State ex rel. Brown v. Circuit Court of Marion County

• Decision Date: 28 January 1982
• Docket Number: No. 381S63,381S63
• Citation: 430 N.E.2d 786
• Parties: STATE of Indiana, ex rel. G. Emerson BROWN, Jr., Relator, v. The CIRCUIT COURT OF MARION COUNTY and the Honorable Frank P. Huse, as Judge Thereof, Respondents.
• Court: Indiana Supreme Court

Page 786

430 N.E.2d 786

STATE of Indiana, ex rel. G. Emerson BROWN, Jr., Relator, v. The CIRCUIT COURT OF MARION COUNTY and the Honorable Frank P. Huse, as Judge Thereof, Respondents.

No. 381S63.

Supreme Court of Indiana.

Jan. 28, 1982.

David W. Mernitz, Doninger & Mernitz, Indianapolis, for relator.

Frank E. Spencer, John Hammond, Indianapolis, for respondents.

GIVAN, Chief Justice.

Upon presentation of relator's Petition for Writ of Mandamus, this Court denied a temporary writ. This opinion is to ratify the denial of that writ.

The facts are these. On January 6, 1981, one Richard Poppa, a member of the School Board of the Metropolitan District of Perry Township of Marion County, resigned from his position on the Board. In accordance with procedures outlined in I.C. 20-4-8-18 (Burns' 1975), the remaining four members of the Board tried to elect a successor but were unable to reach any agreement within the next thirty days. The Board then resorted to the cited statute and again in accordance with its terms notified the respondent herein of the vacancy and petitioned respondent to fill the vacancy.

Respondent was supplied with legal memoranda submitted by the Board of Education taking the position that the respondent was obliged to select the new member from within the same district inside the school corporation's general boundaries in which the resignee had resided.

Ultimately on February 19, 1981, the respondent appointed one John Hammond, who was not from the same district as the resignee.

The relator applied to this Court for a Writ of Mandamus to require the respondent to vacate the appointment and comply with the statute by appointing someone from the same district as the resignee. Given our disposition of the relator's petition, we do not reach the question of whether or not the relator's interpretation of the statute is correct.

We hold the Writ of Mandamus was not the proper remedy in this case. Original actions are not intended to be used to circumvent the normal appellate process. In order to be granted the remedy, the relator must be able to show his appellate rights are inadequate. State ex rel. Wonderly v. Allen Circuit Court, (1980) Ind., 412 N.E.2d 1209; State ex rel. Janesville Auto Transport Co. v. Superior Court of Porter County, (1979) Ind., 387 N.E.2d 1330. Ind.R.O.A. 2(C) reads: "Original actions are viewed with disfavor, and may not be used as substitutes for appeals." We have held mandamus will lie only where the relator had no other adequate remedy at law. State ex rel. Grile v. Hughes, (1967) 249 Ind. 173, 231 N.E.2d 138.

In this case the relator has a remedy at law, namely a quo warranto action. Quo warranto is the proper remedy for determination of the right of a party to hold office. Hovanec v. Diaz, (1981) Ind., 397 N.E.2d 1249; Ziffrin v. Ziffrin Truck Lines, Inc., (1959) 239 Ind. 468, 158 N.E.2d 793. Traditionally the proceeding must be brought in the name of the State or other prosecuting officer. State ex rel. Antrim v. Reardon, et al., (1903) 161 Ind. 249, 68 N.E. 169. However, a private person may bring a quo warranto if he claims an interest on his own relation, or a special interest beyond that of a taxpayer. Hovanec, supra; McGuirk v. State, (1930) 201 Ind. 650, 169 N.E. 521; State ex rel. Antrim, supra.

In the case at bar the relator seeks to challenge the right of the respondent's appointee to hold the office; thus, even though he is a private person the relator is entitled to bring a quo warranto action so long as he can show a personal special interest in the case beyond that of a taxpayer. From the record it appears he can do so, as he lives in the district from which he claims the appointee must be selected and by his own act has made himself a candidate for that office. The relator would be entitled to an appeal should he lose in the trial court. We do not see any inadequacy in his appellate rights.

In State ex rel. Drost v. Newton Superior Court, (1981) Ind., 416 N.E.2d 1247, 1250, we stated: "(A)n action for mandamus will lie to force an official to perform a clear legal duty or to grant an unquestioned right to relief." In the case at bar we cannot say respondent had a clear...