
    The B. F. Keith Columbus Co., Appellant, v. Board of Revision of Franklin County et al., Appellees.
    (No. 30852
    Decided July 9, 1947.)
    
      Messrs. Ulmer, Berne é Gordon, for appellant.
    
      Mr. Ralph J. Bartlett and Mr. D. B. Sharp, for appellees.
   Sohngen, J.

This appeal is from a decision of the Board of Tax Appeals, brought under authority of Section 5611-2, General Code, determining the valuation for taxation for the tax year 1944 of the land and building of The B. F. Keith Columbus Company, appellant, which property is located in Columbus and known as the Palace Theater.

The auditor of Franklin county appraised the property for taxation for the year 1944, as follows: land, $170,250; building, $512,400; total, $682,650.

The Board of Revision refused to grant any reduction in this valuation.

On appeal the Board of Tax Appeals modified the auditor’s valuation, and valued and assessed, as follows, the property in question for the year 1944: land, $170,250; building, $468,736; total, $638,986.

The appellant seeks a reduction of the valuation as determined by the Board of Tax Appeals.

The valuation and assessment for taxation for the tax year 1943 was: land, $92,760; building, $228,850; total, $321,610.

The auditor, (by his assessment, increased the appraised value of this property by nearly 100% over the appraised value for the tax year 1943, which assessment, with a slight reduction, was affirmed by the Board of Tax Appeals. The appellant claims the decision of the Board of Tax Appeals is unreasonable and unlawful. • '

The property in question consists of a parcel of land, 157.5 feet on Lynn street by 115 feet on Wall street, under a perpetual lease to the appellant, on which is situated a fireproof, steel frame, brick wall theater building. The record discloses that the theater entrance is located at 36 West Broad street. The evidence shows that this property does not abut on Broad street but is 72.5 feet north of same. The theater does have an entrance easement 42 feet in width beginning at the corner of West Broad and North Wall streets, extending back 47.8 féet, then widening to 62.5 feet and going back a further distance of 24.7 feet to the appellant’s property line. The appellant also has an easement running from North Wall street to Front street. The evidence shows that appellant pays a rental of $18,000 a year for the above land, including the easements, but pays no taxes on the easements.

The question for determination on this appeal is whether the valuation as determined by the Board of Tax Appeals for the tax year 1944 is unreasonable or unlawful. Section 5611-2, General Code.

■ With respect' to the valuation of the building involved, appellant offered the testimony of R. T. Hoiclge, an architect of New York City, who qualified as an expert and who was the architect of the Palace Theater in Columbus when it was built in 1926. The appellees offered the testimony of James M. Cleminshaw who was connected with the J. M. Cleminshaw Company, appraisal engineers of Cleveland, Ohio, and who also qualified as an expért.

A careful review of. the testimony of Iioidge and Cleminshaw, with respect to the building involved, discloses that there is no disagreement between them as to (1) the number of cubic feet in the theater building and (2) the replacement cost of 40 cents per cubic foot for the year 1944. Both witnesses asserted there are areas in the building which in 1944 were useless and valueless and should be eliminated in determining the value of the building, but there is disagreement between them as to the extent of these areas. The other issue upon which the expert witnesses disagree is the rate of depreciation which should be applied annually to the theater structure from 1926, when it was built, until 1944, a period of 18 years.

It appears from the evidence of Cleminshaw that he made a careful appraisal of the building. He stated:

\ “I had a card record showing the outside measureihents of the building. I obtained permission to go through it. I took voluminous notes of the construction and interior finish. I noted the kind of foundation walls, the type of structure, the exterior finish, the interior finish and the plumbing and the heating and the lighting. I noted that it was fully air-conditioned, there was a vacuum cleaning system. In other words I made note of all structural details. Noted the building was of fireproof construction, steel frame, and steel trusses. That it had one passenger elevator, that there was tiling in the toilet rooms. That it was a particularly high-grade and ornately finished building. * * * I cubed the building at 1,831,412 cubic feet. ® * * I did bear in mind that there was a very large stage, with a very high fly loft above it, which is perhaps not essential to the theater as it exists today. I talked to the manager and inquired as to how many stage presentations per year they put on and got the information substantially as was given in testimony here. So all of these factors had to be considered, the remaining expectancy of useful life of the structure, its desirability as a theater, accrued obsolescence, and arrived at a total depreciation of 30%. In arriving at the reproductive value I took 80% of my 100%, of $941,165, and placed a reproductive value of $731,000, from which I subtracted 30%, which gave a physical value of $512,400.”

