
    In re Application for Exemption of Real Property from Taxation : Carney, Aud., Appellant, v. Ohio Turnpike Commission, Appellee, et al.
    
      (No. 35212
    Decided February 5, 1958.)
    
      Mr. John T. Corrigan, prosecuting attorney, Mr. George W. Leddon and Mr. A. M. Braun, for appellant.
    ' Mr. LocJcwood Thompson and Mr. Francis K. Cole, for appellee.
   Zimmerman, J.

The Ohio Turnpike is approximately 240 miles in length and extends generally eastwardly and westwardly across the whole northern part of Ohio from the Pennsylvania state line on the east to the Indiana state line on the west. At its eastern terminus it connects with the Pennsylvania Turnpike and at its western terminus with the Indiana Toll Road. It is a four-lane concrete-surfaced divided thoroughfare, two lanes being for vehicles going west and two for vehicles going east. Within the state of Ohio there are some 15 interchanges with 15 principal highways of the Ohio highway system, and only at such interchanges may the traveler enter or leave the turnpike. Both sides of the turnpike right of way are fenced.

Within the right of way there are 17 toll plazas, eight maintenance buildings, an administration building and 16 service-plaza buildings. Various services are furnished the users of the turnpike, including disabled-vehicle service, ambulance service, removal of snow and ice and areas where food, gasoline and oil are available.

Considerable other matter, descriptive of the turnpike and its advantages and facilities, might be narrated, but what has been said should suffice for the purposes of this opinion.

In this appeal, the one matter about which appellant complains is that the board’s decision “was unreasonable and unlawful in finding that the portions of the service plazas in Cuyahoga County leased or rented to private corporations are used exclusively for turnpike purposes and are therefore legally exempt from taxation * * * and in granting remission of the real property taxes thereon.”

Specifically involved are the lands and buildings rented to private corporations for restaurant and gas-station purposes and from which such corporations derive profit.

Section 2, Article XII of the Constitution of Ohio, recites in part that “general laws may be passed to exempt [from taxation] * * * public property used exclusively for any public purpose.”

Pursuant to such constitutional authorization, the Legislature enacted a general statute, represented by Section 5709.08, Revised Code, which reads:

“Real or personal property belonging to the state * * * used exclusively for a public purpose, and public property used exclusively for a public purpose, shall be exempt from taxation.”

And then in connection with the creation of turnpike projects in this state, the General Assembly adopted the broadly worded and comprehensive statute, represented by Section 5537.20, Revised Code, which provides:

‘ ‘ The exercise of the powers granted by Sections 5537.01 to 5537.23, inclusive, of the Revised Code, will be in all respects for the benefit of the people of the state, for the increase of their commerce and prosperity, and for the improvement of their health and living conditions, and as the operation and maintenance of turnpike projects by the commission will constitute the performance of essential governmental functions, tbe commission shall not be required to pay any taxes or assessments upon any turnpike project, or upon any property acquired or used by the commission under Sections 5537.01 to 5537.23, inclusive, of the Revised Code, or upon the income therefrom, and the bonds issued under such sections, their transfer, and the income therefrom, including any profit made on the sale thereof, shall at all times be free from taxation within the state.”

Emphasizing the over-all intent of the legislative body is Section 5537.23, Revised Code, which carries the injunction:

“Sections 5537.01 to 5537.23, inclusive, of the Revised Code, being necessary for the welfare of the state and its inhabitants shall be liberally construed to effect the purposes thereof.”

Title to all the property comprising the Ohio Turnpike is in the state of Ohio, and the predominant and primary objective of the turnpike creation and operation is to further and promote the interests of the state, to influence favorably its welfare and development, economically and otherwise, and to insure speedy, safe and comfortable travel for the motoring public which makes use of it.

The service plazas, where food and drink are supplied and where gasoline, oil and other necessary motoring needs are furnished, are concomitants of the turnpike operation, and the fact that such facilities are rented out to private corporations who may profit from their operation is incidental and does not change the controlling fact that the project is owned by the public and is devoted essentially to an exclusive public use. See City of Toledo v. Jenkins et al., Board of Tax Appeals, 143 Ohio St., 141, 54 N. E. (2d), 656.

It would be of little advantage to discuss and attempt to reconcile or distinguish the numerous prior decisions of this court touching more or less closely the subject under discussion. Suffice it to say that, on the facts of this particular case and bearing in mind the impelling reasons which motivated the creation of the turnpike and considering all conditions surrounding its operation to meet the demands and necessities of the traveling public, this court is of the opinion that the decisión of the Board of Tax Appeals is neither unreasonable nor unlawful and does not transgress any constitutional provisions.

The decision is, therefore, affirmed.

Decision affirmed.

Weyganbt, C. J., Matthias and Bell, JJ., concur.

