Taxation — One percent city income tax enacted by legislative authority — Electoral approval of ballots to increase to one and one-half percent — Not additional tax voted by electorate, when — R.C. 5739.23.
1. Electoral approval of ballots which read "Shall the Ordinance providing for an increase from one percent (1%) to one and one-half percent (1 1/2%) on income * * * be passed?" is not a one and one-half percent "additional tax * * * voted by its electorate" within the meaning of R.C. 5739.23, as that section read prior to August 18, 1969.
2. Where a one percent city income tax has lawfully been enacted by a legislative authority, the subsequent electoral approval of an ordinance which only increases the rate to one and one-half percent, and does not provide for repeal of the tax in its entirety if the vote fails to win approval, results in the proceeds from the one-half percent increase only being considered as "an additional tax * * * voted by its electorate," as that phrase is used in R.C. 5739.23.
DUNCAN, J.
The Board of Tax Appeals considers appeals from a county budget commission's allocation of the local government fund de novo as if it were the budget commission. Brooklyn v. Cuyahoga County Budget Comm., 2 Ohio St.2d 181, paragraph two of syllabus. Our jurisdiction is limited to deciding whether the board's decision was unreasonable or unlawful. R.C. 5717.04; Youngstown Club v. Porterfield, 21 Ohio St.2d 83, and cases cited therein, at page 85.
The cities of Youngstown and Struthers urge the reasonableness of the board's conclusion that electoral approval of an increased income tax (from one percent to one and one-half percent) was a one and one-half percent "additional tax voted by the electorate." We do not agree.
This court has recognized that the General Assembly, in granting the credit for an additional voted tax, intended a principle which would neither penalize voters who imposed higher taxes upon themselves nor discourage the imposition of necessary taxes. Painesville v. Board of County Commrs., 17 Ohio St.2d 35, 37-38. See, generally, Lancaster v. Fairfield County Budget Comm., 174 Ohio St. 163. With this in mind, we have liberally construed the phrase "additional tax voted by the electorate" in order to effectuate legislative intent. See New Boston v. Scioto County Budget Comm., 20 Ohio St.2d 151.
However, the evidence adduced herein, liberally construed, fails to accommodate the contention of Youngstown and Struthers that the election in question resulted in an additional one and one-half percent tax being voted by the electorate. The ballots, themselves, clearly state that the question put to the electorate was an increase. No provision was included which would have repealed the previously effective one percent rate had the vote failed.
An income tax lawfully enacted by the legislative authority is not an "additional tax voted by the electorate" within the meaning of R.C. 5739.23, as that section read during the time here in question. Painesville v. Board of County Commrs., 17 Ohio St.2d 35, paragraph one of the syllabus. The one percent taxes here in question were enacted by legislative bodies and cannot be considered as enacted by the electorate unless such legislative action was in some way repealed and included in the amending act.
The record amply demonstrates that the Board of Tax Appeals most likely credited the revenues of Youngstown and Struthers with the entire proceeds from the one and one-half percent income tax. In light of the foregoing, this procedure was clearly erroneous. Only the proceeds of the one-half percent increase should have been credited to those cities as an "additional tax voted by the electorate."
Finally the township of Austintown objects to the Board of Tax Appeals determination of its "actual needs." See Board of Commrs. v. Willoughby Hills, 12 Ohio St.2d 1. After reviewing the record we find that the Board considered all the evidence and its findings as to the dollar amount of the needs of Austintown were not unreasonable.
Therefore, the decision of the Board of Tax Appeals is reversed and the cause is remanded to the Board of Tax Appeals, with instructions to reallocate the local government fund for the year 1969, and in such reallocation to consider only the proceeds from the one-half percent portion of the Youngstown and Struthers income taxes as a credit against anticipated revenue receipts.
Decision reversed.
O'NEILL, C.J., LEACH, SCHNEIDER, HERBERT and CORRIGAN, JJ., concur.
CHIEF JUSTICE TAFT participated in this case which was, however, decided after his death.
LEACH, J., of the Tenth Appellate District, sitting for MATTHIAS, J.