*1 Wineholt, et al. v. ex rel. State Judge. 2, Ford, Rehearing denied November Filed October 667S16. [No. 1967.] Lalley Sparrenberger, Duvall, Tabbert & and Don Tab- A. Sallwasser, bert, & Sallwasser Indianapolis, relators. Ford, pro
Jack G. se. Houghton Hiekam, John W. Barnes, Boyd, Pantzer & Indianapolis, respondents. *2 original asking J. This is an action writs Arterburn, prohibition against re- mandate court the sulting by from two an orders made court. The first was requiring County order mem- the members of the County, bers of rela- the Board of LaPorte Commissioners of herein, provide tors suitable court with being City court in facilities the court in house county also seat of The court LaPorte Indiana. citing why an respondents issued order to show cause comply should not with such order. (LaPorte
The Superior 2) court Court No. was 1965, 380, p. being created Acts ch. Burns’ Ind. Stat. creating Anno. 4-1231—4-1240. Act the LaPorte Su- §§ perior provided Court 2No. therein that it shall located “in to be determined Council of LaPorte emergency Indiana.” The Act also had an clause mak- ing July 1, it effective on after
At Superior the time the creation the LaPorte Court 2 City No. there was a circuit court located county house, at Superior Court, and the LaPorte Michigan City, which was building located in Indiana in a known also house.
Controversy among county arose the citizens of that as to Superior where the new Court 2No. should be located. On April 24, the LaPorte Council made the follow- ing record in its minutes: by Stanley Lauer, “Motion was made seconded David Superior #2, Michigan City.
Novak establish Court A vote was then taken as follows: Michigan 1111 “After the secret ballot the decision of Superior inbe LaPorte.” that the Second Court will following appear in the Coun- minutes
On ty Council’s record: to a error “David Novak made a motion that due technical meeting on
in the a motion at the Council determination of #2 was April 24, 1965, the decision to locate definitely and now moves that not established placed House in #2 be the Court Michigan City, Motion seconded abstaining yeas-one (1) (Gust Sigurd Diesslin) (4) Four Peterson. motion, hav- Alt at this time. The absent —Vernon votes, passed ap- ing receiving majority proved.” been has we find in the On December minutes following: Council of LaPorte day April, 1965, prior to “WHEREAS, on 4th *3 Act, to estab- submitted a motion was effective date of said Michigan City, said Superior which lish motion said Court No. failed; and presented or “WHEREAS, or Resolution was no motion La- establishing the Courthouse at submitted to the Council holding Porte, Indiana, the sessions of as the Court; Superior of and said day July, was “WHEREAS, 1966 motion 25th a on of Superior No. 2 in the Court locate to said Court submitted Michigan Indiana, passed. City, was House in THEREFORE, IT that La- BE RESOLVED: “NOW Superior its ses- 2 shall hold conduct Porte Michigan Indiana, City, County House in sions in the Court housing of said convenient facilities where suitable provided the Board of Commis- shall be Court Indiana; copy this that of a of sioners to the Board of to be delivered be erased Resolution Secretary by the of this Council.” forthwith Commissioners being unanimously no carried there “Motion record The shows dissenting vote.” position of
The Council as the location Michigan Superior No. 2 was reaffirmed an Court at again April 24, order Court, pursuant application
This here- to the the relators against in, respondent, Superior issued alternative writs enforcing which, substance, Court from No. its order attempts to locate the court at response
The
of the
herein
that
delegated
effectively
it
powers
exercised the
to fix
meet
the location
at its
No. 2
ing April 24, 1965,
it could not thereafter
given
change
court;
its mind or relocate the
that it was
designated
longer
power which,
exercised,
a
once
was no
Finally,
contended,
question,
available.
it is
think without
we
duty
that the
power
has inherent
per
adequate
quarters
secure for
itself
suitable
judicial function,
provided
formance of its
if
same is not
county
commissioners. Carlson
State ex rel. Stodola
v.
