Ulrich, Etc. v. Beatty, Etc.

Dissenting Opinion

Carson, J.

— The statement of facts, the record and the issues presented as stated in the majority opinion are correct.

In the pleading filed by the respondent several issues are raised questioning the jurisdiction of this court to act in this case under the commonly called “transfer act.” The point which I think requires consideration is number 3 which contends that the restraining order issued by the Superior Court of Marion County, Room 1, did not affect a “public official” as is required by the “transfer act.” Respondent argues that James Beatty and H. Dale Brown as political county chairman are not “public officials”; that deputy registration officers are not “public officials.”

As I recall in the oral argument, the Attorney General took the position that the expression “public official” would include many persons on the public payroll including even policemen and firemen. He urged the court to adopt this broad definition of “public official.” Our Supreme Court in the case of City of Huntington v. Fisher (1942), 220 Ind. 83, 40 N. E. 2d 699, held that firemen and policemen are employees and not public officers. I cannot agree with this position of the Attorney General and in one instance his argument was inconsistent. He argued that the legislature passed the “transfer act” to correct potential evils similar to the restraining order issued by the court of Marion County which tied up collection of the sales tax, which action he claimed cost the State of Indiana in excess of one million dollars in revenue. It is significant that that action was against the Governor of the State of Indiana, the Attorney General and the revenue commissioner. I will concede that elected officials of the state level, and their immediate deputies or department heads charged with the responsibility of administering the law at the state level should properly be classed as public officials. I cannot see any logical analogy between their responsibilities and that of a deputy registration clerk appointed upon recommendation of a political county chairman. When I apply the rule of statutory interpretation that a court must consider the mischief at which the statute is aimed I do not think the interpretation of the Attorney General is tenable.

Several Indiana cases have set out the tests for determining who is and is not a public officer. In the case of Blue v. State ex rel. Brown (1934), 206 Ind. 98, 121, 188 N. E. 583, we find the following language:

“The persons selected to assist in the registration can not be classified as officers. They are merely temporary appointees. They do not exercise rights and privileges to which every person is entitled and therefore do not come within the meaning of section 23 Art. 1.”

Following this case in the case of Harrell v. Sullivan (1942), 220 Ind. 108, 122, 40 N. E. 2d 115, 120, our Supreme Court said

“Political parties have been the subject of State recognition and regulation in one form or another for many years. Laws pertaining to that subject are enacted pursuant to the police power of the State but do not have the effect of making political parties administrative agencies of the government.”

“It is likewise generally agreed that party committeemen do not become public officers by reason of the fact that they are elected at a statutory primary.”

While this case was overruled by State ex rel. Buttz v. Marion Cir. Ct. (1947), 225 Ind. 7, 72 N. E. 2d 225, it was later cited with approval by the Supreme Court in State ex rel. Kiser etc. v. Millspaugh, etc. (1961), 241 Ind. 656, 175 N. E. 2d 13.

In the case of State ex rel. Kiser etc. v. Millspaugh etc., supra, the court said at page 659:

“The office of county chairman of a political party is not a privilege or right conferred by a special grant of the State,' but by the county precinct representatives of the party and it is, therefore, not a franchise2 within the meaning of the statute.1

The county chairman of a political party is the chief officer of the party in the county. Although his duties are in some measure regulated by statute, his principal and primary duties and powers inhere within the party, and those added by statute are merely incidental to his party function. He does not perform any of the functions of the legislative, judicial or executive departments of the State Government, nor is he vested with any authority pertaining to the sovereignty of the State. His is a party émployment as distinguished from a public charge or employment. Commonwealth ex rel. Koontz v. Dunkle (1947), 355 Pa. 493, 50 A. 2d 496, 497, 169 A. L. R. 1277. Cf.: Wells v. State ex rel. (1911), 175 Ind. 380, 94 N. E. 321, Anno. Case. 1913C 86; State ex rel. Black v. Burch (1948), 226 Ind. 445, 456, 80 N. E. 2d 294.

“For the foregoing reasons the chairman of a political party is, in our judgment, not a public office within the meaning of § 3-2001, supra.”3

The case of Bunn et al. v. The People ex rel. (1867), 43 Ill. 397, involved a quo warranto proceeding against the plaintiffs in error instituted by the defendant attacking the constitutionality of an act of the legislature of 1867. The act under consideration used the term officers in describing men who were appointed to serve as commissioners for the location of the new state house. The court pointed out that while it could be recognized that every office was am employment that it did not follow that every employment was an office and further that a man may be employed to do or perform a service without becoming an officer. In discussing the work to be performed by the individuals the court at page 405 said:

“In fact there are no general duties imposed by the act in question on these appointees; they have only one single special duty to perform, and that is, to superintend the erection of a State house, and when that is performed their functions, ipso facto, are at end.”

“So far as we have any knowledge on this subject, or are enabled to judge from the facts of contemporaneous history, no one has ever supposed the legislature had not full power to appoint and employ all such agents as might be deemed necessary by them to perform duties not of a permanent, but of a transient and incidental character, such as we see in abundance in our statute books. No one has ever exalted such employees to the position of an officer, though their duties might require months or years for their full performance. There is no enduring element in these employments, nor designed to be; the duty being performed, the place is vacant by the very fact of performance.”

In Brown v. Russell (1896), 166 Mass. 14, 25, 43 N. E. 1005, 1010, the court in discussing certain civil service employment and the application of preference to veterans discussed the difference between an employee and a public officer stating:

“There are many employments by the commonwealth, or by the cities and towns of the Commonwealth which do not constitute the employe a public officer. The work of the commonwealth and of the cities and towns must be done by agents or servants and much of it is of the nature of an employment. It is sometimes difficult to make the distinction between a public officer and an employment, yet the title of ‘public officer’ is one well known to the law, and it often is necessary to determine what constitutes a public office. Every copying clerk or janitor of a public building is not necessarily a public officer.”

See also State ex rel. Wickens v. Clark (1935), 208 Ind. 402, 196 N. E. 234.

I think it is significant to point out that the deputy registration personnel appointed under the provisions of Ch. 261, § 9' of the Acts of 1965 are required to perform a specific and very limited function for a very limited period of time.

“The term of each deputy registration officer shall expire on the date of the following primary election. The appointment of such additional deputy registration officers shall be cancelled by death or resignation of the appointee or by recommendation of revocation by the chairman of the same political party affiliation as the appointee.”

When we consider that the legislature in passing a new statute is presumed to have had in mind the correction of a past evil, the adoption of judicial opinion or the abrogation thereof, or the creation of new rights or remedies required by changing social conditions, and apply those factors to the “transfer act,” it becomes apparent that the second Special Session of the 1966 General Assembly was considering the sales tax litigation discussed by the Attorney General. I therefore cannot believe that the legislature was intending to go so far as to encompass “deputy registration officers” at the county level within the term “public official” as used in the transfer act.

I would dissolve the writ of prohibition heretofore issued by the Appellate Court and remand the action to the Marion Superior Court for such proceedings as the Judge thereof might deem just and proper.

Original Action