State ex rel. Mass. Transp. Authority of Greater Indianapolis v. Indiana Revenue Bd., 767

Citation144 Ind.App. 63,253 N.E.2d 725
Decision Date16 December 1969
Docket NumberNo. 767,767
PartiesSTATE of Indiana, on the relation of the MASS TRANSPORTATION AUTHORITY OF GREATER INDIANAPOLIS, a municipal corporation, Plaintiff, v. INDIANA REVENUE BOARD, Edgar D. Whitcomb, as a Member of the Indiana RevenueBoard, John K. Snyder, Treasurer of the State of Indiana, and as a Member ofthe Indiana Revenue Board, Trudy Slaby Etherton, Auditor of the State ofIndiana, and as aMember of the Indiana Revenue Board, Indiana Department of State Revenue, JamesO. Mathis, as Commissioner of the Indiana Department of State Revenue, TheState Board of Tax Commissioners, Joseph D Geeslin, Jr., Carleton L. Phillippi,and DurwoodStrang, as Members of the State Board of Tax Commissioners of Indiana, RichardD. Green, as Inheritance Tax Administrator, Defendants. 1 A 39.
CourtCourt of Appeals of Indiana

Donald E. Bowen, John F. Neff, Lieber & Neff, Indianapolis, for plaintiff; Bowen, Myers & Northam, Indianapolis, of counsel.

Theodore Sendak, Atty. Gen., Wendell C. Hamacher, Chief Counsel, for defendants.

PER CURIAM.

A number of issues have been raised in the course of this action which the court deems expedient and necessary to discuss.

This case was originally filed in the Superior Court of Marion County and was removed to this court pursuant to Acts 1965 (2nd Spec.Sess.), ch. 7, § 2, p. 28, Burns' Ind.Stat.Ann., § 3--2121, 1968 Repl., on petition of the Attorney General of Indiana. Section 3 of the Act (§ 3--2122) provides that,

'* * * the attorney-general shall remove such case to the Appellate Court of Indiana whenever he deems it necessary or desirable for the purposes of the uniform and orderly enforcement and effectiveness of acts of the general assembly of state-wide public interest and concern that the case be determined by a court with state-wide jurisdiction.' (Emphasis supplied.)

Following the removal, hearings were held, briefs were filed and arguments were made by both parties to the issues on the merits, all pursuant to statute, and thereafter, on December 31, 1968, this court, speaking through Judge Cooper, entered judgment in favor of plaintiff and against defendants. 2

The thrust of that judgment was to hold that House Enrolled Act No. 1818, passed by the 1967 General Assembly of Indiana was unconstitutionally vetoed by inaction of the Governor, and thus, this court deemed said Act to be in full force and effect from and after its effective date.

This court in the traditional exercise of its judicial power simply interpreted the law. Article III, § 1 of the Constitution of Indiana specifically divides the functions of government into three co-equal, exclusive branches. The function of interpreting the law is vested exclusively in the judicial branch. The decision of this court did no more and no less. This court did not usurp a function of the Legislature; to the contrary, life was given to their action which theretofore had been unconstitutionally denied.

Subsequently, the defendant filed its petition to transfer to the Supreme Court, which petition was denied with opinion, 3 thus affirming the judgment 4 of this court of December 31, 1968.

Thereafter the General Assembly of 1969 passed House Enrolled Act No. 1115 (Acts 1969, ch. 20), which purported to repeal retroactively House Enrolled Act No. 1818 of the 1967 General Assembly.

The pleadings filed herein serve to raise the following issues for consideration:

1. The validity of the substitution of parties-defendants;

2. The effect of the purported retroactive repealer 3. The right of the defendants to interpose the defense of sovereign immunity;

4. The effect of the 'separation of powers' doctrine upon the decision of this court.

I. SUBSTITUTION.

Defendants argue that, with the exception of John K. Snyder, Treasurer of the State of Indiana, and as a Member of the Indiana Revenue Board, all other parties-defendants were improperly substituted to the judgment of this court dated December 31, 1968, by the court on its own motion; were never served with process; and should not be bound by that judgment.

As authority for the above proposition, defendants cite Cox v. United States, 9 Wall. (76 U.S.) 298, 19 L.Ed. 579, (1870). The Cox holding, however, is not applicable here.

