County of Stark v. Ferguson · 2 Ohio App. 3d 72

construing commerce under Section 13 as incorporating an office building for physicians, dentists, a medical laboratory and a public pharmacy

How later courts described this case

construing commerce under Section 13 as incorporating an office building for physicians, dentists, a medical laboratory and a public pharmacy

Written by the judges who cited it.

The opinion

Rutherford, J.,

concurring in part and dissenting in part. I concur in the overruling of appellant’s Assignment of Error No. I.

Limited to the facts of this case, I dissent from the overruling of appellant’s Assignments of Error Nos. 2

and 3.

My dissent as to the overruling of Assignment of Error No. 2 is dependent upon the validity of my dissent to the overruling of Assignment of Error No. 3, and my resulting dissent to the affirmance of the judgment of the Court of Common Pleas of Stark County, which, in my opinion, ought to be reversed.

I concur with the finding in the ma

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jority opinion that, as related to the facts of this case, the polestar determination of “proper public purpose” and “public interest” under the provisions of Section 13, Article VIII of the Ohio Constitution is “to create or preserve jobs and employment opportunities.”

A copy of the “Petition and Complaint for Validation of Economic Development Revenue Bonds” is attached hereto as Appendix A ; a copy of pertinent answers to questions Nos. 8,17,18, 19, 20 and 21, contained within the application for “Revenue Bond Financing” by tax-free municipal bonds is attached hereto as Appendix B ; the “Resolution Authorizing Execution of Agreement with Belpar Professional Building” is attached hereto as Appendix C ; a copy of the agreement executed between Stark County and the Belpar Professional Building, an Ohio general partnership, is attached hereto as Appendix D ; a copy of the only testimony presented at the hearing before the court of common pleas, being that of Dr. Paul Smith, one of the “Belpar” partners, is attached hereto as Appendix E ; and a copy of the opinion and judgment entries of the Court of Common Pleas of Stark County is attached hereto as Appendix F.

In my opinion, the evidence of record is insufficient as a matter of law to meet the polestar requirement of Section 13, Article VIII of the Ohio Constitution as intended by the legislature,

i.e.,

“[t]o create or preserve jobs and employment opportunities, [and] to improve the economic welfare of the people of the state, * * *.” The evidence is found in the following answers to questions Nos. 17, 18 and 20, contained in the application for Revenue Bond Financing: Question No. 17: “A. Original employees and tenants will be transferees from other locations. Later employees may be new employees depending on occupants.” Thus, only 13 jobs will be preserved. Question No. 18: “A. Present proposed tenants would move from present locations.” However, no new employees are specified. Lastly, Question No. 20: “A. The level of operations will be greater if the proposed improvements can be completed. The exact degree of increase will vary with each tenant.”

If this construction project can qualify, in the interest of uniformity, like financing by issuance of municipal bonds, under the provisions of Section 13, Article VIII of the Ohio Constitution, could extend to all constructions of similar nature.

Upon the basis of my finding that issuance of the bonds would not be in compliance with Section 13, Article VIII of the Ohio Constitution, I would sustain Assignments of Error Nos. 2 and 3.

ft is further noted that the petition speaks of security by mortgage; but, there is nothing in the agreement, the resolution or the judgment entry of the court of common pleas providing that proceeds from the bonds, when loaned to the “Belpar” partnership, be secured by a

first

mortgage.

For the reason set forth, it is my opinion that the judgment of the Court of Common Pleas of Stark County ought to be reversed.

Assignment of Error No. 1 reads: “The trial court erred to the prejudice of the defendant in its determination that the operation of an office building to be used primarily by physicians and dentists in the local conduct of their private, professional practices constitutes ‘commerce’ within the meaning of either Article VIII, Section 13 of the Constitution of the state of Ohio or Chapter 165 of the Ohio Revised Code.”

Assignment of Error No. 2 reads: “The trial court erred to the prejudice of the defendant by failing to determine that the issuance of tax-exempt bonds to finance the construction of a professional office building which will subsidize the private practice of local physicians and dentists constitutes a lending of aid and credit to a private enterprise in direct contravention of Article VIII, Section 6 of the Constitution of the state of Ohio.”

Assignment of Error No. 3 reads: “The trial court erred to the prejudice of the defendant in its determination that the subsidization of the private use of a professional office building primarily for the benefit of a select group of physicians and dentists serving their private patients constitutes a public purpose that will support a loan of the proceeds of tax-exempt bonds issued by a political subdivision of the state of Ohio.”