State ex rel. Ayer v. Ewing, 28878

• Decision Date: 20 June 1952
• Docket Number: No. 28878,28878
• Citation: 106 N.E.2d 441,231 Ind. 1
• Court: Indiana Supreme Court
• Parties: STATE ex rel. AYER v. EWING, Judge, et al.

Page 441

106 N.E.2d 441

231 Ind. 1

STATE ex rel. AYER v. EWING, Judge, et al.

No. 28878.

Supreme Court of Indiana.

June 20, 1952.

William L. Mitchell, Evansville, Paul F. Mason, Rockport, for relator.

Urdix B. Ewing, Judge, Spencer Circuit Court, pro se, and L. N. Savage, Rockport, for respondents.

GILKISON, Judge.

This is an original action for a writ of prohibition to prohibit the Spencer Circuit Court and the Judge thereof from exercising further jurisdiction in cause No. 4675, entitled the State of Indiana v. Frank Ayer, now pending in said court. We issued the temporary writ prohibiting the trial court from exercising further jurisdiction.

The proceeding in the trial court was instituted by a verified accusation for the removal of Frank Ayer, relator here, as trustee of Hammond Township, of Spencer County, under § 35 of the Impeachment Act of 1897 ( § 49-836, Burns' 1951 Replacement, Ch. 182, Acts 1897). The material parts of the accusation charged that 'Frank Ayer, as such Trustee did refuse and neglect to perform his official duties pertaining to his office in the following:

'(a) In that the said Frank Ayer did neglect and refuse to consider the request and application of Robert Foertsch for employment as a teacher in the schools of Hammond Township, Spencer County, Indiana, during the school year 1951 and 1952, unlawfully requiring as a condition precedent to the exercise of his discretion in considering such employment of the stated applicant that he, the named Robert Foertsch, pay the sum of One Hundred Dollars, ($100), to the political campaign fund of the political party of which the said Trustee, Frank Ayer, was then affiliated and on whose ballot the said Frank Ayer was a candidate for re-election as said Township Trustee during the general election held in November, 1950.'

It is not necessary to set forth specification (b) of the accusation in order to decide the issues presented here, since it charged the same acts with reference to one Margaret Thomas who applied for employment as a teacher.

A citation was issued for the trustee, who appeared and filed objections to the accusation, alleging, inter alia, that the court lacked jurisdiction of the subject matter as stated in the accusation.

The statute upon which the action against the relator is based, § 49-836 Burns' 1951 Repl., is a penal statute, is in derogation of the common law, and it cannot receive an equitable construction. It must be strictly construed in favor of the relator. Nothing can be added to or taken from it by way of intendment, construction, addition or otherwise. There are no presumptions in its favor. We must take it just as it is. The affidavit in the case must bring it within the spirit as well as the letter of the statute. The reasons for this rule are nicely given by Chief Justice Marshall in United States v. Wiltberger, 1820, 5 Wheat. 76, 95, 5 L.Ed. 37, thus:

'The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the court, which is to define a crime, and ordain its punishment.'

See State v. Lowry, 1906, and Lewis v. State, 1906, 166 Ind. 372, 77 N.E. 728, 4 L.R.A.,N.S., 528; Kelley v. State, 1933, 204 Ind. 612, 630, 185 N.E. 453, 460; Chicago, etc. R. Co. v. Luddington, 1910, 175 Ind. 35, 42, 91 N.E. 939, 93 N.E. 273; City of Indianapolis v. Indianapolis Water Co., 1916, 185 Ind. 277, 288, 113 N.E. 369. See also: 50 Am.Jur., Statutes, §§ 402, 403, pp. 425 to 428; 59 C.J.Statutes, § 617, p. 1039; 1 C.J.S., Actions, § 9(b), pp. 990, 991.

The statute in question ( § 49-836 Burns' 1951 Repl.) attempts to authorize the bringing of an impeachment action by a verified accusation presented to a circuit court, alleging that any officer within the jurisdiction of the court 'has been guilty':

(1) of charging and collecting illegal fees for services rendered, or to be rendered, in his office, or

(2) has refused or neglected to perform the official duties pertaining to his office.

