*1 n court, nevertheless, peti- fact a formal change tion filed does not nature of the is proceedings. merely Such a an inci action, dent to the and the main allowance of suitable guardian compensation a but an ad litem is incident appointment, Whinery to the court’s v. Ham supra; Bank, Trustee, etc. hence the mond statutory equitable civil, na neither a matter or fixing rendered a ture. The of feés for services being civil, statutory guardian matter ad litem meaning §2-1402, equitable nature within change to a of venue from supra, not entitled relator is provisions. judge under its is, therefore, issued writ heretofore The alternative dissolved, permanent writ denied. Gilkison, Emmert and C.
JJ., concur. E. 2d Reported in 121
Note. — y Propert County Association, Owners Prosecuting Holovachka, etc., al. et County. Attorney of Lake to Reinstate 29,156. 1954. Petition June Filed [No. October 1954.] denied *2 Guy Slaughter, George Bomberger, L. B. L. M. Hoff- man, Jr., Bomberger, Royce, of coun- Morthland & sel, Hammond, appellants. all of for Gary, appellee. Gavit, of for
Albert H. petition filed their in C. J. demanding Criminal Court investigate alleged irregular special a to regular prosecutor. of the demand was activities Their opinion, purpose of this denied. For the followed not be detailed. need provides of the of Indiana
The Constitution attorneys prosecuting under the Judicial Branch Art. Sec. of Government.
Clearly, they are of the duty officers court. It compel proper part the courts to conduct on duty goes necessarily right officers. With that such perform that function. to
No court is ever citizenry. closed to voice of the suggestions always But, Their and advice are welcome. orderly society remain,
if is to decisions on such suggestions and advice must be those of the family, society, courts. As the the foundation of suggestions advice, purely family mat- seeks but right finally own ters have the determine its must suggestions judiciary affairs, internal so must the seek advice, right have to determine its own but internal affairs. public.” may properly said,
It “But this affects the be within home. So decisions a be clear that the determination as whether must attorney judge spank prosecuting must shall his judge. If he to do
left to fails the discretion it, may job they remove people want him to do as the meantime, they him at next election. In they may petition, demand. but of the appealed from the action Appellants have refusing appoint grant their trial court dismiss special prosecutor. Appellee moved to action appellants had no because *3 to have no begin with, could to and therefore appeal. agree appellee.
We with
Appeal dismissed. Gilkison, JJ., concur.
Emmert and Bobbitt, J., opinion. concurs with participating. not
Concurring Opinion in the result J. I concur in the reached Bobbitt, Flanagan opinion herein Justice Chief written Spencer in rel. State ex the state v. Criminal reasons (1938), 551, 556, 557, 214 Ind. 15 Co. Marion Court 1022, 1023, are 1020, which as follows: E.N. powers in are vested the “Inquisitorial office of grand juries, and in not in prosecutor and
the authorizes judges courts. The statute courts and 512 appoint special prosecutors regular where the prosecutor does not attend at the term. In the early appoint cases, suggested cases it was this but, court, the later was inherent disapproved, it this view has been thought by implication been from it arises rather legislative appointive power expressly that, conferred. It cannot be it doubted where prosecuting attorney an in established party, clearly incapacitated, terested or otherwise may appoint attorney represent the court an may But interests of upon ex close that a cutor had admitted The state. not be done suspicion rumor, upon the mere mere or parte judge, motion and the decisions dis in the cases where the upheld, regular prose special prosecutor was disqualification incapacity. clearly reasoning opinions in the would seem special prosecutor may ap that a not be indicate pointed over to exercise functions of the office regular attorney, objection prosecuting judicial of the fact of determination without opportunity disqualification or interest after an regular prosecutor may to' be heard. for the upon suspicion judge mere not done adequately im v. State (1859), partially perform his duties. Dukes Choen v. State 557; (1882), 209; 85 Ind. Ind. 11 v. McGregor (1909), 171 Ind. Board Com’rs ex rel. Williams v. 1; Ellis, 634, E. N. State 87 98; 307, 112 Wil-
