Hastings v. Board of Commissioners , 205 Ind. 687 ( 1933 )

DISSENTING OPINION. We cannot concur in the reasoning and result of the majority opinion. We disagree with the fundamental assumption that the board of county commissioners is a court in the ordinary acceptation of that term. The board of commissioners is not made a part of our judicial system by the Constitution and can be a part only in case the General Assembly has so declared under its power conferred by § 1, Art. VII.¹ No act of the General Assembly has ever declared the board of county commissioners to be a court. The Constitution does not authorize the creation of a board of county commissioners as such but does provide that "the general assembly may confer upon the boards doing county business in the several counties powers of a local, administrative character. (§ 10, Art. VI). It is clear that the Constitution does not expressly or inferentially confer or require the conferring of any judicial power on the board of county commissioners and only contemplates county boards "doing county business" which will have "powers of a local administrative character." Since the General Assembly has not declared boards of county commissioners to be "courts" nor purported to confer general judicial powers upon them, it follows that they are in law merely a board of business managers of the county with such administrative powers and duties as have been conferred upon them and generally, as a "body corporate and politic," with the "duties, rights and powers incident to corporations" and not inconsistent with other statutory provisions.²

Consequently we do not accept as sound any inferences which rest upon the assumption that the board of county commissioners is a court with certain administrative powers. We believe it is primarily an administrative board with power to act judicially in special instances.

It is provided in § 1 of ch. 95, p. 201 of the Acts of 1921, amending § 1 of ch. 330, p. 877 of the Acts of 1913 (§ 8506, Burns Ann. Ind. St. 1926), that "the county highway superintendent may be removed by the board of commissioners, after a hearing for incompetency, malfeasance, or neglect of duties, but such board of commissioners shall not interfere with the county highway superintendent in his duties of hiring or discharging employees"; and in § 31, 1 R.S. 1852, p. 224, § 5976, Burns 1926 (§ 5277, Baldwin's 1934), it is provided that "from any decision of such commissioners there shall be allowed an appeal to the circuit court by any person aggrieved." In construing the latter section, this court has held that "any decision" must be construed to mean any judicial decision. Consequently, if the decision of the board is judicial in its character an appeal lies therefrom unless the right of appeal is denied expressly or by necessary implication by the statute which governs the proceeding under which the decision is made. It has also been held that if the decision is made in the exercise of merely administrative, ministerial, or discretionary powers no appeal lies therefrom unless there is express statutory authority for an appeal from such decision. Ross v. Becker (1907), 169 Ind. 166, 81 N.E. 478; Board of Commissioners of Monroe County v. Conner (1900), 155 Ind. 484, 493, 58 N.E. 828; Board of Commissionersof Vigo County v. Davis (1894), 136 Ind. 503, 36 N.E. 141;Potts v. Bennett (1895), 140 Ind. 71, 39 N.E. 518; Cushman v. Hussey (1918), 187 Ind. 228, 118 N.E. 816; Grusenmeyer v.City of Logansport (1882), 76 Ind. 549, 557.

Therefore it is necessary to determine whether the decision to remove the county highway superintendent is a judicial decision or is a decision of a merely administrative, ministerial, or discretionary nature.

The board of county commissioners is recognized as possessing judicial powers in connection with certain matters involving the interests of the county and in that respect as being a court of inferior or limited jurisdiction. State ex rel. Hord, AttorneyGen. v. Board of Commissioners of Washington County (1885),101 Ind. 69. But as indicated above the Constitution refers to its powers as being "of a local administrative character." The power of appointment and removal of the county highway superintendent is merely incidental to the discharge of the duties imposed upon the board of commissioners in its corporate capacity in connection with the highways of the county. It is the duty of the county commissioners to employ a highway superintendent and, in a general way at least, to supervise his work. The statute (§ 8506, Burns 1926, supra), prescribes a long list of duties of the county highway superintendent and the commissioners are under a duty to see that he properly performs his duties. To make effective the control of the commissioners over the activities of the superintendent they have the power of removal. It is true that this power can only be exercised upon the existence of certain facts; and before the commissioners can legally remove the superintendent they must find that he is incompetent, negligent, or malfeasant. In determining the existence of these facts the board of commissioners no doubt proceeds much as a court proceeds in determining facts; but this of itself does not make their action judicial. In the case of State ex rel. v.Webster (1898), 150 Ind. 607, 50 N.E. 750, this court made the following statement while considering the nature of the action of the State Board of Medical Registration and Examination in passing upon applications for licenses to practice medicine:

"While in some respects quasi-judicial, the action of the board is not judicial, any more than is the action of a county surveyor in fixing a boundary line, or of a county superintendent in giving or refusing a teacher's certificate, or the action of numberless other officers or boards in making investigations and decisions in matters committed to them." See also Spurgeon v. Rhodes (1906), 167 Ind. 1, 78 N.E. 228.

