State ex rel. Neal v. Beal

• Decision Date: 30 June 1916
• Docket Number: No. 22857.,22857.
• Citation: 113 N.E. 225,185 Ind. 192
• Parties: STATE ex rel. NEAL et al. v. BEAL, Judge.
• Court: Indiana Supreme Court

185 Ind. 192

113 N.E. 225

STATE ex rel. NEAL et al.

v.BEAL, Judge.

No. 22857.

Supreme Court of Indiana.

June 30, 1916.

Action for writ of mandate by the State, on the relation of James A. Neal and others, against Fred W. Beal, Judge. Judgment directed to be entered for the relators.

Davis, Bogart & Royse and Duvall & Whitaker, all of Terre Haute, and H. J. Curtis, of Gary, for relators. Beasley, Douthitt, Crawford & Beasley, George W. Wells, and Thomas Gallagher, all of Terre Haute, for defendant.

LAIRY, J.

This is an original action commenced in this court by the relators herein, praying for a writ of mandate compelling the defendant, judge of the superior court of Vigo county, to render judgment in favor of relators, and against the city of Terre Haute, for the amount of certain alleged street assessment liens. The facts presented by the petition are briefly as follows. The board of public works of the city of Terre Haute instituted proceedings for the improvement of a public street in the city, and under such proceedings the contract for the building of the improvement was let to the relators as the lowest bidders, and the street was constructed under the contract and accepted by the board of works as completed. The board then adopted a preliminary assessment roll, and gave notice of a hearing thereon, and at such hearing various property owners, assessed on the preliminary assessment roll, came before the board and objected to the assessments made against them. The board confirmed the assessments and the property owners, appearing and objecting, appealed to the superior court of Vigo county. In the superior court, various issues were formed between the city and the appealing property owners, and the appeals were consolidated in one case. After a hearing the court entered a judgment to the effect that the improvement had not been built according to specifications; that the property of none of the appealing property owners had been benefited in any amount, and that the assessments made against them be reduced to nothing, vacated, and set aside, together with the liens therefor, and that the city pay all costs. After the rendition of such judgment, the contractors, the relators herein, petitioned the court asking leave to intervene in said proceedings, for the purpose of asking the court to modify the judgment and prayed to modify the judgment, so that the respective amounts in which the various assessments were reduced would be placed against the city and in favor of the relators, the alleged lienholders. The court refused to permit the relators to intervene and refused to modify the judgment as prayed. The relators thereupon filed their petition in this court for a writ of mandate and defendant demurrer thereto, raising the questions as to relator's right to the relief prayed for under the facts set out in the petition.

[2] In the memorandum accompanying the demurrer, defendant first takes the position that under our statute a writ of mandate cannot be issued by the Supreme Court to a circuit or superior court of this state to secure the relief here prayed for. This primarily presents the proper construction of an act of the General Assembly approved March 4, 1915. Acts 1915, p. 207. The part of the act here in question reads:

“Provided, also, that writs of mandate and prohibition may issue out of the Supreme and appellate courts of this state in aid of the appellate powers and functions of said courts respectively; and provided, further, that such writs of mandate may issue out of the Supreme Court to the circuit, superior, or criminal courts of this state respectively, compelling the performance of any duty enjoined by law upon such circuit, superior, and criminal courts, respectively, including the granting of changes of venue from the county in cases where such change of venue is allowed by law, and proper, timely, and sufficient motion and affidavit have been filed therefor, and such change of venue has been refused.”

The defendant's first contention is that the words, “such writs of mandate,” as used in the second proviso of this act as above set out, should be construed to mean “writs of mandate” issued “in aid of the appellate powers” of the court. The basis of the claim is that the word “such” as used in the second proviso, as above set out, so modifies the words “writs of mandate” following as to limit the meaning of the words “writs of mandate” in the second proviso to the writs of mandate provided for in the first. The construction suggested is improper, and its adoption would strike out much of the second proviso as meaningless and make the statute unreasonable and contradictory. The use of the words “and provided further,” at the beginning of the second proviso, shows that it was the intention of the Legislature that the second proviso should provide for something beyond and different from that stated in the first. As the first proviso has already given to the Supreme Court unlimited power to issue writs of mandate in aid of its appellate jurisdiction, it would be incongruous to construe the second proviso as conferring upon the same court power to issue writs of mandate for the same purpose. A statute should be so construed as to give effect to all parts thereof, if such a construction can be reasonably and properly given. State v. Weller, 171 Ind. 53, 85 N. E. 761.

[3] It is also asserted that the words “including the granting of changes of venue from the county,” etc., limit the power of the Supreme Court in issuing writs of mandate to writs only for the purpose of compelling changes of venue, but this is not based upon reason or upon any proper rule of grammatical or legal construction. The argument is placed upon the doctrine of ejusdem generis, but this doctrine does not apply when a general class is followed by a clause “including” a particular class, and where the general words must bear a different meaning from the particular words or be of no meaning whatever. U. S. Cement Co. v. Cooper, 172 Ind. 599, 88 N. E. 69;Strange v. Board, 173 Ind. 640, 91 N. E. 242.

Moreover, there was a material change in the wording of the statute made by the act of 1915 in question, over the prior statutes of 1881, and the amendment thereto of 1911 on the same subject, and a change of legislative purpose will be presumed from such a change of wording. Hasely v. Ensley, 40 Ind. App. 598, 82 N. E. 809. The act under consideration conferred upon the Supreme Court jurisdiction to issue original writs of mandate for the purpose of supervising and controlling the actions and jurisdiction of the circuit, superior, and criminal courts of the state.

[5] Two other objections are interposed to the statute under which these proceedings were brought: First, that the Legislature of Indiana had no power to confer upon the Supreme Court original jurisdiction to issue writs of mandamus to control the judicial discretion of another court; and second, that the title of the act is not sufficient to authorize the provision thereof, conferring jurisdiction on the Supreme Court to issue original writs of mandate. The first objection is based upon the assumption that the statute confers upon the Supreme Court power to control the judicial action of another court. As to whether or not this construction of the statute can be warranted need not now be discussed, for, as will hereinafter be shown, the act sought to be mandated in this case is not one involving judicial discretion. Without taking up further space, it is also sufficient to say that the title of the act is sufficient to authorize the provisions thereof, all of which prescribe modes of procedure.

The next question presented by defendant's demurrer is whether the petition states facts sufficient to authorize the issue of a writ of mandate. The petition seeks to compel the judge of the superior court to comply with a certain provision of section 8716, Burns 1914, which reads as follows:

“Whenever any assessment is reduced on such appeal, the court shall render judgment in favor of said lienholder and against said city for the amount of said reduction, and interest thereon.”

It is defendant's position as pointed out in the memorandum, that the act sought to be compelled is purely discretionary, and therefore cannot be mandated; while it is relators' contention, in support of their petition, that under the statute such act is a ministerial duty enjoined by law upon the judge of the Vigo superior court, and that therefore a proper case is presented calling for the exercise of the mandatory power of ...