Cushman v. Hussey, No. 23286.

• Docket Nº: No. 23286.
• Citation: 118 N.E. 816, 187 Ind. 228
• Case Date: March 01, 1918
• Court: Supreme Court of Indiana

187 Ind. 228
118 N.E. 816

CUSHMAN
v.
HUSSEY et al.

No. 23286.

Supreme Court of Indiana.

March 1, 1918.

Appeal from Circuit Court, Gibson County; Simon L. Vandeveer, Judge.

Petition by Joseph Hussey and others for a local option election was dismissed by a county board of commissioners upon motion of Robert A. Cushman, and the petitioners appealed to the circuit court, which directed an election be held, and Cushman appealed to the Appellate Court. Transferred from Appellate Court under section 1405, Burns' Ann. St. 1914. Judgment of circuit court reversed, with direction to set aside its judgment and dismiss the appeal.

Opinions (60 Ind. App. 464, 111 N. E. 23;117 N. E. 963) superseded.

T. Morton McDonald, of Princeton, for appellant. Henry Kister and Harvey Harmon, both of Princeton, for appellees.

LAIRY, J.

Appellees with others joined in a petition filed with the board of commissioners of Gibson county purporting to be signed by 20 per cent. of the legal voters of the city of Princeton. The purpose of the petition was to obtain an order of the board of commissioners calling an election in the city of Princeton to determine whether the sale of intoxicating liquors should be prohibited within the corporate limits of said city. Burns' 1914, §§ 8316-8323.

After the petition was filed one Robert A. Cushman designating himself as a taxpayer and remonstrator appeared before the board and filed a motion to dismiss the petition, which was sustained, and the petition was dismissed by the board. After the order dismissing the petition was filed, two of the petitioners who are named here as appellees attempted to appeal to the Gibson circuit court. Cushman, who is named here as appellant, appeared in the circuit court and renewed his motion to dismiss, which was overruled, and such proceedings were had in that court as resulted in an order finding the petition sufficient, and in directing an election to be held thereunder. Cushman attempted to appeal from this order by filing a record an assignment of errors with the clerk of the Appellate Court. The case has been transferred to this court under the disparity clause of our statute. Section 1405, Burns' 1914. While the case was pending in the Appellate Court a motion to dismiss was filed and overruled with an opinion. Cushman v. Hussey, 60 Ind. App. 464, 111 N. E. 23.

[1] The case having been transferred under

[118 N.E. 817]

the section of the statute cited, this court has the same jurisdiction to determine the question presented as was possessed by the Appellate Court, including the power to re-examine the ruling of that court on the motion to dismiss.

[2][3] As a ground for the motion to dismiss the appeal, appellee asserts that the action of the board of commissioners, in passing the sufficiency of the petition and in ordering an election as provided by section 8318, Burns' 1914, is not judicial in its character, but that it is purely a ministerial duty. If the action of the board directed by section 8318, supra, is administrative in its character, no appeal could be taken, as the statute makes no special provision for such an appeal. As to boards of commissioners generally, it is the rule that there were the duty to be performed does not involve judicial action, but consists in the performance of administrative ministerial or discretionary powers, no appeal lies from such action, unless it is specially authorized by statute. 7 R. C. L. p. 942; Board of Comm. v. Davis, 136 Ind. 503, 36 N. E. 141, 22 L. R. A. 515;Board of Comm. v. Heaston, 144 Ind. 583, 41 N. E. 457, 43 N. E. 651, 55 Am. St. Rep. 192.

In the case last cited the court, at page 587 of 144 Ind., at page 458 of 41 N. E. (55 Am. St. Rep. 192), in the opinion, says:

“Boards of commissioners, under the law, in the discharge of their duties have, at least, a dual character. In some respects they act judicially, and the law regards them as a court, and from their decision an appeal lies in this state under section 5572, R. S. 1881 [section 6021, Burns 1914], by a party aggrieved to a higher court.”

At page 588 the court says:

“It is likewise true that when administrative duties are enjoined upon these boards by law, from their action thereon, no appeal can be taken, unless specially authorized by statute.”

The case last cited also holds that the statute authorizing appeals, generally, from boards of county commissioners (section 6021, Burns' 1914), applies only to...