
    Harp, Mayor, Village of Sebring, Appellant, v. The Cope United Methodist Home, Appellee, et al.
    (No. 71-200
    Decided February 2, 1972.)
    
      
      Mr. Richard C. Ross and Mr. Fred Coope, for appellant.
    
      Messrs. Blumenstiel, Williams & Blumenstiel and Mr. J. B. Blumenstiel, for appellee.
   Per Curiam.

This case turns on the extent to which R. C. 5715.27 may be utilized by the appellant to obtain a review of a decision by the Board of Tax Appeals to exempt certain of the appellee’s real property from taxation.

R. C. 5715.27 states:

“Any person, board, or officer authorized by Section 5715.19 of the Revised Code to file complaints with the county board of revision may complain to the Board of Tax Appeals at any time prior to the thirty-first day of December in any year of the determination of a county auditor as to the liability of any property to taxation in that year, or its exemption therefrom. The Board of Tax Appeals shall hear such complaint, determine whether the property complained of is subject to taxation, and certify its findings to the auditor, who shall correct the tax list and duplicate accordingly.” (Emphasis added.)

It is the appellee’s main contention that a decision by the board to grant an exemption cannot be construed as a “determination” of a county auditor. We disagree.

R. C. 5715.19 recognizes the right of any taxpayer, and specifically any mayor of any municipal corporation in a county, to file a complaint with the county auditor respecting the valuation or assessment of any real property on the tax duplicate. The county auditor is then required to lay the complaint before the county board of revision for action. Reading such section in conjunction with R. C. 5715.-27, we believe the appellant, as such a mayor, occupies a status which enables him to invoke the latter section and make a direct complaint to the Board of Tax Appeals concerning the failure of the county auditor, as the deputy or agent of the board, to list and assess the real property of the appellee herein. In the instant case, this right accrued irrespective of the fact that the board itself previously granted the exemption.

In State, ex rel. Hepperla, v. Glander (1953), 160 Ohio St. 59, 113 N. E. 2d 357, a relator sought to compel the Auditor of Cuyahoga County to place certain property of the city of Cleveland on the tax list through an action in mandamus. We affirmed the dismissal of that action on the ground that relator had an adequate remedy at law, i. e., G. G. 5616. Specifically, at page 62, we said:

“Under this section, relator had the right to complain to the Board of Tax Appeals with respect to the failure of the Cuyahoga county auditor to place the real estate of the city of Cleveland * * * on the tax list and duplicate ^ ^ ? 7

G. C. 5616 was practically identical to the present R. C. 5715.27.

Furthermore, in Hepperla, we discussed the import of the word “determination,” regarding the tasks of the county auditor, and observed:

“However, the relator insists he could not proceed under Section 5616, General Code, because there was no ‘determination’ by the county auditor, within the meaning of that section, with respect to the taxability of the described property. It seems to us that the fact that the county auditor did not place such property on his records as taxable assets of the municipality for the years in issue constitutes a ‘determination’ on his part that such property enjoyed an exempt status and was, therefore, not subject to taxation.”

Much the same problem arose in the earlier case of State, ex rel. Hile, v. Zangerle (1937), 132 Ohio St. 523, 9 N. E. 2d 292. There, relator sought a writ of mandamus to compel the county Auditor of Cuyahoga County to “levy a tax” on all the property of the Cleveland Metropolitan Park District. We declined to issue the writ on the ground that relator had an adequate remedy at law, i. e., G. C. 5616. We said that “Section 5616, General Code, authorizes a taxpayer to file a complaint against an exemption of property from taxation * *

In a more recent case, we alluded to a similar interpretation of R. C. 5715.27, the successor to G. C. 5616. See Cleveland State Univ. v. Perk (1971), 26 Ohio St. 2d 1, 268 N. E. 2d 577.

We do not stare appellee’s fear ttat suet an interpretation will give rise to a sudden flood of appeals concerning exemption allowances. For better ttan talf a century, tte tax collectors of ttis state tave lived witt ttis very appellate procedure in muct tte same form. Nor do we believe that R. C. 5715.27 “emasculates” tte review procedures as set down in R. C. 5717.04. They continue to exist side by side witt no ill effect as exemplified by the instant case.

