Dayton Metro. Hous. Auth. v. Evatt, No. 29667.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtHART
Citation143 Ohio St. 10,53 N.E.2d 896
PartiesDAYTON METROPOLITAN HOUSING AUTHORITY v. EVATT, Tax Com'r, et al.
Decision Date15 March 1944
Docket NumberNo. 29667.

143 Ohio St. 10
53 N.E.2d 896

DAYTON METROPOLITAN HOUSING AUTHORITY
v.
EVATT, Tax Com'r, et al.

No. 29667.

Supreme Court of Ohio.

March 15, 1944.


Appeal from Board of Tax Appeals.

The Dayton Metropolitan Housing Authority made application for exemption of taxation of its realty, which application was opposed by one Evatt, Tax Commissioner, and others. The Board of Tax Appeals denied the application for exemption, and the applicant appeals.-[Editorial Statement.]

Decision affirmed.

ZIMMERMAN and WILLIAMS, JJ., dissenting.

[53 N.E.2d 896]


Syllabus by the Court.

1. Public property, within the meaning of that term as used in the state Constitution and the statutes exempting such property from taxation, embraces only such property as is owned by the state or some political subdivision thereof, and title to which is vested directly in the state or one of its political subdivisions, or some person holding exclusively for the benefit of the state.

2. A use of property to be public must be an exclusive use by the public, open to all the people on a basis of equality to such extent as the capacity of the property admits, or by some public or quasi-public agency on behalf of the public, and not simply a use which may incidentally or indirectly promote the public interest or general prosperity of the state and its people.

3. The acquisition of real property and the construction of new dwelling units thereon by a metropolitan housing authority for rental without profit, to persons of low income, under the authority and by virtue of the provisions of the Ohio state housing act, do not render such property public property used exclusively for a public use and do not entitle it to exemption from taxation under the provisions of Section 5351, General Code. Columbus Metropolitan Housing Authority v. Thatcher, Aud., 140 Ohio St. 38, 42 N.E.2d 437, approved and followed.


[53 N.E.2d 897]

The Dayton Metropolitan Housing Authority, the appellant, was organized under and by virtue of the provisions of Section 1078-29 et seq., General Code. It was created within the Dayton metropolitan housing area through action of the State Board of Housing whereby the project in question was placed under the control and management of the authority consisting of five members appointed in accordance with the provisions of the act.

The authority, in carrying on the projects under its management and control, acquired by purchase three separate tracts of real estate in the city of Dayton, one on December 27, 1938, for $4,000, one on December 27, 1938, for $14,000, and the other on January 11, 1939, for $13,000. Upon these tracts have been built 200 low-rent tenement housing units, the total cost of the property amounting to apporximately $1,000,000.

The authority made a contract with the city commission of Dayton and with the United States Housing Authority for a loan of 90 per cent of the cost of the project, represented by bonds issued by the authority to the federal government. The remaining 10 per cent of the cost was provided by the sale of bonds to the public in the approximate sum of $100,00. The actual work of managing and operating the project is carried on by a staff of from five to seven persons.

The United States Housing Authority also entered into a contract with the metropolitan authority to make the latter annual contributions for a period of 60 years to the cost of operating the project in question. By agreement, the government loans, represented by bonds, are to be amortized over a period of 60 years. The bonds sold to the public are to be amortized in from 14 to 16 years.

There are built on this project 842 housing rooms divided into living units of three and one-half, four and one-half and five and one-half rooms. The rental to be charged for these units is to be from $3 to $3.50 per room or from $12 to $16 per unit per month, plus an additional amount for light, heat and water.

The tenants entitled to occupy these housing units must be those whose individual incomes do not exceed five times the rental charged, and if the income of a tenant rises above five times the rent, then the authority must remove such tenant and take another whose income does not exceed the above-mentioned rental charge.

On June 2, 1939, applications were made by the authority to the auditor of Montgomery county to have the properties exempted from taxation, under the provisions of Section 5351, General Code on the ground that, since the property ‘is to be used for the construction and operation of a low-rent public housing project for low income families,’ it is ‘public property used for a public purpose.’

The Board of Tax Appeals on June 14, 1943, denied the application. An appeal has been perfected from such order to this court on the ground, among others, that the decision of the Board of Tax Appeals was ‘unreasonable in that it finds that said property was not, in the year 1939, public properlty used exclusively for public purposes.’

