DocketNumber： No. 20,675
Judges： Bierly, Pfaff
Filed Date： 2/19/1968
Status： Precedential
Modified Date： 11/9/2024
The appellee, Ira Parkman, was employed by the Indiana State Prison as Hospital Administrator. On April 10, 1964, the appellee was advised by the State Personnel Division of the Department of Administration of the State of Indiana, that he was suspended for thirty days and at the end of said period of time his employment would be terminated. The appellee was further advised in said notice that he could appeal to the Indiana State Personnel Board pursuant to the Acts of 1941, ch. 139, § 36, p. 387, § 60-1336, Burns’ 1961 Replacement. This the appellee did, and the Indiana State Personnel Board sustained the action of the director. Thereupon, the appellee, pursuant to the provisions of the Acts of 1941, ch. 180, § 2, p. 550, § 60-1350, Burns’ 1961 Replacement, sought judicial review in the Marion Superior Court No. 1. The appellant, on July 6, 1965, filed its motion to dismiss, which motion alleged:
“1. The Appellant (plaintiff) has not followed the statutory procedure to give this Court jurisdiction in this case.
“2. The Appellant (plaintiff) has failed to give this Court jurisdiction by securing a certified copy of the transcript of the proceedings before the administrative agency within fifteen (15) days of filing the appeal.
“3. The Appellant (plaintiff) specifically requests a trial de novo and this Court has no jurisdiction to determine said cause de novo.
“4. The Appellant (plaintiff) has failed to give this Court jurisdiction in that he has not filed this appeal in the county of his residence or the county in which the dismissal order*258 or determination is to be carried out and enforced as required by law.
“5. The Appellant (plaintiff) has failed to properly commence this action by serving his petition on the Attorney General of the State of Indiana.”
The foregoing motion was overruled by the trial court on December 12, 1965.
Thereafter, the appellant filed in the Supreme Court of Indiana its petition for writ of prohibition, which petition was based on the actions of the trial court in overruling the appellant’s motion to dismiss. The petition for writ of prohibition was denied by our Supreme Court. The appellant filed in the trial court its demurrer, which was overruled. On April 6, 1966, the appellant filed its transcript of hearing before the Indiana State Personnel Board to which the appellee objected, and the trial court struck said transcript from the record.
Thereupon, the trial court held a trial de novo and on August 5, 1966, entered its Special Findings of Facts and Conclusions of Law which reads as follows:
“1. That Ira Parkman was employed as Hospital Administrator at the Indiana State Prison, Michigan City, Indiana from the 15th day of October, 1958, to the 10th day of April 1964, on which date he was suspended.
“2. That on April 10, 1964, while Ira Parkman was employed as Hospital Administrator at the Indiana State Prison, he received a salary of $550.00 each month and in addition thereto he was entitled to sick leave, vacation period, and over time.
“3. That during the period of his employment as Hospital Administrator there were a number of doctors employed as Medical Directors, that is, seven in number, including Doctor Frank J. M.cGue, and various other doctors who stay at the Indiana State Prison as Medical Director was of a limited duration; that among the doctors acting as Medical Director one was Doctor Elsie K. Bell who was employed as such Medical Director from about August 1963 until March, 1966.
*259 “4. That Ira Parkman as such Hospital Administrator of the Indiana State Prison had a responsibility of keeping complete and accurate records for the handling of all drugs and hospitals at the hospital of the Indiana State Prison.
“5. That prior to December 4, 1961 all narcotics were shipped by the supplier directly to the Clerk of the Indiana State Prison, and that the Clerk kept a record of the narcotics received and issued; that after December 4, 1961, all barbiturates and narcotics were shipped by the supplier to the Clerk of the Indiana State Prison and the Clerk kept and maintained a record of all barbiturates and narcotics so shipped to the Indiana State Prison.
“6. That said barbiturates and narcotics were withdrawn from the office of the Clerk, also know as the Business Administrator, only on a receipt signed by Ira Parkman or the then current Medical Director.
“7. That on or about December 4, 1961 the Warden of the Indiana State Prison in conjunction with Doctor Frank J. McGue introduced and established the so-called “Pouch System.”