Unless the verified written charge as filed contains one or both of these averments the trial court is without jurisdiction to act in the case. The only averment in the verified written charge is that the relator, Frank Ayer, as township trustee, 'did neglect and refuse to consider the request and application of Robert Foertsch (and another) for employment as a teacher in the schools of Hammond Township, Spencer County, Indiana, during the school year 1951 and 1952. * * *' The alleged reasons for the trustee's refusal are unimportant. The only question is: Did the trustee have a right to refuse to consider the application either with or without reasons? If he had a right to refuse to consider the application, his act in doing so cannot by any flight of the imagination be construed as refusing or neglecting to perform the official duties pertaining to his office of 'of charging and collecting illegal fees for services rendered, or to be rendered. * * *' We take judicial notice that it is the duty of a township trustee to employ the teachers for his school township, §§ 28-4301 to 28-4335 Burns' 1948 Repl. inclusive; but there is no law requiring such trustee 'to consider the request and application' of any particular teacher (except those with tenure rights, § 28-4307 Burns' 1948 Repl., and those with renewal rights under § 28-4321 Burns' 1948 Repl.) or for any particular school within the school township. The trustee is prohibited by statute from appointing any teacher, 'until the school superintendent shall have made a report upon such teacher's preparation, experience, and license.' § 28-4309 Burns' 1948 Replacement. This is a condition precedent to the appointment or employment of any teacher. There is no averment in the accusation that the accuser was a licensed teacher of the state or that the superintendent had made the required report concerning him. We can indulge no presumption against the trustee with respect to this, but must indulge a presumption in the negative in his favor. It is not unusual for a township trustee to have more teacher applicants than he has schools, in which event necessarily, some cannot be employed, but there is no law requiring the trustee to give a good reason why he employed some, and did not employ others. In fact there is no law requiring him to give any reasons.

There is no averment in the accusation that the township trustee neglected or refused to employ qualified teachers for the schools of his township or of any one of such schools and from the absence of this averment we must presume that he did employ such teachers. In his rhetorical paragraph II of the petition here relator avers that he did select and employ competent teachers for all the schools of his township. Since he employed qualified teachers for all the schools in his township he performed his duties in full in that matter. It cannot be said that because he did not consider, appoint or employ relator as a teacher, he neglected or refused to perform his official duties. State v. McRoberts, 1934, 207 Ind. 293, 298, 299, 192 N.E. 428.

To justify their position that the respondents have jurisdiction in the case, they rely upon State ex rel. Weatherholt v. Perry Circuit Court, 1933, 204 Ind. 673, 185 N.E. 510, 511, in which this court, speaking by Fansler, J., among other things, said:

'The statute vests jurisdiction of the subject-matter in the circuit court. * * * Sufficient facts are alleged to show an attempt to bring the proceeding within the statute. * * * It follows that jurisdiction to determine the legal sufficiency of the complaint under the statute as against demurrer or similar pleading is in the trial court, and the exercise of that judicial discretion will not be controlled or interfered with by this court except on appeal.'

But in the original action now before us 'the legal sufficiency of the complaint under the statute as against demurrer or similar pleading' is not before us. The only question raised by the petition and the response, and by the accusation and the objections thereto, is not whether the 'complaint' is sufficient as against demurrer or similar pleading but whether the verified accusation states the facts essential to give the respondents jurisdiction under the statute involved. ¹ If it does the petition should be denied, but if it does not it should be sustained and the temporary writ should be made permanent. 50 Am.Jur.Statutes, § 590, p. 585, correctly states the general rule, that should govern us in determining the jurisdictional question presented, as follows:

'The general rule is that limitations placed upon a liability created by statute become a part of the right conferred, and that to warrant a recovery under a statute which creates a liability, or gives a remedy, which did not exist before, the case must be brought within the terms of the statute. Such a statute cannot be extended to cases beyond its provisions. * * *.'

See also 41 Am.Jur.Pleading, § 92, p. 355; Touhey v. City of Decatur, 1911, 175 Ind. 98, 102, 93 N.E. 540; 32 L.R.A.,N.S., 350. Woodward v. State, 1910, 174 Ind. 743, 744, 93 N.E. 169; Town of Windfall City v. State ex rel. Wood, 1910, 174 Ind. 311, 315, 92 N.E. 57, and cases there cited; Town of Windfall City v. State ex rel. Wood, 1909, 172 Ind. 302, 306, 88 N.E. 505; Ft. Wayne Iron, etc. Co. v. Parsell, 1906, 168 Ind. 223, 227, 79 N.E. 439; Indianapolis, etc. Transit Co. v. Foreman, 1904, 162 Ind. 85, 96, 69 N.E. 684, 102 Am.St.Rep. 185, and cases cited.

A plea to the jurisdiction of a court as we have in this case is not a demurrer or similar pleading. But when there is a lack of jurisdiction of the subject matter in the court below, the jurisdictional question may be raised at any time...