Indiana Alcoholic Beverage Commission v. State ex rel. Harmon

• Decision Date: 25 July 1978
• Docket Number: No. 778S150,778S150
• Parties: INDIANA ALCOHOLIC BEVERAGE COMMISSION, Appellant, v. STATE of Indiana on the relation of Vaughn E. HARMON, Appellee.
• Court: Indiana Supreme Court

Page 140

379 N.E.2d 140

269 Ind. 48

INDIANA ALCOHOLIC BEVERAGE COMMISSION, Appellant, v. STATE of Indiana on the relation of Vaughn E. HARMON, Appellee.

No. 778S150.

Supreme Court of Indiana.

July 25, 1978.

Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellant

David F. McNamar, Michael R. Franceschini, Indianapolis, for appellee.

ON PETITION TO TRANSFER

DeBRULER, Justice.

This is an appeal by the Indiana Alcoholic Beverage Commission (ABC) from a judgment in favor of Vaughn E. Harmon following trial in an action for mandate. The judgment appealed from required the ABC to conduct a hearing on Mr. Harmon's application for a license for the year 1974-75 and to decide whether it should be granted, and in addition, awarded him a money judgment for damages against the ABC in the sum of $5,355. The Court of Appeals, First District, by order, relieved the ABC of the requirement of conducting a hearing and ordered instead that it grant or deny the application after conducting an appropriate investigation. The damages recovered by Mr. Harmon were also reduced by the sum or $300, but the money judgment was affirmed in other respects. The opinion of the Court of Appeals is to be found at 365 N.E.2d 1225. We have granted transfer on petition of the ABC.

The appeal presented three issues, the first of which was whether the trial court had authority to require the ABC to act upon the Harmon application. We agree with the Court of Appeals that the trial court had such authority and adopt its opinion in this regard. The second issue presented was whether the trial court erred We have granted transfer for the purpose of clarifying the rule of damages applicable to actions in mandate. Damages are presently recoverable by the successful plaintiff in an action in mandate and they are to be determined by application of the standard set forth in Ind.Code § 34-1-58-4 (Burns 1973) which provides:

in denying the motion of the ABC for a continuance of the trial. We agree that this was not error and adopt the opinion of the Court of Appeals as it deals with this issue. The statement of facts, issues, and the court's treatment of these first two issues is adopted and may be found in the separate appendix to this opinion.

"Said action for mandate shall stand for issue and trial, and issues of law and fact may be joined, and amendments, continuances and appeals granted therein, as in other civil actions; and in rendering final judgments in said actions, if the finding and judgments be for the plaintiff, the court shall grant and adjudge to the plaintiff such relief, and such only, as he may be entitled to under the law and facts in such action, Together with damages as in actions for false returns, and costs shall be awarded as the court may direct." (Emphasis added.)

The governing language, "together with damages as in actions for false returns" has persisted for a long time in our statutes relating to the mandate remedy, yet has never been fully considered by this Court as far as we have been apprised. In State ex rel. Cheeks v. Wirt, (1931), 203 Ind. 121, 177 N.E. 441, this Court opined that

"Since . . . one who is awarded mandatory relief may be given damages, the motive of an official in refusing to perform a duty might become material in assessing damages if the injured party makes out a case for mandatory relief."

The party prosecuting the appeal in that case had been unsuccessful in making out a case for relief and no other mention of damages is made in the opinion. In State ex rel. Mitchell v. Gray, (1883) 93 Ind. 303, the Court stated that "No doubt if it were shown that the local officers acting corruptly or maliciously and to the injury of the scholar, the law would give redress." However in this case, too, the party appealing had not been granted mandatory relief sought. These two cases were relied upon by the Court of Appeals in affirming the damages recovered against the ABC. They provide little help in understanding the meaning of the phrase under consideration here.

A like reference to the action for a false return is to be found in "An act concerning proceedings in civil cases," being Chapter 38 of the Acts of 1881, which the statute quoted in part above amended in 1911. Section 808 of this act relating to mandamus proceedings provides:

"In case a verdict shall be found for the plaintiff where the writ is in the alternative, or if judgment is given for him, He shall recover damages as in an action for a false return, against the party making the return, and a peremptory writ shall be granted without delay." (Emphasis added.)