“8. That the “Pouch System” required that the Hospital Administrator or the then Medical Director receipt for all barbiturates and narcotics issued by the office of the Clerk or Business Administrator, and that said system required that such barbiturates and narcotics were dispensed only by the Pouch Officer on prescription duly signed by the Medical Director of the Indiana State Prison.
“9. That the “Pouch System” was an accurate and adequate safe-guard against illegal or unauthorized distribution of barbiturates and narcotics in the Prison Hospital.
“10. That the control and distribution of barbiturates and narcotics and the records pertaining thereto were examined by the Bureau of Narcotics of the Treasury Department of the United States government and found to be in order throughout the entire term of employment of Ira Parkman.
“11. That the drug records were accurately and carefully maintained and reflected a true inventory of all drugs, including barbiturates and narcotics, dispensed at the Indiana State Prison.
“12. That the dispensing of all drugs, barbiturates, and narcotics was kept under control and was. carefully and prudently handled.
“18. That there was no shortage or loss of such drugs and no discrepancies in the drug records of Ira Parkman.
*260 “14. That Ira Parkman maintained and installed an accurate system for safe-guarding the distribution of all medication and dispensing of night medication to “outpatients” and that said Ira Parkman properly supervised the activities of the Pharmacy at the Indiana State Prison.
“15. That said Ira Parkman as Hospital Administrator directed and supervised the preparation of emergency requisitions for pharmaceuticals, oxygen, etc., and directed preparation of quarterly requisitions for all drugs, pharmaceuticals, hospital and surgical supplies, which entailed projection and forecasting techniques, trends, and seasonal variations, all within budgetary limitations; that Ira Parkman received, checked, reported, stored, and safe-guarded all medicines and supplies issued same as needed, and was responsible for physical and inventory control of the same.
“16. That said Ira Parkman as Hospital Administrator did satisfactorily fulfill all the duties and responsibilities of a Hospital Administrator.
“17. That said Ira Parkman as Hospital Administrator did check the medical charts and records for errors to insure compliance with doctors orders.
“18. That this court has jurisdiction of this proceedings by virtue of the Acts of 1941, Chapter 180, Section 2.
CONCLUSIONS OF LAW
“The Court concludes that the law is with Ira Parkman and that his dismissal was without cause, and that he should be reinstated.
“The Court further orders that said Ira Parkman be restored and reinstated to his former office as Hospital Administrator and, that said order of removal shall be void and of no effect and that he shall be reimbursed for all wages and salary, from the 10th day of April 1964, to the date of this order, including all other benefits due him.
s/s Charles C. Daugherty
Judge Marion Superior Court No. 1.
“Dated this 5th day of August, 1966.”
On August 15, 1966, the appellant filed its motion for new trial, alleging that the decision of the court was contrary to law and not supported by sufficient evidence, which motion for new trial was overruled on August 18, 1966.
1. The court erred in overruling appellant’s motion for a new trial.
2. The court erred in overruling appellant’s motion to dismiss for lack of jurisdiction, both subject matter and personal.
3. The court erred in its conclusion of law.
The appellant before this court argued that the trial court lacked jurisdiction as the provisions of ch. 180, § 2, p. 555 of the Acts of 1941, Burns’ Ind. Stat. 60-1350 was repealed by implication by ch. 365, § 14, p. 1451 of the Acts of 1947, as amended by ch. 355, § 4, p. 1033 of the Acts of 1957, Burns’ Ind. Stat. § 63-3014.
The argument of the appellant that the Indiana Adjudication Act repealed by implication the Indiana State Personnel Board Act as far as appeals to the trial court is without merit. Repeals by implication are not favored. Sweigart v. State (1938), 213 Ind. 157, 12 N. E. 2d 134; Payne, President et al. v. Buchanan et al. (1958), 238 Ind. 231, 148 N. E. 2d 537; State Ex-rel Black v. Board of School Com. (1933), 205 Ind. 582, 187 N. E. 392; 26 I.L.E. § 83, p. 294.
Whenever possible, since repeals by implication are not favored the acts must be construed so that both may stand and it is only when the earlier and later acts are irreconcilable in conflict that the earlier act is repealed. Rosenbloom v. Hutchins (1944), 222 Ind. 590, 55 N. E. 2d 315; Schaffer v. State (1930), 202 Ind. 318, 173 N. E. 229; State Ex-rel Black v. Board of School Com. (1933), 205 Ind.
