*1 mаy again parties, We that the court saw iterate testimony each, heard and that the court position determine was in a much than better we change existing circumstances, whether, under the partial custody ought to made. carefully evidence, and have examined the
We by appellant, considered all the contentions made legal opinion prin- prevailing are under the light ciples and in of the situation in the triаl controversy placed in ref- court was the continued case, say erence as to this we unable to abused its discretion. judgment is affirmed.
Pfaff,
Kelley, J.,
J.,
Gonas, J.,
C.
concur.
Reported in
et al. 19,303. Concurring opinions Filed June [No. filed June 1961.] *2 Voor, McMichael, Jackson & William E. Voor and Guy McMichael, Bend, appellants. H. of for South
Richard D. Bonewitz Ham- and Hammerschmidt & schmidt, Bend, appellee mer of for South Jo- both St. seph County Plan Commission. Montgomery, Bend,
John appellee of South Board Joseph County. of Commissioners of St. appeal J. This is an from a decision
Myers, dismissing Joseph St. Circuit Court for writ by appellants of certiorari filed an action County Joseph taken Plan St. Commission genera,! wherein it recommended to the County. Joseph ordinance St. Appellants, alleged petitioners, they were County, property Joseph owners of real located in St. adjacent vicinity which was in the immediate Joseph County of certain 4-H real estate owned Fair, Inc.; vicinity property in this had been Agricultural use; zoned for A-l and R-l Residential Inc., Joseph Fair, attempted 4-H had that St. of its a variance of the use land so as to to obtain operation, construction, and maintenance permit thereon, had failed activities commercial certain Plan doing; thereafter so proposed amendment initiated a Commission general zoning рermit commer- ordinance which would estate; Fair, cial amend- Inc., use of 4-H this real adopted by ment was March the Plan on Commission 10, 1958, hearing, public after a and was submitted approved County Commissioners, the Board of adopted on March it into an ordinance attempted by changes Petitioners aver that dis- action on the Plan Commission were criminatory, arbitrary, capricious, they asked that the court declare the amendment void. order,
The court issued an addressed Commissioners, and the Board of why a is- to show cause certiorari should not *3 Appellees, respondents, filed return to the sue. a as challenged they court’s wherein arguments hearing After to issue such a writ. appellees, counsel, in favor of dis- the court found cause, charged and rule and dis- the citation to show ruling petition. Appellants claim this missed the error. trial court as findings are as The court’s follows: respondents In on their return favor “1. against herein; rule and to said County Joseph the action the St. “2. That alleged petition in said con- as hearing legislative as and determination stitutes hearing distinguished judicial and deter- from a hearing legislative de- and that such mination termination by not Plan does said Commission meaning of that within the a ‘decision’ constitute Annotated, Indiana Statutes in Burns’ as used word 53-755; Section judiciаl That this power “3. is court without legislative hearing such determining review by Commission; said Plan “4. That Respondent, action of Board of Joseph County, alleged legislative said court in character and this power does have not to review such action.” attempt
This is an appellants to Circuit Court of County review the “decision” of Plan adopted Commision which the amend- general ment zoning ordinance, pursuant §53-755, Stat., Burns’ Ind. Replacement. This section is a of a 1947 act of the Indiana General Assembly (Acts 1947, 174, §55, p. 571) ch. concern- ing planning zoning of rural and urban areas. It particularly states City a “decision” of a or Coun- ty be reviewed certiorari procedure to be filed in the county circuit court of the disputed where the land is located. recently
This court opinion rendered an in a case involving general ordi
nances of Marion wherein the facts were very similar to those in the case bar. In at McGraw et al. v. Marion Plan Commis App. 686, sion et al. 174 N. E. 2d we held that the by County actions taken Plan Com mission planning in connection with zoning, pur 1947, supra, suant to the act of advisory are only, and “decisions” not to circuit courts *4 meaning §53-755, within the Stat., Burns’ Ind. Replacement, supra. We ordered the Circuit Court of Marion to sustain a peti motion to dismiss the jurisdiction. for lack of tion et al. Marion decision in McGraw v. In of the view al., supra, et Plan St. Commission in no error Joseph committed Circuit Court dismissing the case.