(1966),
247 Ind.
On the other the contentions are that relators meeting Council was not finally making any effective in decision to the location of court. The motion before the the time at merely question was a as to whether or not No. 2 should located in an whether as —not alternative it city. should be located in LaPorte or some other made, comprehend motion as did not such a choice. argued negative
It is merely further the vote was against Michigan City most, vote at the and that the secre- *4 tary preparing authority the minutes had no an show for alternative vote since motion no was before purpose. Council that argued though yea vote,
It is it is further that even LaPorte, necessarily listed in under a vote for had be would have been for of the motion favor which put it to the Council. Be that as on the resolution as 24, 1965, certainly may, April on action of the Council ambiguous, it can said that and and at least indefinite fix the location no motion before the Council to there was in the of LaPorte. argued April 24, 1965, It that the vote on was is further ballot, Hughes’ Anti-Secrecy Act secret in violation of 427, being (Acts p. Burns’ Ind. ch. § Anno. This Act mandates 57-606). Stat. §§57-601— public proceedings open to that all shall be citizens defined, state, etc., “public proceedings” our are in this covering voting balloting public opinion, upon such Council. issues before
Finally, the contention is made relators July 1, 1965, court did not into existence until come any Council, pursuant legisla- therefore action of the to the creating court, ineffective, tion was since no had jurisdiction prior to act to the effective date of the Act. We pass contention, unnecessary we over this since feel it is legal into such a us to venture thicket. ambiguities
In of the view the action of the April 24, accept on we are inclined duty to view that relators’ Council had a clarify make more certain and definite its action duty time. The at that Council assumed this acknowledged 25, 1966, it technical when its minutes “a meeting then recorded error” in open votes members Michigan City, Indiana, located in Court be appro same to the Commissioners for certified the accordingly. priations taking position, accepting (as this we are think we
In we interpretation La- Council of should) the which the original clarifying indefinite taken Porte has
157 of 1965. the Coun- and uncertain actions Who but meaning able to determine the of its actions? cil is best right question a There is no that a Council has meetings make nunc minutes of its council and correct by the pro tunc where errors have occurred entries secretary recording properly Modifica in the same. may no inter be made where tions amendments rights vening rights private are involved. No vested vested liberty involved, and the Council is at are here clarify duty correct its own records or them. even has the 603; Bowen Wagner (1910), Welch et al. v. State 173 Ind. v. 252; Evansville (1885), Chamberlin v. 103 Ind. of Logansport 542; (1878), Ind. (1881), Crockett 64 77 Ind. v. respondent’s that made in the return No contention is by “acquiescence” an there has been
fixing 2 in the Court No. the situs by appropriations repair reason of certain point county not house in LaPorte. This of the argued any respondent. brief filed Suffice raised nor granted by say special power an question we that a it to that Legislature fix the situs to the Council to act duly entered a exercised other than can in- not such Council and of record order acquiescence. and uncertain acts as formal County has that findWe meaning pursuant clear expressed itself and made accordingly 1174; 380, p. ch. Acts City, located at should be Indiana, pursuant to that act. granted heretofore the writs petition is
Relators’ permanent absolute. issued are made Mote, J., Hunter, concur. C. J. J., Lewis, opinion,
Jackson, J., which with dissents concurs.
Dissenting Opinion Jackson, agree J. I am unable to with conclusion majority opinion reached in this case dissent thereto.