R. C. 5717.04 affords review in ttis case only to:

“* * * any of tte persons who were parties to suet appeal or application before tte board, by any persons to whom tte decision of the board appealed from was by law required to be certified, or by any otter person to whom tte board certified tte decision appealed from, as authorized by Section 5717.03' of tte Revised Code.”

It is abundantly clear ttat tte taxpayers of Mahoning County were not entitled, as the appellant herein was not entitled, to appeal tte board’s decision to exempt appel-lee’s real property from taxation under R. C. 5715.27. And yet it is they, jointly and individually, who ultimately must bear tte burden of tte exemption. It is our belief ttat R. C. 5715.27 affords them tte opportunity to legitimately come forward and stow, if they can, why tte exemption ought not to be granted.

Accordingly, tte decision of tte Board of Tax Appeals will be reversed, and the cause is remanded to .the board for tearing pursuant to R. C. 5715.27.

Decision reversed.

SCHNEIDER, HERBERT, KERNS and CORRIGAN, JJ., COnCUT.

O’Neill, C. J., Stern and Leach, JJ., dissent.

KeeNS, J., of the Second Appellate District, sitting for DuNcaN, J. Judge Kerns of the Court of Appeals was, pursuant to Section 2 of Article IV of the Constitution of Ohio, duly directed by the Chief Justice “to sit with the justices of the Supreme Court in the place and stead of” Justice DuncaN and Judge KerNS did so and heard and considered this cause prior to the resignation of Justice DuNoaN on November 28, 1971.

Leach, J.,

dissenting. The Board of Tax Appeals, in effect, concluded that the “determination * * * as to the liability of * * * [the] property to taxation in that year [1970], or its exemption therefrom” was not made by the county auditor but was made by the Board of Tax Appeals, and thus dismissed the complaint “without prejudice to complainant’s right to file a complaint with respect to the taxable status of the property for the tax year 1971.”

R. C. 5715.27 does not authorize complaints to the Board of Tax Appeals from any “determination” of liability of property to taxation, but only as to a 'particular year, and only from “the determination of a county auditor.”

Although not expressly stated, it apparently is the conclusion of the majority that the county auditor did make such a “determination” in 1970, reliance being had on language quoted from the opinion in State, ex rel. Hepperla, v. Glander (1953), 160 Ohio St. 59, at page 63, to the effect that the failure of the auditor to “place such property on his records as taxable assets * * * for the years in issue constitutes a ‘determination’ on his part that such property enjoyed an exempt status * *

I agree that the action of a county auditor in either placing or failing to place particular property on his records as taxable constitutes a “determination” within the meaning of R. C. 5715.27, if the auditor, as to the year in question, has the authority to make such a determination. As to the property in question, however, the county auditor lacked authority to make such a determination.

In State, ex rel. Methodist Book Concern, v. Gucken- berger (1937), 133 Ohio St. 27, the syllabus reads:

“1. Under the provisions of Section 5570-1, General Code [R. 0. 5713.08], the Tax Commission [Board of Tax Appeals] has exclusive authority to declare property exempt, but the county auditor has authority in any year thereafter to strike property items from the exempt list and place them on the taxable list.
“2. The county auditor, in striking property items from the exempt list, is performing a ministerial function and the aggrieved party may appeal to the Tax Commission under the provisions of Section 5616, General Code [R. C. 5715.27]. Therefore, writ of prohibition will not issue to prohibit the county auditor from transferring items from the exempt to the taxable list, since there are other adequate remedies available.” (Emphasis added.)

See, also, Pfeiffer v. Jenkins (1943), 141 Ohio St. 66, and Toledo v. Jenkins (1944), 143 Ohio St. 141.

I would affirm the decision of the Board of Tax Appeals.

O’Neill, C. J., and SterN, J., concur in the foregoing dissenting opinion.  