American Can Co. v. Bowers

• Citation: 169 Ohio St. 81,157 N.E.2d 340
• Decision Date: 01 April 1959
• Docket Number: 35676,35749,35750 and 35807,35705,Nos. 35675,s. 35675
• Parties: , 8 O.O.2d 42 AMERICAN CAN CO., Appellee, v. BOWERS, Tax Commr., Appellant. AMERICAN CAN CO., Appellant, v. BOWERS, Tax Commr., Appellee. PHILIP MORRIS, INC., Appellee, v. BOWERS, Tax Commr., Appellant. HOLLAND FURNACE CO., Appellee, v. BOWERS, Tax Commr., Appellant. CHAMPION SPARK PLUG CO., Appellee, v. BOWERS, Tax Commr., Appellant. COPELAND REFRIGERATION CORP., Appellant, v. BOWERS, Tax Commr., Appellee.
• Court: United States State Supreme Court of Ohio

Page 81

169 Ohio St. 81

157 N.E.2d 340, 8 O.O.2d 42

AMERICAN CAN CO., Appellee, v. BOWERS, Tax Commr., Appellant.

AMERICAN CAN CO., Appellant, v. BOWERS, Tax Commr., Appellee.

PHILIP MORRIS, INC., Appellee, v. BOWERS, Tax Commr., Appellant.

HOLLAND FURNACE CO., Appellee, v. BOWERS, Tax Commr., Appellant.

CHAMPION SPARK PLUG CO., Appellee, v. BOWERS, Tax Commr., Appellant.

COPELAND REFRIGERATION CORP., Appellant, v. BOWERS, Tax Commr., Appellee.

Nos. 35675, 35676, 35705, 35749, 35750 and 35807.

Supreme Court of Ohio.

April 1, 1959.

Graydon, Head & Ritchey and Bruce I. Petrie, Cincinnati, for the American Can Co.

George, Greek, King & McMahon, Columbus, for Philip Morris, Inc., and Holland Furnace Co.

Marshall, Melhorn, Bloch & Belt and Lynn H. Gressley, Toledo, for Champion Spark Plug Co.

Harry K. Forsyth, Sidney, Carlton S. Dargusch, Carlton S. Dargusch, Jr., and Jack H. Bertsch, Columbus, for Copeland Refrigeration Corp.

William Saxbe and Mark McElroy, Attys. Gen., and John M. Tobin, Columbus, for Stanley J. Bowers, Tax Commissioner.

PER CURIAM.

As to the appeal of the American Can Company, we believe that the syllabus of the Grinnell case, supra, requires the conclusion that the property involved was not in storage because it was 'located * * * at the place where it was manufactured into a product.' [167 Ohio St. 267, 147 N.E.2d 659.]

As to the Tax Commissioner's appeals, all involve very close questions. Apparently, the Board of Tax Appeals endeavored to apply the guides specified in the Grinnell case. We do not believe that the board's conclusions are unreasonable or unlawful.

As to the Copeland appeal, we reach the same conclusion except so far as the conclusions of the Board of Tax Appeals relate to raw materials and semifinished products to be employed in production and to be transported over city streets from separate warehouses a distance of one to two miles. To that extent, the board's decision seems to be inconsistent with parts of the board's prior decisions involved in the Tax Commissioner's appeals in the American Can and Champion cases referred to herein. If, as we are holding, the decisions of the board in those cases were not unreasonable and unlawful, the board should, in order to be consistent and therefore to be reasonable, reconsider the foregoing portion of its decision in the Copeland case.

Decisions affirmed in cases Nos. 35675, 35676, 35705, 35749 and 35750.

Decision remanded in case No. 35807.

WEYGANDT, C. J., and ZIMMERMAN, STEWART and TAFT, JJ., concur.

HERBERT, J., concurs except as to case No. 35705 in which he dissents.

MATTHIAS and BELL, JJ., dissent.

BELL, Judge (dissenting).

The basic concept by which the Tax Commissioner, the Board of Tax Appeals and this court are to be guided in determining questions arising under the tax exemption here under consideration is whether particular tangible property is 'used in business' [167 Ohio St. 267, 147 N.E.2d 660] in Ohio. In my opinion, the General Assembly, being aware of the limitations upon its power to impose a tax on goods in interstate commerce, intended to exempt from the tax only that property which it knew it...