State ex rel. Park Investment Co. v. Board of Tax Appeals

Per Curiam.

For the prior history of the proceedings in this court under case No. 68-277, see State, ex rel. Park Invest. Co., v. Bd. of Tax Appeals (1968), 16 Ohio St. 2d 85, and State, ex rel. Park Investment. Co., v. Bd. of Tax Appeals (1971), 26 Ohio St. 2d 161.

On July 3, 1972, The Park Investment Company filed with this court a “Motion for Instructions,” and the Board of Tax'Appeals filed an “Application for Further Instructions,” which, in essence, request this court to interpret the provisions of Amended Substitute Senate Bill No. 455, which became effective on June 28, 1972, and to pass on the constitutionality of various aspects thereof.

The bill amended R. C. 3311.21, 3317.04, 5705.31, 5713.-OT, 5713.11, 5715.01, 5715.011, 5715.012, 5715.24 and 5715.34,' enacted R. C. 5713.111, and repealed R. C. 5705.331.

It is not alleged by either of the movants that the *184board has failed to follow or in any way violated an order of this court made in State, ex rel. Park Investment Co., v. Bd. of Tax Appeals (1971), supra.

It is asserted by both movants, even though the Board of Tax Appeals has taken no action pursuant to Amended Substitute Senate Bill No. 455, that there are numerous legal questions which should now be answered even though these questions were never raised, briefed, argued, submitted or decided by this court in State, ex rel. Park Investment Co., v. Bd. of Tax Appeals (1971), supra; there is no case before this court now in which these questions are raised; no action has been taken by the board to raise these questions, and no fact pattern now before this court raises these questions.

Both movants are requesting an advisory opinion.

This court does not have the constitutional or statutory authorization, as exists in some states, for the issuance of an advisory opinion and this court, for sound legal reasons, has never issued advisory opinions.

If the existence of controversy or dilemma in the executive branch of government concerning the interpretation of a newly enacted statute is to be grounds for invocation of the jurisdiction of this court, absent a case to be determined, then the court would assume for itself the power, and establish the precedent, to determine policy for both the legislative and the executive branches of government before any policy decision has in fact been made by the executive branch, or any legislative policy has in fact been implemented.

It is fundamental that general and abstract questions as to the interpretation and constitutionality of an act of the Legislature cannot with propriety be presented to a court. Foster v. Commrs. of Wood County (1859), 9 Ohio St. 540, 544. See, also, King v. Cappellar (1884), 42 Ohio St. 218, 221, and State, ex rel. Williams, v. Indus. Comm. (1927), 116 Ohio St. 45, 56.

*185As held in paragraph two of the syllabus of Eyler v. Anderson (1930), 122 Ohio St. 220, “Courts will not pass upon the constitutionality of an act of the General Assembly abstractly, but only when the question of the constitutionality of such act determines a case before them.” There is no case pending before us which would or could be determined by any expression of opinion by this court as to the issues purported to be presented by these requests.

For a further discussion of the limitations of the judicial power in such respect, see opinion of Justice Herbert in Fortner v. Thomas (1970), 22 Ohio St. 2d 13, at page 14.

It is the order of this court therefore that the “Motion for Instructions” and the “Application for Further Instructions” filed with this court on July 3, 1972, be denied.

It is so ordered.

O’Neill, 0. J., Hebbebt, Corrigan, Stern, Leach and Bbown, JJ., concur.