Carroll Sprigg, of Dayton, for appellant.

Thomas J. Herbert, Atty. Gen., Perry L. Graham, of Columbus, and Nicholas F. Nolan, of Dayton, for appellees.


HART, Judge.

The sole question here is whether the real property of the appellant is entitled to exemption from taxation, under favor of Section 5351, General Code, on the ground that it is public property used for a public purpose.

A brief statement of the authority under which the appellant was organized and of its authority to hold and operate, and its method of operating, the properties in question will be helpful in giving answer to this question. The Dayton Metropolitan Housing Authority was organized in 1934 pursuant to the Ohio Housing Authority Law (Sections 1078-29 to 1078-41, inclusive, General Code, 115 Ohio Laws, pt. 2, p. 56), later several times amended and supplemented in 1937 and 1938 (117 Ohio Laws, pp. 324, 334, 337, 799 and 915) before the properties in question were purchased.

In 1932, the General Assembly enacted the State Housing Law, Sections 1078-1

[53 N.E.2d 898]

to 1078-28, General Code, 114 Ohio Laws, pt. 2, p. 78, by which there was created a State Board of Housing consisting of seven members, three of whom should be directors of certain departments of the state government, and the remaining four of whom should be appointed by the Governor. This board was clothed with general authority over all housing companies authorized to be organized under this act, and approval by the board was required as to the selection of a housing authority area.

By the amendments and supplements of 1937 and 1938 the authority of the housing board and the scope of the housing act were greatly enlarged for the purpose of permitting the municipalities of the state to take advantage of the provisions of the ‘United States Housing Act of 1937’ as amended (Title 42, Sections 1401 to 1430, U.S.C.A.), which created the United States Housing Authority as agent of the federal government to carry out its declared purpose of granting loans and thus aiding municipalities in clearing slum areas and in constructing low rent housing for the occupancy by persons of low income.

If the State Board of Housing determines that a need exists for a local housing authority it issues a certificate to that effect, whereupon there is appointed a local housing authority consisting of five members, one appointed by the Common Pleas Court, one by the Probate Court, one by the county commissioners of the county and two by the mayor of the most populous city in the territory included in the housing district.

Section 1078-34, General Code, provides that such local authority created under the act ‘shall constitute a body corporate and politic,’ and shall have, among other powers, the authority to acquire property by gift, purchase, or by eminent domain, and to construct and operate tenement houses thereon; to comply with any conditions which the federal government may attach to its financial aid to the project; to borrow money on its notes or bonds and to secure the same by mortgages upon the property held by it or the revenues arising therefrom; and to enter into all kinds of contracts relative to the property.

On default upon any of its obligations a receiver may be appointed by the court to operate the property and liquidate the indebtedness of the authority.

Section 1078-36, General Code, declares that all such property, both personal and real, held by an authority, shall ‘be deemed public property for public use,’ while Section 1078-44, General Code, provides that the bonds of an authority shall not be a debt of the county, the state or any subdivision thereof, and neither shall be liable thereon, nor in any event shall such bonds or obligations be payable out of any funds or properties other than those of such authority, and that the bonds shall not constitute an indebtedness within the meaning of any constitutional or statutory debt limitation or restriction.

Section 1078-49a, General Code, enacted July 1, 1938, provides that ‘a housing authority created under this act shall constitute a political subdivision of the state of Ohio within the meaning of Section 5546-2 of the General Code,’ which means nothing more than that the authority is exempt as a consumer from the Ohio sales tax. Significantly, however, the General Assembly did not, in this act, specially exempt the real estate of the authority from ordinary real estate taxes.

The emergency clause attached to the supplemental enactment of August 1933 gives some real insight into the puposes of the law and the reasons for its enactment. The General Assembly declared (115 Ohio Laws, pt. 2, p. 61), as follows:

‘The necessity for the immediate effective date of this act lies in the fact that, whereas there is a demand in congested sections of Ohio for housing of families of low income and for the reconstruction of slum areas, and whereas no existing laws of the state of Ohio provide for the organization and operation of public housing...

