State ex rel. Thrasher v. Hayes

Decision Date07 August 1978
Docket NumberNo. 1-777A140,1-777A140
Citation177 Ind.App. 196,378 N.E.2d 924
PartiesSTATE of Indiana on the relation of Robert E. THRASHER and Winifred M. Thrasher, Petitioners-Appellants, v. David HAYES, Trustee of Van Buren Township, 1 Respondent-Appellee.
CourtIndiana Appellate Court

Patricia A. Burchfield, Bloomington, for petitioners-appellants.

LYBROOK, Presiding Judge.

Petitioners-appellants Robert and Winifred Thrasher (Thrashers) bring this appeal from the denial of their motion for the township trustee of Van Buren Township (Monroe County) to show cause why he should not be held in contempt for failure to comply with a trial court order. This action arose from the following facts:

In August, 1973, the Thrashers constructed a fence along their half of a one-half mile boundary between their property and the property of the adjoining landowner, Margaret Reitz (Reitz). Thrashers then requested that Reitz construct and/or repair the remaining half and, after receiving no reply and no action on their request, the Thrashers contacted the township trustee for Van Buren Township of Monroe County, David Hayes (Trustee), in an effort to compel Reitz to erect a fence pursuant to IC 1971, 32-10-9-2, 3. 2 The Thrashers and their counsel repeatedly contacted the trustee concerning this matter without result. They commenced this action by a petition for a writ of mandate, asking the Circuit Court of Monroe County to order the trustee to perform his duty as required by law. On March 24, 1976, the trial court issued the writ of mandamus ordering the trustee to make necessary repairs to the partition in question. 3

In attempting to comply with the trial court order, the trustee contacted several persons concerning the fence repairs. He accompanied a few of them to the location and prepared written instructions detailing the repairs to be made. One workman, employed by the trustee, left without making repairs after Thrasher challenged his right to cross Thrashers' property to reach the fence. The trustee then sought and obtained written permission from the Thrashers to allow workmen to enter their property in order to reach the fence; however, the workman who returned departed again without making repairs when Thrasher insisted upon locking the gate through which the workman entered and exited the property. The trustee was unable to persuade the workman to return and encountered difficulty finding other repairmen who were willing to work on the fence because of the dispute.

The Thrashers then filed a motion in the trial court for the trustee to show cause why he should not be held in contempt of the court's previous order. A hearing was held on the motion December 23, 1976, and the trial court's findings of fact and conclusions of law (omitting the caption and formal parts) are as follows:

"1. That the Respondent, FARRELL N. DUCKWORTH, has made reasonable efforts to comply with the Orders of this Court;

2. That the failure of the Respondent to fully comply with the Orders of this Court has been occasioned, at least in part, by actions of the petitioner herein; and

3. That the Respondent, FARRELL N. DUCKWORTH, is not in contempt of this Court.


1. That the Respondent carry out the Order of this Court dated March 24, 1976, as soon as is practicable in view of weather conditions and other considerations, and in any event by May 31, 1977, unless an extention (sic) of time is granted by this Court; and

2. That Petitioners herein ROBERT E. THRASHER, and WINIFRED M. THRASHER, refrain from any action or course of conduct of any manner, direct or indirect, which is calculated to, or does in fact, obstruct, hinder, delay, or otherwise frustrate the attempts of the Respondent, or his agents, in his efforts to comply with the Orders of this Court. Contacts and communications between Petitioners and Respondent, or his agents, shall be no more than are minimally necessary to make arrangements for the entry of Respondent or his agents upon the lands of the Petitioners to make such repairs as were ordered by the Court on March 24, 1976. Petitioners are further ORDERED to cooperate with Respondent and his agents to the extent of facilitating entry to the lands of Petitioners at such times and in such manner as may be reasonably necessary to comply with the Orders of this Court, by showing Respondent or his agents the shortest or most convenient route to the fence which must be worked upon, to unlock and open such gates as may be necessary to reach said fence and to refrain from locking or blocking any such gates or lanes as must be used to reach said lands.

