Dowd v. Harmon, 28606

• Decision Date: 01 March 1951
• Docket Number: No. 28606,28606
• Parties: DOWD, Warden, v. HARMON.
• Court: Indiana Supreme Court

Page 902

96 N.E.2d 902

229 Ind. 254

DOWD, Warden, v. HARMON.

No. 28606.

Supreme Court of Indiana.

March 1, 1951.

J. Emmett McManamon, Atty. Gen., Merl M. Wall, Deputy Atty. Gen., Charles F. O'Connor, Deputy Atty. Gen., for appellant.

John B. Dilworth, LaPorte, James C. Cooper, Public Defender, Rushville, for appellee.

JASPER, Judge.

Appellee filed his verified petition for a writ of habeas corpus, contending that he was being illegally held by appellant as Warden of the Indiana Hospital for Insane Criminals. Appellant, prior to filing his return and answer, filed a verified motion for a change of judge, which was denied. Thereafter an amended return and answer was filed, to which appellee filed his exceptions. The exceptions were sustained, and appellant refused to plead further. Judgment was entered by the court ordering the release of appellee and his delivery to the custody of the Superintendent of the Indiana Village for Epileptics.

The pleadings show that appellee was committed to the Indiana Village for Epileptics, at New Castle, in January, 1946. On May 7, 1949, the Indiana Council for Mental Health issued an order transferring appellee to the custody of the Board of Trustees of the Indiana Hospital for Insane Criminals. The order was signed by the Acting Director.

Appellee asserts, in substance, that he is not a criminal and has never been convicted of a crime; that he is not an insane person, and no court of competent jurisdiction has ever committed him to the Indiana Hospital for Insane Criminals; and, further, that there is no showing that he has ever been committed to any institution, or that the Indiana Council for Mental Health has ever ordered or authorized the transfer or commitment of appellee, and that the Acting Director had no authority to do so.

Appellant first contends that the court committed error in its failure to grant his verified motion for a change of judge. It is admitted by appellee that the verified motion was in proper form and duly filed. This court has held that when an affidavit for a change of judge is timely and properly filed, based on bias and prejudice of the judge, the trial court has no discretion in the matter. In examining and granting or refusing to grant such a change in a cause where a change is permitted by law, the judge acts in a ministerial way, and if the affidavit is sufficient the change must be granted. State ex rel. Ballard v. Jefferson Circuit Court, 1947, 225 Ind. 174, 73 N.E.2d 489. This court has further held that after a proper and sufficient verified motion for a change of judge is filed, the court has no jurisdiction to consider any matter involved in the case. State ex rel. Ballard v. Jefferson Circuit Court, supra.

Appellee asserts in his brief that appellant waived all right to claim error for the failure of the trial court to grant the change of judge for the reason that appellant failed to invoke the original jurisdiction of this court to grant a writ of mandate. In State ex rel. Williams Coal Co. v. Duncan, Judge, 1937, 211 Ind. 203, 207, 6 N.E.2d 342, 344, this court said: '* * * if the ruling on the original motion denying the change was erroneous, and objection and exception reserved to the ruling, it would require a reversal of a judgment against relator upon appeal to this court after a trial upon the merits, even though no error were committed on the trial. The right to a change of venue was not waived by a failure to apply to this court for a writ of mandate.'

The appellant now before this court did not waive his right to a change of judge.

Appellee further asserts that appellant is not entitled to a change of judge in a habeas corpus action. This court, in State ex rel. Allen v. Fayette Circuit Court, 1948, 226 Ind. 432, 436, 81 N.E.2d 683, 684, decided the question as to the right of a change of judge in a habeas corpus proceeding. It was held that a habeas corpus proceeding is in its nature a civil rather than a criminal proceeding, and comes within § 2-1402, Burns' 1946 Replacement. The court said: 'The petition for writ of habeas corpus presents a 'matter of a civil * * * nature not triable by a jury,' even though the remedy is summary, § 3-1917, Burns' 1946 Replacement, Acts 1881, Spec.Sess., ch. 38, § 789, p. 240, and special in character, so that it is not a 'civil action' under § 2-1401, Burns' 1946 Replacement, Acts 1881, Spec.Sess., ch. 38, § 255, p. 240, and as such not being subject to a verified motion for a change of venue from the county. Johnston v. State, 1937, 212 Ind. 375, 8 N.E.2d 590, 10 N.E.2d 40. We are of the opinion the change of venue from the judge may be had under § 2-1402, Burns' 1946 Replacement, in a proceeding for a writ of habeas corpus.'

We reiterate the above. It was prejudicial error for the trial court to refuse to grant the change of judge.