The Board of Tax Appeals modified Cleminshaw’s formula by allowing 36% instead of 30% for total accrued depreciation from all causes, as a fair and reasonable amount to be allowed for depreciation on the building, and found that the true value.in money of the building, after giving it a depreciation of 36%, was $468,736.

Hoidge testified that the Palace Theater was built as. a vaudeville theater in 1926; that vaudeville entertainment required a vast structure back of the curtain, a large stage structure, dressing rooms for actors, bathrooms, parlors, restrooms, nurseries, space for the care of animals, and other storage space and facilities used in vaudeville acts; that during the days of vaudeville, theaters were built with high ceilings; that with the development of sound in pictures, vaudeville died in 1930; that the excess retiring rooms, high ceilings in the auditorium, big stage and elaborate dressing rooms have become obsolete and useless and are not reflected in any commercial value of the premises; that the overbuilt sections of the Palace Theater, which are obsolete and of no value, total 566,000 cubic feet; and that eliminating the 566,000 cubic feet as not needed and applying depreciation at the rate of 3% per annum for 18 years to the remainder, the true value of the Palace Theater building as of 1944 would be $265,000.

It is the contention of the appellant that since motion pictures have taken the place of vaudeville in this theater, the elaborate dressing rooms, stage properties and decorations are no longer of any value to appellant and should be eliminated-in assessing the value of the property; and that a rate of depreciation higher than the 2% allowed by the Board of -Tax Appeals should be applied to the remainder.

The record indicates that large areas of this theater, which were built for the purpose of vaudeville performances, and the elaborate public waiting rooms are no longer needed or used by the appellant. Due to necessary maintenance, they constitute more of a liability than an asset to the appellant. These areas have become subject to what is known as functional depreciation. Functional depreciation occurs where property, although still in good physical condition, has become obsolete or useless due to changing business conditions and thus to all intents and purposes valueless to the owner. There can be no hard-and-fast rule as to valuation or depreciation. In this case, although Cleminshaw testified that “I did bear in mind that there was a very large stage, with a very high fly loft above it, which is perhaps not essential to the theater a® it exists todáy,” the valuation which he reached indicates that he gave no force and effect to the condition which he asserts he bore in mind. The transcript of his testimony discloses:

“Q. Now let us come to the question of depreciation and obsolescence of theaters. You took, as I understand it, the replacement cost of this theater at 40c per , cubic foot and then allowed 30% depreciation for the 18 years of life of the theater, which is at the rate of 1 2/3%, I believe, per year, is that correct? A. It happens to work out at that.
‘■‘Q. And that one and two-thirds per cent, did that represent physical depreciation or function depreciation or obsolescence or what did it represent? A. It represented depreciation, however caused.
“Q. You are familiar with the card of the auditor’s office in that respect. Did you make out those cards? A. I made out the original card.
“Q. Eeading from this card, which is the original card of the auditor office, which you prepared with respect to this property, I find the age of the theater 1926, physical depreciation 30%, functional depreciation nothing, replacement value, $732,000, physical value, $512,000. Now directing your attention to the question of normal depreciation, functional, physical and otherwise and obsolescence of theaters and when I speak of the normal depreciation and obsolescence, I mean that applies to any theater and I am including for the moment the special obsolescence which might arise from having over-built, parts of the theater which have become useless. I am speaking of the part that is left of the obsolescence that is applied to all theaters, the normal obsolescence and you would place that at 1 2/3% ? A. I placed it at a total of 30%, total accrued depreciation from all causes.” (Italics ours.)

