Queen City Valves v. Peck

• Decision Date: 09 June 1954
• Docket Number: No. 33833,33833
• Citation: 120 N.E.2d 310,53 O.O. 430,161 Ohio St. 579
• Parties: , 53 O.O. 430 QUEEN CITY VALVES, Inc. v. PECK, Tax Com'r.
• Court: Ohio Supreme Court

Page 579

161 Ohio St. 579

120 N.E.2d 310, 53 O.O. 430

QUEEN CITY VALVES, Inc. v. PECK, Tax Com'r.

No. 33833.

Supreme Court of Ohio.

June 9, 1954.

Syllabus by the Court

On an appeal from an order of the Tax Commissioner to the Board of Tax Appeals, Section 5611, General Code (Section 5717.02, Revised Code), requires that the notice of appeal shall specify the errors complained of; a notice of appeal which does not enumerate in definite and specific terms the precise errors claimed but uses language so broad and general that it might be employed in nearly any case is insufficient to meet the demands of the statute; and a decision of the Board of Tax Appeals dismissing for want of jurisdiction an appeal predicated on such a notice of appeal will not be reversed by this court as unlawful or unreasonable.

McIntosh & Moore, Cincinnati, for appellant.

C. William O'Neill, Atty. Gen., and Jack H. Bertsch, Columbus, for appellee.

ZIMMERMAN, Judge.

On this appeal from the decision of the Board of Tax Appeals the only question presented is whether the appellant taxpayer's notice of appeal to the board from the final order of the Tax Commissioner confirming increased tangible personal property tax assessments against appellant for the tax years 1950, 1951 and 1952 is sufficient to meet the requirements of Section 5611, General Code, Section 5717.02, Revised Code.

The board said it is not and, on motion of the Tax Commissioner, dismissed the appeal on jurisdictional grounds. Is such decision unreasonable or unlawful?

It appears from the record that under its application to the Tax Commissioner for review and redetermination of the increased assessments appellant complained specifically that the assessed values of its machinery, equipment, furniture and fixtures for the years involved were in excess of their true values because inadequate rates of depreciation had been employed in computing such values, and, in addition, that the average monthly inventory values assessed were more than the true average values thereof on account of the inclusion therein of an increment of value for inventoried items having an out-of-state situs. Upon consideration, the Tax Commissioner denied appellant the relief sought and affirmed the assessments.

In its notice of appeal to the Board of Tax Appeals, appellant set forth the following errors:

'1. The decision is contrary to law.

'2. The decision is not sustained by the evidence is contrary to the evidence.

'3. The decision is against the weight of the evidence.

'4. The assessment placed upon the property involved is excessive, contrary to law and the evidence.'

That part of Section 5611, General Code, covering appeals from final determinations of the Tax Commissioner to Board of Tax Appeals and which is controlling, recites:

'The notice of such appeal shall set forth, or shall have attached thereto and incorporated therein by reference, a true copy of the notice sent by the commissioner to the taxpayer of the final determination complained of, and shall also specify the errors therein complained of.' (Emphasis added.)

This court has considered similar problems on previous occasions. In the case of American Restaurant & Lunch Co. v. Glander, 147 Ohio St. 147, 149, 70 N.E.2d 93, 94, the opinion, after detailing the provisions of Section 5611, General Code, continues as follows:

'These requirements are specific and in terms that are mandatory. The very statute which authorizes the appeal prescribes the conditions and procedure under and by which such appeal may be perfected. Where a statute confers the right of appeal, adherence to the conditions thereby imposed is essential to the enjoyment of the right conferred. 'The party who seeks to exercise this right must comply with whatever terms the statutes of the state impose upon him as conditions to its enjoyment.' Collins v. Millen, 57 Ohio St. 289, 291, 48 N.E. 1097, 1098.'

To the same effect are Kent Provision Co., Inc., v. Peck, 159 Ohio St. 84, 110 N.E.2d 776, and David v. Peck, 161 Ohio St., 80, 118 N.E.2d 146.

A somewhat analogous situation is presented by Section 543, General Code, Section 4903.10, Revised Code, pertaining to an application for rehearing before the Public Utilities Commission. In its pertinent part that section reads:

'Such application shall set forth specifically the ground or grounds on which the applicant considers said decision or order to be unreasonable or unlawful.'

That section was considered and analyzed in the case of City of Cincinnati v. Public Utilities Commission, 151 Ohio St. 353, 86 N.E.2d 10, 14, and in the seventeenth and eighteenth paragraphs of the syllabus it was held:

'On an appeal from an order of the Public Utilities Commission, the Supreme Court cannot consider any matter which was not specifically set forth in an application to the commission for a rehearing as a ground on which the appellant considered the order of the commission to be unreasonable or unlawful. Section 543, General Code, construed and applied.

'Where such an appellant set forth in an application to the commission for rehearing, as a ground on which the appellant considered the findings and order of the commission...