Republic Steel Corp. v. Board of Revision of Cuyahoga County

• Decision Date: 10 July 1963
• Docket Number: No. 37866,37866
• Citation: 192 N.E.2d 47,175 Ohio St. 179,23 O.O.2d 462
• Parties: , 23 O.O.2d 462 REPUBLIC STEEL CORP., Appellee, v. BOARD OF REVISION OF CUYAHOGA COUNTY et al., Appellants.
• Court: Ohio Supreme Court

Page 179

175 Ohio St. 179

192 N.E.2d 47, 23 O.O.2d 462

REPUBLIC STEEL CORP., Appellee, v. BOARD OF REVISION OF CUYAHOGA COUNTY et al., Appellants.

No. 37866.

Supreme Court of Ohio.

July 10, 1963.

Syllabus by the Court.

Issues not raised in the lower court and not there tried and which are completely inconsistent with and contrary to the theory upon which appellants proceeded below cannot be raised for the first time on review.

In 1959, the Auditor of Cuyahoga County determined to revalue and assess at their true value in money the industrial buildings and improvements in Cuyahoga County owned by three steel companies, to wit, The American Steel Wire Division of the United States Steel Corporation, The Jones & Laughlin Steel Corporation, and The Republic Steel Corporation.

The last general appraisal of real property in Cuyahoga County took place in the year 1955.

Republic's property consisted of buildings and improvements on 18 parcels of land, including a newly constructed research laboratory.

The Cuyahoga County Board of Revision determined the 1959 true value in money of Republic's property to be $26,371,130, whereas Republic claimed such value to be $23,239,555. In 1960, the Cuyahoga County Board of Revision determined the true value in money of Republic's property to be $26,326,790. Republic claimed the value to be $23,206,015.

Republic filed its notice of appeal to the Board of Tax Appeals for the decision of the Cuyahoga County Board of Revision.

The Board of Tax Appeals reviewed the transcript and the proceedings before the Board of Revision, the testimony, evidence and the exhibits. In addition, the chairman of the board made a personal inspection of the physical properties involved.

The Board of Tax Appeals in its decision fixed the true value in money of the property in question for tax purposes at $24,485,840 for each of the years 1959 and 1960.

The Board of Revision and the county auditor appealed to this court as a matter of right.

John T. Corrigan, Pros. Atty., A. M. Braun, George W. Leddon and Joseph A. Zingales, Cleveland, for appellants.

Jones, Day, Cockley & Reavis, John S. Pyke and Arthur L. Dougan, Cleveland, for appellee.

HERBERT, Judge.

The question here presented is whether the decision of the Board of Tax Appeals is unreasonable or unlawful.

In the consideration of the issues in the instant case it should be recalled that the appraisal and revaluation applied only to the industrial properties of the three large steel companies, and in the case at bar only the property of Republic is pertinent. The land itself is excluded. There are no commercial or residential properties involved. The questions here affect solely and only the value of the buildings and improvements owned by Republic. In ascertaining the true value in money of such property, economic conditions affecting the entire steel industry cannot be overlooked.

The ground rules controlling the procedure to be followed in the revaluation of these buildings and improvements were set out in a contract between the Cuyahoga County auditor and The J. M. Cleminshaw Company, an appraisal firm, executed on or about the 5th day of February 1959.

The second paragraph of that contract provides:

'All such properties involved shall be appraised in accordance with the instructions issued by the Ohio Board of Tax Appeals in its journal entry of December 6, 1957, which, among other things, specifies that the cost of reproduction be based upon 'the prices prevailing during the month of January, 1956,' in this county for labor and materials. New construction shall be valued in relation to the amount physically existing on January 1, 1959. In addition, there shall be furnished for each building or improvement, a factor that may be used to arrive at a value based upon the 1941-2 level of reproduction costs used in our 1955 general reappraisal of similar buildings or improvements.' (Emphasis added.)

At the foot of page 12 and at the top of page 13 of the decision of the Board of Tax Appeals is the following:

'From the testimony and evidence in the record, it appears that the last general reappraisal of real property in Cuyahoga County, Ohio, was in the year 1955 and that industrial buildings and improvements to land were placed on the tax duplicate for that year (and for the other years here in issue) by the county auditor on the basis of 1941-1942 reproduction cost levels.' (Emphasis added.)

Section 2, Article XII of the Constitution of Ohio, in part provides:

'Land and improvements thereon shall be taxed by uniform rule according to value.'

Section 5717.01, Revised Code, in its concluding paragraph provides:

'The board of tax appeals may order the appeal to be heard upon the record and the evidence certified to it by the county board of revision, or it may order the hearing of additional evidence, and it may make such investigation concerning the appeal as it deems proper.'

Section 5717.03, Revised Code, in part provides:

'In the case of an appeal from a decision of a county board of revision the board of tax appeals shall determine the true value in money of the property whose valuation or assessment by the county board of revision is complained of, or in the event the complaint and appeal is against a discriminatory valuation, * * *.'

Within these constitutional and statutory boundaries, consideration will now be given to the assignments of error and other questions of law raised by the appellants.

Assignments of error:

1. 'The decision of the Board of Tax Appeals finding the true value in money of all of the buildings in question for each of the years 1959 and 1960 to be $24,485,840.00, is unsupported by and contrary to the evidence and is arbitrary, capricious, unreasonable and unlawful.'

This assignment of error encompasses practically a review of the entire record.

William Cleminshaw of the appraisal firm was the only witness appellants produced before the Board of Tax Appeals. The parties agreed that the reproduction cost new less depreciation of the buildings and improvements of Republic as of 1956 was $52,848,110. The auditor could not under his oath of office place this property on the duplicate for 1959 at $52,848,110, for the reason that all other industrial buildings and improvements in the county were on the 1959 tax duplicate at 1941-1942 reproduction cost levels. To do so would violate the tax uniformity requirement of Section 2, Article XII of the Constitution of Ohio, and the 'discriminatory valuation' provision of Section 5717.03, Revised Code.

To reduce the reproduction cost new less depreciation figure of $52,848,110 to 1941-1942 cost levels, the Cleminshaw firm used the...