Hoidge testified that the excess obsolete space totaled 566,000 cubic feet. Cleminshaw in his testimony admitted there was special obsolescence but disputed the amount. The transcript of his testimony discloses further:

‘ ‘ Q. All right, Mr. Cleminshaw, we will try to stick right to a few questions, because the hour will be getting late. I am very much interested in your approach to this problem, but I would like to confine ourselves to a few questions. The extent to which there is surplusage, unused space, which should be taken into consideration, you are not prepared to concede, but you do concede that there is a large amount of space there, which should be taken into consideration as obsolescent, is that correct? A. There is some space.
“Q. Now you heard Mr. Hoidge testify and you heard his qualifications as an architect. Don’t you think that his exposition of that is sound? A. To a limited extent. I have already stated to what extent I agree with him, and to which I disagree.
“Q. You disagree with the height of the ceiling, which involves a great amount of space, but the back stage and other parts, dome [some] of the dressing rooms and equipment you concede that there is surplus-age, which lends itself to obsolescence? A. Yes, I do.”

It appears from this testimony that Cleminshaw disputed the item of excess ceiling height, resulting in 168,705 cubic feet, which he considered not to be obsolete and useless. Allowing for this disputed area, there still appears to be an undisputed balance of sur- • plus .space which is obsolete and of no commercial value, represented by the excess stage, dressing rooms, and basement space, approximating 21% of the total cubage of the entire theater. The Board of Tax Appeals allowed a total depreciation and obsolescence factor of 36%. Deducting the undisputed 21%, as admittedly of no commercial value and obsolete, from the 36% allowed by the Board of Tax Appeals as a total depreciation and obsolescence factor, there is left 15% for depreciation for the balance of the structure for a period of 18 years, or a little less than 1% per year. It appears to the majority of this court that neither the auditor nor the Board of Tax Appeals seems to have considered seriously the item of functional depreciation. In that respect we think the decision of the Board of Tax Appeals is unreasonable.

We now come to the question of the value of the land.

The tract here in question has an area, of 18,112% square feet with a' frontage on two alleys, but no frontage on any main street. Access from Broad street to this area is gained through an easement.

The witness for the appellees was the appraiser who made the original appraisement for the county auditor. The record shows that he considered the front-foot valuation and the economic valuation. His front-foot valuation was $2,529.63. Applying this front-foot valuation to the land in question, the witness used a depth table which gave the value of this area as 40% of the whole, amounting to $159,367. To this value of $159,367 he added $10,880 for corner influencé, which gave, according to his testimony, a total of $170,248. A majority of this court concludes that the addition of $10,880 for corner influence is unreasonable.

Upon a consideration of the record, it is the opinion of this court that the finding of the Board of Tax Appeals as to the value of the land here in question is unreasonable.

Wherefore the court, finding the decision of the Board of Tax Appeals unreasonable, remands the case to the Board of Tax Appeals for its further consideration consistent with this opinion.

Cause remanded.

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

Turner and Matthias, JJ., dissent. ,

Turner, J.,

dissenting. I dissent for the reason that the record does not disclose that appellant’s real property has been discriminated against or that it was not valued for taxation by a uniform rule applicable to all real property of the same or similar kind in the same or similar neighborhood or that the valuation arrived at by the Board of Tax Appeals is either unlawful or unreasonable.

I dissent also on the ground that the majority holding in this case creates a discrimination in favor of appellant and, therefore, violates the provision of Section 2, Article XII of the Constitution, which provides that “land and improvements thereon shall be taxed by uniform rule according to value. ’ ’

I dissent on the further ground that the majority of this court has attempted to decide facts and to participate in the actual valuation rather than in prescribing the rules (law) by which the valuation was to be made. As an illustration of this ground I call attention to the following finding of this court as set forth in the majority opinion:

“The record indicates that large areas of this theater, which were built for the purpose of vaudeville performances, and the elaborate public waiting rooms are no longer needed or used by the appellant. Due to necessary maintenance, they constitute more- of a liability than an asset to the appellant. These areas have become subject to what is known as functional depreciation. ’ ’