Judgment affirmed. Kelley, JJ., Bierly, J., Ax, Cooper and
Ryan, P. concur. separate Gonas, J., J., concur
Pfaff, with C. opinions. Opinion
Concurring herein owners of Appellants are the real Gonas, J. vicinity of real estate certain in the immediate estate Fair, Inc., Joseph in St. by 4-H owned County, Joseph Indiana. Joseph February 10, 1958, the Coun-
On or about proposed amendment initiated a ty Plan Commission amendatory ordi- Zoning 5-A. No. This Ordinance March adopted by Plan on Commission nance was March on Board 1958, 10, statute, body a is constituted 17, The board such, certain law, is invested with and as politic in charged performance of certain powers, and exercised and the powers are to be These public duties. prescribed law. discharged the mode duties re-zone for such boards authorized legislature has county. city or use, property public below, appellants, April On in the St. of certiorari filed to show cause an order issued The court Court. Circuit thereupon, appellees, issue; not should why the writ challenged below, respondents act Circuit *5 76 planning
under the and (Burns’ law of 1947 Ind. Stat. 53-794). Anno. §§53-710 Circuit Court ruled jurisdiction it does not have and dismissed the action. recently
We
held
statutory authority
that there is no
for its review
certiorari and that
the Circuit Court
does
not have
of the
matter of such
аttempted
Wright
review.
v. Marion
(1960),
203,
130
App.
Ind.
163 N.
2dE.
259;
al.
McGraw et
v. Marion
(1961),
App.
al.
686,
et
Ind.
131
Concurring agree J. I C. the conclusions the ma- Pfaff, case, jority opinion in this and to call wish attention we have favored with memoran- fact that been judge, opinion Hon. F. dum trial Kenneth Dempsey, is a of the record. It discloses question appreciation careful consideration of the We, course, do order. not and can- involved in his findings law, opinion of fact and not consider this from, appealed it of value insofar order or as the supporting reasons the decision as' it sets forth reached. (1959), Tr. v. Winston Bk. Co. Natl. &
In Merchants 296, 301, Judge 598, 2d 588, E. 159 N. App. Ind. 129 .court, for this said: Myers, speaking that this court “However, has held should been actually which matters were know the basis court, adjudicated by trial that it look findings court, made being without re- quested, in order to meaning determine the
77 effect of the trial court’s Pub. decision. Serv. Wayne Ry. Comm. v. Ft. 82, U. Co. 719; 111 E. 2d N. Gavin Miller v. 459, Flanagan, Ind. E. 2d N. 277.” See also Hamilton, Appeals, §2333, Wiltrout ch. ; (Supp.) Comment 12 Indiana En West’s Law cyclopedia, Appeals, (Supp.). ch. §267 *6 opinion judge The of the trial reads as follows: April 7, petitioners “On 1951 the filed cap- Joseph in the St. petition Circuit Court a — tioned ‘Petition that the alleging: for ofWrit Certiorari’ petitioners are the owners of certain real Joseph County in estate St. in the immediate vi- cinity Joseph County in the allegedly of real estate by owned the St. Fair, Inc.; 4-H property that the vicinity of that of the and of the Joseph County Fair, St. 4-H Inc. many has been for years agricultural zoned for use; and residential February 10, 1958, on Joseph that the County St. proposed Commission initiated a Joseph County Zoning to the St. per- Ordinance mitting the use of such lands for certain commer- purposes; cial 10, 1958, that on March after a hearing, public the ‘adopted’ Commission said amendment, 17, and on March the Board of Joseph County Commissioners of ‘approved and adopted’ amendment; the that the enactment of the ‘illegal amendment was and void’ for the reason that the Plan Commission acted in violation of (1) change in statute that the proposed relationship ordinance no public bears to the health, safety, general morals or welfare, (2) that the changes attempted arbitrary, capricious were and discriminatory, (3) changes that the constitute ‘spot zoning’, (4) changes that the remove from and the control of Planning planned designated all Commission and usage lands, (5) changes provided that the no safeguards public welfare. petition alleges by “The further virtue of the control exercised 4-H Fair, Planning Inc. over the Commission, peti- tioners were denied the opportunity having issues involved fair, impartial determined board; Planning that the