Parker v. State ex rel. Powell

Decision Date27 January 1893
Citation33 N.E. 119,133 Ind. 178
PartiesPARKER, Clerk, et al. v. STATE ex rel. POWELL.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

On rehearing. For former report, see 32 N. E. Rep. 836.

McCabe, J., dissenting.

HOWARD, J.

The attorney general has filed a petition, which is supported by briefs, for the rehearing of this cause. His petition, as the chief law officer of the state, and because of the importance of the questions involved, is entitled to the gravest consideration. A petition for rehearing is a request to the court to revise its own action, by correcting errors and modifying or setting aside its judgment. The statute (section 662, Rev. St. 1881) provides that, at any time within 60 days after the determination of a cause, either party may file a petition for a rehearing. The question at the outset, therefore, is whether the attorney general is himself a party to this action, or whether he represents such party.

Besides the special duties of the attorney general provided for in various statutes, his general duties are named in sections 5659 and 5666 of the Revised Statutes of 1881. Section 5659 provides that “such attorney general shall prosecute and defend all suits that may be instituted by or against the state of Indiana the prosecuting or defending of which is not already provided for by law, whenever notified ten days of the pendency thereof by the clerk of the court in which such suits are pending, and whenever required by the governor or a majority of the officers of state, in writing, to be furnished him within a reasonable time for the purpose therein contemplated; and he shall prosecute and defend all criminal or state prosecutions that are now, or hereafter may be, pending in the supreme court of the state of Indiana.” This is not a suit by or against the state, although it is prosecuted by a relator in the name of the state. It is a suit for mandate, which is already provided for by law; neither has the governor, nor a majority of the state officers, nor any clerk of a court, required or notified him to prosecute or defend in the case; neither is it a case in which any criminal or state prosecution is pending in the supreme court.

Section 5666 provides that the attorney general shall be required to attend to the interests of the state in all suits, actions, or claims in which the state is or may become interested in the supreme court of this state.” By this section he is made the law officer of the state in all matters before the supreme court in which the state has interests involved. This raises the question as to the interests of the state in this action, and particularly as to whether she is a a party to it. The interests of the state here concern the constitutionality of a law affecting the membership of the legislative department of the state government. We can hardly conceive of any suit before the court which could be of greater interest to the state, and it is eminently proper that the attorney general should attend to those interests. This the court recognized in granting leave to the attorney general to appear in the case, in the order heretofore made, as follows: “It further appearing to the court that the matters involved in said cause are such as affect the entire people of the state, and are of great importance, it is ordered that leave be granted to the attorney general of the state to appear in behalf of the people, and to take such steps as he may deem necessary to aid the court in reaching a just determination thereof.” This order of the court, and the active participation of the attorney general in the proceedings in appeal, are in full harmony with the spirit of the statute; but did this appearance, or the order of the court, or the grave interests of the people in the case, constitute the state a party? The order of the court could not make one a party who was not already a party in reality. It could only admit one to be a party who was already, in fact and in law, a necessary or a proper party to the suit. Could the important interests of the people make the state such a party? The people of the state are vitally interested in the decision of the constitutionality of every general law that is before the court, but we should not for this reason say that the state should be a party to every suit that involved the constitutionality of a law of the state. It is the duty of the attorney general to attend to the interests of the state when involved in a matter before the court. He comes there as an officer of the state, to advise one of the three departments of the state government in such manner “as he may deem necessary to aid the court in reaching a just determination” of the matters that concern the interests of the state. The parties are already before the court; but, as we think, neither the state itself, nor the attorney general as representing the state, is any more a party than if the matter were one to be decided by the executive or the legislative department of the government. Each department, in its own sphere, is the state, and, as such, guards the rights of the state; not as those of a stranger or mere suitor before it, but as those of the body politic of which it is itself a part.

It can hardly be said that, by reason of the decision rendered in the matters in controversy between the parties, the interests of the state and the people have not received due consideration. The attorney general, as a sworn officer of the state, has done his duty as he saw it, and advised the court with great learning and ability; and it must be remembered, besides, that those constituting the court were themselves also sworn officers of the state, and, as a court, even constituted an integral part of the state government. Whether they decided the matter before them as the attorney general thought right, or whether they decided them as the court as now constituted would have done, does not affect the question as to whether the decision so rendered can now be reviewed by the court in this case, and as to the issues between the parties. We are of opinion that in such appearance the attorney general is, in the strictest legal sense, a friend of the court, and not a party, nor the representative of any party. to the suit before it. He has aided the court in its labors to reach a just decision of the case. That decision, whether right or wrong, has been reached, and his friendly office is ended. The parties have litigated the matters at issue between them, and have withdrawn, in so far as they can, from the jurisdiction of the court. We think he cannot petition for a rehearing of the matters that have been tried and decided between them. Counsel for appellee, in one of their briefs, call the attorney general an intervener in this case, but from what has been said of his office before the court he cannot be an intervener. As the law officer of the state, he has aided and advised the court, even as he might have given his legal opinion to the governor, when requested; but no judgment could be rendered for or against him, or for or against the state, as might be done in case of an intervener. But althoughwe do not think that the attorney general can petition in this case as a party for a rehearing, yet we have no doubt that the case, like all others, is still before the court in case error or mistake has been made. The court may correct its own record, either on its own motion or on being advised of the mistake by any party in interest. In the case of Board, etc., v. Brown, 14 Ind. 191, a petition for rehearing was filed more than 60 days after the decision. The court could not grant a rehearing, but, it appearing that a decision had been rendered against one who had not been before the court, the court, on its own motion, granted a rule upon the other party to show cause why the decision should not be revoked. In Taylor v. Elliott, 52 Ind. 588, this court fully considered and decided its power to modify, correct, or set aside its own decision in a proper case. In Crowell v. Jaqua, reported in 15 N. E. Rep. 242, 114 Ind. 246, this court set aside one opinion on account of inadvertent error, and substituted another in its place. In Elliott, App. Proc. § 550, the power of the court to correct its own errors is expressly maintained. Of this power there can be no doubt, but that is not the question before us. There is no mistake of fact, no inadvertence, “no errors into which the court may have...

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