The auditor’s expert testified:

“I did bear in mind that there was a very large stage, with a very high fly loft above it, which is perhaps not essential to the theater as it exists today. I talked to the manager and inquired as to how many stage presentations per year they put on and got the information substantially as was given in testimony here. So all of these factors had to be considered, the remaining expectancy of useful life of the structure, its desirability as a theater, accrued obsolescence and arrived at a total depreciation of 30%. ”

In its finding the Board of Tax Appeals said:

The board is of .the opinion, after consulting many authorities, that a hard-and-fast rule or an arbitrary or fixed percentage of depreciation is not the proper method of fixing depreciation on any building to determine its true value in money for taxation; that the only way to determine the amount of the physical or economic depreciation of a building is by an actual inspection and examination of the building and records of the company by a competent and qualified appraiser.
‘ ‘ The board therefore finds that the replacement cost of this building of 1,831,000 cubic feet at 40c per cubic foot is $732,400, and taking into consideration the age of the building, its physical condition, availability for the purposes for which it is used, income factor and all of the factors appearing in the records tending to prove its value, that a reduction of 2% per year or a total of 36% for total accrued depreciation from all causes is a fair and reasonable amount to be-allowed for depreciation on said building, and thus the board finds that the true value in money of this building, after giving it a depreciation of 36%, is $468,736.”. (Italics ours.)

The board also said in its finding:

“Mr. Hoidge, a witness for the .appellant, testified * * # that said building was built to accommodate stage shows and that now its main use was to exhibit motion pictures although it did use -the theater building three nights a week for stage presentations, which required the use of part of the stage, in addition to the picture show. There was no evidence that the buildmg was not suitable for exhibiting motion pictures,” (Italics ours.)

Instead of pointing out wherein the method pursued by the Board of Tax Appeals was unlawful or unreasonable or that there was no evidence to support its finding, the majority of this court has proceeded to pass upon the factual situation as follows.:

“Deducting the undisputed 21% as admittedly of no commercial value and obsolete from the 36% allowed by the Board of Tax Appeals as a total depreciation and obsolescence factor, there is left 15% for depreciation for the balance of the structure for a period of 18 years, or a little less than 1% per year. It appears to the majority of this court that neither the auditor nor the Board of Tax Appeals seenis to have considered seriously the item-of functional depreciation. In that respect we think the decision of the Board of Tax Appeals is unreasonable. ’ ’

This is a plain substitution of the judgment of the majority of this court for that of the Board of Tax Appeals.

In paragraph two of the syllabus of Board of Education of Cleveland Heights City School District v. Evatt, Tax Commr., 136 Ohio St., 283, 25 N. E. (2d), 453, it was held :

“The Supreme Court has appellate jurisdiction to review the decisions of the Board of Tax Appeals on questions of law presented by its record, but in the exercise of such jurisdiction this court will not interfere with a decision of the Board of Tax Appeals unless it appear from a consideration of the entire record that such decision is unreasonable or unlawful. ’ ’

In the unanimous per curiam opinion of this court in the case of Ramsey v. County Board of Revision of Franklin County, 141 Ohio St., 366, 368, 48 N. E. (2d), 102, it was held:

“The valuation of these premises must necessarily bear some relation to valuations placed on similar properties in the same locality, and the fact that appellant’s property has added value by reason of being a corner lot must also be given due consideration. * * * This court will not substitute its judgment for that of the Board of Tax Appeals * * *.” •

In another unanimous per curiam opinion of all judges participating it was held in the case of Citizens Building Co. of Cleveland v. Board of Revision of Cuyahoga County, 141 Ohio St., 47, 51, 46 N. E. (2d), 413:

“The Board of Tax Appeals was not required to adopt the valuation fixed by. any expert but could consider all the evidence. * * * This court has no power to substitute its judgment for that of the Board of Tax Appeals but determines only whether tbie valuation fixed by that board is reasonable and lawful.”