disinterested composed was of officers directors the St. Fair, completely Joseph dominate and concludes said amendment 4-H Inc. ‘who the commission’. control prayer with the ‘declare court 2 Ordinance 5A void of no force аnd effect’. appear Hirschman would the outset it “At v. Marion applicable here, App. E. 2d 146 N. Ind. analysis is not true. discloses that this close opinion of court Hirschman does not pleading initial was one or whether disclose designating peti- as a paragraphs. While more stated court that ‘the certiorari tion for writ petition certiorari, relied writ of prayed relied amending declared void and ordinance be thаt the that enjoined appellees ... from con- shopping . . .’ This structing center constitutes action, certiorari, declara- causes of distinct three injunction. Respondents ad- tory judgment and petition attacking a demurrer dressed jurisdiction of the court. things “Among found the court other general jurisdiction extend- was one *7 trial court injunctive ing equitable proceedings for relief’. ‘to expressly Appellate was Court The deсision holding Marion that the Circuit ‘the limited jurisdiction invested with possesses and is of the class to which the cases and determine hear belongs that, petition pleaded in the case respondents’ demurrer should have the therefore’ been overruled. ambiguously opinion is drawn the court’s “Since spell precise upon the basis does not it out that the Circuit Court’s decision— overruled it which whether extent the it was overruled the petition a for a of certiorari writ pleading was equitable 53-755, an or that it was Burns’ under action for injunction do not consider con- —we issues here. the
trols only paragraph is one there case bar “In the at drawn, the paragraph, as has That pleading. of ambiguity opinion in as the the inherent same petition Hirschman a case—is it for a Writ of declaratory judgment? Certiorari or action for purposes accept рetitioners “For the here we the description petition of their own as set forth in their brief —‘A Petition for Writ of Certiorari seeking a defendants, review of action of the the County St. of challenging Plan Commission and the Board Joseph County, Indiana, Commissioners of St. passage their acts in initiation and County Zoning of an amendment to the Ordinance.’ demurrer, “In this case there is no as in Hirsch- man, statutory petitioners but a return to rule to why show causе the writ should not issue in which return the challenged of the court is jurisdiction. lack posited right in their brief their solely to review of writ of certiorari Burns’ 53-755, pertinent portion of which reads as follows: ‘A decision of the commission be re- procedure viewed certiorari the same as that providing appeal by zoning for the cases from Zoning decision of the Appeals.’ Board of respondents’ “Insofar Board of Joseph County Cоmmissioners concerned, is must be dismissed. It is to be noted petitioners by ‘seeking their review of the action of . . . Board Com- Joseph County, Indiana, missioners of St. ing to the challeng- passage their in the . . act of an . County Zoning Ordinance’. is “It noted further sole act of the alleged Board of pe- Commissioners day ‘on March, 1958, tition the 17th Joseph County Board of Commissioners of ap- adopted’ proved and the amendment. Burns’ 53-755 procedurе does not authorize review of certiorari any act of Board express language is limited its to ‘a decision legislature of the commission’. pro- Nor could the for a vide review which is in the nature appeal legislative from a of an act. *8 powers . . The of exercise these involves a lawmaking discretion. From the of exercise these powers appeal no jury would lie no for court or is legislative funсtions. to exercise authorized in the word powers included of is not exercise these ’. Board of Commissioners “decision” Hanna v. it would reference to the Plan Commission “With analysis appear petition that of the from a careful of judicial the the acts review of the seek adopting initiating the Commission ‘in (See paragraphs 17 of the amendment.’ petition). not course, does the Of ‘adopt’ ordinary an sense of аmendment in the purpose shall inter- term. For the pret required of this case we acts description petition the as those provided procedure in the amendment 53-765, and construe Burns’ Sections 53-763 them to after notice tion, duly signed, the the determination of the Commission to petition in state effect presented peti- hearing (53-765) of requesting to the Auditor interpret (53-764). further We file such the act for with the Auditor as though spelled judicial out sought not this is review is clearly petition. as as could be legis- broadly “Petitioners contend too ‘judicial acts lature intended of of review plan Brief, 2), Commission’, (Plaintiffs’ page while citing the that authorizes such review statute only a ‘decision the Commission’. lay upon great “Petitioners the conten- stress mandatory procedure imposed tion that precedent the Plan filing Commission as condition petition its for amendment ‘is Auditor as muсh a of the enactment of) (Board the themselves’. ordinance as actual vote Brief, (Petitioners’ page 3.) note, true, fact shall “This we completely petitioners claim defeat would legis- right lative for act would nature, the courts an area into which cannot intrude. precise question there- for determination Plan Com- fore mission, to cause or not the action is whether determining hearing, after notice filed with amendment to be *9 Auditor is a ‘decision’ the mean- within ing Except that word as used in Burns’ 53-755. for the cloud by cast the horizon of decision case, specific question Hirschman this has not been by discussed the courts of last resort of this However, state. question the basic of what meant many passed upon the word ‘decision’ has been times our are courts. There numerous relating appeals cases to of the Boards of reading Commissioners under statutes substantial- ly e.g. ‘any question, same as the statute in person aggrieved by any any decision Board of may appeal therefrom to Cir- ,1 county’ 26-820) cuit (Burns’ Court of such long “It is the settled a line construction of decisions that under ‘decision’ as em- term ployed judicial statute, appealable in such a causes only, decisions is decisions that in- volve (1907), some act. Becker Ross v. 166, page 169 Ind. 170. “Purely ministerial decisions or administrative concept acts are not within the of such term. Potts v. (1894), 71, 76-77; Bennett 140 Ind. Collins v. Laybold (1914), 132; 182 Ind. in re North Telephone western Indiana Co. “Going then to determination of whether or sought not the judicial, act to be reviewed is ad- legislative, ministrative or it would seem on its face amendment, at non-judicial. to proponent be Here the of the Commission, judge the Plan is also the hearing concept its accepted alien our —a understanding judicial procedures. judicial hearing distinction between a hand, legislative determination on the one and a hearing other, and determination on the has been clearly In defined. Prentise v. Atlantic Coast Line Co. (cited approval U. S. 210 Supreme our in re Telegraph Northwestern Co., supra.), Mr. Justice Holmes said: provide “1. Section 53-755 does not who could seek review except Zoning ‘appeal’ provision refеrence to the of the Board of ‘Any person aggrieved cases which reads: . . . Appeal by any Zoning Appeals, may present decision of the Board of Superior to the Circuit or of the ... . . .’ (Burns’ 53-783). “ judicial inquiry investigates, ‘A declares, they present enforces liabilities as stand on or past supposed already facts and under laws purpose Legislation, exist. That is its on the other and end. hand, looks to the future and changes existing by making conditions a new rule, applied thereafter to all or some power.’ of those to its “ question depends upon ‘That the character proceedings.’ inquiries may ‘And it does not matter what preliminary legisla- made been legislation preceded *10 tive act. Most is hear- ings investigations. and But the effect of the inquiry, it, and upon of the decision is deter- mined the nature the act to which the inquiry up. judge sitting and decision lead A jury сompetent with a is not to decide issues of fact; merely prem- but matters of fact that may ises to a rule of law he decide. He find himself, way out for best, whatever seems supposed whether a really statute ever was passed.’ “ ‘The nature of the final act determines the previous inquiry. nature bound judge As the is law, to declare the he must know or dis- So, cover the facts that establish the law. when legislative, the final act is the decision which judicial practical induces it cannot be in the sense, although questions might the considered the be case.’ same that would arise in the trial of a “Apply hearing this rule it is clear the here pursuant involved up and the decision to it lead legislation, i.e., the Board of Commissioners adoption of the amendment. Since the final act is legislative, hearing ju- the and decision cannot be being judicial, dicial. Not it is not a ‘decision’ review; subject view is being legislative, re- constitutionally barred. challenge ‘jurisdiction’ here is to and in case, the Hirschman the court rested its decision petition ‘clearly exposes the on it is fact that predicated belonging a cause of action general to a class of cases over Marion jurisdiction’. has matter Circuit Court controversy, said, alleged court was the illegal action of the Plan in recom- mending proposed adoption. amendment for It Appellate noted that is to be was not by the favored with briefs Commission or the ques- the sole Appellate Court had tion the whether facie to determine was appellants prima or not the had made a showing sustaining of error in the If below. the court had had the demurrer ad- vantage briefs, probably of such would not have ‘jurisdiction’ the word confused ‘judicial term power’. In thеir return and motion to bar, respondents case at strike challenge common fallen into this error. The also phrased in the return is contained these words is this court without ‘that issue a respond- of certiorari’ but examination of clearly shows ents’ brief use of the respondents ‘jurisdiction’ really what word meant power’. ‘judicial power’ power is the of a ‘Judicial court to de- pronounce judgment carry cide effect it into persons parties bring between who it for decision. case before Muskrat v. United U. S. States is, power vested in “It ‘that courts to enable justice according to better administer them Adkins law. Hospital v. Childrens U. S. *11 525, 544. power “That which the with courts are clothed purpose of the for the trial in determination of Exparte (1855), 156, cases. Gist 26 Ala. 162. “ hand, on the other ‘Jurisdiction’ has reference power parties. Gregnon court’s (1844), over the to the Astеr v. 319, 338; subject 2 How. over the matter, (1934), Lemasters v. Williams Coal Co. 369; ex rel. Kunkel 206 Ind. Court of LaPorte over State v. The Circuit County (1936), 682; 209 Ind. property contest, Overly v. Gordon 214, 220; (1900), authority 177 U. S. and to its to McGuffey judgment, render v. McClain al. et Quarl (1891), Ind. v. Abbett 233. power hear and determine “It is the suit, over controversy parties between matter to judicial power exercise adjudicate and Indianapolis City Bren ex rel. of v. State them: Judge nan, Ind. 491. jurisdiction. It judicial power еmbraces Juris- from the constitution. court flows legislature. from the diction comes power, judicial term related to ‘And as used until the of “jurisdiction” distribution is not among pointed the several courts is powers those ex rel. Kendell v. United States defined.’ out Stokes Pet. 528. (1938), 12 jurisdiction might defines the stated that “It be judicial power exercised. be area in which example Zoning specific carries a of statute The can no that both the There doubt distinction. Circuit deriving Courts, Superior their and the constitution, have the judicial power from the power’ of ‘judicial to review decision both Zoning Appeals Board and the Plan Commission dealing appeals from but, the 53-783 Sec. while Zoning Appeals jurisdiction confers Board Superior power on this both Circuit to exercise relating Courts, review 53-755 Sec. confers to exercise Plan Commission this only In the Circuit Court. sense on the power meaning ‘judicial power,’ it is ‘jurisdiction’ of clear above, cited that the St. cases from the judicial power does not Circuit of the Plan Commission here decision complained of. interesting to note it is passing, “In passed since the statutes planning two confusing particularly and some- 1947, this ofAct for review of Plan Commission statute absurd what legislature, c.f. omitted has been decisions Act of 1955 Marion The Planning Depart- seq., Area et 53-901 Burns’ seq. et Burns’ 53-1001 of 1957 Act ments opinion, in this the rules stated “On basis respondents in return to the challenge . . .” sustained. cause is to show rule E. 2d N. Reported in 175 Note. —