State ex rel. White v. Grant Superior Court

• Decision Date: 13 October 1930
• Docket Number: 25,783
• Citation: 172 N.E. 897,202 Ind. 197
• Parties: State, ex rel. White v. Grant Superior Court et al. [*]
• Court: Indiana Supreme Court

172 N.E. 897

202 Ind. 197

State, ex rel. White v. Grant Superior Court et al. ^[*]

No. 25,783

Supreme Court of Indiana

October 13, 1930

Petition filed in the Supreme Court asking a writ of prohibition against the Grant Superior Court and Robert F Murray, Judge, to prohibit the respondents from exercising criminal jurisdiction over the relator, Elam White, who was charged with a criminal offense. Temporary writ issued.

Permanent writ denied.

Harry Roberts, for relator.

Thompson Rabb & Stevenson, George Koons and Everett Warner, for respondents.

James M. Ogden, Attorney-General, Joseph W. Hutchinson and V. Ed Funk, Deputy Attorney-Generals, Amici Curiae.

Travis J. Gemmill, J., not participating.

OPINION

Travis, J.

Relator asks that a writ issue out of this court to prohibit the Grant Superior Court from exercising criminal jurisdiction. Relator alleges that a case was begun in the Grant Superior Court June 13, 1929, upon an affidavit approved by the prosecuting attorney, by which relator is charged with the offense of assault and battery; that a warrant was issued for the arrest of relator; and he was arrested and brought before the Grant Superior Court; that, upon the action of the court, which fixed the bond for his appearance, relator moved to dismiss and discharge him from custody, and not to require him to give such bond, and that the cause against him be dismissed, for the reason that the Grant Superior Court, as established and created by the act of the General Assembly, Acts 1909, ch. 35, is a court of limited civil jurisdiction only, and has no criminal jurisdiction, and is not a criminal court, and that the court had no jurisdiction of the subject-matter of the cause of action; that this motion was overruled; that, to avoid being confined in jail, relator gave bond as directed by the court, under protest, and he was released from custody; that thereafter, June 13, 1929, relator was, by the action of the court, arraigned upon the criminal charge against him, and immediately directed by the court to plead to the charge; that then and there relator filed his plea to the jurisdiction of the court for want of jurisdiction of the court for the reason that the court is not a criminal court, and that such court has no criminal jurisdiction; that the demurrer by the State of Indiana to relator's plea to the jurisdiction of the court, was, by the court, sustained; that, immediately thereafter, the court ruled that this relator plead to the charge; that relator refused to plead further to the affidavit which charged the offense, and the court then and there entered a plea of not guilty for relator, and set the cause of action for trial June 28, 1929, at 9 o'clock a. m., over relator's objection.

Relator alleges that the Grant Superior Court does not have jurisdiction to hear and try any criminal action, and that the court has no jurisdiction to hear and try the cause so filed against him, and has no jurisdiction over the subject-matter of the action for assault and battery begun against him. And, further, that the jurisdiction granted to the Grant Superior Court by the act of the General Assembly in 1909, has not been enlarged by any act of the General Assembly of the State of Indiana, or otherwise.

Upon the presentation of the petition for the writ, the writ was ordered, by which respondents were restrained from exercising jurisdiction of the subject-matter of this cause of action against relator until the further order of the court, and to show cause, if any they have, why respondents should not be prohibited from proceeding further in such cause of action.

