Ulrich v. Beatty, 1

• Decision Date: 23 May 1966
• Docket Number: No. 1,No. 20509,1,20509
• Parties: James E ULRICH, as Republican Member, Marion County Board of Registration, Plaintiff-Relator, v. James BEATTY, as Chairman, Marion County Democrat Central Committee, and H.Dale Brown, as Chairman, Marion County Republican Central Committee and asRepresentatives of the Republican and Democrat County Chairman of the ElevenIndiana Countieswith population in excess of 80,000, and John R. Maze, as Democrat Member,Marion County Board of Registration and as Representative of the Members of theBoards of Registration of the Eleven Indiana Counties with population in excessof 80,000except the plaintiff, Defendants-Respondents. In The Matter Of The Proceedings initiated by the Attorney General of Indianafor a writ of prohibition to the Superior Court of Marion County, Roomand the Hon. Charles C. Daugherty, Judge thereof, Respondents.
• Court: Indiana Appellate Court

Page 737

216 N.E.2d 737

139 Ind.App. 174

James E ULRICH, as Republican Member, Marion County Board of Registration, Plaintiff-Relator, v. James BEATTY, as Chairman, Marion County Democrat Central Committee, and H.Dale Brown, as Chairman, Marion County Republican Central Committee and asRepresentatives of the Republican and Democrat County Chairman of the ElevenIndiana Countieswith population in excess of 80,000, and John R Maze, as Democrat Member,Marion County Board of Registration and as Representative of the Members of theBoards of Registration of the Eleven Indiana Counties with population in excessof 80,000except the plaintiff Defendants-Respondents In The Matter Of The Proceedings initiated by the Attorney General of Indianafor a writ of prohibition to the Superior Court of Marion County, Room No. 1and the Hon. Charles C Daugherty, Judge thereof, Respondents.

No. 20509.

Appellate Court of Indiana, In Banc.

May 23, 1966.

Dissenting Opinion May 27, 1966.

Rehearing Denied June 29, 1966. See 217 N.E.2d 858.

[139 INDAPP 177]

Kurt F. Pantzer, Jr., Indianapolis, for respondents.

David B. Caldwell, Indianapolis, for plaintiff-relator.

John J. Dillon, Atty. Gen., Charles S. White, Chief Counsel, Indianapolis, Virginia Dill McCarty, Deputy Atty. Gen., for defendants-respondents.

FAULCONER, Judge.

THE FACTS.

The 1965 General Assembly of the State of Indiana, in its Second Special Session, duly passed an Act entitled, 'AN ACT concerning the jurisdiction of courts to issue restraining orders, injunctions and mandamuses against public officials.', which Act was duly enacted into law by the Governor of the State of Indiana. ¹

On the 30th day of December, 1965, James E. Ulrich, as Republican Member, Marion County Board of Registration, filed an action entitled, 'Complaint for Restraining Order, Injunction Pendente Lite and Declaratory Judgment' in the Superior Court of Marion County, Room No. 1, in Cause No. S165--803. In the prayer of the complaint plaintiff-Ulrich requested the court to declare whether or not he will be subject to prosecution under Acts 1945, ch. 208, § 376, § 29--5711, Burns' Ann.Ind.Stat. (commonly known as the Corrupt Practices Provisions of the Indiana Election Code) if he complies with the provisions of ch. 261, § 9, of the Acts of 1965, § 29--3406, Burns' Ann.Ind.Stat., (which section amended the 1945 election code to authorize 'door to door' registration of voters in counties with a population in excess of 80,000, and providing compensation for deputy registration officers for their services in obtaining said registrations). Plaintiff-Ulrich further requested a restraining order and injunction[139 INDAPP 178] pendente lite against the defendants 'James Beatty and H. Dale Brown, those they represent and their respect (respective) precinct committeemen, vice committeemen and deputy registration officers' from performing any act pursuant to Acts 1965, ch. 261, § 9, supra, which would cause the plaintiff to certify that any such precinct committeemen or vice- committeemen or deputy registration officers are entitled to payment of a ten-cent voters' registration or transfer fee by all counties having a population of 80,000 or more.

On December 30, 1965, the Honorable Charles C. Daugherty, Judge of the Superior Court of Marion County, Room No. 1, issued a 'Temporary Restraining Order' in said cause. ²

Pursuant to Acts 1965 (2nd Spec.Sess.), ch. 7, the Attorney General of Indiana filed in this court, on January 5, 1966, his 'Verified Petition for Removal of Cause (S165--803) to the Appellate Court of Indiana' requesting this court to fix a date and hour not less than three days, nor more than seven days, after the date of removal on which oral arguments will be heard on the question of whether the temporary restraining order issued by the Judge of the Superior Court of Marion County, Room No. 1, in Cause No. S165--803 shall be continued in effect as required by Acts 1965 (2nd Spec.Sess.), ch. 7, supra.

