Good Samaritan Hospital of Dayton v. Porterfield

Herbert, J.,

dissenting. As noted by the majority, the General Assembly has prescribed that the building involved in this case is exempt from the subject tax only if the “building is used exclusively for charitable purposes * * (Emphasis added.)

Black’s Law Dictionary (Rev. Fourth Ed. 1951), defines “exclusive” as “appertaining to the subject alone, not including, admitting, or pertaining to any others. * *' *”

Webster’s Seventh New Collegiate Dictionary (1967), states that “exclusive” means “* * * limiting or limited to possession, control, or use by a single individual or group * *

The American College Dictionary (1966), refers to “exclusive” as “not admitting of something else # * limited to the object or objects designated * * * shutting out all others from a part or share * * V’

As the majority candidly points out, the building in this ease was not used exclusively for charitable purposes, even under the test enunciated. True, the departure from that mandated status is minimal upon the record before us. However, the terminology employed by the General Assembly does not admit of judicial variance, for at no place in the statutes do we find terms such as “nearly,” “almost,” or “practically” exclusive. The clear and obvious meaning of “exclusive” simply forbids any such adjectival modification.

This court has never overruled the cases of National Tube Co. v. Glander (1952), 157 Ohio St. 407, 105 N. E. 2d *33648; L. A. Wells Construction Co. v. Bowers (1955), 164 Ohio St. 357, 130 N. E. 2d 803; Celina Mutual Ins. Co. v. Bowers, Tax Commr. (1965), 5 Ohio St. 2d 12, 213 N. E. 2d 175, or Ohio Ferro-Alloys Corp. v. Donahue, Tax Commr. (1966), 7 Ohio St. 2d 29, 218 N. E. 2d 452.

Those eases all stand for the proposition set forth in the second paragraph of the syllabus of National Tube, supra, which states:

" Statutes relating to exemption or exception from taxation are to be strictly construed, and one claiming such exemption or exception must affirmatively establish his right thereto.” (Emphasis added.)

In Ohio Ferro-Alloys, supra, at page 31, this court announced :

“* * * This court has invariably recognised the proposition that tax exemption pro tanto violates the constitutional requirement of tax uniformity as well as the related proposition that statutory language granting tax exemption when construction is required must be construed most strongly against exemption.” (Emphasis added.)

In his brief in this case, appellee cogently notes:

“Clearly a parking garage which admittedly parks cars and hopes to do so for a profit (E. 31), can hardly be said to be used exclusively for charitable purposes. Also in this vein, the use of the garage is such that it could hardly be said to be exclusively for charitable purposes. Employees park there because of handiness to their jobs, drug salesmen and the like park there in the hope of earning profit by making sales to the hospital. Clearly, the garage is just a garage and in no way used exclusively for the improvement of health.”

In enacting the tax laws of this state, no doubt a myriad of factors influenced our legislative branch, among them being recognition of the absolutely necessary social roll played by our exclusively charitable institutions. However, I also believe that by the use of a word as unambiguous as “exclusively,” the framers of R. C. 5739.02 (B)(12) were signaling their acute awareness of the con*34stantly growing demands for levied funds. In my opinion, they chose the word “exclusive” in an effort to maintain taxable status on as much property as would be compatible with reasonable eleemosynary predilections, while still attempting to spread the burden of taxation among as many of our citizens as possible.

Once a tax exemption such as the one before us is allowed, that revenue is lost forever from the tax base. Thereafter, the question of the exclusiveness of the use of the building for charitable purposes becomes meaningless insofar as those funds are concerned. Additionally, in all other cases where the use of a structure has been judicially determined to warrant exemption from taxation, that determination is necessarily made upon a record submitted at that time. Neither the tax commission nor the courts have the facilities to conduct sedulous surveillance to assure the continued exclusiveness of that usage.

I agree with the Tax Commissioner and the Board of Tax Appeals in this case. The building here involved was not being used “exclusively for charitable purposes,” and the decisions of those tribunals should be affirmed.