Lake County Budget Commission v. Village of Willoughby Hills

224 N.E.2d 120, 9 Ohio St. 2d 108, 38 Ohio Op. 2d 289, 1967 Ohio LEXIS 426
CourtOhio Supreme Court
DecidedMarch 1, 1967
DocketNo. 40286
StatusPublished
Cited by10 cases

This text of 224 N.E.2d 120 (Lake County Budget Commission v. Village of Willoughby Hills) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lake County Budget Commission v. Village of Willoughby Hills, 224 N.E.2d 120, 9 Ohio St. 2d 108, 38 Ohio Op. 2d 289, 1967 Ohio LEXIS 426 (Ohio 1967).

Opinion

Taft, C. J.

At the ontset, it may be observed that this court has considerable doubt as to the authority of the Budget Commission of Lake County to prosecute this appeal on behalf of Lake County. The Budget Commission is not a subdivision entitled to participate in the fund being apportioned. Thus, the Budget Commission could not be prejudiced by any decision that the Board of Tax Appeals made.

To permit it to appeal from the decision of the Board of Tax Appeals merely because that decision was different from the one rendered by the Budget Commission would be as absurd as to allow a trial court an appeal to this court because the trial court’s judgment had been reversed by the Court of Appeals. Cf. A. DiCillo & Sons, Inc., v. Chester Board of Zoning Appeals (1952), 158 Ohio St. 302, 109 N. E. 2d 8; Corn v. Board of Liquor Control (1953), 160 Ohio St. 9, 113 N. E. 2d 360. See also Section 5705.37, Revised Code, authorizing appeal to the Board of Tax Appeals from a decision of the Budget Commission by “taxing authority of any subdivision,” and Section 5705.01, Revised Code, defining “subdivision” as including a county and “taxing authority” as meaning “in the case of any county, the Board of County Commissioners.” But see Sections'5717.04 and 5717.03, Revised Code, authorizing appeal by “person” to whom a decision is certified by the board. Cf. Brooklyn v. Cuyahoga County Budget Comm. (1965), 2 Ohio St. 2d 181, 187, 188, 207 N. E. 2d 764.

However, this court does have jurisdiction of the subject matter of this appeal. Also, the county, upon whose behalf the appeal is prosecuted, was definitely prejudiced by the decision appealed from. Hence, because the question as to the authority [111]*111of the Budget Commission to prosecute the appeal on behalf of the county has not been raised by any of the parties to the appeal, we will disregard the question as to whether it has such authority. See Mantho v. Board of Liquor Control (1954), 162 Ohio St. 37, 120 N. E. 2d 730. Cf. Sections 2309.08 and 2309.10, Revised Code, declaring that the right to object to lack of capacity of a plaintiff to sue may be waived by failing to object thereto by answer or demurrer.

Before the Board of Tax Appeals, a motion was made to dismiss each appeal to the board because the Painesville Township Park District had not been joined as an appellee. In support of this motion, which the board overruled, it was argued that Section 5739.20, Revised Code, defines subdivision to include a park district, that Sections 5739.21 to 5739.23, Revised Code, provide for apportionment to local subdivisions from the county’s local government fund, and that this court held in Brooklyn v. Cuyahoga County Budget Comm., supra (2 Ohio St. 2d 181), that “every subdivision of the county entitled to participate in” the local government fund “is a necessary party” to an appeal such as this.

However, the Painesville Township Park District has never claimed that it needed any amount for current operating expenses in addition to other revenues that it had.

Both parties recognize, as the statutes declare and this court has held, that the need of a subdivision for revenue, in addition to what it has, is an essential requirement for any apportionment to that subdivision from the county undivided local government fund. Brooklyn v. Cuyahoga County Budget Comm., supra (2 Ohio St. 2d 181); Budget Commission of Lorain County v. Board of Tax Appeals (1964), 176 Ohio St. 98, 197 N. E. 2d 803; Lancaster v. Fairfield County Budget Comm. (1962), 174 Ohio St. 163, 187 N. E. 2d 42; Troy v. Miami County (1959), 168 Ohio St. 418, 155 N. E. 2d 909.

If there were no subdivision in a county which had such a need, a different question might be presented. However, where as here the claimed needs of subdivisions of a county far exceed the estimated amount of the ]ocal government fund of the county, a subdivision therein which has no such need cannot participate in an apportionment from the local government fund of the [112]*112county; and a subdivision which does not claim to have such a need is not a necessary party to an appeal from the order of the Oonnty Budget Commission apportioning the estimated amount of such fund.

The hearing below on behalf of the Board of Tax Appeals was conducted by two attorney-examiners, and no member of that board was present. It is contended that this makes the resulting decision of the board unlawful because, on appeals from a County Budget Commission order to the board such as those in the instant case, this court held in Brooklyn v. Cuyahoga County Budget Comm., supra (2 Ohio St. 2d 181), that “the board hears and determines the matter de novo,” and because Section 5703.13, Revised Code, requires that any “hearing which the board is authorized to hold or undertake” must be “held or undertaken by or before any one member of the board.”

This contention is strengthened by Sections 5717.01 and 5717.02, Revised Code, which expressly authorize the conducting of hearings by attorney-examiners for the board on appeals from decisions of County Boards of Revision or actions by the Tax Commissioner, and the absence of such provisions with respect to appeals of the kind involved in the instant case.

However, the parties knew that this was a hearing before the Board of Tax Appeals, that it was being conducted by two examiners of that board, and that no member of the board was present. No objection to that procedure was made. We are of the opinion that, where the parties know that a hearing is being conducted by attorney-examiners for the Board of Tax Appeals and that no member of that board is present, a failure to object to having such hearing without a board member present represents a waiver of any statutory right to have at least one board member present. Cf. State v. Claros (1960), 170 Ohio St. 471, 166 N. E. 2d 379.

The county contends that the Board of Tax Appeals did not make its determination of the needs of each subdivision, and that it failed to determine the total allocation of the local government fund in the place of and as if it were the Budget Commission, and, instead, it made its determination of the needs of each subdivision on the basis of an arbitrary, unreasonable, and unlawful formula.

[113]*113In order to apportion the estimated amount of the local government fund of a county for a particular year, the Budget Commission must, to use the words of Section 5739.23, Revised Code, “determine the amount needed by each subdivision for current operating expenses # * * in addition to revenues available from all other sources [except those received from an additional voted tax or service charge] * # * in order to enable it to carry on its essential local governmental functions.” Brooklyn v. Cuyahoga County Budget Comm., supra (2 Ohio St. 2d 181); Budget Commission of Lorain County v. Board of Taco Appeals, supra (176 Ohio St. 98); Troy v. Miami County, supra (168 Ohio St. 418).

After so determining the needs of each subdivision, the Budget Commission must add all those needs. The resulting total may conveniently be referred to as “total needs.”

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Cite This Page — Counsel Stack

Bluebook (online)
224 N.E.2d 120, 9 Ohio St. 2d 108, 38 Ohio Op. 2d 289, 1967 Ohio LEXIS 426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lake-county-budget-commission-v-village-of-willoughby-hills-ohio-1967.