The Supreme Court in Schaffer v. State (1930), 202 Ind. 318, p. 324, 173 N. E. 229, stated:
“A statute is not to be deemed repealed merely by the enactment of another statute on the same subject. There must be a positive repugnancy between the provisions of the new law and the old, to work a repeal by implication; . .
The Indiana State Personnel Board properly felt it was controlled by Ch. 139 of the Acts of 1941, as indicated by the fact that the notice of suspension and discharge called to the appellee’s attention that he could appeal the acts of the Director by complying with the provisions of Burns’ § 60-1336, supra.
The Indiana State Personnel Act and the Indiana Administrative Adjudication Act are not in conflict. The Indiana State Personnel Board Act, sometimes referred to as the Indiana Civil Service Act, gave to employees of the state of Indiana certain rights and privileges that they did not have, prior to its passage and provided for a full and complete administrative procedure to be followed, including what it referred to as an appeal to the Marion Circuit or Superior Courts. This is a right that existed by virtue of the action of the Legislature and not as a right that existed by right of law. In fact, if the Legislature had elected it could have eliminated entirely the right of review from the actions of the Indiana State Personnel Board. In the absence of an expressed statutory provision to the contrary, an appeal or judicial review from administrative or ministerial action lies only when specifically authorized by statute. Financial Aid Corporation v. Wallace (1939), 216 Ind. 114, 23 N. E. 2d 472; Luten v. Schmidt (1928), 88 Ind. App. 134, 163 N. E. 536; State Board, etc. v. Ort, Trustee (1926), 84 Ind. App. 260, 151 N. E. 31; In re Northwestern Indiana Tel. Co. (1930),
In addition, the Administrative Adjudication Act specifically exempted benevolent, reformatory or penal institutions as the definition of the term “agency” in Burns’ Ind. Stat. Annotated § 63-3002, reads as follows:
“The word ‘agency’ whenever used in this act shall mean and include any officer, board, commission, department, division, bureau or committee of the State of Indiana, other than courts, governor, military affairs or military boards of the state, state colleges or universities supported in whole or in part by state funds, benevolent, reformatory or penal institutions. . . .” (emphasis supplied).
Thus under any circumstances the action of the appellant in seeking judicial review of the order of the Indiana State Personnel Board in the Marion Superior Court No. 1 was properly taken, both by virtue of the fact that being an employee of the Indiana State Prison, a penal institution, the appellant is exempt from the Administrative Adjudication Act and the Indiana Administrative Adjudication Act has not by implication repealed the Indiana State Personnel Board Act.
The appellant alleges that the trial court was without jurisdiction since no summons was issued. There can be no question that if the issuance of a summons was necessary, then the court would be without jurisdiction and the judgment would be void. However, as heretofore indicated, the appellee’s rights are controlled by the provision of the Indiana State Personnel Act and said Act provides the following:
“§ 60-1350. Appeal from dismissal order — Procedure— Notice — Trial de novo — Reinstatment. Said officer or employee named in said order as being removed shall have the right, within ten (10) days after such order of dismissal is made or is to be effective, to appeal from such order of dismissal to the circuit or superior court of Marion County, Indiana.
*264 “Such appeal shall be taken, by such officer or employee filing with the clerk of such court the certified copies of such order, charges and answer if any, referred to in section 1 [§ 60-1349] hereof, and giving written notice of the filing thereof to said hearing board, officer or commission within five (5) days thereafter.”
Since the proceedings authorized by the Indiana State Personnel Act are purely statutory and are unknown to the common law or equity, this act created and provided a specific procedure to be followed. The manner of appeal from the Indiana State Personnel Board as prescribed by the statute was the exclusive procedure that had to be followed. State Ex-rel M-West Ins. Co. v. S. Ct. of Marion Co. (1952), 231 Ind. 94, 106 N. E. 2d 924; State Ex-rel Gary v. Lake Sup. Ct. (1947), 225 Ind. 478, 76 N. E. 2d 254; City of Ft. Wayne v. Bishop (1950), 228 Ind. 304, 92 N. E. 2d 544; State Ex-rel Wever v. Reeves (1951), 229 Ind. 164, 96 N. E. 2d 268; 26 I.L.E. § 177, p. 370.
