Roberts v. Bowers

• Decision Date: 02 December 1959
• Docket Number: No. 35959,35959
• Citation: 162 N.E.2d 858,170 Ohio St. 99
• Parties: , 10 O.O.2d 1 ROBERTS, Appellant, v. BOWERS, Tax Com'r, Appellee.
• Court: Ohio Supreme Court

Page 99

170 Ohio St. 99

162 N.E.2d 858, 10 O.O.2d 1

ROBERTS, Appellant, v. BOWERS, Tax Com'r, Appellee.

No. 35959.

Supreme Court of Ohio.

Dec. 2, 1959.

Porter, Stanley, Treffinger & Platt, J. Ralston Werum and William E. Arthur, Columbus, for appellant.

Mark McElroy, Atty Gen., and Robert J. Kosydar, Toledo, for appellee.

PER CURIAM.

Appellant lists eight assignments of error, which may be summed up in the contention that the decision of the Board of Tax Appeals is unreasonable and unlawful in that it failed and refused 'to determine and find that the appellant is a manufacturer under the tax laws of the state of Ohio.'

The remaining contentions of error are resolved if appellant is a manufacturer as claimed.

Section 5711.16, Revised Code, defines a manufacturer as 'a person who purchases, receives, or holds personal property for the purpose of adding to its value by manufacturing, refining, rectifying, or combining different materials with a view of making a gain or profit by so doing.'

This language has been in our laws in substantially the same wording for over a hundred years. (See Section 2742, Revised Statutes, and 61 Ohio Laws, 90, passed in 1864.) During all these years restaurant operators have never been treated or recognized as manufacturers for the purpose of personal property taxes.

Section 5711.22, Revised Code, provides, in part, as follows:

'Except as otherwise provided, personal property shall be listed and assessed at seventy per cent of its true value in money on the day that it is required to be listed or on the days or at the times that it is required to be estimated on the average basis. * * *

'Personal property, used in business, shall be listed and assessed at fifty per cent of its true value in money on the day that it is required to be listed or on the days or at the time that it is required to be estimated on the average basis as follows:

'(A) All engines, machinery, tools, and implements of a manufacturer mentioned in section 5711.16 of the Revised Code * * * '(1) The average value of all articles purchased, received or otherwise held by a manufacturer for the purpose of being used in manufacturing, combining, rectifying, or refining;

'(2) The average value of all articles which were at any time manufactured or changed in any way by the taxpayer, either by combining or rectifying, or refining or adding thereto, but not including finished products unless kept or stored at the place of manufacture or at a warehouse in the same county therewith * * *.'

The appellant relies on the decisions of this court in the cases of Miller v. Peck, 158 Ohio St. 17, 106 N.E.2d 776; Jer-Zee, Inc., v. Bowers, 163 Ohio St. 31, 125 N.E.2d 195, and Canteen Co. v. Bowers, 167 Ohio St. 337, 148 N.E.2d 684, to support his contention that 'processing of food for consumption may involve a manufacturing process so that the owner of the equipment is entitled to list such equipment at fifty per cent (50 per cent) of its value for personal property taxation purposes.'

In a number of other cases decided by this court in which the word, 'manufacturer,' and also varying processes claimed to constitute manufacturing for personal property tax purposes have been considered, a rule of strict construction has been followed.

Paragraph three of the syllabus in the case of Cleveland-Cliffs Iron Co. v. Glander, 145 Ohio St. 423, 62 N.E.2d 94, states:

'The provision of any statute which purports to except certain property from general provisions governing taxation is a measure of exemption, and laws relating to exemption of property from taxation being in derogation of equal rights are strictly construed.'

Paragraph three of the syllabus in the case of B. F. Goodrich Co. v. Peck, 161 Ohio St. 202, 118 N.E.2d 525, 526 (distinguishing Cleveland-Cliffs Iron Co. v. Glander, supra, and National Tube Co. v. Glander, 157 Ohio St. 407, 105 N.E.2d 648), states:

'It is a general rule that, if there is any ambiguity in a statute defining the subjects of taxation, such ambiguity must be resolved in favor of the taxpayer; and this rule of constuction generally applies with respect to provisions of a statute stating that certain potential objects of taxation shall not be considered to be included within specified subjects of taxation.'

See, also Schumacher Stone Co. v. Tax Commission, 134 Ohio St. 529, 18 N.E.2d 405, 120 A.L.R. 1199; Middletown Iron & Steel Co. v. Evatt, 139 Ohio St. 113, 38 N.E.2d 585, 138 A.L.R. 426; Eastern Machinery Co. v. Peck, 160 Ohio St. 144, 114 N.E.2d 55; Red Top Brewing Co. v. Bowers, 163 Ohio St. 18, 125 N.E.2d 188.

In 37 Ohio Jurisprudence, 717, Section 398, it is stated that 'the rule of strict or liberal construction, like any other rule of construction, is only applicable where there is an ambiguous provision to construe; it has no application where there is no ambiguity in the statute.' See, also, 37 Ohio Jurisprudence, 719.

In 50 American Jurisprudence, 204, Section 225, it is stated that 'a statute is not open to construction as a matter of course. It is open to construction only where the language used in the statute requires interpretation, that is, where the statute is ambiguous, or will bear two or more constructions, or is of such doubtful or obscure meaning, that reasonable minds might be uncertain or disagree as to its meaning.'

For the purpose of considering the instant case, the rules of construction stated in the quoted paragraphs of the syllabi in the Cleveland-Cliffs and Goodrich cases, supra, are not in conflict, and it may be added that in neither of those cases was there any ambiguity in the language of the statutes involved nor is there in the instant case. Hence, it is not necessary to construe the statute in the instant case but rather to examine the facts developed in the record.

Paragraph two of the syllabus in the case of National Tube Co. v. Glander, supra, states [157 Ohio St. 407, 105 N.E.2d 649]:

'Statutes relating to exemption or exception from taxation are to be strictly construed, and one claiming such exemption or exception must offirmatively establish his right thereto.' (Emphasis added.)

Under the facts developed in the Miller, Jer-Zee and Canteen cases, supra, those claiming classification as manufacturers were held in effect to have affirmatively established their right thereto.

If the appellant here were to be found to be a manufacturer within the meaning of Section 5711.16, Revised Code, then certainly the provisions of Section...