In the unanimous per curiam opinion of all participating members of the court, it was held in Hibschman v. Board of Tax Appeals, 142 Ohio St., 47, 48, 49 N. E. (2d), 949:

“The Board of Tax Appeals is not required to adopt the valuation fixed by any expert or witness. * * * ‘The burden is upon a taxpayer to prove his right to a deduction and he is not entitled to the full amount of deduction claimed merely because no evidence is adduced contra his claim.’ ”

In the case of Wheeling Steel Corp. v. Evatt, TaxCommr., 143 Ohio St., 71, 54 N. E. (2d), 132, in paragraph seven of the syllabus it was held:

“The action of an administrative officer or board within the limits of the jurisdiction conferred by law is presumed, in the absence of proof to the contrary, to be valid and to have been done in good faith and in the exercise of sound judgment.”

In the case of Zangerle, Aud., v. Republic Steel Corp., 144 Ohio St., 529, 60 N. E. (2d), 170, it was held in paragraph nine of the syllabus:

“The action of an administrative board within the limits of the jurisdiction conferred by law is presumed, in the absence of proof to the contrary, to be valid and to have been done in good faith and in the exercise of sound judgment.”

In the case of Fair Store Co. v. Board of Revision of Hamilton County, 145 Ohio St., 231, 233, 61 N. E. (2d), 209, it was held in the unanimous per curiam opinion:

“The'statute grants to the Board of Tax Appeals wide discretion in arriving at a valuation and this -court has repeatedly said that it will not substitute its .judgment for that of the Board of Tax Appeals.”

It was also said in that opinion:

“Prom a careful examination of this record it is apparent that the Board of Tax Appeals gave due consideration to the evidence and, attaching to the board’s •decisión the presumption of good faith and validity to which it is entitled, we find no basis for the conclusion that it is unreasonable or unlawful.” In that same opinion attention was called to the fact that “appellant makes no claim that the county auditor in any wise •discriminated against it in arriving at the true value in money of its property. ’ ’

I am not unmindful of the per curiam opinion of this court, in which the writer joined, in the case of American Steel & Wire Co. v. Board of Revision of Cuyahoga County, 139 Ohio St., 388, 40 N. E. (2d), 426, in which it was held at page 391:

“A great deal is said by the board of revision about uniformity; but it should be remembered that the fixing of the true value of each lot or tract with improvements thereon is a separate proceeding and does not involve the consideration of all the parcels of land within a given area at the same time.” (Italics ours.)

Except as to the particular case then under consideration, I am of the opinion that the italicized portion of the foregoing quotation is too broad. In that particular case data for comparison was wanting. The matter under consideration in that case was the valúation of special-purpose buildings and improvements considering the advantages of the location.

In the case of Exchange Bank of Columbus v. Hines, Treas., 3 Ohio St., 1, 15, it was said by Chief Justice Bartley:

“Taxing by a uniform rule requires uniformity, not only in the rate of taxation, but also uniformity in the mode of the assessment upon, the taxable valuation. Uniformity in taxing implies equality in the burden of taxation; and this equality of burden cannot exist without uniformity in the mode of the assessment, as well as in the rate of taxation. But this is not all. The uniformity must be coextensive with the territory to which it applies.”

The jurisdiction conferred upon this court in appeals from the proceedings of administrative officers is revisory only.

"When a case comes here from the Board of Tax Appeals, our duty is not to attempt to re-examine and decide the facts but to examine the record to see whether the law has been properly applied to the facts, bearing in mind that the burden of proof is upon appellant to overcome the presumption that the action of the board is valid and to have been arrived at in good faith and in the exercise of sound judgment.

Section 5611-2, General Code, has not in my opinion attempted to enlarge the constitutional jurisdiction of this court but merely prescribes the method of carrying out the jurisdiction conferred by the Constitution. This section provides in part:

“If upon hearing and consideration of such record and evidence the Supreme Court is of the opinion that the decision of the board of tax appeals appealed from is reasonable and lawful it shall affirm the. same, but if the Supreme Court is of the opinion that such decision of the board of tax appeals is unreasonable or unlawful, it shall reverse and vacate same or it may modify same and enter final judgment in accordance with such modification.”

