Morgan County Budget Commission v. Board of Tax Appeals, 38160

• Citation: 175 Ohio St. 225,24 O.O.2d 340,193 N.E.2d 145
• Decision Date: 09 October 1963
• Docket Number: No. 38160,38160
• Parties: , 24 O.O.2d 340 MORGAN COUNTY BUDGET COMMISSION et al., Appellants, v. BOARD OF TAX APPEALS et al., Appellees.
• Court: United States State Supreme Court of Ohio

Page 225

175 Ohio St. 225

193 N.E.2d 145, 24 O.O.2d 340

MORGAN COUNTY BUDGET COMMISSION et al., Appellants, v. BOARD OF TAX APPEALS et al., Appellees.

No. 38160.

Supreme Court of Ohio.

Oct. 9, 1963.

Syllabus by the Court

1. Only those orders of the Board of Tax Appeals made in quasi-judicial proceedings are subject to the revisory jurisdiction conferred upon this court by Section 2 of Article IV of the Constitution. (Paragraph one of the syllabus of Zangerle, Aud., v. Evatt, Tax Commr., 139 Ohio St., 563, 41 N.E.2d 369, followed.)

2. Where the Supreme Court finds on an appeal from the Board of Tax Appeals that that board has no statutory authority to issue an order of the kind appealed from, that order is unlawful and must be vacated. (Section 5717.04, Revised Code, applied.)

3. The Board of Tax Appeals, being a creature of statute, is limited to the powers conferred upon it by statute. (Paragraph one of the syllabus of Steward v. Evatt, Tax Commr., 143 Ohio St., 547, 56 N.E.2d 159, followed.)

4. The Board of Tax Appeals has no power or authority to make a quasijudicial order directing a particular county budget commission to revise its budget. (Sections 5703.02 (D), 5715.28 and 5715.29, Revised Code, construed.)

In October 1962, the Ohio Power Company filed a petition with the Board of Tax Appeals asking it to exercise its supervisory and investigatory powers relative to the 1963 budget for and the proposed tax levies of Morgan County.

In March 1963, the Board of Tax Appeals made an order ¹ (1) finding that that budget had improperly added receipts to the county road and bridge fund when no estimated expenditures were shown against that fund and improperly carried a balance and transfer of funds to an unauthorized building fund when no estimated expenditures were shown against that fund and (2) ordering 'that the Budget Commission of Morgan County * * * forthwith correct, adjust and list receipts and balances for the year 1963 as set forth * * * [in other parts of the Board of Tax Appeals order] so as to reflect a county tax rate within the ten-mill limitation for the year 1963, of .30 mills' instead of the 3.20 mills which had been levied.

The cause is now before this court on appeal by the Morgan County Budget Commission and others from that order.

Donovan Lowe, Prosecuting Atty., and Robert S. Christie, McConnelsville, for appellants.

William B. Saxbe, Atty. Gen., Daronne R. Tate, Zanesville, Wright, Harlor, Morris, Arnold & Glander, Columbus, and Meyer Johnson & Kincaid, Zanesville, for appellees.

TAFT, Chief Justice.

This court has held that only those orders of the Board of Tax Appeals made in quasi-judicial proceedings are subject to the revisory jurisdiction conferred upon this court by Section 2 of Article IV of the Constitution. Zangerle, Aud., v. Evatt, Tax Commr. (1942), 139 Ohio St. 563, 41 N.E.2d 369. If any party in this cause had contended that the order appealed from was an administrative rather than a quasijudicial order, this court might well consider whether and hold that the appeal should be dismissed. However, in appealing, the budget commission must necessarily take the position that the order appealed from was a quasi-judicial order. Otherwise, its appeal would be subject to dismissal. Furthermore, neither the Board of Tax Appeals nor the Ohio Power Company has asked for a dismissal of this appeal. On the contrary, they have asked this court to affirm the order appealed from. To so affirm, this court would have to recognize that order as a quasi-judicial order.

Therefore, since neither party has contended that the order appealed from was not made in a quasi-judicial proceeding, ² we will assume that it was.

