Thomas v. Town of Butler

• Decision Date: 15 November 1894
• Citation: 139 Ind. 245,38 N.E. 808
• Parties: THOMAS v. TOWN OF BUTLER et al.
• Court: Indiana Supreme Court

139 Ind. 245

38 N.E. 808

THOMAS

v.TOWN OF BUTLER et al.

Supreme Court of Indiana.

Nov. 15, 1894.

Appeal from circuit court, De Kalb county; Stephen Powers, Judge.

Action by Sarah Thomas against the town of Butler and others to enjoin the collection of a tax. From a judgment on demurrer for defendant, plaintiff appeals. Affirmed.W. L. Penfield, for appellant. Rose & Rose and C. J. Coats, for appellee.

McCABE, J.

The appellant has 138 acres of land within the corporate limits of the appellee, which is not platted as town property, and which is a farm, used exclusively for agricultural purposes, and not dedicated for corporate purposes. The complaint sought to enjoin the collection of a portion of the tax levied thereon by the corporation for the year 1891. In addition to the facts above stated, it was alleged that the aggregate percentage of levy in Wilmington township, wherein said lands and town are situate, for township, special school, road, and special road purposes, was 25 cents on the $100 of the assessed valuation of property for taxation, and that the aggregate levy in said town for said year for municipal, road, school, and waterworks tax was 97 cents on the $100 of assessed valuation of property; that the tax levied on her said lands by said town for said year was 97 cents on the $100; that the town is threatening to collect all of said tax; that appellant had tendered to said town $46, which is equal to the aggregate percentage levied for township, special school, local tuition, and road purposes in the civil township of Wilmington, on the assessed valuation of her land had it been outside of said corporation; that said town had refused said tender, and was threatening to collect the whole of said tax so levied by it on her said lands. She brought the money into court, and deposited it with the clerk, to keep her tender good; and she prayed a perpetual injunction against the forced collection of the balance of said tax. The circuit court sustained a demurrer to the complaint for want of sufficient facts, which ruling is assigned as the only error.

The question thus presented depends upon whether the act approved March 21, 1879, still remains in force. Acts 1879, p. 94. Appellant contends that it does, while appellee contends that it has been superseded and repealed. The first section provides “that lands lying within the limits of any city or incorporated town in this state, that are not platted as city or town property and are not used for other than agricultural purposes, or are wholly unimproved, and that have not in any way been dedicated for corporation purposes, together with all articles or chattel property used for the purpose of farming such lands shall not be taxed for general city or town purposes at any higher aggregate percentage on the appraised value of the same than the aggregate percentage levied for township, special school, local tuition and road purposes in the civil township wherein such property is situated. Provided, however, that the provisions of this act shall not apply to parcels of land containing less than five acres.” The second section repeals all laws “in conflict with the provisions of this act”; and the third and last section declares an emergency for the immediate taking effect of the act. The legislature passed an act which was approved April 16, 1881 (Acts 1881, p. 698), the first section of which is section 3261, Rev. St. 1881. This act is a literal copy of that of 1879, above mentioned, except that the words “and that have not in any way been dedicated for corporation purposes” have been left out of the last act, and instead of the words “all articles or chattel property used for the purpose of farming on such lands shall not be taxed for city or town purposes at any higher aggregate,” etc., are substituted the words “all personal property used for the purpose of farming on such lands, shall not be taxed in such city or town for all purposes at a higher aggregate,” etc. The act of 1881 was expressly repealed by the legislature in an act passed for that sole purpose, approved March 9, 1891 (Acts 1891, p. 398).

The question thus arises, did the act of 1881 repeal the act of 1879? The appellant contends that it did not, but simply continued it in force, and that she is entitled to the exemption therein provided for; while the appellee contends that the act of 1879 was repealed by the act of 1881, and that the latter act was repealed by the act of 1891, above referred to, thus leaving no statute in force exempting appellant's lands from the percentage of levy of taxes to which other property is subject within the corporate limits. Appellant, in support of her contention that the act of 1879 is not repealed, cites Cordell v. State, 22 Ind. 1,Alexander v. State, 9 Ind. 337, and Martindale v. Martindale, 10 Ind. 566, to the effect that the re-enactment of an existing provision of law does not necessarily repeal such former provision; and many authorities are cited by her to the effect that repeals by implication are not favored. City of Evansville v. Summers, 108 Ind. 189, 9 N. E. 81;Coghill v. State, 37 Ind. 111; Railroad Co. v. Dunlap, 112 Ind. 96, 13 N. E. 403. It may well be conceded that the law thus stated is well settled, but that leaves the question yet undetermined whether the act of 1881 repealed that of 1879. It is also well settled that where a new statute covers the whole subject-matter of an old one, adds new provisions, and makes changes, and where such new law, whether it be in the form of an amendment or otherwise, is evidently intended to be a revision, and to take the place of the old, it repeals the old law by implication. Hadley v. Musselman, 104 Ind. 459, 3 N. E. 122;State v. Board of Com'rs of Pike Co., 104 Ind. 123, 3 N. E. 811;Wagoner v. State, 90 Ind. 504;Longlois v. Longlois, 48 Ind. 60; Railroad Co. v. Bradshaw, 6 Ind. 146.

But appellant insists that the new statute cannot work a repeal of the old by implication unless there is a conflict or repugnance between the provisions of the two acts that is irreconcilable. That is the well-recognized rule where the repeal results alone from such repugnance or conflict. Coghill v. State, supra; City of Evansville v. Summers, supra; Railroad Co. v. Dunlap, 112 Ind. 93, 13 N. E. 403. Where, however, the new act covers the whole subject-matter of an old one, and it is evidently intended thereby to revise the old act, and that the new act shall take the place of the old, then the old law is repealed, because the circumstances evince an intention that the old law, in the form it was, is no longer to exist. Dowdell v. State, 58 Ind. 333;State v. Mason, 108 Ind. 51, 8 N. E. 716;State v. Board of Com'rs of Pike Co., 104...