Cushman v. Hussey

• Decision Date: 13 December 1917
• Docket Number: No. 23286.,23286.
• Citation: 117 N.E. 963
• Parties: CUSHMAN v. HUSSEY et al.
• Court: Indiana Supreme Court

117 N.E. 963

CUSHMAN

v.HUSSEY et al.

No. 23286.

Supreme Court of Indiana.

Dec. 13, 1917.

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

Proceedings on petition of Joseph Hussey and others for the purpose of calling a local option election, wherein Robert A. Cushman moved to dismiss the petition. The petition was dismissed, petitioners appealed, and Cushman appeared in the circuit court and renewed his motion to dismiss. From an order overruling such motion he appealed. Transferred from Appellate Court under Burns' Ann. St. 1914, § 1405. Order set aside and appeal dismissed.

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 and 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 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.

As a ground for the motion to dismiss the appeal, appellee asserts that the action of the board of commissioners in passing on 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 a purely ministerial duty.

[2] 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 the boards of commissioners generally, it is the rule that where 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 Com. v. Davis, 136 Ind. 503, 36 N. E. 141, 22 L. R. A. 515;Board of Com. 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) of 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 5772, R. S. 1881 [section 6021, Burns 1914], by a party aggrieved to a higher court.”

At page 588 of 144 Ind. at page 458 of 41 N. E. (55 Am. St. Rep. 192), the court says:

“It is likewise true that when administrative duties are enjoined upon these boards by law, from their actions thereon, no appeal can be taken unless especially 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 decisions of the board which are of a judicial character.

[3] Section 8318, Burns 1914, provides that the petition provided for in section 1 of the act shall be deemed sufficient when it is signed by 20 per cent. of the number of qualified electors of the territory for which such election is petitioned. The section provides that when this is ascertained the board shall order an election. Before ordering an election on such a petition the board is required to ascertain, in the manner provided by the section, that the legal voters who have signed the petition constitute 20 per cent. of the number of qualified electors of the territory in which the election is requested. The duty resting on the board after ascertaining such fact is purely ministerial. It is well settled in this state that a duty is none the less ministerial because the person upon whom it rests is required to ascertain the existence of a state of facts as a preliminary step to the exercise of the right or duty. Flournoy v. City of Jeffersonville, 17 Ind. 169, 79 Am. Dec. 468;Wilkins v. State, 113 Ind. 514, 16 N. E. 192;State v. Johnson, 105 Ind. 463, 5 N. E. 553;Board, etc., v. Brown, 147 Ind. 476, 46 N. E. 908.

The case last cited was a mandamus proceeding brought to compel the board of commissioners of Jackson county to order a special election, on the petition filed by relator and others, for the purpose of enabling the voters of Jackson county to determine whether the county seat of that county should be removed from Brownstown to Seymour. A peremptory writ of mandate was awarded by the trial court and this judgment was affirmed on appeal. At page 494 of 147 Ind. at page 913 of 46 N. E. of the opinion, speaking on the subject here under consideration, the court said:

“The entire scope of this act clearly indicates that it was the intent and purpose of the Legislature to make the action of the board of commissioners, in considering the petition and in ordering...