concurring in part and dissenting in part. Although I concur in the result because the factual record as developed below is simply insufficient to support a finding that R.C. 5709.08 was un*188constitutionally applied in this instance, I must respectfully dissent from the syllabus and from those portions of the opinion in which the majority requires that issues of constitutionality of legislation must be raised before the Tax Commissioner and Board of Tax Appeals and that the “failure to do so constitutes a waiver” of those issues.
That there “should be” a “constitutional issue” exception to the general rule that this court will not consider matters which were not presented to the Board of Tax Appeals is far more than a mere recommendation; until today, it was the law of Ohio as previously pronounced by this court. See S.S. Kresge Co. v. Bowers (1960), 170 Ohio St. 405 [11 O.O.2d 157], in which this court held in paragraph one of the syllabus that “the Board of Tax Appeals of Ohio is an administrative agency and is without jurisdiction to determine the constitutional validity of a statute.” Therefore, in paragraph two of the syllabus, we continued: “Such constitutional question may be raised in this court although not previously raised before the Board of Tax Appeals.” (Emphasis added.)
Nor can I agree with the majority’s attempt to distinguish between “the constitutionality of the legislation itself” and “the constitutional application of legislation to particular facts.” No such distinction was drawn in Kresge, supra, despite the appellant’s contention in that case, for the first time on appeal to this court, that it had been “deprived of its property without due process of law because of misconstruction and misapplication of the statutory provisions * * *.” (Emphasis added.) Id. at 406.
Accordingly, I respectfully dissent from the syllabus and from those portions of the opinion which constitute an implied overruling of this court’s sound holdings in Kresge, supra.