Johnston v. State

ON PETITION FOR REHEARING. Appellees, in support of their petition for rehearing, contend that the opinion in this case in effect overrules decisions accepted as the unquestioned law in this state, especially the case of Shideler, Auditor v. Martin (1922), 192 Ind. 574, 136 N.E. 1, 137 N.E. 528, and that if the latter case is not followed it should be expressly overruled.

It was thought that the Shideler case was not directly in point, since it deals with the right to appeal rather than with the right to a change of venue. But it does hold that a proceeding under the statute here involved is not a civil action, and to that extent clearly conflicts with the opinion in the instant case.

It is recognized in the Shideler case that, by the so-called "appeal" from the action of the auditor, that officer's ministerial discretion may not be reviewed, but that 2, 3. judicial questions affecting the legality of his action, or the statute under which he acted, may be considered by the court, and that such judicial questions "might have been brought before the court for determination by proper proceedings, even if there had been no statute authorizing an appeal." The entire effect of the provision of the statute providing for the "appeal" to the circuit court is therefore merely to provide a method of procedure by which the judicial questions sought to be raised may be brought before the court. If no such provisions were made by the statute, the action would be by complaint against the auditor seeking injunction or other equitable relief. It would be an adversary proceeding for the enforcement of private rights. It would not be a civil action in the sense that a trial by jury might be demanded, but it would be a civil action in the sense that a change of venue might be had, and an appeal might be taken to this court. It is said that an appeal from an assessment of omitted property lacks many of the features of a civil action. Those referred to are: "The lack of formal issues — indeed, of any pleading at all — and of adversary parties, in any proper sense of the term, and the summary character necessarily given to the proceeding by the manner in which the auditor makes his assessment, from which the appeal is taken, and the method of taking the appeal, all distinguished the case at bar from those cited, and from other civil actions." But it will be noted that in claims against estates there are no formal issues and need be no pleadings at all. There are adversary parties and adverse interests. The taxpayer contends on the one hand that the assessment is illegal, and the auditor or other public officers contend for its legality, in the same manner and with the same adverse interests as though the statute did not exist and the questions were raised by an ordinary civil action. The manner in which the auditor makes his assessment has nothing to do with the character of the proceeding in court, except that it may affect the validity of the assessment. The method of taking the appeal by merely certifying the record is not unusual. A similar procedure will be found in the statutes governing proceedings to question the legality of the acts of other ministerial officers and boards. It cannot be questioned that the proceeding is an action by the taxpayer for the protection of his rights and his property against what he contends is illegal action upon the part of the officers representing the sovereign. At common law he had the right to have the courts pass upon the legality of such actions. Under the Constitution he has recourse to the courts to protect his property against unlawful seizure. It may well be doubted whether the Legislature can deprive him of the right to maintain such an action. It must not be assumed that the Legislature intended to do so when it merely provided a simple and expeditious procedure by which he might bring such judicial questions before the court. The fact that the court confused civil actions in which an appeal might be taken, and civil actions in which a jury trial might be demanded, is disclosed by the statement that: "The logic which would lead to the conclusion that an appeal may be taken under the general provisions of the Civil Code would show the parties entitled to a jury trial." The fallacy of this conclusion is too obvious to require discussion.

Shortly after the Shideler case was decided, the statute was amended to permit the appeal which the decision denied, thus indicating a legislative desire and intention that there should be the same right to appeal as in other civil actions. There is nothing to indicate a legislative intention to deny the right to a change of venue, or do anything more than provide procedure for this particular kind of action.

The case of Shideler, Auditor, v. Martin, supra, in so far as it is in conflict with the opinion in the instant case, is overruled.

The other cases relied on by appellees involve habeas corpus proceedings, the attachment of a witness for contempt in refusing to obey the process of the court, and interlocutory proceedings, all of which are summary in character and readily distinguishable from ordinary civil actions.

Petition for rehearing denied.