Pursuant to such Act this court, on January 6, 1966, set January 11, 1966, at 10:30 A.M., for the hearing of oral arguments. Such oral arguments were had on January 11, 1966, before this court, in banc, after which, on said date, this court made the following entry in this cause:

'The Appellate Court heard and considered argument. Judges voted to take no action. Mote, J. dissents.'

Thus, pursuant to the 'Removal Act', being Acts 1965, (2nd Spec.Sess.), ch. 7, supra, the temporary restraining order was dissolved by operation of law.

[139 INDAPP 179] On January 14, 1966, the Attorney General of Indiana filed his duly verified petition stating that the Honorable Charles C. Daugherty, Judge of the Superior Court of Marion County, Room No. 1, was proceeding with the hearing in Cause No. S165--803. On said date this court issued an order restraining said Judge from proceeding further in said cause, and ordering him to show cause, if any, on or before January 26, 1966, why said restraining order should not be made absolute.

THE ISSUES.

Without burdening this opinion by setting forth in detail the further proceedings and filings by the respective parties, we believe it sufficient to say that the various petitions, motions and briefs filed herein, and the oral arguments, raise issues for our determination which fall within two main categories.

I.

The jurisdiction of this court to entertain and decide this matter.

II.

If I. is answered affirmatively, is the 'Removal Act', being Acts 1965 (2nd Spec.Sess.), ch. 7, supra, constitutional?

I.

James E. Ulrich, plaintiff-relator, and respondents ³ advance several reasons why this court has no jurisdiction to decide this cause and, therefore, urge this court to remand the cause to the Superior Court of Marion County, Room No. 1, or transfer this cause to the Supreme Court of Indiana, which reasons are as follows:

1. For failure of the Attorney General to give notice to respondents of the Attorney General's request to the Appellate [139 INDAPP 180] Court of Indiana for a restraining order against respondents at least 24-hours prior to making the request, as required by Rule 2--35, Rules of the Supreme Court, 1964 Revision.

The 24-hour requirement is provided for, not in the rule itself but within what is titled, 'Note to Counsel Presenting Original Writs', which follows the statement of the rule. The procedural requirements set forth in this 'Note to Counsel' requests the 'cooperation of the attorneys in the use of the following procedure in presenting such matters.'

Even if this procedure can be considered of the same force and effect as the rule itself, we are of the opinion that the record discloses sufficient evidence of notice that the Attorney General intended to so act. This, connected with the emergency nature involved and the reasonable assumption that respondents did, indeed, anticipate some action would be taken to prohibit further action by the Judge of the Superior Court, Room No. 1, convinces us that they were not taken by complete surprise nor were their rights infringed upon, nor can we, under the circumstances, agree with their charge of unfairness.

2. Next, respondents contend that the writ of prohibition issued by this court, on the petition of the Attorney General, against the Judge of the Superior Court of Marion County, Room No. 1, was improper for the reasons that the petition of the Attorney General for the writ, and the writ of prohibition issued thereon by this court, used the same caption as the original action filed in the Superior Court of Marion County, Room No. 1. They contend that the petition and writ of prohibition being ancillary must be an ex rel. proceeding; that the parties respondent in said petition and writ should have been the Superior Court of Marion County, Room No. 1, and the Judge thereof, and the real party in interest being James W. Beatty, the petition should have been brought and the writ issued on his behalf and not by and in the name of the Attorney General only.

[139 INDAPP 181] We feel respondents confuse an original action for a writ of prohibition with a writ issuing from the Appellate Court in an action which is already in the Appellate Court.

In the present cause the original petition for declaratory judgment and temporary restraining order filed in the Superior Court of Marion County, Room No. 1, and the temporary restraining order issued by the Judge thereof, were removed to this court pursuant to Chapter 7, Acts 1965 (2nd Spec.Sess.), supra. By virtue of said Act this court assumed jurisdiction of the cause and, therefore, the Superior Court of Marion County, Room No. 1, and the Judge thereof, had no further jurisdiction. Our action in issuing the writ of prohibition against the Judge of the Superior Court of Marion County, Room No. 1, was taken by this court in aid of its jurisdiction.

Section 10 of the 'Removal Act' gives to the Appellate Court of Indiana the authority to issue all writs and orders necessary to effectuate its jurisdiction under this Act.

3. There is no restraining order against any 'public official' as required in the 'Removal Act' itself.

Relator argues that James Beatty and H. Dale Brown, political party chairmen, are not 'public officials'; that precinct committeemen and vice-committeemen are not 'public officials'; and that deputy registration officers are not 'public officials.' Relator's sole authority for these conclusions is the following quotation from Featherngill v. State ex rel. (1904), 33 Ind.App. 683, at pages 686--687, 72 N.E. 181, at page 182:

'In order to entitle himself to office, it was necessary for him to qualify as required by the statute. Minnick v. State (1900), 154 Ind. 379, (388), (56 N.E. 851); Steinback v. State ex rel. (1872), 38 Ind. 483, 488. It was not alleged that he had done so, and facts are not stated from which the deduction can be made.'

In construing a statute or words used therein we must give to such statute or...