The question raised in Cox was whether the newly-appointed Secretary of the Interior could be substituted without notice as a party to a writ of mandamus. The judgment of the district court in Cox mandated the former Secretary of the Interior and his successor in office to grant a patent for certain lands. The issuance of a patent was held by the Supreme Court to be an act within the discretion of the Secretary of the Interior, and thus a successor in office would have to be given the opportunity to exercise his discretion and would not be bound by a writ issued before such opportunity was afforded. The determinative rationale of the Cox decision was that the courts have no power to mandate the discretionary acts of an executive official.

However, the court then distinguished the situation from that where the official was carrying out a ministerial function, as stated at page 298 of 9 Wall. at page 583 of 19 L.Ed.:

'Discussion of the principle, however, seems to be unnecessary, as all of the cases appear to affirm the same rule, that the writ cannot issue where discretion and judgment are to be exercised by the officer, and only in cases where the act required to be done is merely ministerial, and where the relator is without any other adequate remedy.'

In the instant case, all actions required of the defendants under House Enrolled Act No. 1818 are ministerial in nature. Under Article 6, § 1 of the Constitution of Indiana, the Treasurer and Auditor of this State are commanded to '* * * perform such duties as may be enjoined by law; * * *.' The duties of the Auditor in this regard are not discretionary but strictly ministerial and, thus, the question of due process raised in Cox is not present here. The prescription of responsibility may not be altered, for the reason that there is no element of discretion available.

The precise issue here raised has been answered by our Supreme Court. In Wood, Treas. v. State ex rel. Seiler, 155 Ind. 1, at pages 7--8, 55 N.E. 959, at pages 961--62, (1900), the Supreme Court established the following precedent for substitution of public officeholders:

'The petition and alternative writ aver that a prior demand was made of Delos N. Weaver, as treasurer of Elkhart county, and who was at the time such officer, and by him, as such officer, refused; that, pending the action, Weaver's term expired, and appellant, Wood, succeeded him in the office, January 1, 1899, which fact being disclosed by a supplemental complaint, the court substituted Wood as the party defendant.

'The office of county treasurer is a continuing one. The remedy sought was the payment of money by the officer,--a purely ministerial function. The demand was against Weaver the officer, and not against Weaver the individual, and when Weaver went out, and Wood went in, the party defendant was the same, but represented by another individual. Wood assumed the office impressed with all the legal duties and obligations that rested upon the officer he then was. He took the office lis pendens, and was bound to know the character of the plaintiff's action, and that the complaint charged that a demand of payment had been properly made of his predecessor, and refused, and if it was his pleasure to pay the plaintiff's demand without judicial determination, it was his duty to do so without further demand. To hold otherwise would be to place it in the power of such officers, by the expiration of terms of office and resignations, effectually defeat the ends of justice.'

No valid distinction can be drawn between the office of County Treasurer, which is a constitutional office, and the offices held by defendants in the instant case.

While the duties of the Auditor and the Treasurer of this State are not entirely ministerial, the duties required of them by House Enrolled Act No. 1818 are totally and completely ministerial in nature. Thus, it was not improper for this court to substitute the nominal defendants on its own motion.

The court is further constrained to point out that on numerous occasions, 5 the parties-defendants appeared voluntarily and generally in this cause without raising the issue of our jurisdiction over them, and thus, error, if any, has been waived.

Additionally, it has been held that where a successor party to a cause voluntarily appears, any error in service of process is waived.

See: Finch, Admr. v. McClellan, 77 Ind.App. 533, 130 N.E. 13, 131 N.E. 236 (1922), (Transfer denied);

Holland v. Holland et al., 131 Ind. 196, 30 N.E. 1075 (1892);

Acts 1881 (Spec.Sess.), ch. 38, § 56, p. 240, Burns' Ind.Stat.Ann., § 2--803, 1967 Repl.

The two issues raised by the defendants, as demonstrated, present no error.

The substitution was a valid exercise of judicial discretion (Wood, supra) and by voluntarily appearing in this cause, the provisions for notice were waived. Section 2--803, supra.

The named defendants in this action have all been made parties by reason of their ministerial and representative capacities, and for no other reason. Their voluntary and general appearances have waived the error, if any, in the court's substitution.

As additional authority for the substitution, it is well established law in this State, that where a suit is maintained against a public officer, not the individual officeholder, then the successor in office becomes the interested party to the suit. See: Advisory Board etc. v. State ex rel., 170 Ind. 439, 85 N.E. 18 (1908);

Schrader v. State ex rel. Mason, 157 Ind. 341, 61 N.E. 721 (1901);

State ex rel. v. Long, 174 Ind. 642, 92 N.E. 649 (1910).

II. RETROACTIVE REPEALER.

As a general rule in Indiana, the General Assembly may retroactively...

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