Appellant, under his second assignment of error, contends that the court committed error in sustaining appellee's exceptions to appellant's amended return and answer. Since the same question will again be presented to the trial court, this court will rule on this assignment of error. Exceptions filed in a habeas corpus proceeding test the sufficiency of the return and answer. Exceptions have the same effect as a demurrer to a complaint. § 3-1915, Burns' 1946 Replacement; Dowd, Warden v. Johnston, 1943, 221 Ind. 398, 47 N.E.2d 976; Kemper v. Metzger, 1907, 169 Ind. 112, 119, 81 N.E. 663. To determine whether or not the court committed error in sustaining the exceptions, it is necessary to construe chapter 335 of the Acts of 1945, Acts 1945, p. 1569, § 22-4201 et seq., Burns' 1950 Replacement, and all other laws relating thereto. Dowd, Warden v. Johnston, supra.

Appellee contends that title of chapter 335 of the Acts of 1945 is not broad enough to give to the Indiana Council for Mental Health the right to transfer patients from one institution to another or from one hospital to another. The last-cited title reads as follows: 'An Act Concerning Mental Cases, Creating the Indiana Council for Mental Health and Prescribing its Powers and Duties, Authorizing the Construction of a Hospital, Providing for Admission Thereto and Release Therefrom and Making an Appropriation, and Providing for Enforcement.'

The title covers a general subject--'An Act Concerning Mental Cases, Creating the Indiana Council for Mental Health and Prescribing its Powers and Duties'. The title need not contain an index or abstract of the act. De Haven v. Municipal City of South Bend, 1937, 212 Ind. 194, 7 N.E.2d 184; Western Union Tel. Co. v. Braxtan, 1905, 165 Ind. 165, 168, 74 N.E. 985. The title is broad and general enough to include the subject of the transfer of psychiatric patients from one hospital to another or from one institution to another. W. A. Barber Grocery Co., Inc., v. Fleming, Ind.Sup.1951, 96 N.E.2d 108. The title of this act is not in violation of Art. 4, § 19, of our State Constitution.

Does chapter 335 of the Acts of 1945 vest in the Indiana Council for Mental Health the right to transfer a patient from the Indiana Village for Epileptics to the Indiana Hospital for Insane Criminals? It is to be noted in appellee's petition for habeas corpus that appellee was admitted to the Indiana Village for Epileptics in January, 1946, for treatment. From the petition and the answer and return it is shown that appellee was admitted to the Indiana Village for Epileptics, as provided under § 22-2012, Burns' 1950 Replacement, which provides for a hearing before a judge of a circuit court, and for the entering of an order of commitment if it shall appear to the judge that the person is afflicted with epilepsy. This having been done, appellee became a ward of the State of Indiana; and, as provided in § 22-2017, Burns' 1950 replacement: 'All persons admitted to the institution shall, until properly discharged charged from said institution, be under the custody and control of the superintendent * * *.'

It is further provided, under § 22-2018, Burns' 1950 Replacement: 'No person shall be discharged from the said village for epileptics until, in the judgment of the superintendent, the mental and physical condition of the patient justifies it.'

The powers and duties of the Indiana Council for Mental Health are defined in chapter 335 of the Acts of 1945, as amended by chapter 67 of the Acts of 1947, Acts 1947, § 1, p. 215, being § 22-4202, Burns' 1950 Replacement. Subsection (2) of the last-cited act defines the term 'psychiatric patient,' and provides that the Council is: 'To have general supervision of the treatment and care of patients in all public institutions for the diagnosis, treatment and care of psychiatric patients. The term 'psychiatric patient' as used in this act means any person suffering from psychiatric disorders, mental retardation, convulsive disturbances, or any abnormal mental condition.' (Emphasis supplied.)

It is further provided by subsection (6) of the last-cited act that the Council shall have the power and duty: 'To transfer psychiatric patients in state hospitals and institutions for the care of such patients, from one such hospital or institution to another'.

In the action before this court, the appellee comes within the definition of a psychiatric patient. ¹ The Legislature gave to the Indian Council for Mental Health the broad powers of transferring psychiatric patients in state hospitals and institutions from one such hospital or intitution to another. Therefore, if appellee was properly transferred from the Indiana Village for Epileptics to the Indiana Hospital for Insane Criminals, it was done with legislative authority. The amended return and answer of appellant sets out that appellee was transferred from the Indiana Village for Epileptics by virtue of a transfer order dated May 7, 1949, issued by the Indiana Council for Mental Health. The transfer was executed for and on behalf of the Council by its Acting Director, under the...