When an act is required of the county commissioners as an administrative board, such act is not judicial even though its performance may require the exercise of judgment and discretion. This was pointed out by this court in Board of Commissioners ofHuntington County v. Heaston (1896), 144 Ind. 583, 41 N.E. 457, in the following statement:

"We are of the opinion, and are constrained to hold, that when the board examined into and allowed the claims presented to them by appellee, it stood in the eye of the law as the representative of its county, and thereby acted in its administrative capacity, and not in the character of a court; that while its order so made might be termed quasi-judicial, yet it did not attain to the rank of a judicial determination or judgment so as to bring it under the protection of the rule of res adjudicata.³

The majority opinion cites the case of The Board ofCommissioners of Knox County v. Johnson (1890), 124 Ind. 145, 24 N.E. 148, as authority for the conclusion that the board of county commissioners acts judicially when declaring the existence of a vacancy in an office. As we understand the opinion in that case, it draws a distinction between a situation in which the county commissioners are removing an officer who has not been elected or appointed to his office by the board of county commissioners and one in which he has been so elected or appointed. The following excerpt from that case makes clear the thought of the court in that matter:

"It is to be remembered that the board of commissioners has no power to elect a county superintendent, nor any general power to appoint, so that the question is very different from one arising in a case where the removal is made by the appointing power. The power to oust an officer rightfully in office is essentially a judicial one, except where it is exercised by the appointing power." Board, etc. v. Johnson, supra, p. 152.

Another objection to holding that the board of county commissioners acts judicially in discharging a county highway superintendent is that under the statute the board of county commissioners would be both party litigant and judge. If the majority opinion is correct in holding that the present proceeding is judicial and adversary we have the anomalous situation of the member of a court being also one of the adversary parties and at the same time sitting as judge in the case. This is inconsistent with our conception of a court of justice, which in its very nature requires the judge in an adversary proceeding to be disinterested and impartial. While no doubt in many instances charges are filed against county highway superintendents by persons other than members of the board of commissioners, yet the statute does not provide for any such procedure and contemplates that the initiative will be taken by the board of commissioners. We think that the procedure contemplated is substantially the same as that which is followed in the case of the dismissal of a policeman or fireman by a board of public safety or in proceedings by a school board or township trustee to cancel a teacher's contract. We think it is well understood that these latter proceedings are not judicial and that the remedy of one who has been dismissed in violation of the statutory requirements is an action of mandate. And in the case of a dismissal of a county highway superintendent an action of mandate would lie if the board of county commissioners should dismiss without a hearing or without the existence of statutory cause.

We conclude that the decision of the board of commissioners to remove the county highway superintendent was not a judicial decision but was an administrative act of the board as a "body corporate" while performing its duties incidental to the management of the highway business of the county.

¹ Note 1. "The judicial power of the state shall be vested in a Supreme Court, in circuit courts, and in such other courts as the general assembly may establish." Indiana Constitution, Art. VII, § 1.

² Note 2. "Such commissioners shall be considered a body corporate and politic by the name and style of `The board of commissioners of the county of ____'; and as such, and in such name, may prosecute and defend suits, and have all other duties, rights and powers incident to corporations, not inconsistent with the provisions of this act." § 5918, Burns Ann. Ind. St. 1926 (§ 5220, Baldwin's Ind. Ann. Stat. 1934), 1 R.S. 1852, p. 224, § 5.

³ Note 3. "Administrative and executive officers are frequently called upon, in the performance of their duties, to exercise judgment and discretion, to investigate, deliberate, and decide, and yet it has been held that in so doing they do not exercise judicial power within the meaning of the constitutional provision. State v. Illinois Central Railroad Co., 246 Ill. 188, see page 231, 92 N.E. 814. An administrative agency empowered to issue and revoke licenses to engage in certain businesses or professions must necessarily exercise quasi judicial powers in determining whether a license shall be issued or revoked, but this exercise of quasi judicial power is only incidental to the duty of administering the law relating to the regulation of a particular business or calling, and in so doing it is not exercising judicial power within the meaning of the constitutional provision. People v. Apfelbaum, 251 Ill. 18, 95 N.E. 995; Klafter v. State Board of Examiners, 259 Ill. 15, 102 N.E. 193, 46 L.R.A. (N.S.) 532, Ann. Cas. 1914B 1221;People v. Brady, 268 Ill. 192, 108 N.E. 1009; People v.Stokes, 281 Ill. 159, 118 N.E. 87. The power of revocation conferred upon the auditor of public accounts is not an arbitrary one, as it can only be exercised for certain causes specified in the act. The character of the records to be kept and the kind of receipts to be given are described in the act, and it requires the exercise of no judicial function to determine whether or not there has been a compliance with these requirements. . . . If the auditor should act arbitrarily or without authority of law in denying a license or revoking the same, mandamus will lie to compel the issuance of the license or its restoration." ItaliaAmerica Shipping Corporation v. Nelson (1926), 323 Ill. 427,154 N.E. 198.

"The authority to ascertain facts and apply the law to the facts when ascertained often devolves upon other departments of government than the judiciary. Judgment and discretion are required often of every public official. It would be difficult to draw the precise line separating the judicial from other departments of government. . . . Judicial power does not apply to cases where judgment is exercised as incident to the execution of ministerial power. Owners of Lands v. People, 113 Ill. 296."Klafter v. State Board of Examiners of Architects,supra.