While the term “evidence” is used, the purpose of such use is to make clear that this court may examine the evidence to see if the law has been properly applied.

Neither .the foregoing language of Section'5611-2, General Code, nor the language of the Constitution conferring jurisdiction upon this court authorizes this court to substitute its judgment for the judgment of the administrative authority.

The appraisal of real property for taxation must be uniform. By this is meant that the property in a neighborhood must bear relative valuations, that is, there must be no discrimination. To take one piece of property out of the whole picture and value it without reference to the surrounding land or similar buildings is to dislocate the entire valuation picture.

The valuation of property for the purpose of taxation is- a combined legislative and administrative function of which the-courts have no part. It is for the court to say whether the General Assembly has enacted constitutional laws in respect of valuation and whether administrative officers have followed the law in making the valuation. As said by Chief Justice Bradbury in State, ex rel. Aud. of State, v. Holliday, 61 Ohio St., 352, 373, 56 N. E., 118, 49 L. R. A., 427:

“* * * it is not for this or any other of the courts ■of the state in the first instance to place values for the pxirpose of taxation on any property whatever.”

It is not our function to tell those skilled in such matters the result to be arrived at, but rather it is our function tó decide what principles of law are applicable to the facts of the particular ease.

Tax valuation is a difficult problem at best. To arrive at approximate justice the General Assembly has wisely set up machinery whereby the county auditor is directed to make up a sexennial appraisal which is to be kept current. (See Sections 5548 and 5579, General Code.)

The law provides the auditor with special assistants including experts (Section 5548, General Code).

Section 5548, General Code, provides in part:

'£ Such experts, deputies, clerks and other employees, in addition to their other duties, shall perform such services as the county auditor may direct in ascertaining such facts, description, location, character, dimensions of buildings and improvements and such other circumstances reflecting upon the value of such real estate, as will aid the county auditor in fixing its true value in money. Said county auditor may also, if he deems it necessary or advisable, summon and examine any person under oath in respect to any matter pertaining to the value of any real property within the county. ’ ’

The record before us does not purport to disclose all the information upon which the county auditor based his valuation for tax purposes on the property in question. '

As a check against the auditor, the General Assembly has provided for a board in each county to hear complaints and revise assessments of real property for taxation, which board is known as the county board of revision. The county board of revision is also empowered to employ experts (Sections 5587 and 5594, General Code).

It is the duty of the board of revision to hear and to investigate complaints relating to the valuation or assessment of real property to the end that the taxpayer may present his case fully to the board of . revision.

Section 5591, General Code, provides:

“All files, statements, returns, reports, papers or documents of any kind whatsoever in the office of a county auditor or of a county board of revision or in the official custody or possession of such officer or board relating to the assessment of real property shall be open to public inspection.”

The burden of showing that the valuation fixed by the auditor is too high or otherwise unjust is upon the taxpayer. If the taxpayer is dissatisfied with the action of the board of revision he may appeal to the Board of Tax Appeals (Section 5610, General Code). That the taxpayer may have the benefit of all that was before the board of revision, Section 5603, General Code, provides:

“The county board of revision shall take full minutes of all evidence given before the board and may cause the same to be taken in shorthand and extended in typewritten form. The secretary of the board shall preserve in his office separate records of all minutes and documentary' evidence offered on each complaint.”

When the case is appealed to the Board of Tax Appeals it is the duty of the county board of revision to certify to the Board of Tax Appeals a transcript of the record of the proceedings of the board of revision pertaining to the original complaint and all evidence documentary or otherwise offered in connection therewith. Such appeal may be heard by the Board of Tax Appeals at its office in the city of Columbus, or in the county where the property is listed for taxation, or the Board of Tax Appeals may cause one or more of its examiners to conduct such hearing and report to it his or their findings for affirmation or rejection.

