DISSENTING OPINION The allegations of the complaint are substantially as set forth in the majority opinion, though they are much more direct and specific than in the opinion. They are fully sufficient to state a good cause of action showing a fraudulent violation of the Constitution of the State of Indiana by the members of the Eighty-sixth General Assembly. This violation the opinion in substance admits but seeks to excuse or avoid.
The complaint states a class action for injunction on behalf of relator and all citizens of Indiana similarly situated.
I think the record presents procedural defects that make the judgment rendered by the trial court wholly erroneous.
The record discloses that the appellees in the action have not entered a general appearance. The only appearance entered by them is a special appearance and *Page 50 shown by the record thus: "Come now the defendants by counsel and file special appearance and plea in abatement for all the defendants herein, which is as follows:" Then follows the plea in abatement, which omitting caption, signature and verification, is as follows:
"Comes now J. Emmett McManamon as Attorney General of the State of Indiana, Earl R. Cox as Special Counsel to the Attorney General of the State of Indiana, and Thomas L. Webber as Deputy Attorney General of the State of Indiana, and hereby appear specially for and on behalf of each of the above named defendants, Henry F. Schricker, Governor of the State of Indiana; Charles Francis Fleming, Secretary of State of the State of Indiana; James M. Propst, Auditor of State of the State of Indiana; and F. Shirley Wilcox, Treasurer of State of the State of Indiana; for the sole purpose of filing this Plea in Abatement herein.
"Each of said defendants respectfully submits and contends by way of Plea in Abatement, that plaintiff's cause of action herein should abate for each of the following reasons:
"1.
"Plaintiff's Complaint admits that the Journals and Records of the House of Representatives and the Senate of the State, both comprising the Legislature of the State of Indiana, on their face show that said Legislature adjourned within the term required by the Constitution of the State of Indiana; the Complaint further admits that all Bills enacted by the said Legislature, as aforesaid, including those herein attacked appear in proper form and are properly signed, attested, certified and authenticated by the presiding officers of each House of the said General Assembly and Legislature; that according to all of said records said Acts appear on their face to have been duly enacted as required by the Constitution.
"This is conclusive on the question as to the validity of the enactment of said Acts. Therefore, *Page 51 plaintiff's action herein in substance and in fact is an attempt to have the JUDICIAL branch of the Government of the State of Indiana interfere with the official activities and prerogatives of the LEGISLATIVE branch of the State Government when assembled.
"Any such action is prohibited by Article 3 Section 1 of the Constitution of the State of Indiana, and this Plea in Abatement should be sustained by the Court for the foregoing reason.
"2.
"While this cause of action is filed against certain designated State Officials it is nevertheless in substance and in truth and in fact a definite outright suit against the State of Indiana and questions the actions of the Legislative branch of the State Government as assembled and is aimed at preventing the due printing, publication and promulgation of numerous Acts of the General Assembly of the State of Indiana for the year 1949; among which Acts so attacked is the General Appropriation Act, which is an integral and necessary Act to facilitate the carrying on of the functions and machinery of the State Government for the bienneum beginning July 1, 1949.
"Therefore, as such it is a definite suit against the State. Since the State of Indiana in the exercise of its sovereign rights has failed to grant authority for the filing of any such cause of action as is herein instituted the plaintiffs are without authority or right to prosecute said cause of action against the State of Indiana and therefore such cause of action should be ordered abated by this Court.
"Plaintiffs do not allege any such authority in them as granted by the State of Indiana to bring said action and therefore this said suit is against the State of Indiana without the consent of the State of Indiana.
"WHEREFORE, for each of the foregoing reasons each of the above named defendants respectfully submits that this Court should abate the within plaintiffs' cause of action herein and by *Page 52 appropriate judgment and decree declare the same abated, and that said action by the Court be done with costs against the plaintiffs."
Relator filed a demurrer to the plea in abatement which, omitting caption and signature is as follows:
"Come now the plaintiffs herein, separately and severally, and demur to the Plea in Abatement of each of the defendants herein, and for ground of demurrer say that the said Plea in Abatement of each of said defendants as to each of the specifications 1 and 2 of said Plea in Abatement do not state facts sufficient to avoid plaintiffs' Complaint herein and do not state facts sufficient to abate the cause of action stated in plaintiffs' Complaint.
"Memorandum
"As to Specification 1.
"1. The Complaint herein by its allegations as set forth in rhetorical paragraphs 6, 7, 8 and 9 is based upon the theory that the General Assembly and its officers perpetrated a fraud and did not function and act in the passage of certain bills within the limitations as prescribed by the Constitution of the State of Indiana and that its officers `falsely, fraudulently, knowingly, willfully and in utter disregard of said Constitutional provisions, pretended to function as a legal General Assembly of the State of Indiana after the said date of March 7, 1949.'
"2. Sections 1 to 10, Article 7, provide for the creation of the judicial branch of government as coordinate with the legislative and executive or administrative branches of the government as the powers are distributed by section 1, article 3 and the construction of the Constitution or the construction of a law or act of the legislature is a judicial function.