When the two statutory provisions quoted above are considered together and their close relationship is understood, it is apparent that the reference in the present statute quoted first above to a "false return" identifies a false return made by a party in response to an alternative writ of mandamus. At common law an action on a false return to a writ of mandamus would only be commenced after the conclusion of the mandate proceeding. 55 C.J.S. Mandamus § 342 (1948). The purpose of the present statute, relevant here, was to permit the mandate action and the action on a false return to be tried in the same proceeding. The courts of Missouri have construed their statute utilizing this same language in this manner and the reasoning of those cases on the point is persuasive. Yates v. Durk, (Mo.App.1971) 464 S.W.2d 43; State ex rel. Alexander v. Ryan, (1876) 2 Mo.App. 303. And moreover, there is nothing in our statute to suggest that the Legislature intended to affect at all the rule governing the recovery of damages for such false returns. We, therefore, cannot agree with the decision At common law, trespass on the case was the proper remedy against an officer for making a false return. Koffler, Reppy, Common Law Pleading § 93 (1969). Case was a tort involving a legal duty, a breach thereof by a wrongful act, and damages proximately caused by the wrongful act. A return to an alternative writ found by the issuing court to be sufficient at law and in fact could not be traversed, and ended the proceeding against the party seeking the mandamus remedy. If the moving party lost as a result of a return found sufficient and then discovered that the return was false in point of fact, rather than in point of law, such party could then institute a separate action at law and, upon sufficient proof of the false factual basis for the return, recover damages. In such separate cases, it was conceived that there was a duty to make a truthful return, and that such duty was breached by the making of the false return. The damages recoverable were those for injuries sustained as a natural and probable consequence of the wrongful refusal to comply with the alternative writ and the expenses reasonably and necessarily incurred in compelling compliance. Larabee Flour Mills Co. v. Missouri Pacific Ry. Co., (1911) 85 Kan. 214, 116 P. 901, rev'd other grounds 234 U.S. 459, 34 S.Ct. 979, 58 L.Ed. 1398; Anno. 73 A.L.R.2d 903 (1958).

of the Court of Appeals, First District, in Perry County Council v. State ex rel. Baertich, (1973) 157 Ind.App. 586, 301 N.E.2d 219, wherein that court concluded that there was a direct relationship between the statutory rule of damages in the mandate statute and the statutory rule of damages applicable in suits against a sheriff for a false return contained in Ind.Code § 34-1-40-3 and § 34-1-40-5 (Burns 1973). We cannot but conclude that our present mandate statute, by permitting damages to be recovered "as in actions for false returns" incorporated the rule of damages applicable at common law for actions on a false return to an alternative writ of mandamus.

Turning back to our present mandate statute, we find that the alternative writ of mandate was abolished and along with it the return to the writ. Yet the legislative draftsman saw fit to retain the statement that damages are recoverable under the same terms and conditions as they were recoverable at common law in actions for false returns. Given the retention of the language we cannot ascribe to the Legislature an intention to do away with the right to recover damages along with the writ of mandamus, as such result would be totally at odds with the express language retained. In place of the alternative writ of mandate, the Legislature has substituted the summons and the requirement of an answer. Drawing upon this substitution and the history of the language under question, we believe it reasonable to conclude that the Legislature intended to permit the successful plaintiff to recover damages if he is required to make proof on issues of fact in order to obtain a judgment compelling a defendant officer or body to comply with the law. We do not believe that the Legislature intended, by abolishing writs of mandate, to increase or decrease damages recoverable in mandate actions. So conceived, it is the subjection of the plaintiff to the rigors, vexation, and expense of trial on issues of fact, upon which the right to an order compelling performance depends, which is the injury for which damages have been and should remain recoverable. Accordingly, successful plaintiffs under our statute are entitled to recover damages for all injuries flowing as a natural and probable consequence of the subjection to such trials. Finally, we do agree with the result reached in Perry County Council v. State ex rel. Baertich, supra, that attorney fees are not part of these recoverable damages.

We now remand to the trial court and order it to modify its judgment by eliminating the requirement that the ABC hold a hearing and by substituting in its place and stead a partial final judgment that the ABC approve or deny Harmon's application after conducting whatever investigation it deems necessary. Upon compliance such partial judgment is affirmed.

We now further order and direct that the trial court set...