property of the person or persons holding the same, and shall be assessed in their name.”

Counsel for the plaintiff in error, construing these provisions literally, insist that although the lands were acquired for a public purpose by the city of Cincinnati, they are not now used exclusively for a public purpose, and that they are not therefore exempt under the eighth subdivision of section 2732, and are therefore subject to taxation as the property of the city; and, further, that the lands are taxable under the express provisions of section 2733, since they are held under lease for a term exceeding fourteen years, and not subject to revaluation. And, to sustain this view, the definition of the term “land” in section 2730 is invoked.

This conclusion, it. is insisted, is the necessary result of the statutory provisions referred to, although cases are conceivable in which the amount of the tax upon the fee would prevent the leasing of lands held in the ownerships mentioned in section 2733, so that the owners, would derive no income from the lands and the public no tax.

In opposition to this view, it is urged that' the lands in question, though occupied by shippers of coal, are “used exclusively for public purposes” since the rents derived therefrom are so used, and that there should not be imputed to the legislature an intention to provide for the sale of the fee belonging to the city to discharge any obligation which the statute imposes on its lessee.

The tax does not seem to be imposed upon the fee of these lands by provisions so clear as to relieve us of the duty of considering these provisions together and ascertaining the purpose of the legislature as indicated by all the related provisions.

It is not disputable that if the lands had not been leased, they would be exempt under the terms of the eighth subdivision of section 2732. It does not seem necessary to consider what would have been the effect of the leases, if the taxability of the lands were to be determined by section 2731, which provides for the taxation of. all property whether real or personal, and the exemption referred to. For, since their taxability results from the fact that they are held under leases from the city for terms exceeding fourteen years, and not subject to revaluation, the case is to be determined by the particular provisions of section 2733, by which the general assembly has defined the extent of the tax. There should be no inference except such as may aid in ascertaining the meaning of this section.

■ The term ‘‘lands,” when not restricted in meaning by related provisions, includes all interests therein. There are, however, considerations which indicate that the term is used in a restricted sense in section 2733. By the terms of the section, it does not apply to lands held under leases for terms shorter than fourteen years, nor to those held for longer terms, if by the stipulations of the lease the lands are, as between the lessor and lessee, subject to revaluation. These conditions to the application of the section can have no meaning if the object of the legislature was to impose a tax upon the fee. The value of the fee could not be at all affected by the duration of the lease, nor by stipulations for revaluation. These conditions are, however, important in providing for the taxation of the lessee’s interest in such lands. They indicate that in the opinion of the legislature in leases for a shorter term, the rent reserved would be the substantial equivalent of the rental value, and that in the cases of leases for a longer term, but stipulating for revaluation, the rent reserved and the rental value would be made substantially equal by such revaluation. The result in either case would be, that the lessee’s interest would not be of substantial value.

By the terms of section 2733, leased lands belonging to a municipal corporation and. those belonging to the state, are subject to the same rule.

The third subdivision of section 2732 very clearly exempts “all property, whether real or personal, belonging exclusively to the state.” It cannot be supposed that, notwithstanding this exemption, the legislature contemplated a tax'upon the fee, to be assessed against the lessee, and enforced against the property of the state or the municipality. We are of the opinion that the purpose of section 2733 is to impose a tax upon the lessee’s interest in lands, in the cases specified, and not a tax upon the fee.

Judgments affirmed.  