188 N.E. 207 | Ind. | 1933
Lead Opinion
O.B. Hall and others commenced this action by filing charges with the board of county commissioners of Monroe county for the removal of appellant as county highway superintendent. From a judgment of the board removing appellant as such superintendent, an appeal was perfected to the Monroe Circuit Court. In that court the board, on its own motion, was substituted as plaintiff. It then caused the venue to be changed to the Owen Circuit Court wherein it filed a written motion to dismiss the appeal, which motion the court sustained and judgment was accordingly entered. From that judgment appellant prosecuted this appeal, questioning the action of the court below by a proper assignment of error.
The General Assembly, in the year 1913 (ch. 330, Acts 1913, p. 877, § 1 of which was amended in 1921, Acts 1921, p. 201; § 8506, Burns 1926), created the office of county highway superintendent and defined his duties. By § 8506, supra, the board of county commissioners of Monroe county was required, at its January session, 1922, "and every four years thereafter," to appoint a county highway superintendent whose statutory duties, in part, were to "properly oversee the maintenance of the road surface and road drainage of the county highways." His tenure of office was "four years and until his successor is appointed and qualified." *690 He "shall execute a bond, to be approved by the board of county commissioners, in the penal sum of five thousand dollars ($5,000), for the faithful performance of his duties." He "may be removed by the board of commissioners after a hearing for incompetency, malfeasance or neglect of duties."
Appellant, at the time the charges were filed against him, was the duly appointed, qualified, and acting county highway superintendent of Monroe county. As such superintendent 1, 2. he was charged by law, not by the board, with certain public duties involving the expenditure of county revenue. He was a public officer. Cheney v. Unroe (1906),
The foregoing several statutes are so related that they must be considered together and given the effect *691
they would have if they were incorporated in one general 3, 4. act. Grusenmeyer v. City of Logansport (1881),
Preliminary to the decision of the question here presented, it should be kept in mind that a board of county commissioners is a court; that such boards belong to the judicial department 5. of the state; that they, like courts of general jurisdiction, look to the general assembly alone for administrative or ministerial power. Jay v. O'Donnell (1912),
Since, under our constitution, boards of county commissioners are to be classified as courts and belong to *692 the judicial department, it must be conceded that the 2, 6. instant case was presented to and determined by a court, notwithstanding it has been legislatively authorized to perform certain ministerial duties. Whether the board in the instant case acted judicially or ministerially, it neverthelessfunctioned as a court. Without entering into an extended discussion of the powers and limitations of officers, boards, or commissions charged with administrative or ministerial duties alone, it is sufficient to say that it frequently occurs that preliminary to the discharge of a required official ministerial duty by such officers, boards, or commissions, certain preliminary facts must appear, but the ascertainment of such facts does not make the duty less imperative. However, if the duty imposed involves the exercise of a discretion, it is usually characterized by the expression quasi judicial, and is thus distinguished from a judge or court decision which is designated correctly as judicial; that is to say, an administrative or ministrative officer will not become a court because some act which he may be required to perform is to some extent judicial in its character, nor will a court, which is a tribunal having a substantive duty, be otherwise classified because it may be required to perform an administrative or ministrative duty.
