
    City of Shaker Heights, Appellant, v. Zangerle, Aud., et al., Appellees. (Two cases.)
    (Nos. 30938 and 30939
    Decided July 30, 1947.)
    
      
      Mr. Ralph W. Jones, director of law, for appellant.
    
      Mr. Frank T. Cullitan, prosecuting attorney, and Mr. A. M. Braun, for appellee John A* Zangerle, county auditor.
    
      Messrs. Squire, Sanders é Dempsey and Mr. Robert F. Denison, for appellee Board of Education of the Cleveland City School, District.
   By the Court.

Counsel for appellant .in his brief insists that this court reconsider the case of Zangerle, Aud., v. City of Cleveland, 145 Ohio St., 347, 61 N. E. (2d), 720, and he contends in this court that the Shaker Heights Eapid Transit System is not in the field of private business, competitive business or business for profit.

The Board of Tax Appeals in its journal entry found that the rapid transit system provides the only practical and rapid transportation between Shaker Heights and Cleveland; that facilities of the system are used also by residents of University Heights, Cleveland Heights and Cleveland; that most of the transportation afforded by the rapid transit system is between Shaker Heights and Cleveland, although such system furnishes intracity transportation; that lines of the Cleveland Transit System run from the southeast and northwest corners of Shaker, Heights to downtown Cleveland but transportation so afforded is much slower; and that there was no more actual competition in the case of Zangerle v. City of Cleveland, supra, than there was in the instant case and, therefore, the board could not distinguish the two cases.

In the journal entry of the Board of Tax Appeals it was found also that for the period from January 1 to October 31,1945, the operating revenue of the Shaker Heights Eapid Transit System was $728,546.63, out of which were paid all operating expenses and interest on bonds, $2,851.10 was allocated to the city of Shaker Heights and its city school district in lieu of taxes, $20,833.30 was set aside for bonded debt service and $143,525.80 was placed as earned surplus in the replacement fund for new equipment.

The Board of Tax Appeals was of the opinion, in view of what this court said in the Cleveland case, that the extent of profit was immaterial, since this court held, in effect, in that case that the operation of a transit system is a type of business which is designed primarily for profit.

A majority of this court adheres to the law pronounced in the cases of State, ex rel. Methodist Book Concern, v. Guckenberger, Aud., and Zangerle, Aud., v. City of Cleveland, supra, and the decision of the Board of Tax Appeals is in the- present proceedings, therefore, affirmed.

Decision affirmed.

Weygandt, C. J., Turner, Matthias, Hart, Sohngen and Stewart, JJ., concur.

Zimmerman, J., dissents for the reason stated in the dissenting opinion in Zangerle, Aud., v. City of Cleveland, 145 Ohio St., 347, 361, 61 N. E. (2d), 720.  