State ex rel. Metropolitan Thoroughfare Authority of Marion County v. Nutting

• Decision Date: 23 December 1964
• Docket Number: No. 30640,30640
• Citation: 246 Ind. 105,203 N.E.2d 192
• Parties: STATE of Indiana on relation of METROPOLITAN THOROUGHFARE AUTHORITY OF MARION COUNTY, Appellant, v. C. Allen NUTTING, As Commissioner of the Bureau of Motor Vehicles of the State of Indiana, Bureau of Motor Vehicles of the State of Indiana, and Dallas Sells, Appellees.
• Court: Indiana Supreme Court

Page 192

203 N.E.2d 192

246 Ind. 105

STATE of Indiana on relation of METROPOLITAN THOROUGHFARE AUTHORITY OF MARION COUNTY, Appellant, v. C. Allen NUTTING, As Commissioner of the Bureau of Motor Vehicles of the State of Indiana, Bureau of Motor Vehicles of the State of Indiana, and Dallas Sells, Appellees.

No. 30640.

Supreme Court of Indiana.

Dec. 23, 1964.

O. T. Kilgore, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., Indianapolis, J. Van Brown, John E. Hirschman, Deputy Attys. Gen., for appellee Dallas Sells.

Lloyd L. DeWester, Jr., Ross P. Walker, and George L. Diven, Indianapolis, for other appellees.

LANDIS, Justice.

This appeal stems from an adverse judgment in a mandamus action brought by appellant in the lower court, which sought to compel appellees C. Allen Nutting, as Commissioner of Motor Vehicles, and the Bureau of Motor Vehicles, to continue the collection of the so-called $10.00 Thoroughfare Tax on all motor vehicles oriented in Marion County, Indiana, pursuant to ch. 386 of the Acts of 1963 ¹ and a certain concurrent resolution by the Marion County Council and the Common Council of the City of Indianapolis provided for in said statute. The suit also asked that the appellees above named be ordered to pay over forthwith said tax money to appellant.

The action originally filed in the Marion Circuit Court was transferred to Marion Superior Court, Room 3, and thereafter appellee Dallas Sells filed petition to intervene as a party defendant and filed answer.

Appellant has contended the court erred in overruling appellant's objection to appellee Sells' petition to intervene and in allowing him to intervene as a party defendant. The record, however, is silent as to the existence of any such objection, and appellant has therefore waived any question as to the correctness of the ruling of the trial court.

The cause was heard by the lower court upon an agreed stipulation of facts resulting in a finding and judgment for plaintiff-appellant as to the collections and distribution of thoroughfare taxes from owners of all motor vehicles oriented in Marion County, Indiana, excepting passenger motor vehicles, and otherwise entering a finding and judgment for defendants-appellees.

Appellant has appealed to this Court assigning as error the overruling of the motions for new trial.

Appellant contends the lower court's decision excluding owners of passenger motor vehicles from the tax was contrary to law and that under ch. 386 of the Acts of 1963 appellant was entitled to a mandate against appellees, the Bureau of Motor Vehicles and Nutting as Commissioner, as to all motor vehicles oriented in Marion County, Indiana.

However, appellees, in support of the trial court's ruling, argue that the collection of the $10.00 Thoroughfare Tax from owners of passenger motor vehicles was unlawful, unauthorized and contrary to the laws of Indiana for the reason that Sec. 13, ch. 386 of the Acts of 1963 ² and said concurrent resolution of the city and county councils pursuant thereto, ³ defined limits and confined the amount of such taxes in relation to the divisions and classifications of vehicles described in Sec. 64, ch. 304 of the Acts of 1945 as amended, but that said latter mentioned statute as involved in this case did not and does not now contain a division or classification of passenger motor vehicles.

In support of this argument it is urged that the provisions of Sec. 64, ch. 304 of the Acts of 1945, as amended, containing the division and classification of passenger motor vehicles was repealed by Sec. 11, ch. 345 of the Acts of 1961.

The Acts of 1945, as amended in 1955 (Sec. 10, ch. 273), provided in pertinent parts as follows:

'SEC. 10. * * * Section 64 of the above entitled act is amended to read as follows:

Sec. 64. (a) The fees hereinafter prescribed in this subsection shall be paid to the department:

'For certificate of title, one dollar ($1.00).

'For delinquent title fee, two dollars ($2.00).

'For duplicate certificate of title, one dollar ($1.00).

'(b) The fees hereinafter prescribed in this subsection shall be paid to the department for the registration or re-registration of vehicles, subject to registration hereunder.

'For the purpose of fixing the registration fees under this act, motor vehicles as a class shall be divided into two divisions: First: The first division shall consist of passenger vehicles that are designed and used for the carrying of not more than seven (7) persons. Second: The second division shall consist of vehicles which are designed and used for the pulling or carrying of freight, goods, wares, merchandise, or property of any kind, including trucks, trailers, semi-trailers and tractors, excepting as hereinafter provided; also vehicles, motor cars or motor busses designed and used for the carrying of more than seven (7) persons.