Stewart and Taet, JJ., concur in the judgment.

Herbert, J., dissents.

Taet, J.,

concurring. I concur in the judgment and would concur in the syllabus if the words “used exclusively for a public purpose” were eliminated therefrom. In my opinion, the conclusions set forth in the majority opinion are difficult to reconcile with at least paragraph six of the syllabus of and also would seem to overrule the decision in City of Cleveland v. Board of Tax Appeals, 153 Ohio St., 97, 91 N. E. (2d), 480, 16 A. L. R. (2d), 1354. See also City of Dayton v. Haines, And., 156 Ohio St., 366, 371, 102 N. E. (2d), 590, but see City of Toledo v. Jenkins et al., Board of Tax Appeals, 143 Ohio St., 141, 54 N. E. (2d), 656. Here, the portion of the property sought to be taxed admittedly has been and will be rented to private persons for operating for their profit restaurants and gasoline service stations. It is difficult to understand how such operations can be considered as exclusive uses of the property involved for public purposes or even as public utility operations. Of. In re Application for Exemption of Beal Property from Taxation: City of Columbus v. County of Delaware, 164 Ohio St., 605, 132 N. E. (2d), 747, and City of Cleveland v. Board of Tax Appeals, ante, 263. Although the monopoly power of the Turnpike Commission to keep competitors of its lessees off the turnpike may make it difficult for other private restaurants and gasoline service stations to compete with those located on the turnpike, the fact remains that such competition by restaurants and gas stations is still possible, thereby indicating the substantial commercial aspect in the use of this property. Cf. In re Bond Hill-Roselawn Hebrew School, 151 Ohio St., 70, 76, 84 N. E. (2d), 270.

However, Section 5537.20, Revised Code, specifically provides that the turnpike “commission shall not be required to pay any taxes or assessments upon any turnpike project, or upon any property acquired or used by the commission under” the Turnpike Act. Thus, if it were not for paragraph two of the syllabus of City of Cleveland v. Board of Tax Appeals, supra (153 Ohio St., 97), there would be no question that this property is entitled to tax exemption. In my opinion, a mere reading of the portion of Section 2 of Article XII of the Constitution quoted in that paragraph of' the syllabus of that case clearly indicates the unsoundness of the conclusion stated in that paragraph. As the words of that constitutional provision expressly state, the.only limitation on the power of the General Assembly “to determine * * * exemptions therefrom,” i. e., from “taxation” (it could not under the words of the Constitution be exemptions from anything else), are those found in “the provisions of Article I” of the Constitution. Every conceivable argument or suggestion to the contrary was fully considered and its unsoundness demonstrated in the dissenting opinion in City of Cleveland v. Board of Tax Appeals, supra (153 Ohio St.), at pages 116 to 124, inclusive. Therefore, it is my conclusion that paragraph two of the syllabus of City of Cleveland v. Board of Tax Appeals, supra, should be overruled and replaced by a pronouncement of law by this court that, by reason of the amendment of Section 2 of Article XII of the Ohio Constitution, adopted in 1929, the General Assembly now has general power to determine exemptions from taxation, subject always to any limitations thereon that may be set forth in the provisions of Article I of the Constitution.

■ Because of the rule of stare decisis, I reach this conclusion with reluctance, although it may be noted that the only two decisions of this court, decided since City of Cleveland v. Board of Tax Appeals, supra (153 Ohio St., 97), and necessarily involving the question of law dealt with in paragraph two of its syllabus, were in each instance controlled by and specifically based upon just such a conclusion by minority members of this court. In re Application of University of Cincinnati for Exemption of Real Property from Taxation, 153 Ohio St., 142, 91 N. E. (2d), 502; In Re Application for Exemption from Taxation of Real Property of Cincinnati Metropolitan Housing Authority, 155 Ohio St., 590, 99 N. E. (2d), 761.

■ Stewart, J., concurs in the foregoing concurring opinion.

Herbert, J.,

dissenting. I consider the objective of Section 5537.20, Revised Code, a laudable one, but I cannot accept the factual conclusion in the majority opinion, as expressed in the syllabus, that the property involved is “used exclusively for a public purpose” within the meaning of Section 2 of Article XII, Ohio Constitution, nor am I prepared to accept the philosophy set forth in the concurring opinion herein and delineated more fully in the dissenting opinion of Taft, J., in City of Cleveland v. Board of Tax Appeals, 153 Ohio St., 97, 91 N. E. (2d), 480, 16 A. L. R. (2d), 1354, that the 1929 amendment of Section 2 of Article XII removed all constitutional limitations, except those provided in Article I, upon the power of the General Assembly “to determine the subjects and methods of taxation or exemptions therefrom. ’ ’

Accordingly, I must dissent herein.  