State ex rel. Young v. Niblack

• Decision Date: 25 July 1951
• Docket Number: No. 28814,28814
• Citation: 229 Ind. 596,99 N.E.2d 839
• Parties: STATE ex rel. YOUNG v. NIBLACK, Judge.
• Court: Indiana Supreme Court

Page 839

99 N.E.2d 839

229 Ind. 596

STATE ex rel. YOUNG v. NIBLACK, Judge.

No. 28814.

Supreme Court of Indiana.

July 25, 1951.

Leo L. Kriner, Indianapolis, for petitioner.

No papers filed for respondent.

EMMERT, Judge.

This is an original action for an alternative writ of mandamus against the Superior Court of Marion County, Room One, and John L. Niblack, as judge thereof, to compel the granting of an affidavit for change of venue from the county. This is the second time this phase of this controversy has been considered by this court. In State ex rel. Young v. Niblack, Ind. 1951, 99 N.E.2d 252, we held the trial court properly denied an affidavit for change of venue from the county, which was defective by reason of noncompliance with the statute on change of venue from the county. Section 2-1401, Burns' 1946 Replacement.

The action in the trial court was brought by the State of Indiana on the Relation of the School City of Gary, Lake County, Indiana, For And On Behalf Of Said School Corporation and All Other School Corporations similarly situated, against Wilbur Young, As State Superintendent of Public Instruction of the State of Indiana; Wilbur Young, John J. Maehling, Herman B. Wells, Ira L. Huntington, Charles E. Rochelle, Verne Crawford Freeman, Alfred C. Senour, as and constituting the Commission on General Education of the Indiana State Board of Education; Henry F. Schricker, Frank T. Millis, William L. Fortune, as and constituting the State Board of Finance of the State of Indiana; Frank T. Millis, as Auditor of the State of Indiana; State Board of Finance of the State of Indiana; and the Commission on General Education of the Indiana State Board of Education, for a declaratory judgment in which the plaintiff contended that Ch. 217 of the 1951 Acts suspended certain provisions of Ch. 247 of the 1949 Acts with reference to the distribution of $58,000,000 to the various school corporations of the state. Other allegations of the complaint sought a construction of Ch. 231 of the 1940 Acts as amended by Ch. 293 of the Acts of 1951. It is not necessary to discuss the construction of any of these acts as they might affect the distribution of money from the State School Tuition Fund, and notice of the acts is taken here only for the purpose of the decision on the issue now presented as to the right by any of the relators in this original action to a change of venue from the county.

On June 13th following our opinion in State ex rel. Young v. Niblack, Judge, supra, 'Wilbur Young, in the following capacities namely, individually, State Superintendent of Public Instruction of the State of Indiana and as a member of the Commission on General Education of the Indiana State Board of Education,' by his attorney Leo L. Kriner, filed an affidavit for change of venue from the county for the reason 'that an odium attaches to said defendant and to his defense therein, on account of local prejudice in Marion County, Indiana.' The statement of this affidavit as to the ground for change complies with the statute. Section 2-1401, Burns' 1946 Replacement.

The certified copies of the records of the trial court disclose that the Attorney General objected to the appearance of Leo L. Kriner as attorney for Wilbur Young in any capacity, and objected to the granting of the change of venue. The trial court denied the change of venue from the county, and struck out the appearance of Kriner as attorney for Young in any capacity.

'The character in which any one is made a party to an action is determined from the allegations in the complaint * * *.' Watson v. Burnett, 1939, 216 Ind. 216, 226, 23 N.E.2d 420, 425. Wilbur Young, individually, is not a party to the proceedings in the trial court. 'Under our statute and decisions the venue may be changed only in civil actions upon application of a party thereto.' State ex rel. Kist v. Ball, 1945, 223 Ind. 512, 516, 62 N.E.2d 621, 623. There was no error in overruling the affidavit for change of venue as to Wilbur Young individually.

Nor was there any error in denying a change of venue to Wilbur Young as a member of the Commission on General Education of the Indiana State Board of Education. He alone was not constituted by law a commission, and he fails to show any action by the commission authorizing it to seek a change of venue. See Terre Haute Gas Corp. v. Johnson, 1942, 221 Ind. 499, 45 N.E.2d 484, 48 N.E.2d 455. Moreover, §§ 49-1929 and 49-1932, Burns' 1951 Replacement prohibit the commission from employing its own counsel without the written consent of the Attorney General.