The Supreme Court in State Ex-rel M-West Ins. Co. v. S. Ct. of Marion Co., supra, said:
“The proceedings authorized by § 39-3401 Burns’ 1952 Replacement, for an order for conservation are purely status tory and unknown to the common law or equity. ‘The general rule is that where an Act creates new rights of purely statutory origin and specifically provides for procedure to be followed, the procedure prescribed is the exclusive manner in which the prescribed act may be accomplished.’ ”
The appellee followed the procedure as prescribed by the Indiana State Personnel Act in all respects and the trial court properly and in the only possible way acquired jurisdiction. Finally, the appellant contends the trial court erred in holding that the appellee, Parkman, had not been discharged for cause. However, this issue is not before the court. The only errors the appellant assigned in its assignment of errors was: (1) The trial court erred in overruling the appellant’s motion for new trial; (2) The court erred in overruling to
As was stated by this court in the case of Ind. Alcoholic Bev. Comm’n v. B. and T. Distribs., Inc. (1967), 141 Ind. App. 343, 228 N. E. 2d 35:
“It is well established by law in this State that there is no appeal in the usual sense, from a ruling, order, or decision of an administrative body, but rather, a judicial review is contemplated. We judicially know the Alcoholic Beverage Commission is an administrative agency or body. Our Supreme Court in the case of Warren v. Indiana Telephone Co. (1940), 217 Ind. 93, 105, 26 N. E. 2d 399 stated:
“ ‘Strictly speaking, there is no such thing as an appeal from an administrative agency. It is correct to say that the orders of an administrative body are subject to judicial review; and that they must be so to meet the requirements of due process. Such a review is necessary to the end that there may be an adjudication by a court of competent jurisdiction that the agency has acted within the scope of its powers. . . .’ ” See also: State Board of Tax Comm. v. Indianapolis Lodge (1964), 245 Ind. 614, 200 N. E. 2d 221; State ex rel. Harris et al. v. Superior Court (1964), 245 Ind. 339, 356, 197 N. E. 2d 634; Mills; Castor v. City of Winchester (1959), 130 Ind. App. 397, 400, 162 N. E. 2d 97.
Since this is a matter for judicial review and not an appeal there can be no basis for asking for a new trial. As was pointed out in Ind. Alcoholic Bev. Comm’n. v. B. and T. Distribs., Inc., supra:
“Under Rule 2-2, and the case law applicable to such situations as now confronts us, we are compelled to agree with the Appellee. In discussing judicial reviews, our Supreme Court in the case of City of Plymouth, Ind. v. Stream Pollution Cont. Bd. of the State of Ind. (1958), 238 Ind. 439, 445, 151 N. E. 2d 626, 629, stated:
“ ‘As there is no trial in the usual sense upon the judicial review, there can be no basis for asking for a new trial when a losing party is disappointed or dissatisfied with the outcome of the judicial review’.”
*266 “Also in the case of Dawson et al. v. Wright, Mayor of City of Anderson, et al. (1955), 234 Ind. 626, 630, 129 N. E. 2d 796, we note the following:
“ ‘Since there had been no trial, the motion for new trial presents nothing for review. Metsker v. Whitsell (1914), 181 Ind. 126, 138, 103 N. E. 1078; 2 Gavit, Indiana Pl. & Pr., p. 2081, § 333. Motions to modify a judgment or in arrest of judgment or to reconsider the ruling or a motion to vacate a judgment do not extend the time for perfecting appeal. Bachelder v. Parker (1947), 118 Ind. App. 66, 74 N. E. 2d 926; Zimmerman v. Zumpfe (1941), 218 Ind. 476, 33 N. E. 2d 102; Michigan City v. Williamson (1940), 217 Ind. 598, 28 N. E. 2d 961. The case of Pittsburgh, etc. C. C. & St. L. R. Co. v. Kearns (1920), 191 Ind. 1, 128 N. E. 42, on extending time for appeal must be considered overruled.
