State Ex Rel. Ayer v. Ewing

106 N.E.2d 441, 231 Ind. 1, 1952 Ind. LEXIS 123

• Court: Indiana Supreme Court
• Decided: June 20, 1952
• Docket: 28,878
• Status: Published

Opinions

Gilkison, J.

This is an original action for a writ of prohibition to prohibit the Spencer Circuit Court and the Judge thereof from exercising further jurisdiction in cause No. 4675, entitled the State of Indiana v. Frank Ayer, now pending in said court. We issued the temporary writ prohibiting the trial court from exercising further jurisdiction.

The proceeding in the trial court was instituted by a verified accusation for the removal of Frank Ayer, relator here, as trustee of Hammond Township, of Spencer County, under §35 of the Impeachment Act of 1897 (§49-836, Burns’ 1951 Replacement, Ch. 182, Acts 1897). The material parts of the accusation charge that “Frank Ayer, as such Trustee did refuse and neglect to perform his official duties pertaining to his office in the following:

“ (a) In that the said Frank Ayer did neglect and refuse to consider the request and application of Robert Foertsch for employment as a teacher in the schools of Hammond Township, Spencer County, Indiana, during the school year 1951 and 1952, unlawfully requiring as a condition precedent to the exercise of his discretion in considering such employment of the stated applicant that he, the named Robert Foertsch, pay the sum of One Hundred Dollars ($100), to the political campaign fund of the political party of which the said Trustee, Frank Ayer; was then affiliated and on whose ballot the said Frank Ayer was a candidate for reelection as said Township Trustee during the general election held in November, 1950.”

It is not necessary to set forth specification (b) of the accusation in order to decide the issues presented here, since it charged the same acts with reference to one Margaret Thomas who applied for employment as a teacher.

A citation was issued for the trustee, who appeared and filed objections to the accusation, alleging, inter alia, that the court lacked jurisdiction of the subject matter as stated in the accusation.

, The statute upon which the action against the relator is based, §49-836 Burns’ 1951 Replacement is a penal statute, is in derogation of the common law, and it cannot receive an equitable construction. It must be strictly construed in favor of the relator. Nothing can be added to or taken from it by way of intendment, construction, addition or otherwise. There are no presumptions in its favor. We must take it just as it is. The affidavit in the case must bring it within the spirit as well as, the letter of the statute. The reasons for this rule are nicely given by. Chief Justice Marshall in United States v. Wiltberger (1820), 5 Wheat. 76, 93, 5 L. Ed. 37, thus:

“The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle, that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the court, which is to define a crime, and ordain its punishment.”

See State v. Lowry (1905), and Lewis v. State (1906), 166 Ind. 372, 77 N. E. 728. Kelley v. State (1933), 204 Ind. 612, 630, 185 N. E. 453, 460, supra. Chicago, etc. R. Co. v. Luddington (1910), 175 Ind. 35 42, 91 N. E. 939, 93 N. E. 273. City of Indianapolis v. Indianapolis Water Co. (1916), 185 Ind. 277, 288, 113 N. E. 369. See also: 50 Am. Jur., Statutes, §§402, 403, pp. 425 to 428. 59 C. J., Statutes, §617, p. 1039. 1 C. J. S., Actions, §9, (b), p. 990, 991.

The statute in question (§49-836 Burns’ 1951 Replacement) attempts to authorize the bringing of an impeachment action by a verified accusation presented to a circuit court, alleging that any officer within the jurisdiction of the court “has been guilty”:

(1) of charging and collecting illegal fees for services rendered, or to be rendered, in his office, or

(2) has refused or neglected to perform the official duties pertaining to his office.