Relators, Petition For June filed a verified against respondents Writs Prohibition and Mandate petition avers, alia, herein. inter is now Such there *6 pending pursuant proceedings court by respond- which a Rule To Show Cause has been issued Judge requiring appear ent at the relators to said court day June, 1967, 10:00 o’clock a.m. on to show 23rd of why they punished cause should not for in- be attached and contempt direct civil of court. said by That said Rule To Show Cause was issued consequence comply court in of relators failure to with by terms of an order issued court on March in, copy being to, incorporated of such order attached part made of and marked Exhibit A of the above mentioned petition. to,
The order dated March referred reads above as follows: “IT ORDERED, IS THEREFORE AND ADJUDGED by necessary proper DECREED the court that for the and justice, administration of Council of LaPorte hereby Indiana is ordered and directed to forth- immediately appropriate with and sistent con- sufficient funds presented with the estimates heretofore for the it necessary operation
establishment of the facilities a court and located on the third floor of the Circuit Court LaPorte, House in the LaPorte, State ORDERED, “IT IS FURTHER ADJUDGED DE- AND by CREED the Court that the Board of Commis- County, Indiana, hereby of LaPorte sioners are ordered immediately proceed directed to forthwith and and with necessary repairs, remodeling, rehabilitation mod- Superior ernization of the facilities of LaPorte Court No. ORDERED, DE- AND ADJUDGED “IT IS FURTHER Commis- the Board of the Court CREED forth- directed to Indiana is sioners remodel, repair, improve modernize rehabilitate, with room on the LaPorte Court No. located House in of La- floor of the Circuit Court third correcting Indiana, by Porte, County of State of by providing by poor acoustics; problems created heating installing heat; by proper ample constant lighting by providing equipment; healthful and sufficient ample by providing ventilation equipment; healthful conditioning con- and all offices air in said court room and nected with said effectively during used can be court in order that said year; the entire twelve months including providing suitable, ample facilities, and healthful jury toilet and rest room facilities for the room of the 2; by providing sufficient by completing reporter room for the official court renovation of the judge’s chambers; pro- further viding necessary furnishings, equipment furniture and all for all the various offices and rooms of said court. DE- ORDERED, “IT AND IS FURTHER ADJUDGED CREED County, necessary monies appropriate Indiana shall repairs than their
for said meeting. and renovation not later ORDERED, *7 “IT FURTHER DE- IS ADJUDGED AND by County CREED the Court that the Board of Commis- renovation, remodeling let sioners shall repairs bids for the Superior upon the of LaPorte based specifications plans thirty submitted, heretofore within days County (30) appro- after Council has necessary priated the funds. ORDERED, “IT IS FURTHER AND ADJUDGED by County the Court that the Board Com- DECREED County repairs, missioners renovation and LaPorte remodeling shall cause all furnishings, to be and all made equipment furniture to be installed on or before the day August, 31st ORDERED, DE- “IT IS FURTHER ADJUDGED AND by County Commis- the Board of CREED progress being report made shall in full as to the sioners County carrying Commissioners out said Board third purposes and intent of this order on the first and rehabilitation, Monday repairs, month until said of each 160 improvements plans and modernization as shown in the specifications
and been Superior for LaPorte have Court No. 2 completed. “The Clerk is prepare ordered and directed to certified copies of copies this order and deliver said the Sheriff Indiana for service on:
Russell Wineholt William Fischbacher Vance Craft as members of the LaPorte Board of Commissioners of T. Armandt Rosenbaum
Siguard G. Peterson Clayton Vernon R. Tánger Philip J. Liebig Walter F. Rouglas G. Wakeman David A. Novak as members of the Council of LaPorte forthwith and make doing due return of his in the service of this Order.” petition further avers: “(4) Respondent, That County, Indiana, No. 2 of LaPorte was Acts .created Chapter (Burns, Statutes, Annotated [Cum. Supp.] 1240). Poc. Section of said Acts of § 4-1231— 1965, Chapter part 380 reads in as follows: “ ‘The Court No. 2 shall hold ses- sions of LaPorte to be determined County, Indiana; and the Board of provide Commissioners of LaPorte shall main- court house tain room for the a suitable and convenient holding together of said court with a suitable jury room judge convenient and offices for and the ” reporter.’ official Digressing for from moment consideration of the parties, pleadings filed herein this Court June respond- its Alternative Writ of 1967, issued Mandate to the *8 commanding them: ents
