Because the Atlantic Greyhound Corporation was the sole owner of the buses here involved, because it had paid the full amount of the motor vehicle license taxes on such buses for the year starting April 1, 1959, and ending March 31, 1960, and because the certificates of title were not assigned until March 25, 1960, and such assignment was pursuant to the merger agreement and therefore constituted an exception to the general provisions as to the passage of title to property, I conclude that the Atlantic Greyhound and the Greyhound Corporation had a right to do just what they did here. In other words, I am of the opinion that having paid the tax for the full twelve months, Atlantic Greyhound could make conveyance at any time they chose and that they were fully authorized to select the date they did.
Of course, had these two corporations chosen September 30, 1959, which they did not, and had they made the assignments of certificates of title as of that date with the Greyhound Corporation beginning operation of the buses on that date, the result would be entirely different and the contentions of the Registrar of Motor Vehicles would be tenable.
I know of no law which provides that the merger agreements must automatically pass all the title to all the property on any particular date. Here, the registrar admits the certificates of title remained in the name of Atlantic Greyhound until March 25, 1960. He admits also that assignment on that date was pursuant to the merger agreement. The registrar, however, insists that title to the buses passed on September 30, 1959, and hence an additional $18,000 is due.
The majority opinion relies upon the case of Columbus Southern Ohio Electric Co. v. West, Registrar (1942), 140 Ohio St. 200, decided by a divided court with two judges vigorously *Page 59 dissenting. The West case, supra, so far as I can ascertain in Shepard's Ohio Citations, has nowhere been cited in the nearly twenty-one years since it was announced. The West case, supra, in my opinion, is distinguishable. So far as the facts are concerned it was not denied, according to Bettman, J., author of the opinion, that title to the vehicles had passed and I presume that means on May 13, 1937, at the instant the consolidation or merger took place.
This is entirely different from the facts here where the date on which title passed is the chief issue. It will also be observed that the principal operative facts in the West case,supra, took place in 1937. The registration year in question began April 1, 1937, and the merger took place on July 13, 1937. Both of these were prior to the effective date of Ohio's then new Certificate of Title Law. (Section 6290-2 et seq., General Code, now Section 4505.01 et seq., Revised Code.)
As the facts seem to me to be materially different and the opinion in the West case, supra, does not discuss or even refer to the drastic provisions of the new Certificate of Title Law, I conclude the West case, supra, is distinguishable. This may possibily explain the failure of any later decision even to refer to the West case, supra. Most directly in point here are the provisions of Section 4505.04, Revised Code, which are as follows:
"No person acquiring a motor vehicle from the owner thereof, whether such owner is a manufacturer, importer, dealer, or otherwise, shall acquire any right, title, claim, or interest in or to said motor vehicle until such person has had issued to him a certificate of title to said motor vehicle, or delivered to him a manufacturer's or importer's certificate for it; nor shall any waiver or estoppel operate in favor of such person against a person having possession of such certificate of title, or manufacturer's or importer's certificate for said motor vehicle, for a valuable consideration.
"No court in any case at law or in equity shall recognize the right, title, claim, or interest of any person in or to any motor vehicle sold or disposed of, or mortgaged or encumbered, unless evidenced:
"(A) By a certificate of title or a manufacturer's or importer's certificate issued in accordance with sections4505.01 to 4505.19, inclusive, of the Revised Code. *Page 60
"(B) By admission in the pleadings or stipulation of the parties."
See Mielke v. Leeberson (1948), 150 Ohio St. 528, in which the syllabus is as follows:
"Under the plain and unambiguous language of Section 6290-4, General Code, a court cannot recognize the right, title, claim or interest of any person in or to any motor vehicle, without the production of a certificate of title or manufacturer's or importer's certificate duly issued in accordance with the Certificate of Title Law, and any other evidence of ownership is not of sufficient weight to sustain a verdict or judgment where title must be proved as a condition precedent for the validity of such verdict or judgment."
For a review of the history of the Bill of Sale Law and the changes which accompanied the enactment of the Certificate of Title Law, see Kelley Kar Co. v. Finkler (1951), 155 Ohio St. 541, in which the third paragraph of the syllabus is as follows:
"Under the provisions of Section 6290-4, General Code, an Ohio court cannot recognize the right, title, claim or interest of any person in or to any motor vehicle sold or disposed of or mortgaged or encumbered in Ohio after the effective date of that section of the Code unless such right, title, claim or interest is evidenced by a certificate of title or manufacturer's or importer's certificate duly issued in accordance with the provisions of the Certificate of Title Act."
