ON PETITION FOR REHEARING. In considering the petition for rehearing in this case we have discovered that in setting out the facts in our opinion in the appeal of Charles T. Miser, we omitted the fact that the 11. said Miser, on March 19, 1947, resigned as a member of the House of Representatives of the State of Indiana which was his right. The State ex rel. Cornwell v. Allen (1863),21 Ind. 516; State ex rel. v. Huff (1909), 172 Ind. 1, 87 N.E. 141. This fact is alleged in appellee's second paragraph of answer to appellant's complaint and is admitted in appellant's reply thereto. Nothing is said in any of the briefs filed herein regarding this fact. Nor does the stipulation purporting to contain all the evidentiary facts set out this fact, although it does contain the statement that appellant had resigned from his job when he qualified as a member of the General Assembly. Furthermore, appellant, in his petition for rehearing, has not complained that this court has omitted a material fact in its opinion. In justice to all the parties however, we believe it is our duty to consider and discuss this resignation even though it is not complained of.
Although said appellant resigned, as above indicated, still, in the light of all the stipulated facts, he is not entitled to judgment mandating the appellee to issue to him a warrant 12. in the amount demanded. Having accepted his salary as a member of the General Assembly, and, by virtue of our statute, for a *Page 490 period far in advance of the date of his resignation from that body, equity and good conscience should require that he return to the State the amount which he was paid for the time beyond his voluntary resignation — this he has not done or offered to do. Had this excess not been paid to him in advance, he could not have recovered same. 43 Am. Jur., Public Officers, § 381.
Section 49-1809 Burns' 1933, dealing with the powers and duties of the Auditor of State among other things provides: ". . . the auditor shall examine with care, every demand and claim 13. presented for payment, and shall be satisfied, that every claim is just, legal, and unpaid, before he shall allow, audit, or countersign it." This provision is broad enough to justify the auditor in refusing to issue a warrant for money owing to one who in turn is indebted to the state, as was the case here. To compel the auditor so to do would deprive the state of its right to set-off.
This being the case it is our opinion that the question before us should be presented and settled in an ordinary action as provided by law for the collection of money wherein 14, 15. the state will have a right to enforce any set-off it may have. "Courts have generally been unwilling to extend the operation of this writ and its use has been kept within its own narrow limits. It will be denied, when the object sought is an adjudication upon some question or right which may as well be settled in an ordinary action or according to the usual procedure. In other words, this form of proceedings cannot be employed to adjudicate and establish a right or define and impose a duty, but only to enforce an existing legal right and the performance of a duty specifically enjoined." State ex rel. *Page 491 v. Foland, Auditor (1921), 191 Ind. 342, 350, 132 N.E. 674.
The petition for rehearing of each relator is hereby denied.
Emmert, J. dissents.