161 operation of reasonably accept suitable facilities “to furnished Superior 2 shall be Court No. the LaPorte Michigan City, Commis- Indiana to it in do, or, County, Indiana, so to on failure of LaPorte sioners showing any in reason Respondent return file a that said perman- why made not be this Writ should or in fact law ent on or before July, day 1967.” the 12th of Temporary day of this issued its Writ same Court On the commanding respondents to: Prohibition pro- pro- until the further order of this from “refrain ceeding exercising jurisdiction further or in certain ceedings pending Superior 2 in the LaPorte Court No. now Indiana, wherein a Rule To Show by respondent May re- on has been issued Cause why quiring should not be contempt named herein to show cause Relators punished indirect civil attached comply Court for their failure to with of said Respondent’s prior March Order of said respondent show “IT FURTHER ORDERED that IS day July, 1967, why the 12th on or before the cause permanent.” not be made should Writ time, July 12, 1967, filed court within heretofore controvert- return to the Writs issued its verified seeking ing petition of the relator’s the averments of such Writs. vacation bone of contention the relators
The meat on the between controversy question respondents over the 2 been estab- LaPorte has whether City, both of or lished being parties in LaPorte Indiana. The said locations 1965, ch. agreement the terms of the Acts of are Supp., the re- Burns’ 1966 Cum. 4-1231—4-1240 § being 1965, and that spondent came into as of 380, “The LaPorte 5 Acts of ch. of said Section hold its sessions in a No. shall county County, In- council determined county diana; commissioners and the board provide the courthouse a suit- and maintain in County shall supplied). (Emphasis room. . . .” able and convenient *9 agreement parties point between ends. this that the It is at pleadings, Fortunately parties for all concerned the their concisely fully their stated and briefs have and exhibits adequate positions supplied an respective us with have logically the issues we can determine record from which presented. jurisdiction.
Basically question resolves itself to one of contention, respond- in their If the relators are correct require jurisdiction provide to relators to a ent court has no City room, at the of LaPorte for the reason etc. Michigan No. 2 at established the Court July 25, on December thereafter formally duly passed advised the LaPorte a resolution it should and conduct its sessions in Court that “hold City, Indiana, House where Court provided . . . shall be suitable and convenient facilities sup- (Emphasis Board Commissioners . .” . respondents return aver plied) The verified to the Writs possesses jurisdiction para- forth in rhetorical it as set return, graphs 15 of which as follows: its reads proceedings Respondent “15. The before Court proper power a constitute a exercise of such inherent jurisdiction In Respondents. valid exercise of the their Petition, not implicitly do concede, Relators Respondent challenge, Court has propositions the facts and jurisdiction over: general proceedings include “a. The class of which Respondent proceedings pending Court the for the before the entry rulings Re- provide the of orders and conducting spondent Court with suitable facilities performing functions its of the court and the business a court. particular proceedings pending in Re- “b. The Respond- purpose providing spondent ent Court with act as for the Court to enable it to serve suitable facilities proceedings together court, for indirect with the Respondent pending contempt in the Court obtaining .compliance prior with the order purpose requiring cause the Relators show or for this Respondent proceedings pending before the why out. honored and carried such order should not be Respond- (As point that the ordering to this the Relators contend jurisdiction by facilities ent Court exceeded its at, contend, wrong place.) the Relators so person of each of the Relators.” “c. The paragraph Respondents 3 of further aver at rhetorical return as follows: place fixed “3. The on its face that Petition shows ses- Respondent to hold its determined validly fixed, and established sions has been determined Indiana, and be in the courthouse the Indiana, no has Council of *10 change place and deter- authority fixed power the so or to following reasons and of That is so for each the mined. following propositions of law: each of the
