State v. Roberts , 226 Ind. 106 ( 1948 )

DISSENT ON PETITION FOR REHEARING The State of Indiana never had its day in court in the ditch proceedings, nor did it ever have an opportunity for its day in court. This is a clear violation of § 24 of Article 4 of the Constitution of Indiana. This court has no authority to enact statutes, nor does it have any power to amend or repeal the Constitution of Indiana. Never at any time has there been any citation to any section or provision of the highway acts granting authority to the Indiana State Highway Commission to represent the State as a defendant in this proceeding. The statutes do not provide that the Commission may sue and be sued. The Attorney General represents the State as its counsel. When lands for highways are condemned for a part of the state highway system, the Commission presents its resolution of necessity to the Attorney General, who then brings the condemnation action "in the name of the state of Indiana in the proper court. . . ." § 36-118 Burns' 1933 (Acts 1933, ch. 18, § 18, p. 67). The Commission is not a party plaintiff nor the real party in interest. If the Legislature had intended the Commission to be a plaintiff or defendant it would have said so. In the total absence of statutory provision the Commission cannot be a party defendant. There is nothing in the highway acts which even faintly suggests that the Legislature repealed the statutory requirements concerning service of "notice" on the Attorney General. The Petition for Rehearing should have been granted.

Gilkison, J. concurs in this opinion.

NOTE. — Reported in 78 N.E.2d 446.