The budget commission contends that the Board of Tax Appeals was without statutory authority to issue an order of the kind appealed from. If that contention is sound, it will necessarily follow that the order appealed from is unlawful and must, under Section 5717.04, Revised Code, be vacated.

The Board of Tax Appeals, being a creature of statute, is limited to the powers conferred upon it by statute. Steward v. Evatt, Tax Commr. (1944), 143 Ohio St. 547, 56 N.E.2d 159.

In contending that the Board of Tax Appeals had statutory authority to make the order appealed from, the board first relies upon the portion of Section 5703.02(D), Revised Code, reading:

'The board of tax appeals shall exercise the following powers and perform the following duties * * *:

* * *

* * *

'(D) Exercise the authority provided by law relative to the action of local taxing authorities in levying taxes * * *.'

It is apparent that a further examination of our statutes must be made in order to determine what authority is provided by law for the Board of Tax Appeals to issue any order relative to the action of local taxing authorities in levying taxes.

The next statute relied upon by the Board of Tax Appeals is Section 5715.29 Revised Code, which reads:

'The board of tax appeals shall prescribe such general and uniform rules and regulations and issue such orders and instructions, not inconsistent with law, as it deems necessary, as to the exercise of the powers and the discharge of the duties of all officers which relate to the assessment of property and the levy and collection of taxes. The board shall cause the rules and regulations prescribed by it to be observed, the orders and instructions issued by it to be obeyed, and the forms prescribed by it to be observed and used.' (Emphasis as in brief of Board of Tax Appeals.)

How the board is to do what is specified by this last sentence is set forth is Section 5715.38, Revised Code, which reads in part:

'The board of tax appeals may institute proceedings to remedy improper or negligent administration of the taxation laws.'

The foregoing Section 5715.29 expressly requires that the 'rules and regulations' must be 'general and uniform.' There is some doubt as to whether the language of the statute necessarily requires that 'orders and instructions' be 'general and uniform.' However, the statute limits 'orders and instructions' to those 'as to the exercise of the powers and the discharge of the duties [relative to levy and collection of taxes] of all officers,'--not just one or only a few officers such as those of Morgan County. Those limiting words tend to indicate that the General Assembly did not intend by those words to confer authority to issue an order to one or only a few officers.

This conclusion is fortified by considering the immediately preceding Section 5715.28, Revised Code, which is also relied upon by the Board of Tax Appeals and which reads:

'The department of taxation [which includes the Board of Tax Appeals] shall decide all questions that arise as to the construction of any statute affecting the assessment, levy, or collection of taxes in accordance with the advice and opinion of the attorney general. Such opinion and the rules, regulations, orders, and instructions of the department prescribed and issued in conformity therewith shall be binding upon all officers, who shall observe such rules and regulations and obey such orders and instructions, unless the same are reversed, annulled, or modified by a court of competent jurisdiction.'

Here, reference is made to 'rules, regulations, orders, and instructions' to 'be binding upon all officers.' This tends to indicate that the General Assembly did not contemplate 'orders' which would 'be binding upon' only one or a few officers. This statute also expressly recognizes that 'such rules and regulations and * * * such orders and instructions' are to be effective 'unless the same are reversed, annulled, or modified by a court of competent jurisdiction.' Thus, the General Assembly apparently had in mind the same kind of judicial review for 'orders' as for 'rules and regulations.' Those 'rules and regulations' could not be reviewed on a direct appeal therefrom by this court because they would represent the product of administrative powers rather than of quasi-judicial powers. Zangerle v. Evatt, supra (139 Ohio St. 563, 41 N.E.2d 369). This also tends to indicate that, in providing for orders of the Board of Tax Appeals relating to the levy of taxes, the General Assembly had in mind general orders, which would likewise represent the product of administrative powers, rather than specific orders to one or a few officers which might represent the product of quasi-judicial powers. Cf. Section 5713.08, Revised Code, providing for application to the Board of Tax Appeals for exemption of specific property from taxation, which application would result in an order made pursuant to the quasi-judicial powers of that board. There is no statutory provision for an application to the Board of Tax Appeals which might result in an order relating to the levy of taxes.

Our conclusion is that any power or authority that the Board of Tax Appeals may have to issue orders relative to the action of local taxing authorities in...