Hastings v. Board of Commissioners

188 N.E. 207, 205 Ind. 687, 1933 Ind. LEXIS 7

• Court: Indiana Supreme Court
• Decided: December 22, 1933
• Docket: No. 25,502.
• Status: Published

Opinions

Myers, J.

O. B. Hall and others commenced this action by filing charges with the board of county commissioners of Monroe county for the removel 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.” 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 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), 166 Ind. 550, 553, 77 N. E. 1041. Concisely stated, the record shows the filing of charges with the board, naming the three statutory grounds for removel, notice to appellant, appearance, denial of the charges, evidence heard, finding that the charges are true, followed by a formal judgment removing appellant as county highway superintendent. Appellant was thereby brought into a court of record (State v. Conner [1840], 5 Blackf. 325; State ex rel. Wildman, Aud. v. Board of Comm’rs. of Vanderburgh Co. [1875], 49 Ind. 457; Brooks v. Morgan [1905], 36 Ind. App. 672, 675, 76 N. E. 331) for the purpose of a trial to be conducted as nearly as possible in accordance “with the rules for conducting business in the circuit court.” Sec. 5928, Burns 1926 (§5228, Baldwin’s 1934), §5742, R. S. 1881. While §8506, supra, is silent on the subject of appeal, yet §5976, Burns 1926 (§5277, Baldwin’s 1934), §5772, R. S. 1881, provides that “From any (our italics) decision of such commissioners there shall be allowed an appeal to the circuit court by any person aggrieved.”

The foregoing several statutes are so related that they must be considered together and given the effect they would have if they were incorporated in one general act. Grusenmeyer v. City of Logansport (1881), 76 Ind. 549. By thus considering the foregoing several sections and construing the words “any decision” as meaning any judicial decision, then •the instant appeal presents the single question: Did the proceedings before the board of commissioners involve judicial action or the performance of merely a ministerial duty? If judicial, there was a right of appeal, unless that right is expressly or by necessary implication denied by the statute creating the duty. If the board was called on to exercise a ministerial duty only, then there would be no right of appeal unless expressly authorized by statute. Grusenmeyer v. City of Logansport, supra; Board, etc. v. Conner (1900), 155 Ind. 484, 493, 58 N. E. 828; Ross v. Becker (1907), 169 Ind. 166, 81 N. E. 478; State ex rel v. Board, etc. (1925), 196 Ind. 281, 290, 148 N. E. 198.

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 of the state; that they, like courts of general jürisdiction, look to the general assembly alone for administrative or ministerial power. Jay v. O’Donnell (1912), 178 Ind. 282, 98 N. E. 349. In the case last cited the court referred to Art. 3, §1 of our state constitution dividing the powers of government into three departments, and in that connection also considered Art. 6, §10, and as to this section concluded that the only necessity for this provision was to give the General Assembly authority to confer on boards doing county business powers of a local administrative character. State ex rel. v. Board, etc. (1908), 170 Ind. 595, 618, 85 N. E. 513.

Since, under our constitution, boards of county commissioners are to be classified as courts and belong to the judicial department, it must be conceded that the 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 nevertheless functioned 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, 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 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 ex rel. (1909), 173 Ind. 603, 609, 91 N. E. 1. No principle is “better settled than that while the incumbent has no vested right of property, as against the state, in a public office, yet his right to it has always been recognized by the courts as a privilege entitled to the protection of the law, and that proceedings, in all cases where the amotion from office is for cause, upon notice and hearing, are adversary and judicial in their nature, and may be reviewed on certiorari.” State ex rel. Hart v. Common Council (1893), 53 Minn. 238, 242.

In Hallgren v. Campbell (1890), 82 Mich. 255, 262, it is said: “The Legislature may by express words confer upon the common council of a city the power to remove an officer without cause; but, in the absence .of such power given in express words, the presumption must be that the Legislature intended that every officer appointed for a fixed period should be entitled to hold his office until the expiration of such period, unless removed therefrom for cause after a fair trial.”

The case of Hagerty v. Shedd (1909), 75 N. H. 393, 74 Atl. 1055, was one involving the removal of a member of the board of public works of a city by the mayor and aldermen acting and making the order of removal pursuant to a statute which provided: “The mayor, with the advice and consent of the majority of the full board of aldermen, may remove any member appointed as aforesaid for cause.” Laws 1901, ch. 283, sec. 2. At page 394 the court said: “If the word ‘cause,’ as here used, means legal cause and after notice and hearing, the statute confers judicial powers and means the same as though it read ‘for cause, after notice and hearing.’ Gibbs v. Manchester (1905), 73 N. H. 265, 267.

The legislature, §5928, supra, within its province, has 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 et al. v. City of Jeffersonville (1861), 17 Ind. 169, 173; State ex rel. Reynolds v. Board of Commissioners (1874), 45 Ind. 501, 505.

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 legis lative action.” Hanna v. Board of Comm’rs (1867), 29 Ind. 170, 172, 173. See also, Grusenmeyer et al. v. City of Logansport, supra.

Relevant to the right of appeal, in the case of State ex rel. Adam et al. v. Martin, Auditor (1926), 198 Ind. 516, 525, 154 N. E. 284, it is said: “The decision of the board of commissioners that the highway improvement had been completed according to the contract and should be accepted, and that the contractors should receive pay for its construction, was a judicial decision by a tribunal that had jurisdiction to make it.”

In Board of Comm’rs v. Johnson (1890), 124 Ind. 145, 24 N. E. 148, the question was as to the right of appeal from the board declaring the office of county superintendent of schools vacant. In the course of the opinion, p. 148, it is said: “If such a board assumes to declare a legislative office vacant, it assumes to exercise judicial power, and in all cases where its decisions are judicial there is a right of appeal.” It would seem that by analogy the principle applied in the Johnson case should be quite persuasive in a case, as here, where the object of the proceedings is the removal of a regularly appointed legislative officer during his term of office.

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 results from a failure to differentiate between acts which call for judicial discretion and acts dr 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, under the circumstances disclosed by the record at bar, was 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.