based on delegated only power by Gen- “a. The the Indiana County, Assembly the eral to Council 1965, Indiana, by 5 ch. 380 of Indiana Acts of [Burns § power (1966 Supp.) the Ind. Ann. was Stats. 4-1235] § Respondent place determine the Court to should hold its sessions the where pro- Act said and said § should and convenient courtroom vided that a suitable County, LaPorte provided in the courthouse of said Indiana, Council of LaPorte “b. delegated validly power legally a exercised that at meeting 24, duly April council held on of said convened following decision, by 1965, as shown when it made the journal (see Exhibit F to its official records Petition) : “ that Council . . the decision ‘. will be in LaPorte.’ Court the Second LaPorte “c. When thereby decision, Indiana, determined it made Respondent place the situs of the Court to constitute delegated legal duty discharged thereby and its its it place. Thereupon, it exhausted power the such to determine delegated only it the Indiana General power power redetermine Assembly. did not have the It Respondent where the time the time to from situs of the or to relocate the hold its sessions towas may Respondent from time to time suit said as it County Council.” respondents If contentions are correct their County Council, here, April 24, 1965, relators selected County, Indiana, place where as the thereby sessions, determin- court should hold its discharged doing ing the site of court and so delegated legal power duty its under and exhausted Act, 380, (1965 ch. Acts §5). arriving at a now turn to the record to assist us
We confronting .chronology of A determination the issues us. events is in order. Legislature
1. The Indiana Acts of ch. signed by the created court. The bill was law; by reason Governor on March and became a a emergency July 1, clause of an it became effective 2. On
County, Indiana, meeting special pur- at convened for notice, duly pose pursuant upon acted .considered question respondent court, of the location of made following decision: “After the secret ballot decision of the Coun- LaPorte,” cil is that the Second Court will be Peti-
as evidenced relators’ Exhibit F attached to their tion For Prohibition and Mandate. Writ of appointed the Indiana The of the State of 3. Governor judge newly created judge respondent to be the first the re- the respondent on June transmitted to court and judge respondent judge of the spondent his commission as court. the July 1, 1965, respondent in on court reliance On
4. by said Coun- of said court and location above determination provided for it in facilities opened for cil business County Board of Indiana, Commissioners of pursuant County to the determination Council, on county third floor of LaPorte, courthouse in the seat of LaPorte Indiana. At all times July 1, 1965, from respondent and after court has held all and has holding sessions had as its sole for performing its business as a provided. court said facilities so
5. appropriated On said council the sum $6,000.00 repairs for to the third floor of the courthouse LaPorte for facilities of the court. $90,000.00 budgeted In ap- the sum of was
propriated by county expended said council to be used, which sum repairing was to be first for roof of the LaPorte, Indiana, expended courthouse in and second to be facilities of the court on the third floor of LaPorte, courthouse April 25,1966, regular meeting
7. On at the Council which was attended the three Commis- respondent judge, sioners and the reported the Commissioners $18,000.00 appropriated $90,000.00 spent had been repairs employed by to the roof. The architect presented $36,175.00 Commissioners his estimate of “proposed remodeling of the third floor of the LaPorte provide jury Court House in room, order to new court room, jury toilets, reporter room and bailiff’s office for public 2No. and also toilets.” Gus Diesslin, County Council, a member of the then made a motion go $36,175.00 phase. ahead with estimate of first Alt, motion was seconded member of the Vern All Council. members voted in favor of the motion. brevity partial
In the interest of we must conclude this re- showing many view of the record without other acts confirming, approving part acquiescing of relators in the location of the court in the as set petition. in Exhibit A to relators’ out
166 us,