"Guckien, Treasurer v. Rothrock, 137 Ind. 355.
"3. The plea in Abatement in no manner challanges the allegations of fraud and illegal conduct as charged in the complaint. *Page 53
"4. The provisions of the Constitution are equally binding on the three coordinate branches of government as set forth in the Constitution of the State of Indiana and each branch of government must function within the limitations as fixed by the Constitution or as provided by a legal act of the legislative branch.
"5. The Courts of the State of Indiana have the right to pass upon the question of the Constitutionality of an act of the General Assembly and to confine the acts of any person or body functioning under the provision of the Constitution or any law legally enacted by the legislative branch of government to the proper functioning under the provisions of the Constitution or any law so enacted.
"6. So, in view of the fraud and illegal acts charged in the complaint `the Courts have the right and the duty to determine such questions' and this Court `has jurisdiction to hear and determine the equitable proceeding now pending before it.'
"State ex rel. Mayr, Secretary of State v. Marion Circuit Court, 202 Ind., Page 501 (176 N.E., Page 626)
"As to Specification 2.
"7. By the allegations of the Complaint it is clear that the action is not directed against the State of Indiana but is directed against certain of the defendants who under the provisions of the Constitution have certain acts to perform relative to certifying and promulgating the illegal acts charged to have been fraudulently and illegally enacted in violation of the provisions of the Constitution as alleged in the Complaint and is also directed against certain officers to prevent the payment of money under the provisions of certain of said illegal enactments.
"8. The mere fact that the State of Indiana may be directly or indirectly affected by the filing of the Complaint does not make the State of Indiana a party to the suit.
"9. The officers attempting to function under the provisions of the Constitution in promulgating *Page 54 an illegal act of the General Assembly or in functioning under such illegal enactments are proper parties to the said suit.
"See State ex rel. Mayr, Secretary of State v. Marion Circuit Court, 202 Ind., Page 501 (176 N.E., Page 626)."
This demurrer was overruled, and relator elected to stand on the ruling, and the court rendered judgment that the action abate and a further notable judgment on the merits of the case as follows:
"It is further considered, adjudged and decreed by the court that the acts questioned in said complaint are legal, valid and constitutional enactments of the 1949 General Assembly of the State of Indiana and that each of the defendants recover of and from the plaintiff his costs in this behalf laid out and expended in the sum of $ ____."
It will be noted that appellants' memoranda Nos. 3, 7, 8 and 9, each pointedly call attention to defects in the Plea in Abatement. It is not necessary that the memorandum in a demurrer to a plea in abatement should advise the pleader that he should raise by demurrer the questions sought to be raised by the plea as suggested in the majority opinion. The statute providing for filing a memorandum with a demurrer requires only that the memorandum shall state "wherein such pleading is insufficient for want of facts." Burns' 1946 Replacement, § 2-1007 Cl. Sixth. The statute cited further provides: "and the party so demurring shall be deemed to have waived his right thereafter to question the same for any defect not so specified in such memorandum." However, this court has consistently held even in cases of demurrer to complaints, answers and replies other than pleas in abatement, the waiver provided by this statute, applies to the party demurring only and does not prevent this or the trial court from considering a demurrer fully no matter how defective *Page 55 the specifications of memorandum may be. As well said by Townsend, J. in Poer, Trustee v. State ex rel. Hinshaw (1918), 188 Ind. 55, 58, 59, 121 N.E. 83, in discussing the waiver provided for in the law providing for a demurrer to a complaint with attached memorandum under § 2-1007, Burns' 1946 Replacement, Acts 1911, Ch. 157, § 2, p. 415, and which demurrer had been overruled by the trial court:
"This" statute "was intended to compel the one demurring to waive review on appeal of that which was not disclosed to the trial court. It does not follow, however, that this or the trial court is bound by such waiver. If the courts are to be bound always by such waiver, absurdities and injustice would result in many cases. It would take from the courts the power to decide justly. For instance, a complaint may be filed which is intended to invoke a certain law, and may ask a remedy not authorized by the law invoked. An action for negligence might be brought under a statute which expressly or by implication excluded such remedy. Can it be said that this or the trial court shall be compelled to let such a glaring injustice stand because purposely or inadvertently the question has been waived by the parties? To hold this would be to hold that the parties by the authority of the legislature could prevent courts from administering justice."
In discussing the same proposition in a case where a demurrer to a complaint, with attached memorandum, had been overruled by the trial court, Lockyear, J. speaking for the Appellate Court, said:
"In considering the sufficiency of a complaint this court is not limited to the reasons mentioned in the memorandum to the demurrer filed, but, if the complaint is essentially bad for any reason, it is our duty to so declare."
Board of Commissioners of Vigo County v. Moore (1929), 93 Ind. App. 180, 189, 166 N.E. 779. *Page 56
Neither of the cases last above cited has been overruled, distinguished, or in any way modified. The principles of law therein announced remain the unquestioned law of Indiana and are binding upon us in this case. The matter before us in this case is of such vast importance that a decision agreeable with the law, and not an excuse, or evasion is required.