Unless the verified written charge as filed contains one or both of these averments the trial court is without jurisdiction to act in the case. The only averment in the verified written charge is that the relator, Frank Ayer, as township trustee, “did neglect and refuse to consider the request and application of Robert Foertsch (and another) for employment as a teacher in the schools of Hammond Township, Spencer County, Indiana, during the school year 1951 and 1952. . . The alleged reasons for the trustee’s refusal are unimportant. The only question is: Did the trustee have a right to refuse to consider the application either with or without reasons? If he had a right to refuse to consider the application, his act in doing so cannot by any flight of the imagination be construed as refusing or neglecting to perform the official duties pertaining to his office or “of charging and collecting illegal fees for services rendered, or to be rendered. . . We take judicial notice that it is the duty of a township trustee to employ the teachers for his school township, §§28-4301 to 28-4335 Burns’ 1948 Replacement, inclusive; but there is no law requiring such trustee “to consider the request and application” of any particular teacher (except those with tenure rights, §28-4307 Burns’ 1948 Replacement and those with renewal rights under §28-4321 Burns’ 1948 Replacement) or for any particular school within the school township. The trustee is prohibited by statute from appointing any teacher, “until the school superintendent shall have made a report upon such teacher’s preparation, experience, and license.” §28-4309 Burns’ 1948 Replacement. This is a condition precedent to the appointment or employment of any teacher. There is no averment in the accusation that the accuser was a licensed teacher of the state or that the superintendent had made the required report concerning him. We can indulge no presumption against the trustee with respect to this, but must indulge a presumption in the negative in his favor. It is not unusual for a township trustee to have more teacher applicants than he has schools, in which event necessarily, some cannot be employed, but there is no law requiring the trustee to give a good reason why he employed some, and did not employ others. In fact there is no law requiring him to give any reasons.

There is no averment in the accusation that the township trustee neglected or refused to employ qualified teachers for the schools of his township or of any one of such schools and from the absence of this averment we must presume that he did employ such teachers. In his rhetorical paragraph II of the petition here relator avers that he did select and employ competent teachers for all the schools of his township. Since he employed qualified teachers for all the schools in his township he performed his duties in full in that matter. It cannot be said that because he did not consider, appoint or employ Robert Foertsch (and another) as teachers, he neglected or refused to perform his official duties. State v. McRoberts (1934), 207 Ind. 293, 298, 299, 192 N. E. 428.

To justify their position that the respondents have jurisdiction in the case, they rely upon State ex rel. Weatherholt v. Perry Circuit Court et al. (1933), 204 Ind. 673, 185 N. E. 510, in which this court, speaking by Fansler, J., among other things, said:

“The statute vests jurisdiction of the subject matter in the circuit court. . . . Sufficient facts are alleged to show an attempt to bring the proceeding within the statute. ... It follows that jurisdiction to determine the legal sufficiency of the complaint under the statute as against demurrer or similar pleading is in the trial court, and the exercise of that judicial discretion will not be controlled or interfered with by this court except on appeal.”

But in the original action now before us “the legal sufficiency of the complaint under the statute as against demurrer or similar pleading” is not before us. The only question raised by the petition and the response, and by the accusation and the objections thereto, is not whether the “complaint” is sufficient as against demurrer or similar pleading but whether the verified accusation states the facts essential to give the respondents jurisdiction under the statute involved.1 . If it does the petition should be denied, but if it does not it should be sustained and the temporary writ should be made permanent. 50 Am. Jur., Statutes, §590, p. 585, correctly states the general rule, that should govern us in determining the jurisdictional question presented, as follows:

. “The general rule is that limitations placed upon a liability created by a statute become a part of the right conferred, and that to warrant a recovery under a statute which creates a liability, or gives a remedy, which did not exist before, the case must be brought within the terms of the statute. Such a statute cannot be extended to cases beyond its provisions. ...”