Appointing a county highway superintendent is a ministerial act, for the reason that such act is in obedience to the mandate of legal authority. But the removal of such officer, 7. according to the wording of the statute — "may be removed" — is left to the discretion of the board — a court — "after a hearing." The act of removal or the act refusing to remove such officer goes directly to his right to hold the office, and the adjudication of that right is in the nature of an impeachment proceeding. Appellant's appointment was not during the pleasure or will of the board, but for a *693
term which had not then expired. "The policy of our law is to fix the term, save upon hearing and for cause." Wagner v. State exrel. (1909),
In Hallgren v. Campbell (1890),
The case of Hagerty v. Shedd (1909),
The legislature, § 5928, supra, within its province, has *694
furnished the procedure which, in this case, was followed by the board. Keeping in mind the controversy submitted to the board, a constitutional recognized court, with all of the machinery of a court of general jurisdiction at its command for a complete trial of the issues joined by the complaint or charges and the general denial, certainly to all intents and purposes makes a case calling for a judicial application of the law to a particular state of facts presented for the determination of the rights of appellant whether the proceedings be considered as affecting rights between parties or of one in court ex parte. Flournoy etal. v. City of Jeffersonville (1861),
In this connection special attention should be given to the express words of that section of the statute authorizing an appeal from "any decision" of the board of county commissioners, and to the expression of this court that "The right of appeal is not limited to the decisions made by virtue of that act (meaning the act of which the section on appeal is a part), but is expressly extended to all decisions; and when, therefore, jurisdiction already existed, or a new power was conferred by a subsequent statute, unless in the act granting the power an appeal is denied, the decision is subject to review in a higher court." In the same opinion it is also said that "the language authorizing an appeal is comprehensive, and was undoubtedly intended to include all action of the commissioners not strictly within the limit of the local legislative power conferred by statute. For the purpose of authorizing an appeal, the word `decisions' will be applied to every ruling, final in its nature, upon any subject upon which the board of county commissioners are not authorized to take legislative *695
action." Hanna v. Board of Comm'rs (1867),
Relevant to the right of appeal, in the case of State ex rel.Adam et al. v. Martin, Auditor (1926),
In Board of Comm'rs v. Johnson (1890),
A careful reading of the precedents will disclose that the uncertainty in determining when appeals will and when they will not lie from the decision of boards of county commissioners 8. results from a failure to differentiate between acts which call for judicial discretion and acts or duties enjoined upon them by law. If the final conclusion of a proceeding permits the board to exercise a discretion, it will be judicial, but when the final act or duty is imposed by law there is no discretion and the act or duty is ministerial.
Upon a consideration of the debated question in the instant case, we hold that the decision of the board, *696 under the circumstances disclosed by the record at bar, was 9. a judicial one and the right of appeal exists.
The judgment of the court below in dismissing the appeal is reversed.
Roll, C.J., and Treanor, J., dissent with opinion.
Dissenting Opinion
DISSENTING OPINION. We cannot concur in the reasoning and result of the majority opinion. We disagree with the fundamental assumption that the board of county commissioners is a court in the ordinary acceptation of that term. The board of commissioners is not made a part of our judicial system by the Constitution and can be a part only in case the General Assembly has so declared under its power conferred by § 1, Art. VII.1 No act of the General Assembly has ever declared the board of county commissioners to be a court. The Constitution does not authorize the creation of a board of county commissioners as such but does provide that "the general assembly may confer upon the boards doing county business in the several counties powers of a local, administrative character. (§ 10, Art. VI). It is clear that the Constitution does not expressly or inferentially confer or require the conferring of any judicial power on the board of county commissioners and only contemplates county boards "doing county business" which will have "powers of a local administrative character." Since the General Assembly has not declared boards of county commissioners to be "courts" nor purported to confer general judicial powers upon them, it follows that they are in law merely a board of business managers of the county with such administrative powers *697 and duties as have been conferred upon them and generally, as a "body corporate and politic," with the "duties, rights and powers incident to corporations" and not inconsistent with other statutory provisions.2
Consequently we do not accept as sound any inferences which rest upon the assumption that the board of county commissioners is a court with certain administrative powers. We believe it is primarily an administrative board with power to act judicially in special instances.