'The registration fees for motorcycles and motor vehicles of said first division, so registered, shall be at the following rates:

'For each motorcycle the sum of three dollars ($3.00) per annum.

'For each passenger motor vehicle of less than twenty-five (25) horsepower and weighing less than two thousand five hundred (2,500) pounds, seven dollars ($7.00).

'For each passenger motor vehicle of less than twenty-five (25) horsepower and weighing two thousand five hundred (2,500) pounds and less than three thousand (3,000) pounds, eight dollars ($8.00).

'For each passenger motor vehicle of less than twenty-five (25) horsepower and weighing three thousand (3,000) pounds, and less than thirty-five hundred (3,500) pounds, nine dollars ($9.00).

'For each passenger motor vehicle of less than twenty-five (25) horsepower and weighing three thousand five hundred (3,500) pounds or more, ten dollars ($10.00).

'For each passenger motor vehicle of twenty-five (25) horsepower or more, and weighing less than two thousand five hundred (2,500) pounds, ten dollars ($10.00).

'For each passenger motor vehicle of twenty-five (25) horsepower or more, and weighing two thousand five hundred (2,500) pounds, and less than three thousand five hundred (3,500) pounds, eleven dollars ($11.00).

'For each passenger motor vehicle of twenty-five (25) horsepower or more, and weighing three thousand five hundred (3,500) pounds or more, twelve dollars ($12.00).

'For each electric passenger motor vehicle, ten dollars ($10.00).'

The 1961 Act (Sec. 11, ch. 345) provided in part:

'Notwithstanding the provisions of Section 10 of Chapter 273 of the Acts of 1955, the annual registration fee on each passenger motor vehicle of less than twenty-five horsepower shall be eight dollars [$8.00]; the annual registration fee on each passenger motor vehicle of twenty-five horsepower or more shall be twelve dollars [$12.00].

The 1961 Act also contained a general repealer clause, repealing all laws and parts of laws inconsistent with said Act. ⁴

It is thus clearly evident that the 1961 Act set a different schedule of fees or taxes contrary to that prescribed in the divisions and classifications of passenger motor vehicles in the 1945 Act, as amended, and thus repealed the conflicting provisions contained in the prior act, and it therefore appears that the Act of 1945, as amended, has not since the effective date of the 1961 Act contained a division or classification of passenger motor vehicles specifying what the fees or taxes thereon should be. It will be noted, however, that the schedule of fees or taxes in the division or classification for non-passenger vehicles contained in the amended 1945 Act, was not disturbed by the 1961 Act.

The record discloses that appellees, Bureau of Motor Vehicles and Nutting as Commissioner, heretofore recognized the fact that the 1961 Act repealed portions of the 1945 Act as amended, by collecting registration fees under the 1961 Act in the amounts of $8.00 and $12.00 as therein provided.

Appellant has argued that the conflict between the two Acts involved only the fee schedule and did not affect that portion of the 1945 Act, as amended, which set up the two divisions of motor vehicles including the division of passenger vehicles (first division).

However, it does not appear that the legislature viewed the inconsistency and the consequent repeal as narrowly as appellant would urge, for the legislature in 1963 in its amendment of the 1945 Act, as amended, provided in pertinent part (ch. 246, Sec. 1) as follows:

'SECTION 1. Acts 1945, c. 304, s. 64, as last amended by Acts 1955, c. 273, s. 10, is further amended to read as follows: Sec. 64. (a) The fees hereinafter prescribed in this subsection shall be paid to the department:

'For certificate of title, one dollar ($1.00).

'For delinquent title fee, two dollars ($2.00).

'For duplicate certificate of title, one dollar ($1.00).

'(b) The fees hereinafter prescribed in this subsection shall be paid to the department for the registration or re-registration of vehicles, subject to registration hereunder:

'For each motorcycle the sum of three dollars ($3.00) per annum.'

It thus appears that not only did the legislature in the above 1963 Act recognize the elimination of the provision as to the fee schedule by the 1961 Act, but also recognized the removal by the 1961 Act of the provision as to the division and classification of passenger vehicles (first division). It is therefore clear that the legislature intended and recognized that the 1961 Act did repeal the entire description of a division and classification of passenger motor vehicles in the 1955 amendment of the 1945 Act.

In cannot be doubted that the legislature may accomplish a repeal in such a manner for the enactment of an act, specifically and fully covering the same subject matter as a prior act, operates to repeal the prior act to the extent of the conflict. See: O'Donnell v. Krneta et al. (1958), 238 Ind. 582, 593, 154 N.E.2d 45, 50; Wright-Bachman, Inc. v. Hodnett, et al. (1956), 235 Ind. 307, 320, 133 N.E.2d 713,...