The Board of Tax Appeals may order such appeal to be heard upon the record and the evidence certified to it by the county board of revision or it may order the hearing of additional evidence and may make or cause to be made such investigation with respect to tbe appeal as it may deem proper. Thus tbe taxpayer has the opportunity to introduce all information gathered by tbe auditor and has tbe advantage as well of tbe results of tbe experts employed by tbe board of revision to make up bis record to be certified to tbe Board of Tax Appeals. But the taxpayer is not bound by tbis record. He may introduce further evidence and cause to be made an investigation in respect of tbe valuation of bis property.

Now it. is fundamental that discrimination is to be avoided. To tbis end tbe auditor, tbe board of revision and tbe Board of Tax Appeals are required’ to take into consideration tbe difference, if any, in neighborhoods, tbe uses made of tbe neighborhood property, the kind, purpose and condition of tbe structures and especially tbe comparison of one parcel with another. But both tbe board of revision and tbe Board ■of Tax Appeals act only when a complaint or appeal is properly filed before tbe respective authority. Tbe presumption obtains in tbe absence of proof to tbe contrary that tbe auditor acted in good faith. Tbe burden of overcoming tbis presumption is upon tbe complainant. Likewise, tbe action of tbe board of revision is presumed in the absence of proof to the- con-trary to be valid and to have been done in good faith and in tbe exercise of sound judgment. Therefore, on appeal to tbe Board of Tax Appeals, tbe burden is still upon tbe taxpayer to overcome tbe presumption.

Now instead of introducing before tbe board of revision or tbe Board of Tax Appeals all tbe information gathered by tbe auditor and tbe mode or method of -valuation used by him, appellant merely developed :the opinions of its own witnesses as to tbe value without reference to any other reql property. The prosecuting attorney bad no burden to carry and, therefore, merely introduced the county auditor’s expert. Now the proper way to show that a taxpayer has been unfairly treated in the valuation of its property is to show what has been done in similar cases in the same or similar neighborhoods. The big difference in this case arises out of the fact that appellant’s witness-claimed a large area of the building was obsolete. This was contested by the auditor’s expert. The quantum: of evidence necessary to overcome the presumption in favor of the board’s decision in this contention is lacking. The particular obsolescence disputed in this case arises out of the fact that appellant claims that it did not need as high a ceiling for motion picture purposes as it did when the theater was used as a vaudeville theater for which, it was originally built. There is no evidence in the record which shows that the profits realized from the use of the building as a motion picture theater were less than the profits realized as a vaudeville theater. Obsolescence, if it existed, and! valuation, if too high, could have been shown also by comparison of the motion-picture theater almost across the street from the one under investigation and another motion-picture theater approximately three blocks away. These, were proper matters to be taken into consideration by the county auditor, the board of revision and the Board of Tax Appeals. If such matters had shown discrimination against the property of appellant, we would then have a question of law to decide. But the fact and extent of the obsolescence is not for this court but is a question to be finally settled by the Board of.Tax Appeals. Assuming the value of appellant’s building to have been fixed without relation to other similar properties in the neighborhood, appellant had a right to complain if discriminated against and on the other hand, if the building valuation as finally fixed discriminates against the other neighborhood theaters then they would be in position to complain.

As to the real estate value, the writer leans to the opinion that upon the record presented 'there is no lawful basis for adding to the valuation any figure for corner influence. The record shows appellant has an easement over the corner property but this corner property over which the easement runs is separately taxed. As to the valuation of the land, the record does not present any evidence which supports a claim for a valuation lower than that found by the board of revision save and except the possible item of corner influence. It is possible, of course, that the board assigned only a portion of the corner influence factor to the theater land, and the balance to the tract facing Broad street over which appellant has an easement. However, the record is not clear on this. There is no showing in this case of the tax valuation in the sexennial appraisement under question of any of the surrounding properties or of any similar motion-picture theaters.

