dissenting. The majority opinion undermines the well-established and well-reasoned law of this state regarding the taxation of those entities which render a “public utility service” pursuant to R.C. 5739.01(E) and (Q).
Over a quarter of a century ago, this court established in Apex Powder Corp. v. Peck (1954), 162 Ohio St. 189 [55 O.O. 95], that it is the nature of the use of the property at issue and not the status of the one using it that is determinative of the applicability of the sales and use tax exemption. *326Accordingly, an entity need not be a public utility to qualify for the exemption so long as it uses the property in the rendition of a public utility service. This holding was reaffirmed in State, ex rel. Paul Stutter, Inc., v. Yacobucci (1959), 169 Ohio St. 20 [7 O.O.2d 487].
The majority asserts that the Apex and Stutter cases are no longer controlling in light of the 1967 enactment of R.C. 5739.01(Q). While I agree with the majority that subsection (Q) serves to further explain those requisites necessary to the application of the tax exemption, I dp not believe this section legislatively overrules the Apex and Stutter cases. Because subsection (Q) was enacted years after our decisions in Apex and Stutter, I am certainly not satisfied that it was meant to obviate or even diminish the viability of these cases. Moreover, this statutory provision, by its own language, does not limit the tax exemption solely to public utilities. To the contrary, subsection (Q) states that the exemption may be available to those entities.which use the property at issue “ ‘directly in the rendition of a public utility service’ * * *.” Had the legislature intended to limit the exception only to public utilities, I believe it would have said so.
It is clear that the property and dock services provided by the Pittsburgh & Conneaut Dock Co. were directly related and critical to the operations of a public utility service provided by the Bessemer & Lake Erie Railroad. As such, the decision of the Board of Tax Appeals denying appellant the opportunity to avail itself of the sales and use tax exemption is unreasonable, is opposed to sound precedent promulgated by this court, and in my view is contrary to the public policy considerations discussed in Apex and Stutter. Thus, I must respectfully dissent.
C. Brown, J., concurs in the foregoing dissenting opinion.