Opinion
Theodore L. Sendak, Atty.Gen., Edward W. Johnson, Deputy Atty.Gen., Indianapolis, for plaintiff-appellant.
Thomas M. Patrick, Dix, Patrick, Ratcliffes&sAdamson, Terre Haute, Theodore D. Wilson, Indianapolis, Rosenfeld, Wolfes&sFrey, Samuel E. Beecher, Terre Haute, John O. Moss, Indianapolis, Charles Crutchfield, South Bend, James C. Kimbrough, Gary, John O. Moomaw, Bloomfield, James Sullivan, Indianapolis, for defendants-appellees.
ROBERTSON, Presiding Judge.
On August 14, 1970, the Attorney General of Indiana filed a complaint in three paragraphs to recover damages for the destruction of real and personal property located on the campus of Indiana State University at Terre Haute, on April 23, 1970. Each paragraph of the complaint was directed to a different group of defendants, namely the trustees, administrators, and certain students of Indiana State University.
Subsequent to various other proceedings, the trial court granted motions to dismiss in favor of all defendants and entered final judgment against the State. The theory of the defendants' motions to dismiss is, inter alia, that the Attorney General does not have the capacity to sue for the relief prayed for, nor is he the real party in interest. We agree with the trial judge that the Attorney General does not have the authority to initiate this cause of action.
The Office of Attorney General is a creature of statute and has only those powers delegated to it by the General Assembly. State ex rel. Steers, etc. v. Lake Criminal Court, etc. (1953), 232 Ind. 443, 112 N.E.2d 445, 113 N.E.2d 44; State ex rel. Bingham v. Home Brewing Co. (1914), 182 Ind. 75, 105 N.E. 909; Julian et al. v. State (1890), 122 Ind. 68, 23 N.E. 690. It is further true that the Attorney General has no duties or powers attaching to his office by reason of the common law. State ex rel. Steers, etc. v. Lake Criminal Court etc. supra; State ex rel. v. Home Brewing Co., supra; Julian et al. v. State (1895), 140 Ind. 581, 39 N.E. 923; Hord v. State (1907), 167 Ind. 622, 79 N.E. 916; Ford Motor Co. v. Dept. of Treasury of Ind. (1945), 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389. Therefore, it is incumbent upon the Attorney General to show explicit legal authority giving him the right to initiate the cause at bar. We note that the encyclopedic authorities relied upon by the Attorney General are either too broad or so counter to the above cited cases that they are of no value in deciding this case.
One authority utilized by the Attorney General is based upon the theory that Indiana State University is a charitable trust and that he is charged with the responsibility of representing the beneficiaries.
"The law is well settled that inasmuch as the enforcement of public charities are matters of public interest the attorney general appearing as a public officer is the proper party to maintain litigation involving questions of public charitable trusts." Boice v. Mallers (1951), 121 Ind.App. 210, 216, 96 N.E.2d 342, 344-345.
An examination of authorities relied upon in support of the proposition so advanced reveals that the Attorney General must act in conjunction with the donor or residuary legatee when their interest coincides with the public. See Greenway v. Irvine's Trustee (1939), 279 Ky. 632, 131 S.W.2d 705. That situation does not exist here.
IC 1971, 5-11-1-9, Ind.Ann.Stat. § 60-211 (Burns 1961) is a prime statutory authority relied upon by the Attorney General, however, that statute is unmistakenly clear that a report by the appropriate member of the State Board of Accounts disclosing malfeasance, misfeasance, or non-feasance upon the part of an officer or employee of a governmental unit is required prior to any legal activity by the Attorney General.
In a similar manner IC 1971, 4-6-2-6, Ind.Ann.Stat. § 49-1909 (Burns 1964), provides the Attorney General may collect "unclaimed witness fees, court docket fees, licenses, money unclaimed in estates or guardianships, fines, penalties or forfeitures, or moneys that escheat to the state for want of heirs or from any other source." Contrary to the Attorney General's strong reliance upon the "any other source" we find, under the doctrine of ejusdem generis, those words to have a limiting, instead of a broadening, effect. The damages to real and personal property here sought would not come under the statute relied upon. Furthermore, Carr et al. v. State ex rel. Attorney General (1882), 81 Ind. 342, as relied on by the Attorney General, is not authority for institution of this action. In Carr, supra, unlike the instant case, the Attorney General was seeking recovery of the specific items which this statute authorizes him to collect.
Another statute the Attorney General relies upon is:
"Authority to appear in suits--Such attorney-general shall not, in any case, be required to exhibit to any court his authority for appearing in and conducting the prosecution or defense of any such suit, unless his authority be denied under oath, in which case his commission shall be all the evidence required." IC 1971, 4-6-2-2, Ind.Ann.Stat. § 49-1904 (Burns 1964).
We are of the opinion that this statute cannot confer the carte blanche authority for institution of civil suits, but, instead, provides a convenient method of proving his capacity to appear for the state in a law suit, not unlike the old motion to require an attorney to show that he is acting with the authorization of his client.
In a like manner IC 1971, 4-6-2-1, Ind.Ann.Stat. § 49-1902 (Burns 1964) must be interpreted. The statute reads:
"Duties generally--Such attorney-general shall prosecute and defend all suits that may be instituted by or against the state of Indiana, the prosecution and defense of which is not otherwise provided for by law, whenever he shall have been given ten days' notice of the pendency thereof by the clerk of the court in which such suits are pending, and whenever required by the governor or a majority of the officers of state, in writing, to be furnished him within a reasonable time; and he shall represent the state in all criminal cases in the Supreme Court, and shall defend all suits brought against the state officers in their official relations, except suits brought against them by the state; and he shall be required to attend to the interests of the state in all suits, actions or claims in which the state is or may become interested in the Supreme Court of this state." (Emphasis added).
There is no showing that this statute, which generally defines the Attorney General's duties, gives him the authority to institute a civil action without some prior authorization.
The Attorney General stands in relation to the State of Indiana as any lawyer does to his client. The difference being the legislative enactments of the General Assembly are the authority for the Attorney General to represent his client, whereas the clients oral or written instruction suffice in the normal attorney/client relationship. The necessary triggering device, the condition precedent, to set the legal machinery in action for the Attorney General to institute a civil action of the nature and kind at bar does not exist in this situation.
"When a public officer derives his power and authority solely from the statute, 'unless a grant of power and authority can be found in the statute it must be concluded that there is none'."
State ex rel. Young v. Niblack (1951), 229 Ind. 596, 602, 99 N.E.2d 839, 841.
Equally applicable is the quote from Davis v. Pelley (1951), 230 Ind. 248, 102 N.E.2d 910:
"It does not appear from the record that the State of Indiana, or any state official, department, board or commission which the Attorney General is authorized by statute to represent, was a party to the action below or that the state or any such state officer, department, board or commission was ever made a party." 230 Ind. p. 253, 102 N.E.2d p. 912.
We, being citizens as well as judges, are not unmindful of the purpose of this suit. Our personal agreement or disagreement is of no consequence in applying the law to the facts of this case. The Home Brewing case, supra, almost sixty years ago, aptly observed:
"It would seem in such circumstances that it would be beneficial and in harmony with these changed conditions to increase the authority of the Attorney General in the matter before us of instituting, or directing the institution, and of prosecuting cases of the nature of that before us. But that duty lies with the Legislature and not with the courts." 182 Ind. p. 97, 105 N.E. p. 917.
The trial court having correctly found that the Attorney General lacks standing to initiate this cause, the judgment is affirmed.
LOWDERMILK and LYBROOK, JJ., concur.