The case of Neil House Hotel Co. v. Board of Revision of Franklin County, 147 Ohio St., 231, 70 N. E. (2d),'646, bears some analogy to the present case. In the Neil House case experts for the taxpayer testified to much obsolete and unusable space in that building. In the Neil House case the reproduction cost was fixed by the Board of Tax Appeals at 51 cents per cubic foot. In the instant case we have an ornate building with a reproduction cost of only 40 cents per cubic foot. In the Neil House case we had the question of •alley influence. However, the question decided in the Neil House case applied only to building and machinery. In the Neil House case the question of depreciation was also raised. The board’s judgment as to .obsolescence was accepted.

There is no evidence in the instant case showing the valuations for tax purposes of the surrounding property. It is true that the appellant’s expert capitalized income from leases upon property which he said was surrounding but of which the details were not given. But this does not meet the requirements of the present valuation of surrounding property. I think surrounding tax valuations constitute the sine qua non in a proceeding to challenge a tax valuation.

The holding of the majority in this case amounts to substituting this court’s judgment for the judgment of the Board of Tax Appeals which specializes in appraisals, had the witnesses before it, and had greater opportunity than we have of appraising the true value.

Save only on the question of the added value for corner influence under this record, the decision of the Board of Tax Appeals should be affirmed.

Matthias, J.,

dissenting. The valuation of any real estate for tax purposes must necessarily bear some relation to valuations placed on similar properties in the same locality. The record in this case does not disclose that the valuation of this property is in excess of the valuations for taxation placed on similar parcels in the same locality, and, therefore, no discrimination between-taxpayers is shown.

The appellant contends that the reproduction cost of that portion of the theater building which consists of unusued and unnecessary space should be deducted from the appraised value of the building. By agreement this space consists of 566,000 cubic feet, having a reproduction cost of $158,480. In effect the contention of the appellant is that by reason of the obsolescence of such building it is entitled to tax exemption to the full extent of such obsolescence,, and that the valuation of the building should be reduced by the full amount of the reproduction cost of such obsolete or unused portions.

The application of this rule would result in the creation of a class of exemptions which is not authorized by either the Constitution or statute. Obsolescence, or so-called “functional depreciation,” is merely one of the factors to be considered in arriving at the “true value in money” of such property and is not a ground for total tax exemption.

The basis of the valuation found -by the Board of Tax Appeals is stated in its journal entry as follows:

“The board is of the opinion, after consulting many authorities, that a hard-and-fast rule or an arbitrary or fixed percentage of depreciation is not the proper method of fixing depreciation on any building to determine its true value in money for taxation; that the only way to determine the amount of the physical or economic depreciation of a building is by an actual inspection and examination of the building and records of the company by a competent and qualified appraiser.
“The board therefore finds that the replacement cost of this building of 1,831,000 cubic feet at 40c per cubic foot is $732,400, and taking into consideration the age of the building, its physical condition, availability for the purposes for which it is used, income factor and all of the factors appearing in the records tending to prove its value, that a reduction of 2% per year or a total of 36% for total accrued depreciation from all causes' is a fair and reasonable amount to be allowed for depreciation on said building,- and thus the board finds that the true value in money of this building, after giving it a depreciation of 36%, is $468,736.” . .
The net effect of the decision of the Board of Tax Appé'als is a further reduction of $43,664 in the tax valuation of the building by raising the rate of depreciation allowed from 1 2/3.per cent to 2 per cent, said rate to include the “total * * * depreciation from all causes. ’ ’

The record clearly discloses that the Board of Tax Appeals considered the obsolescence of appellant’s theater building as one of the factors involved in the determination of its “true value in money.”

■ There is conflicting evidence in the record as to the rate of depreciation and the extent of obsolescence, but the Board of Tax Appeals, having given due consideration to all the evidence adduced affecting the valuation of appellant’s property, and, based upon the evidence before it, having made a substantial reduction in the valuation theretofore fixed by the board of revision, this court should not substitute its judgment for that of the Board of Tax Appeals, where, as here, the record discloses ample evidence to support its finding and decision.

It is clear that the addition of $10,880 in the valuation for so-called “corner influence” was wrong for the reason th^t the frontage of the property in question is on alleys, the access to the property from Broad street being only by way of an easement. To that extent the decision of the Board of Tax Appeals should be modified and as so modified, affirmed.  