See also 41 Am. Jur., Pleading, §92, p. 355. Toughey v. City of Decatur (1911), 175 Ind. 98, 102, 93 N. E. 540. 32 L. R. A. (N. S.) 350. Woodward v. State (1910), 174 Ind. 743, 744, 93 N. E. 169. Town of Windfall City v. State ex rel. Wood (1910), 174 Ind. 311, 315, 92 N. E. 57, and cases there cited. Town of Windfall City v. State ex rel. Wood (1909), 172 Ind. 302, 306, 88 N. E. 505; Ft. Wayne Iron etc. Co. v. Parsell (1906), 168 Ind. 223, 227, 79 N. E. 439; Indianapolis etc. Transit Co. v. Foreman (1904), 162 Ind. 85, 96 and cases cited, 69 N. E. 669. 102 Am. St. 185.

A plea to the jurisdiction of a court as we have in this case is not a demurrer or similar pleading. But when there is a lack of jurisdiction of the subject matter in the court below, the jurisdictional question may be raised at any time before final decision and in any manner and if not raised by a party it is our duty sua sponte to raise and determine it. Lemasters v. Williams Coal Co. (1934), 206 Ind. 369, 371, 189 N. E. 414, and cases cited. See also Rudisill v. Edsall (1873), 43 Ind. 377, Reno v. Robertson (1873), 41 Ind. 567. The State v. Lackey (1850), 2 Ind. 285.

' A decision by the trial court that it has jurisdiction of a penal proceeding pending before it has no presumption in its favor when the record itself shows it is without such jurisdiction. Driver v. Driver (1899), 153 Ind. 88, 89, 54 N. E. 389; Sinclair v. Gunzenhauser (1912), 179 Ind. 78, 139, 98 N. E. 37, 100 N. E. 376.

It has been well stated by competent authority that “ . . . impeachment proceedings are highly penal in their nature and generally governed by rules of law applicable to criminal causes, so that provisions of statutes and of the constitution on the subject of procedure therein are to be construed strictly. . . .” 67 C. J. S., Officers—Impeachment, §68, p. 295 Cl. (c) Procedure, pp. 296, 297.

The rule that should govern us in passing upon the situation before us, is succinctly stated in Moulton v. Scully (1914), 111 Me. 428, 459, 89 Atl. 944, which has to do with an impeachment proceeding, thus:

“• • • As the charges set forth in the Resolve (Accusation) do not set forth with precision and certainty all the elements necessary to constitute the offense, and do not set forth the alleged offense in the language of the statute, and as the offense created by the statute does not consist of a series of acts, but consists of single prohibitive acts, the charges cannot be held sufficient to sustain an indictment without disregarding the elementary rules of law enforced by the courts for centuries to protect persons accused of crime.”

The case of State of Indiana v. McRoberts (1934), 207 Ind. 293, supra, was an action under the impeachment statute (§49-836 Burns’ 1951 Replacement) asking the impeachment of members of the County Council of Gibson County because they neglected and refused to make a certain appropriation which the law required them to make. The record indicates that the trial court sustained defendants’ motion for judgment for them on the pleadings. In affirming this action, this court, on page 299, said:

“Can it be said that because the council refused and neglected to make an appropriation for this one specific item that the members thereof aré subject to be removed from office under the statute in question? We do not think so. . . . In the instant case, however, there is no allegation that the county council or any member thereof has failed, neglected or refused to perform the duties of their office, other than the refusal or neglect to make this one item of appropriation. As to all other duties as councilmen, the presumption is that they have performed and discharged their duties. The petition or accusation herein specifies but one instance where it is claimed and alleged that they failed to perform the duties of the office. We cannot conceive that it was the intent of those who enacted the statute in question, that such a construction would be given to remove officers under such a state of facts as presented.”

It is quite manifest from the holding in the McRoberts case that a failure to perform just one duty required by law is not a sufficient cause for impeachment of an officer under the statute in question. There must be a general failure to perform official duties alleged, before a right of action against the officer under this statute will lie. The court was specific, giving an example when an action will arise, thus:

“. . . as for instance, where a sheriff closes his office and remains away and refuses and neglects to discharge the duties thereof, and has no one to perform his official duties. .

