Racing Guild of Ohio, Local 304 v. Ohio State Racing Commission

Wright, J.,

concurring in part and dissenting in part. Although I concur with the first paragraph of the syllabus of the majority decision and the reasoning in support thereof, I must respectfully dissent from that portion of today’s holding addressing taxpayer standing.

The majority correctly observes this action was commenced by appel-lees (three pari-mutuel clerks and their labor union) alleging that the State Racing Commission failed to follow its own rules and the mandate of the General Assembly in issuing a horse-racing permit to Northfield Park, as well as approving its capital improvement application and request for tax abatement. Appellees’ complaint sought injunctive relief against the racing commission requiring the revocation of Northfield’s operating permit, revocation of the approval of the major capital improvement application, termination of the tax abatement tied to the capital improvement project and a refund of all taxes previously abated.

At trial, the complaint was dismissed for lack of standing. On appeal, appellees argued they possessed standing based upon their status either as general taxpayers, as contributors to a special fund as a result of paying license fees or as participants in the horse-racing industry. Today, the majority holds that as a result of the commission’s having failed to require the individual partners of Northfield to secure licenses, appellees have somehow acquired standing to proceed on the entire underlying action. While appellees, as persons who are obligated to purchase licenses, could conceivably challenge the commission’s failure to collect license fees from persons who allegedly should have purchased licenses, the acceptance of this position certainly does not confer standing upon appellees to challenge each and every decision of the commission as it relates to the Northfield facility. In reality, appellees’ complaint is nothing more than a taxpayer’s suit. It must be observed that the majority has elected not to address the sole ground for standing found to exist by the court of appeals — that appel-lees have standing to pursue their claims as taxpayers.

*324The seminal case from this court on the issue of taxpayer standing is State, ex rel. Masterson, v. State Racing Comm. (1954), 162 Ohio St. 366 [55 O.O. 215]. Therein, the following standard was set forth to determine taxpayer standing:

“ ‘Even in the absence of legislation, a taxpayer has a right to call upon a court of equity to interfere to prevent the consummation of a wrong such as occurs when public officers attempt to make an illegal expenditure of public money, or to create an illegal debt, which he, in common with other property holders of the taxing district, may otherwise be compelled to pay.’
“It is equally fundamental that at common law and apart from statute, a taxpayer can not bring an action to prevent the carrying out of a public contract or the expenditure of public funds unless he has some special interest therein by reason of which his own property rights are put in jeopardy. In other words, private citizens may not restrain official acts when they fail to allege and prove damage to themselves different in character from that sustained by the public generally. 39 Ohio Jurisprudence, 22, Section 12; 52 American Jurisprudence, 3, Section 3.” Id. at 368. (Emphasis added.)

Without question, Masterson requires at the very least that in a taxpayer’s suit it must be demonstrated that the party initiating the action has a special interest whereby his own property rights are placed in jeopardy, and furthermore, it must be alleged that the taxpayer will sustain damage different in character from that suffered by the general public. It is this portion of Masterson which is excised from and ignored by the majority’s opinion.

Regarding the allegation that a taxpayer’s property rights be placed in jeopardy, it is well-settled that a remote or speculative claim will not suffice. Instead, the interest must be immediate, since courts will not indulge in settling abstract questions of law. Ohio Contract Carriers Assn., Inc. v. Pub. Util. Comm. (1942), 140 Ohio St. 160 [23 O.O. 369].

The abatement granted by the racing commission is authorized under R.C. 3769.20. The abatement itself is a diminution of tax dollars levied upon racetrack permit holders on the funds collected from those who wager at the tracks. R.C. 3769.08(C). In other words, the source of funds from which the abatement is derived is the daily wagering pool collected from the betting patrons upon which the racetrack permit holder pays a tax, and not monies paid into the General Revenue Fund as taxes by the general taxpayer. Pursuant to R.C. Chapter 3769, the Tax Commissioner is required to use specific amounts of the tax collected for various racing developmental funds. Only the remainder of the tax collected under R.C. 3769.08(C) is paid into the General Revenue Fund in accordance with the provisions of R.C. 3769.10.

A review of appellees’ amended complaint demonstrates the failure to allege any damage different to themselves from that which would be sus*325tained by the public in general as a result of the capital improvement project or the tax abatements associated therewith. First, appellees have not shown, as a result of the abatement, that they will have to pay more taxes. Such an argument is, at best, speculative, and will not form the basis for standing. Ohio Contract Carriers Assn., Inc. v. Pub. Util. Comm., supra. However, assuming, arguendo, that appellees’ allegation of damage is not speculative, they have nevertheless failed to allege that their damage can be distinguished from the damage that will be sustained by all taxpayers who contribute to the General Revenue Fund. They have, therefore, failed to meet the test of standing imposed under Masterson. Cf. State, ex rel. Shilton, v. Miller (1955), 164 Ohio St. 163 [57 O.O. 145].

The majority reasons that because the clerks have alleged that the racing commission failed to require individual partners of Northfield to have licenses, they have somehow acquired standing to challenge all commission actions with regard to Northfield Park, including the tax abatement and the capital improvement project. In essence, the majority equates the licensing issue with taxpayer standing. Clearly, if the license issue gives the clerks standing to sue, such standing must necessarily be confined to the commission’s actions of allegedly failing to require the individual partners of Northfield to secure licenses. To hold otherwise allows appellees to make a claim alleging a licensing error, and then to challenge any action of the racing commission pertaining to the Northfield facility. Because this result is not in accordance with fundamental prerequisites for standing, and because of the far-reaching consequences of today’s decision, I must dissent.