It is provided in § 1 of ch. 95, p. 201 of the Acts of 1921, amending § 1 of ch. 330, p. 877 of the Acts of 1913 (§ 8506, Burns Ann. Ind. St. 1926), that "the county highway superintendent may be removed by the board of commissioners, after a hearing for incompetency, malfeasance, or neglect of duties, but such board of commissioners shall not interfere with the county highway superintendent in his duties of hiring or discharging employees"; and in § 31, 1 R.S. 1852, p. 224, § 5976, Burns 1926 (§ 5277, Baldwin's 1934), it is provided that "from any decision of such commissioners there shall be allowed an appeal to the circuit court by any person aggrieved." In construing the latter section, this court has held that "any decision" must be construed to mean any judicial decision. Consequently, if the decision of the board is judicial in its character an appeal lies therefrom unless the right of appeal is denied expressly or by necessary implication by the statute which governs the proceeding under which the decision is made. It has also been held that if the decision is made in the exercise of merely administrative, *698
ministerial, or discretionary powers no appeal lies therefrom unless there is express statutory authority for an appeal from such decision. Ross v. Becker (1907),
Therefore it is necessary to determine whether the decision to remove the county highway superintendent is a judicial decision or is a decision of a merely administrative, ministerial, or discretionary nature.
The board of county commissioners is recognized as possessing judicial powers in connection with certain matters involving the interests of the county and in that respect as being a court of inferior or limited jurisdiction. State ex rel. Hord, AttorneyGen. v. Board of Commissioners of Washington County (1885),
"While in some respects quasi-judicial, the action of the board is not judicial, any more than is the action of a county surveyor in fixing a boundary line, or of a county superintendent in giving or refusing a teacher's certificate, or the action of numberless other officers or boards in making investigations and decisions in matters committed to them." See also Spurgeon v. Rhodes (1906),
When an act is required of the county commissioners as an administrative board, such act is not judicial even though its performance may require the exercise of judgment and discretion. This was pointed out by this court in Board of Commissioners ofHuntington County v. Heaston (1896),
"We are of the opinion, and are constrained to hold, that when the board examined into and allowed the claims presented to them by appellee, it stood in the eye of the law as the representative of its county, and thereby acted in its administrative capacity, and not in the character of a court; that while its order so made might be termed quasi-judicial, yet it did not attain to the rank of a judicial *700 determination or judgment so as to bring it under the protection of the rule of res adjudicata.3
The majority opinion cites the case of The Board ofCommissioners of Knox County v. Johnson (1890),
"It is to be remembered that the board of commissioners has no power to elect a county superintendent, nor any general power to appoint, so that the question is very different from one arising in a case where the removal is made by the appointing power. The power to oust an officer rightfully in office is essentially a judicial one, except where it is exercised by the appointing power." Board, etc. v. Johnson, supra, p. 152.
Another objection to holding that the board of county commissioners acts judicially in discharging a county highway superintendent is that under the statute the board of county commissioners would be both party litigant and judge. If the majority opinion is correct in holding that the present proceeding is judicial and adversary we have the anomalous situation of the member of a court being also one of the adversary parties and at the same time sitting as judge in the case. This is inconsistent with our conception of a court of justice, which in its very nature requires the judge in an adversary proceeding to be disinterested and impartial. While no doubt in many instances charges are filed against county highway superintendents by persons other than members of the board of commissioners, yet the statute does not provide for any such procedure and contemplates that the initiative will be taken by the board of commissioners. We think that the procedure contemplated is substantially the same as that which is followed in the case of the dismissal of a policeman or fireman by a board of public safety or in proceedings by a school board or township trustee to cancel a teacher's contract. We think it is well understood that these latter proceedings are not judicial and that the remedy of one who has been dismissed in violation of the statutory requirements is an action of mandate. And in *702 the case of a dismissal of a county highway superintendent an action of mandate would lie if the board of county commissioners should dismiss without a hearing or without the existence of statutory cause.
We conclude that the decision of the board of commissioners to remove the county highway superintendent was not a judicial decision but was an administrative act of the board as a "body corporate" while performing its duties incidental to the management of the highway business of the county.
"The authority to ascertain facts and apply the law to the facts when ascertained often devolves upon other departments of government than the judiciary. Judgment and discretion are required often of every public official. It would be difficult to draw the precise line separating the judicial from other departments of government. . . . Judicial power does not apply to cases where judgment is exercised as incident to the execution of ministerial power. Owners of Lands v. People,