Judge (1916), 184 Ind. 209; (1919), 283, 188 Ind. N. E. 123 liams State v. 401, (1926), 197 Ind. 141 N. E. v. State Perfect 764-766; (1915), Flavin 35 52; State v. J. 28 C. 296, 713; Ann. 1918 Cas. N. W. 153 D. S. A. v. Atty.-Gen. Brewing Home Bingham, rel. ex State N. E. 105 (1914), 182 Ind. Co. Huffman 401, 748; 698, 109 N. E. (1915), Ind. v. State Friedley (1893), Judge Gibson, rel. ex State v. 872; Tull, ex rel. Treas. E.N. Ind. *4 238; Keyes v. State Ind. 99 (1884), Glessnern 1097; ex rel. E. State 23 N. Ind. (1890), al., County et Martin v. Circuit Court Freed of rel. ex E. 2d 152, 153, 14 N. Ind. County et al. Lake Superior Court Egan E. 945.” 6 N. 211 Ind. (1937),
On to Reinstate. Motion 16, 1954, court dis- June C. J. On the reason that missed the above entitled compel appellants the had no of action to the special prosecutor. appoint Criminal Court 120 N. 2d 263. See 233 Ind. their to reinstate have filed here appeal.
the good suggested who been that if citizens It has these compel appellants here cannot the unite as case, people special in this the have been of a rights guilty brought deprived of their to see the mockery; justice; the have become a courts serious, may guilty crime, escape however one who becoming prosecuting attorney; prosecution only one, attempted procedure is not only but the one. tragic true there
If were would indeed be such system. judicial But such is not weakness our case. weakly governmental structure is not built so
Our bring guilty unwisely exclusive so single any justice one individual. is vested might Perhaps procedure attempted here seem easy, easiest, quickest, But the most direct. obtaining quick, desired the most direct methods state, police not the are characteristics of results procedure proper pro- Proper republic. has become through ages experience, the refinement of cedure though improper procedure even must followed expedient at the moment. more seems person' guilty not decide that a court did This prosecution upon immune from becom- crime becomes only ing prosecutor. We decided proper procedure. attempted here is not the *5 Let examine the us situation. case to special
A demanded investigate specified things: (1) certain two To office, occupied prosecutor, he acts of the before determining those acts purpose whether for the any them, criminal, acts, (2) if such were appro- crime, prosecute the be found to constitute prite criminal actions. any investigation, required, a if were medi-
As to the government knowledge point out of our would ocre agencies investigating many available officers and investigation appears that no from But it appellants point in their out counsel is needed. As made, investigation fully and the brief, has been times, place, the overt “the petition recites acts.” certainly gathered detailed,
With the facts all they appellants’ able counsel can determine whether do, any they entire violate criminal If statutes. filing charges. point matter is to formal specific It is the function of this court to decide question presented It is not to it. That we have done.
our function to instruct to what as say here what We do not should be followed. it How- should be done or how should be done. ever, suggestion that decision has in view of the our only procedure, point we out course of closed the proper avenues do exist. present prose- alleged felonious conduct of the
The the Indiana Law and cutor has to do with Securities relating public Appellee contracts. the laws specific authority to pointed in each case the out Attorney given by prosecute statute to the General Replacement, of Indiana. Burns’ of the State §25- Replacement, §§60-232, 60-233. This Burns’ 1951 appellants nor, have not denied so far as record shows, pursued. here also be noted we grand jury system only still have the in Indiana. We waiting proper illustrate number of avenues to be traveled. remedy. are without But the
procedure must be followed. None of can insist us doing upon things improper way just because we *6 prefer way ignore them ways open that are and available to us.
Petition reinstate denied. Emmert, Bobbitt, Gilkison, JJ., concur. participating. Reported in 120 N. On Note. — reinstate, 121 E. 2d 721. v. State Indiana.
Masuth 29,081. Rehearing Filed June [No. denied October 1954.]