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22 practice notes
  • State ex rel. Bruestle v. Rich, No. 33125
    • United States
    • United States State Supreme Court of Ohio
    • 18 Febrero 1953
    ...relied upon in support of the foregoing contention of respondents are Dayton Metropolitan Housing Authority v. Evatt, Page 27 Tax Com'r, 143 Ohio St. 10, 53 N.E.2d 896, 152 A.L.R. 223; Columbus Metropolitan Housing Authority v. Thatcher, 140 Ohio St. 38, 42 N.E.2d 437; Federal Public Housin......
  • State ex rel. Rich v. Idaho Power Co., No. 8739
    • United States
    • Idaho Supreme Court
    • 2 Octubre 1959
    ...the Constitution.' See also O'Bryant v. City of Idaho Falls, 78 Idaho 313, 303 P.2d 672; Dayton Metropolitan Housing Authority v. Evatt, 143 Ohio St. 10, 53 N.E.2d 896, 152 A.L.R. 223; In re Opinion of the Justices, 324 Mass. 746, 85 N.E.2d 761; Harfst v. Hoegen, 349 Mo. 808, 163 S.W.2d 609......
  • City of Cleveland v. Board of Tax Appeals, No. 31802
    • United States
    • United States State Supreme Court of Ohio
    • 1 Marzo 1950
    ...Housing Authority v. Guckenberger, Aud., 143 Ohio St. 251, 55 N.E.2d 265; and Dayton Metropolitan Housing Authority v. Evatt, Tax Comm., 143 Ohio St. 10, 53 N.E.2d 896, 152 A.L.R. 223, approved and 3. A use of public property for any public purpose, to warrant exemption from taxation, must ......
  • Exemption from Taxation, In re
    • United States
    • United States Court of Appeals (Ohio)
    • 20 Abril 1967
    ...Housing Authority v. Thatcher (1942), 140 Ohio St. 38, 42 N.E.2d 437; Dayton Metropolitan Housing Authority v. Evatt, Tax Commr. (1944), 143 Ohio St. 10, 53 N.E.2d 896, 152 A.L.R. 223; and Youngstown Metropolitan Housing Authority v. Evatt, Tax Commr. (1944), 143 Ohio St. 268, 55 N.E.2d 122......
  • Request a trial to view additional results
22 cases
  • State ex rel. Bruestle v. Rich, No. 33125
    • United States
    • United States State Supreme Court of Ohio
    • 18 Febrero 1953
    ...relied upon in support of the foregoing contention of respondents are Dayton Metropolitan Housing Authority v. Evatt, Page 27 Tax Com'r, 143 Ohio St. 10, 53 N.E.2d 896, 152 A.L.R. 223; Columbus Metropolitan Housing Authority v. Thatcher, 140 Ohio St. 38, 42 N.E.2d 437; Federal Public Housin......
  • State ex rel. Rich v. Idaho Power Co., No. 8739
    • United States
    • Idaho Supreme Court
    • 2 Octubre 1959
    ...the Constitution.' See also O'Bryant v. City of Idaho Falls, 78 Idaho 313, 303 P.2d 672; Dayton Metropolitan Housing Authority v. Evatt, 143 Ohio St. 10, 53 N.E.2d 896, 152 A.L.R. 223; In re Opinion of the Justices, 324 Mass. 746, 85 N.E.2d 761; Harfst v. Hoegen, 349 Mo. 808, 163 S.W.2d 609......
  • City of Cleveland v. Board of Tax Appeals, No. 31802
    • United States
    • United States State Supreme Court of Ohio
    • 1 Marzo 1950
    ...Housing Authority v. Guckenberger, Aud., 143 Ohio St. 251, 55 N.E.2d 265; and Dayton Metropolitan Housing Authority v. Evatt, Tax Comm., 143 Ohio St. 10, 53 N.E.2d 896, 152 A.L.R. 223, approved and 3. A use of public property for any public purpose, to warrant exemption from taxation, must ......
  • Exemption from Taxation, In re
    • United States
    • United States Court of Appeals (Ohio)
    • 20 Abril 1967
    ...Housing Authority v. Thatcher (1942), 140 Ohio St. 38, 42 N.E.2d 437; Dayton Metropolitan Housing Authority v. Evatt, Tax Commr. (1944), 143 Ohio St. 10, 53 N.E.2d 896, 152 A.L.R. 223; and Youngstown Metropolitan Housing Authority v. Evatt, Tax Commr. (1944), 143 Ohio St. 268, 55 N.E.2d 122......
  • Request a trial to view additional results

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