“ ‘In Schneidt v. Schneidt (1919), 69 Ind. App. 666, 122 N. E. 588, appellant prosecuted an action to vacate a decree of divorce. A demurrer was sustained to the complaint, and a judgment rendered against appellant for refusal to plead over. Appellant then filed a motion for new trial on the ground the court erred in sustaining the demurrer. The court held filing the motion for new trial did not extend the time for perfecting an appeal, and reasoned as follows:
“ ‘The cause never having been tried, of course there could be no new trial. The pretended motion for a new trial was an absolute nullity and presented nothing to the trial court for its consideration. The time for taking an appeal cannot be extended in that manner. Rooker v. Bruce (1908), 171 Ind. 86, 85 N. E. 351; Goodrich v. Strangland (1900), 155 Ind. [279] 280, 58 N. E. 148; Erwin School Tp. v. Tapp (1890), 121 Ind. 463, 23 N. E. 505; Corwin v. Thomas (1882), 83 Ind. 110; Reed v. Spayde (1877), 56 Ind. 394; Fisk v. Baker (1874), 47 Ind. 534; City of Huntington v. Cast (1900), 24 Ind. App. 501, 56 N. E. 949; Standard Oil Co. v. Bowker (1895), 141 Ind. 12, 40 N. E. 128; Decker v. Mahoney (1917), [64 Ind. App. 500] 116 N. E. 57. 69 Ind. App. at page 667, 122 N. E. at page 589’.”
The appellant clearly recognized this, since in its petition for writ of prohibition before the Supreme Court one of the grounds assigned was: “(c) that appellant (the appellee in this court) requests trial de novo and this court had no jurisdiction to determine said cause de novo.” Further, the appellant recognized this, when he filed his certified transcript of
Under Rule 2-6 of the Supreme Court of Indiana, this court can only consider errors specifically assigned in the assignment of errors. This rule is set forth in 2 I.L.E., Appeals, § 351 ch. 9, p. 202 and reads as follows:
“An assignment of errors is necessary in two respects. First, the filing of an assignment of errors is a step essential to confer jurisdiction on the reviewing court, and second, the reviewing court will review only such errors as has been assigned.”
Further, the Appellate Court will not search the record for the purpose of reversing a trial court but only for the purpose of sustaining the trial court. Freeman v. King (1967), 141 Ind. App. 655, 231 N. E. 2d 161; Devine v. Grace Construction and Supply Co. (1962), 243 Ind. 98, 181 N. E. 2d 862; N. Y. Central Ry. Co. v. Milhiser (1952), 231 Ind. 180, 106 N. E. 2d 453.
The appellant in the case at bar neither assigned as error in its motion for new trial or in its assignment of errors the action of its trial court in striking the transcript.
Our Supreme Court in Baker v. State (1966), 247 Ind. 159, 221 N. E. 2d 433, clearly pointed out the basis of this rule when the court said:
“Rules for presenting issues to the court and for appellate procedure are developed through an evolutionary process, with the ultimate design, through trial and error, of best serving the cause of justice. ■ This means justice to the people of this State, as well as the defendant in a case. We, as judges, cannot disregard or violate long-established rules in the consideration of cases and at the same time insist that parties observe these rules. Judges have no right, upon mere whim, to disregard rules or principles of law. We should not violate a technical rule of appellate procedure*268 to reach and consider an alleged error based upon a technicality in the trial procedure which is not properly presented.”
This court has held that where we have inadvertently entered an order granting an extension of time that such extension of time should be rescinded and expunged from the record. Swain v. City of Princeton (1967), 141 Ind. App. 571, 230 N. E. 2d 633.
Further, since this court said, by Judge Bierly in Swain v. City of Princeton, supra:
“We further are of the opinion that the order heretofore issued by this court denying the prior motion to dismiss this appeal, should be rescinded and expunged from the record because of having been inadvertently entered.
“Thus since it appears appellant has not filed his transcripts and bills of exceptions within the time allowed by Rule 2-2, we are of the opinion that this court lacks jurisdiction to hear this appeal, and the appeal should be dismissed.”
Thus, the action of the trial court in striking the transcript of the proceedings had before the Personnel Board is not before this court.
However, the court has examined the evidence produced before the trial court, and while this is unnecessary, the court must conclude that based on the evidence before the trial court, the decision of the trial court is overwhelmingly correct.
Judgment aifirmed.
Cook, P. J., and Smith, J., concur; Bierly, J., dissents with opinion.