See, also, Garlick, Admr., v. McFarland, a Minor (1953),159 Ohio St. 539, and also In re Estate of Case (1954), 161 Ohio St. 288, the latter case having the unusual facts indicating that a father apparently placed title to a motor vehicle in his daughter to avoid payment of inheritance tax, at the same time retaining many of the indicia of ownership. The title in the daughter was upheld. See, also, Brewer v. DeCant (1958),167 Ohio St. 411, in which the second paragraph of the syllabus is as follows:
"Under the Ohio Certificate of Title Act, a change in ownership of an automobile is not consummated until a certificate of title is issued in the name of the purchaser."
As will be noted, the registrar relies upon the first sentence of Section 4503.12, Revised Code (Section 6294-1, General Code), which provides in part that "upon the transfer of ownership *Page 61 of a motor vehicle, the registration of the motor vehicle shall expire * * *." It should be noted also that this language in practically identical form was included in this statute at the time of its original enactment in 1915 in 106 Ohio Laws, 197. In my opinion that sentence must be construed in light of the enactment of the Certificate of Title Law (117 Ohio Laws, 373), which became effective January 1, 1938.
The majority opinion apparently concludes that under the Delaware Corporation Law, at the instant the articles or agreement of merger were filed, title to all property of the subservient corporation passed instantaneously to the surviving corporation without regard to and in disregard of the express and implied intent of the parties and the provisions of the articles of merger. With this, I do not agree. Obviously, other conditions permitting, Atlantic Greyhound could have assigned the titles to the buses in advance of filing the articles of merger. They could have assigned the title concurrently therewith and I believe that they had the right to, intended to, and so provided that the title should pass on March 25, 1960, and in keeping therewith all the assignments were made on that date and the new titles likewise were issued on that date.
One of the necessary results of the action taken by the registrar is that corporations owning motor vehicles, titled and registered in Ohio, theoretically may convey titles to such vehicles only at the instant of midnight on March 31 of each year, or, from a practical standpoint, during the month of March of each year. Otherwise, they face a penalty of from 25% to 100% of the total year's tax. But that is not the issue here. On the contrary it may be admitted that such is the case.
The issue here is whether the registrar in clear disregard of the intentions of both Atlantic Greyhound and Greyhound Corporation and in complete disregard of clear and unambiguous provisions of the Ohio Certificate of Title Law (Chapter 4505, Revised Code) may determine that some sort of involuntary transfer of title took place on September 30, 1959, and without any evidence whatsoever, stipulated or otherwise, that Greyhound operated such vehicles in Ohio during that period, require Greyhound to pay this tax a second time.
I am likewise at a loss to understand the authority for this or any other court in Ohio to give recognition to the passage *Page 62 of titles from Atlantic Greyhound to the Greyhound Corporation when it is clearly stated in the Certificate of Title Law that no such recognition shall be given.
The argument has been advanced that the treatment accorded to the Greyhound Corporation and to the Atlantic Greyhound Corporation is the same treatment which would be accorded to an individual under like circumstances. May I suggest that I doubt this. It has never come to my attention that where "A," the owner of a motor vehicle, agreed with "B" to convey title to "A's" motor vehicle on March 25, the registrar disregarded the date on which the assignment of the certificate of title was made and the new title was issued and instead held that on some earlier date the title had passed. It simply is not done that way.
Little light will be shed by further comparisons of individual and corporate transactions because of the obvious dissimilarities clearly recognizable. For the most part, motor vehicles owned by individuals are pleasure cars on which the annual motor vehicle tax is ten dollars a year or slightly under three cents a day. For the most part when individuals transfer title to a pleasure car, it is in course of acquiring another car and no problem arises.
Here the amount of double taxation for the fifty-six buses amounts to nearly $18,000. That is considerably different from the sum of $7.50 which would be involved for a like transaction for the individual owner of a single pleasure car. I regard this as an unfair and unjust imposition of tax against an important part of the already impoverished mass transportation industry. It may be stylish to go on long hikes, but I still feel the state and nation desperately need mass transportation.
For the reasons above set forth, I must therefore dissent from the majority opinion. *Page 63