State ex rel. Black v. Burch
| Decision Date | 30 June 1948 |
| Docket Number | 28433-28436. |
| Citation | 80 N.E.2d 294,226 Ind. 445 |
| Parties | STATE et rel. BLACK et al. v. BURCH, State Auditor. |
| Court | Indiana Supreme Court |
Appeal from Marion Circuit Court; Floyd W. Burns Special judge.
Schortemeier, Eby & Wood, of Indianapolis, for appellants.
Gilliom Armstrong & Gilliom, and Ward & Ward, all of Indianapolis, Cleon H. Foust, Atty. Gen. Frank E. Coughlin First Deputy Atty. Gen., and Robert Hollowell, of Indianapolis, for appellee.
These four appeals were consolidated for briefing by leave of this Court and but one brief has been filed on behalf of the appellants. Although each appellant has filed his transcript and perfected his appeal, due to the similarity of these cases, we have attempted to incorporate in this opinion our decision in each of these appeals.
Each of these actions is an action in mandate against Alvan V. Burch as Auditor of the State of Indiana. The relator in Cause No 28,433 is Clyde R. Black; in Cause No. 28,434, Elmer C. Weller; in Cause No. 28,435, Charles T. Miser; and in Cause No. 28,436, Beecher Conrad. From an adverse judgment in each case each appellant has appealed.
The records disclose by stipulation, that the said Clyde R. Black at the general election held in November, 1944, was elected to the Senate of the General Assembly of Indiana for a term of four years commencing on the 8th day of November, 1944; that on January 4, 1945, he qualified as such member by taking the oath of office and served as such during the 84th Session of the General Assembly held in 1945, also during the 85th Session of the General Assembly held in 1947; that he received his salary as such senator for the year 1947 in the sum of $1,200 which was paid in two installments of $600 each; the first of which was on January 15, 1947, and the balance on February 15, 1947, and that he has received a warrant for $300 for the salary s such member of the General Assembly for the first quarter of 1948; that the payment of salary was made at the time and in the amount as provided by § 34-201b, Burns' 1933, 1947 Supp.; that on April 27, 1945, he was duly appointed as Secretary of the Indiana Flood Control and Water Resources Commission under and by authority of § 27-1106, Burns' 1933, 1945 Supp.; that he immdiately entered upon the performance of his duty as such secretary and has continued to perform said duties since that date except during the 85th Session of the General Assembly; that on January 8, 1947, and before the opening day of said 85th Session in which he served, he resigned as such secretary; that after the close of the 85th Session, to-wit: on March 7, 1947, he was reappointed and re-entered upon the performance of his duties as such secretary and has since that date continued to perform these duties.
It also appears by stipulation that the relator, Elmer C. Weller, was elected a member of the House of Representatives of the General Assembly at said election held in November, 1944; that he qualified and served in the regular session of said 84th General Assembly; that on April 1, 1945, after the close of said session, he was appointed by the Public Service Commission of Indiana as Director of its Motor Vehicle Department at a stipulated monthly salary; that his duties as such director consist principally of such matters as the assignment of hearing days for hearing applications and petitions for motor vehicle carriers under the Motor Vehicle Act of the State of Indiana, Burns' Ann.St. § 47-101 et seq., and to hear the same or to assign hearing examiners for hearing such petitions and draft orders following such hearings in the name of said Commission subject to the approval thereof by said Commission.
The department of which he is director is the supervising department of said Commission and is staffed by clerks, stenographers, investigators, examiners and other employees to perform and work in this department under his general supervision and direction as such director. Also included in the work of said department is the receiving and filing of applications, petitions, and other papers by motor vehicle carriers; the registration of motor vehicles; the docketing of hearings; the writing of recommended orders for submission to the Public Service Commission of Indiana for approval; and other work and services incident to the administration of the Motor Vehicle Act, such as the preparation and delivery of certificates of public convenience and necessity to such carriers, and the filing of reports and bonds of carriers.
Said Weller was again elected a member of said House of Representatives at the general election held in November, 1946, and qualified and served as such member during the 85th Session of said General Assembly; that before the opening day of said Session, to-wit: on the 8th day of January, 1947, he resigned his position as such director of said Motor Vehicle Department; that he received his salary of $1,200 for the year 1947 as a member of the General Assembly at the same time as the said Clyde R. Black received his salary; that on the 11th day of April, 1947, after the close of said 85th Session of the General Assembly he was reappointed as such director of the Motor Vehicle Department effective at said date at a monthly salary and did, at said time, resume his duties as such director, and has ever since continued to perform and carry out this position.
It is also stipulated that the relator, Charles T. Miser, was elected as a member of the House of Representatives of the General Assembly at the same times and at the same elections as the said Elmer C. Weller. He also served in the 84th and 85th Sessions of the General Assembly as did the said Weller, and collected his salary in the same amounts and at the same times as did the said Weller; that on October 1, 1945, said relator was appointed by the State Highway Commission of the State of Indiana as Superintendent of Maintenance at a stipulated monthly salary; that he served as such superintendent from the date of his appointment to and including January 8, 1947. Before the opening of the 85th Session of the General Assembly, to-wit: on January 8, 1947, he resigned his position as such superintendent; that after the close of said session, to-wit: March 18, 1947, he was reappointed to said position of Seperintendent of Maintenance at a stipulated monthly salary and resumed the performance of his duties and is still employed in this position; that as such superintendent he is under the direction and orders of the State Highway Commission and has the supervision of the maintenance of the state highways, which maintenance requires the service of approximately 2,500 employees and is authorized by the Commission to employ and discharge personnel below the district or sub-district level. He is also authorized to prepare plans and specifications for highway maintenance.
It is further stipulated that the relator, Beecher Conrad, was elected as a member of the House of Representatives of the General Assembly at the same times and at the same elections as the said Weller and Miser were so elected, and also served along with them in the 84th and 85th Sessions of the General Assembly, and collected his salary in the same amounts and at the same times as they collected theirs; that on July 1, 1945, he was appointed as a barber inspector by the State Board of Barber Examiners of the State of Indiana at a stipulated monthly salary and has performed his duties continuously from the date of his appointment to and including January 8, 1947; that before the opening day of the 85th Session of the General Assembly, to-wit: on January 8, 1947, he resigned his position as such barber inspector; that on April 1, 1947, said Board of Barber Examiners reappointed him as such Barber inspector at a stipulated monthly salary and he has ever since said date, continued to perform the functions of said inspector; that his duties as such inspector, as appears in the minutes of a certain meeting of said Board beginning June 18, 1945, were to conduct inspections of barber shops located in territories assigned to such inspector by the Board and to make written reports to the Board as to his inspections.
It is admitted also, that during all the time since the reappointment of each of the relators, as above set out, the respective positions and the salaries fixed therefor, have been a part of the payroll appropriation law; that there has been duly appropriated by the Legislature from the general funds of the State of Indiana, and there has at all times been available and on hand by the State, funds for the payment of relators' respective salaries.
The records also disclose that each of these relators was employed at the pleasure of those making the appointment and for an indefinite period; that they resumed the performance of their respective duties without taking an oath of office or being required to furnish bond for the performance of their duties and that none of them has been requested by his employer to take such oath of furnish bond. Each relator has requested the respondent, Alvan V. Burch, as Auditor of the State, to issue warrants for his salary accrued since his reappointment, which request as to each relator has been, and still is, refused by said respondent although each relator has satisfactorily performed the services for which he was hired.
The selection and powers and duties of the Secretary of the Flood Control and Water Resources Commission are provided for as follows: ...
To continue reading
Request your trial