To this order, respondents made return, as follows: Respondent, Robert F. Murray, was duly elected judge of the "Grant and Delaware superior court district," and judge of the Grant Superior Court, at the general election in November, 1926, for the term of four years from January 1, 1927, and until his successor is elected and qualified. In doing the acts and things alleged in relator's petition, this respondent acted in all things as judge of the Grant Superior Court, and not as a special judge or judge of any other court; and that the acts done in said cause against relator in the criminal cause by such court, were done under the jurisdiction granted to said Grant Superior Court and the judge thereof by virtue of an act of the General Assembly, passed at its session in 1929, and known as "senate bill No. 212," which act became a law without the signature of the Governor by lapse of time, as provided by the Constitution of Indiana. By this act the Grant Superior Court of Grant County was given criminal jurisdiction. The General Assembly duly convened in its seventy-sixth regular session at Indianapolis, on Thursday, January 10, 1929, duly organized and entered into and remained in regular session for 61 days and adjourned sine die at 12 o'clock p. m., midnight, on Monday, March 11, 1929. In the course of the session of the General Assembly, a bill was introduced in the Senate, for an act entitled "A bill for an act concerning the courts in the counties of Delaware and Grant, and declaring an emergency," which bill was numbered and designated "Senate Bill No. 212." This bill was passed by the Senate and House of Representatives, and by it returned to the Senate March 8, 1929, and the Senate, in open session, handed it down for enrollment, and ordered the bill enrolled, which was done, and, subsequent to its passage, it was duly signed by the presiding officer of the Senate, and was also signed by the presiding officer of the House of Representatives. The bill as introduced and numbered 212 was not amended or altered in any manner whatever by the Senate or House of Representatives, and all of the steps incident to the passage of the bill occurred on or prior to March 8, 1929. The bill, as alleged, was engrossed by action of the Senate, and engrossed by action of the House of Representatives, and, as finally passed and enrolled in the Senate and signed by the presiding officers of the House and Senate, is copied in the response to the petition. The bill, if it became a law, created the "Grant Superior Court judicial district," and provided that the Grant Superior Court should continue to exist as modified by this act, designated as "Bill No. 212." Section 11 of the bill gives the Grant Superior Court "concurrent jurisdiction with the circuit court of its respective county . . . in all criminal cases." Section 12 of the bill provides that the first term of the Grant Superior Court shall begin the first Monday after the expiration of the April term, 1929, of the Delaware Superior Court of the Grant-Delaware Superior Court District. The response alleges that the Governor had appointed what is designated a "receiving clerk," whose duty it was to receive all bills of the General Assembly presented to the Governor, and the Governor had directed and authorized his appointed "receiving clerk" to receive all such bills, and had notified the Senate and the House of Representatives of such appointment through the secretary of the Senate and the clerk of the House of Representatives respectively; that the original engrossed Senate bill No. 212, as ordered engrossed by the Senate and by the House of Representatives, is on file in the office of the Legislative Bureau, with the endorsements thereto authenticating such engrossment; that, on Saturday, March 9, 1929, at 11:45 a. m., the secretary of the Senate took enrolled Senate bill No. 212, which was duly signed and authenticated by the presiding officers of the Senate and House of Representatives, and duly presented this bill to the Governor; and that pursuant to the directions of the Governor hereinafter stated, Senate bill No. 212 was handed to the Attorney-General with a request for his opinion as to its constitutionality; that at the time hereinbefore mentioned, Saturday, March 9, 1929, when the secretary of the Senate called at the Governor's office and then and there had with him and presented certain enrolled bills to the Governor by handing them to the Governor's "receiving clerk," she (the receiving clerk), then and there said to the secretary of the Senate that he take such enrolled bills and all other enrolled Senate bills to the office of the Attorney-General, and that the Governor would send for such bills as he wanted them; that this instruction to the secretary of the Senate, namely, that the secretary of the Senate take such bills to the Attorney-General's office was according to an order by the Governor to his "receiving clerk" "that all bills passed after midnight on March 8, 1929, should be delivered to said Attorney-General, and that said bills were so ordered delivered to said Attorney-General in order that said Attorney-General might examine them and give his opinion thereon as to their constitutionality before they were considered by said Governor"; thereafter, March 11, 1929, the Governor obtained Senate bill No. 212 from the Attorney-General's office, together with the written opinion thereon by the Attorney-General, and that the bill was received by the Governor, and has ever since been in the possession of the Governor in the Governor's office; and it is further alleged by the response that the Governor did not return Senate bill No. 212 with his objections to the Senate at any time subsequent to its presentation to him as alleged, and that he did not, within five days next after the final adjournment of the General Assembly, file bill No. 212 with his objections thereto in the office of the Secretary of State, but that he (the Governor) retained and still retains the bill No. 212.

By permission of this court, the Attorney-General, as amicus curiae, filed a brief in support of the ...