However, the relator Young as Superintendent of Public Instruction contends that he had the right to employ his own counsel to represent him in the trial court and to obtain a change of venue from the county. The burden is on him to make a prima facie case for the issuance of the alternative writ, or it will be denied. State ex rel. Joint County Park Board v. Verbarg, 1950, 228 Ind. 280, 91 N.E.2d 916.

Section 8 of Article 8 of the Constitution of Indiana creates the office of the State Superintendent of Public Instruction, but it does not give him any right, powers or duties. The concluding part of the section states his 'duties and compensation shall be prescribed by law.' This is similar to § 1 of Article 6 which creates the offices of Secretary, Auditor and Treasurer of State, but further provides 'They shall perform such duties as may be enjoined by law; * * *.' Under the latter provision this court has held the Auditor of State exercises only such powers as may be delegated by legislative act. Branham v. Lange, Auditor, 1861, 16 Ind. 497; Sherrick v. State, 1906, 167 Ind. 345, 79 N.E. 193. When a public officer derives his power and authority solely from the statute, 'unless a grant of power and authority can be found in the statute it must be concluded that there is none.' Chicago & E. I. R. Co. v. Public Service Comm., 1943, 221 Ind. 592, 594, 49 N.E.2d 341. In State ex rel. White v. Grant Superior Court, 1930, 202 Ind. 197, 172 N.E. 897, 71 A.L.R. 1354, it was held the Secretary of State, even when represented by the Attorney General, was without statutory authority to intervene in an original action in this court which sought to question the validity of Senate Bill No. 212 of the 1929 session of the General Assembly. We fail to find any statute giving the Superintendent of Public Instruction any right, power or duty to employ his own counsel or to seek a change of venue. Nor does it appear under the circumstances of this case that any such power or right should be implied as a necessary implication from the grant of an express statutory power or right. The General Assembly has made other specific provisions for his representation by the Attorney General.

The statutes of Indiana creating the office of Attorney General and providing for his rights, powers and duties do make him the official representative of the Superintendent when he is sued in his official capacity. Section 49-1902, Burns' 1951 Replacement, in part states the Attorney General 'shall defend all suits brought against the state officers in their official relations, except suits brought against them by the state; and he shall be required to attend to the interests of the state in all suits, actions or claims in which the state is or may become interested in the Supreme Court of this state.' 'Such attorney-general shall not, in any case, be required to exhibit to any court his authority for appearing in and conducting the prosecution or defense of any such suit, unless his authority be denied, under oath, in which case, his commission shall be all the evidence required.' Section 49-1904, Burns' 1951 Replacement. Chapter 109 of the 1941 Acts, which recreated the office of Attorney General, further provides that he shall 'represent the state of Indiana in any matter involving the rights or interests of the state, including actions in the name of the state of Indiana, for which provision is not otherwise made by law.' Section 49-1924, Burns' 1951 Replacement.

The word 'state' as used in § 49-1924, Burns' 1951 Replacement, means the state of Indiana in its sovereign or corporate capacity. It does not limit the Attorney General to the rights, powers and duties created by Ch. 71 of the 1889 Acts, but 'All of the rights, powers and duties heretofore conferred by any law or laws upon the attorney-general as created' by said Ch. 71 of the 1889 Acts are 'transferred to and conferred upon, and shall be performed by the attorney-general.' (Italics supplied.) This still leaves in effect § 49-1903, Burns' 1951 Replacement, § 1, Ch. 133, of the 1899 Acts, which provides, 'The attorney-general shall have charge of and prosecute all civil actions which shall hereafter be brought, either in the name of the state of Indiana, or in the name of the state of Indiana on the relation of the attorney-general, or on the relation of any state board created by general law; * * *.' The action in the name of the state referred to in § 49-1924, Burns' 1951 Replacement, does not refer to an action brought in the name of the state on the relation of some interested party or for the use of some interested party since the statute does not so state, and in view of § 49-1903, Burns' 1951 Replacement, we must presume the legislature was well aware of the difference in such actions. The legislature did not intend that the Attorney General be authorized or required to undertake the impossible task of representing every political subdivision of the state. ¹

The office of Attorney General is also one of delegated powers. Hord v. State, 1907, 167 Ind. 622, 79 N.E. 916; Ford Motor Co. v. Treasury Dept., 1945, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389. Since there is nothing in the statutes authorizing or empowering the Attorney General to represent the school corporations of the state in this sort of an action, the Attorney General's duty to represent the...