From a careful consideration of before I all the facts am opinion of the that the LaPorte did select City April of the court site doing discharged duty imposed In 1965. so their power delegated of the Ch. 380 Acts of 1965 and exhausted the April them to Section 5 of statute. and after From change 1965, they reconsider, possessed power no to or alter determination as court. their to situs of the Certainly they possessed power subsequent July 1, no such began when the court of LaPorte. to function in the having
In re- addition their determined the site of the April 24, 1965, spondent positive their action on ratified, acquiesced relators confirmed and in its location July 25, 1966, date until LaPorte from that when meeting purported special at a guise Michigan City under relocate the correcting meeting the Council the minutes of meeting special notice of the The omitting Council, signature, reads as follows: COLANESE, LAUER, “TO STANLEY A. JOSEPH ALT, DIESSLIN, G. SIGURD GUST VERNON NOVAK, PETERSON, ARMANDT DAVID LA PORTE THE OF ROSENBAUM: MEMBERS COUNTY COUNCIL HEREBY NOTIFIED THAT THERE ARE “YOU MEETING OF THE LA ABE SPECIAL WILL PORTE COUNTY THE AT AUDITOR’S COUNCIL PORTE, LA LA CITY OF THE IN OFFICE COUNTY, THE 25TH DAY INDIANA ON
PORTE AT 1:30 FOR THE JULY, P.M. PURPOSE OF OF: following Funds: appropriations
“Additional Fund------------$125,000.00 Highway “County Fund_____________$ 75,000.00 “County Welfare Appropriated__________$200,000.00 “Total to be BEEN HAS MEETING THIS OF NOTICE “A REQUIRED BY LAW.” AS PUBLISHED pertinent parts July 25, 1966, of the minutes meeting reads as follows:
“David Novak made a motion that due to technical *13 error in the determination of a motion the Council meet- at ing April 2U, 1965, on the decision to locate definitely that La #2 was not established and now moves placed House in the Porte Court #2 be in the Court Sigurd Michigan City City, Indiana. Motion seconded abstaining yeas (Gust Dies- (4) (1) Four Peterson. slin) —one having motion, Alt at time. The absent this —Vernon approved.” majority passed receiving votes, been has supplied). (Emphasis noted that the motion to “technical It should be the correct meeting April 24, 1965, deny the did not that the error” of respondent location or situs of the court had been established special meeting pursuant City called, of LaPorte at the the at specific purpose notice, proper for that on that Yet to date. attempted year to a Council relocate such court special meeting pursuant no- months thereafter at a to three considering given purpose appropria- additional tice re- funds. The matter of the location of the tions for various proper spondent a at the court was not matter for action meeting July 25, 1966, special on on the because it was not calling special meeting. agenda notice in the respondent attempt court took to relocate the twenty-four days respondent had year court after one La functioning floor of the courthouse at on the third been direction of the Council pursuant to the Porte confirming locating, approving, and ac- acts of after all the such Even than quiescing Council. in such location get passing a resolution around to did not Council to attempting relocate situs to nearly year Michigan City a until December being been func- and had court came into after the a half tioning of LaPorte. that the apparent record herein quite from the
It is on in LaPorte duly located had 25, County Council, April 24, its actions 1965. The guess itself 27, 1966, attempted to second and December April 24, If completed duty on perform it had a July 1, duty right, they on also had relators had being court, the date the situs to locate begin being func- to and had to came into on which the court then, they appeared been dissatisfied tion. Had later, they power, it had to be year and had be over a to might meet- They a called then later. have exercised not might grace reasonably good ing July 1, and with changed mistake,” our said, have or “We “We made have Having City.” minds,” court at or “We want the 1965, and meeting subsequent to call such failed they powerless exer- July 2, 1965, were prior thereafter granted because the statute power them of selection cise authority power to so already and their had exercised of law thereby fundamental rule an end. It is a came to act *14 rights have Relators sleeps them. on his loses one who deny relators long Laches alone would too hard. slept too gain sophistry them Relators’ should here. seek the relief nothing. Temporary Writ and the Mandate Alternative Writ on June issued this Court heretofore Prohibition permanent of Prohibi- Writs and the vacated should be denied. should Mandate
tion 2d 92. Reported in 230 N. E. Note. — Mimms State v. 30,797. 1967]. Filed November
[No.