It is further ORDERED that Respondent shall furnish Petitioners with written notice of the date or dates upon which Respondent or his agents shall enter the lands of Petitioners to effect repairs to the fence which is the subject of this action at least forty-eight hours in advance of said entry, after coordination by Respondent with Petitioners to select a mutually convenient time for said entry. Said written notice should be received by Petitioners more than forty eight hours in advance of said entry.

The Court specifically authorizes the entry of Resondent (sic) or his agents upon the lands of Petitioners at such reasonable times, in such reasonable manner and for the purposes outlined in this Order to effect the repairs ordered on March 24, 1976, without regard to whether the portions of fence repaired from entry upon the Petitioners lands are those of Petitioners or the adjoining land owner, MARGARET C. REITZ."

The following issues were presented for review by the Thrashers in their Motion to Correct Errors:

(1) Whether the failure of the trial court to hold the trustee in contempt for noncompliance with its order denies the Thrashers equal protection under the law.

(2) Whether the findings of the trial court were contrary to the evidence presented.

(3) Whether the trial court exceeded its authority in adding conditions to its original orders of mandate.

(4) Where the portion of the trial court's decision ordering the Thrashers to refrain from and to perform, certain unspecified acts, is so vague and general that it is unenforceable.

(5) Whether the Thrashers should be compensated for the use of their property by the township trustee in the performance of his duty.


The Thrashers first contend that the failure of the trial court to hold the township trustee in contempt for noncompliance with its order denied them equal protection under the law in that they could not avail themselves of the protection and benefits of the Indiana partition fence statute (IC 32-10-9-1, Et seq.). They argue that the township trustees have practiced arbitrary and selective enforcement of the mandatory provisions of the law which dictate that the township trustee "shall" have the fence repaired at the expense of the reluctant party.

The constitutional issue before this court becomes then whether the statute providing for construction and repair of partition fences has been administered in such a manner as to deny equal protection to the Thrashers.

"If all persons are treated alike under the law and under the same circumstances, no person can be said to be deprived of the equal protection of the laws . . . The equal protection of the laws requires that the classification for legislative purposes must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair relation to the object of the legislation so that all persons in similar circumstances shall be treated alike." Shedd v. Automobile Insurance Company of Hartford (1935), 208 Ind. 621, 196 N.E. 227.

Under the ordinary equal protection rationale, the legislature is not precluded from indulging in classifications which treat one group differently from another. Generally, if a classification is rationally related to a legitimate purpose it will be sustained. State ex rel. Indiana Youth Center v. Howard Juvenile Court (1976), Ind., 344 N.E.2d 842.

In this case there is no unreasonable or arbitrary classification within the operative statute. Thrashers claim injury only in the trustee's failure to act under the statute. A similar argument was advanced in the case of Highland Sales Corporation v. Vance (1962), 244 Ind. 20, 186 N.E.2d 682, where the defendants challenged the prosecuting attorney's bringing an action against them when he failed to prosecute others for the same crime. The defendants in Highland claimed such selective enforcement was a violation of the constitutional guarantee of "equal protection."

The Court in Highland quoted from Park Hill, etc., Co. v. City of Evansville (1921), 190 Ind. 432, 130 N.E. 645:

"It is also the law that if a municipal ordinance, not invalid upon its face, shall be 'applied and administered by public authority with An evil eye and an unequal hand, so as practically to make an unjust and illegal discrimination between persons in similar circumstances, material to their rights, the denial of equal justice is within the prohibition (of amendment 14) of the Constitution' of the United States. Yick Wo v. Hopkins (1886), 118 U.S. 356, 373, 374, 6 S.Ct. 1064, 30 L.Ed. 220; Dobbins v. Los Angeles (1904), 195 U.S. 223, 240, 25 S.Ct. 18, 49 L.Ed. 169." (Emphasis by Ct. in Highland ).

The Highland decision addressed the role of a public official in exercising his duties fairly, with particular emphasis on the role of the prosecuting attorney:

"It has been stated by respected authority that:

'A prosecuting attorney is ordinarily vested with official discretion as to the institution of criminal prosecutions and as to the cases he will prosecute, * * * . Such discretion must, however, be exercised in good faith * * * and in accordance with established principles of law, fairly, wisely, and with skill and reason; * * * .' 27 C.J.S. § 10, District & Prosecuting...

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