In the instant case there is no such averment of general abandonment of his office by relator—and we are not permitted to presume such abandonment. On the contrary the averments indicate that relator is quite actively performing his official duties, and that he sought re-election, and that he employed competent teachers for all the schools in his township; '

The respondents rely wholly upon Weatherholt v. State (1936), 209 Ind. 525, 199 N. E. 713, written by Fansler, J., in which the learned judge said: “A refusal to consider applications for the position as teacher until an unlawful condition was complied with was a refusal to perform an official duty pertaining to his office.” We .think this statement necessarily, unlawfully enlarges the statute far beyond the limits fixed by the legislature, and inferentially over-rules the opinion of Hughes, J., in the McRoberts case. It blends official malfeasance and misfeasance with the nonfeasance provision of the statute in question. A trial judge followed the Weatherholt case in deciding the case of Beesley v. State (1941), 219 Ind. 239, 37 N. E. 2d 540, but called' attention to its enlargement of the statute, and its inconsistency with other decisions on the subject. On appeal, the Beesley case was decided by the same learned judge who had decided the Weatherholt case, and in deciding it he said in substance that the trial court in the Beesley case was in error in following his -decision in the Weatherholt case and that it should have followed the decision in the McRoberts case. The McRoberts case,, and the Beesley case correctly state the law. The author of the Weatherholt case rightfully refused to be bound by it in .the Beesley case, thereby in substance, distinguishing it to the point of extinction. In so far as it conflicts with this opinion it is hereby over-ruled.

In special statutory proceedings to recount votes and contest elections this court has held frequently and without exception that a failure to aver in the petition the jurisdictional facts required by the statute under which the proceedings is brought, leaves the court without jurisdiction in the action and a writ of prohibition will issue to restrain and confine the court to its lawful jurisdiction. State ex rel. Wever v. Reeves et al. (1951), 229 Ind. 164, 169, et seq., 96 N. E. 2d 268, and authorities there cited. State ex rel. Beaman v. Circuit Court (1951), 229 Ind. 190, 96 N. E. 2d 671; State ex rel. McCormick v. Superior Ct. Knox County (1951), 229 Ind. 118, 95 N. E. 2d 829; Slinkard v. Hunter (1936), 209 Ind. 475, 479, 199 N. E. 560; Gossard v. Vawter (1939), 215 Ind. 581, 583, 21 N. E. 2d 416.

We are safe in saying that in any special statutory proceedings whatever, all jurisdictional averments required by the statute under which the proceeding is based must be contained in the petition or the court in which it is filed, as well as any court to which it may come on change of venue or appeal will be without jurisdiction in the case, except to enter an order dismissing the case.

As noted, the verified accusation does not contain either of the jurisdictional facts required by the statute. The respondents are, therefore, wholly without jurisdiction in the matter. The temporary writ of prohibition issued herein is hereby made permanent.

Jasper, C. J., concurring and Draper, J., concurring in result. Emmert, J., concurs with opinion.

1 The respondent court’s records which are brought before us by relator’s petition, agreeable with rule 2-35 of this court, disclose that after the citation of the lower court was served upon him, on January 28, 1952 defendant appeared specially and filed objections to the jurisdiction of the court. These records further show, that on January 29, 1952, the court overruled the objections of the defendant to the jurisdiction of the court.

The response of the respondents upon this particular point is as follows:

“The respondents responding to rhetorical paragraph nine of the petition filed herein admit that on the 29th day of January, 1952, the Spencer Circuit Court functioning through the respondent Urdix B. Ewing, as regular judge of said court after hearing the argument of counsel overruled the objections of the petitioner (relator) to the jurisdiction of the Spencer Circuit Court of Spencer County, Indiana, and the regular judge thereof and entered an order accordingly, a copy of which order is filed with the petition. . . .”

With these factual records before us, it cannot be said, that the paper filed by relator was, in effect, a demurrer to the complaint or accusation.