This court has recently held that when an insufficient plea in abatement is filed to a complaint, and a general demurrer is filed to it with memorandum the court will read the demurrer and the memorandum together, and if such reading indicates "the plea in abatement does not state facts sufficient to abate the action because said plea is, in fact, an answer in bar. This is clearly sufficient to meet the requirements of the statute § 2-1007 Burns' 1933" and a proper reason for reversing a judgment overruling such a demurrer. State ex rel. Gibson et al. v.Board of Commissioners of Adams Co. et al. (1944),222 Ind. 284, 286, 53 N.E.2d 347. In the instant case when the plea in abatement is read in connection with the demurrer and the memorandum thereto as noted heretofore it is apparent that appellants' action is not against the State of Indiana. It is likewise apparent that appellees seek to raise by plea in abatement that which they should have presented by demurrer to the complaint.
The action is only against certain officers of the State to enjoin them from doing certain allegedly unlawful things, respecting some of the Acts of the 86th Session of the General Assembly of Indiana allegedly passed after the expiration of the time lawfully allotted for that session. Undoubtedly the second paragraph of the answer in abatement is bad. Ex parteFitzpatrick (1909), 171 Ind. 557, 560, 86 N.E. 964, and cases there cited; Bennett v. Jackson (1917), 186 Ind. 533, 536, 116 N.E. 921; State ex rel. Mayr, Jr. v. Marion Circuit *Page 57 Court (1931), 202 Ind. 501, 509, 176 N.E. 626; Ford Motor Co. v. Dept. of Treasury, The State of Indiana et al. (1944),323 U.S. 459, 462 Head note 1, 89 L. Ed. 389, 393.
It was properly challenged by the demurrer and it was reversible error to overrule the demurrer to this paragraph.
Paragraph 1 of the plea in abatement avers no facts whatever. It merely calls attention to some of the averments of the complaint, in substance that the journals and records of both houses of the Assembly show on their face that the Legislature adjourned within the time required by the Constitution; and that all the bills attacked are properly signed, attested, certified and authenticated by the proper officers of the General Assembly. That these averments of the complaint are conclusive of the validity of the questioned Acts. It then avers the following remarkable conclusion of the pleader "plaintiff's action herein in substance and in fact is an attempt to have the Judicial branch of the Government of the State of Indiana interfere with the official activities and prerogatives of the Legislative branch of the State Government when assembled."
"`Plea in abatement' is one which, without disputing justice of plaintiff's claim, objects to place, mode, or time of asserting it; it allows plaintiff to renew suit in another place or form, or at another time, and does not assume to answer action on its merits, or deny existence of particular cause of action on which plaintiff relies."
Black's Law Dictionary (3rd Ed.), p. 1366.
Bouvier's Law Dictionary (Rawle's 3rd Ed.), Vol. 1, page 7; Vol. 3, page 2599.
State ex rel. Gibson et al. v. Board of Comms. Adams Co. (1944), 222 Ind. 284, 287, 288, 53 N.E.2d 347, supra. *Page 58
As said by Willoughby, J. in Randolph v. State (1928),200 Ind. 210, 214, 162 N.E. 656.
"If a plea in abatement is bad from any cause as against a demurrer, neither the trial court nor this court is bound by the statement of defects contained in the memorandum, nor by the failure of the demurring party to file a memorandum. . . ."
As supporting this statement of the law see also Poer,Trustee v. State, ex rel. Hinshaw (1918), 188 Ind. 55, 58, 59, 121 N.E. 83, supra; Board of Commissioners of Vigo County v.Moore (1929), 93 Ind. App. 180, 189, 166 N.E. 779, supra;Meixell v. American, etc. Sales Co. (1914), 181 Ind. 153, 156, 103 N.E. 1071; C. Callahan Co. v. Wall Rice, etc. Co. (1909),44 Ind. App. 372, 373, 89 N.E. 418.
In Indiana,
"Pleas in abatement must be certain to a certain intent in every particular, and must leave nothing to be supplied by intendment and no supposable answer unobviated. No presumptions of law or fact will be indulged in their favor."
Randolph v. State (1928), 200 Ind. 210, 213, 162 N.E. 656;Brown v. State (1933), 204 Ind. 585, 587, 184 N.E. 177;Melville v. State (1909), 173 Ind. 352, 358, 89 N.E. 490, 90 N.E. 467; State v. Comer (1902), 157 Ind. 611, 614, 62 N.E. 452; Meixell v. American, etc. Sales Co. (1914),181 Ind. 153, 156, 103 N.E. 1071, supra; Needham et al. v. Wright etal. (1895), 140 Ind. 190, 193, 199, 39 N.E. 510; Ward v.State (1874), 48 Ind. 289, 291; The Board etc., Tippecanoe Co.et al. v. The Lafayette, etc. R.R. Co. et al. (1875),50 Ind. 85, 117, 118; Kelley v. State (1876), 53 Ind. 311, 312;Brown et al. v. Underhill et al. (1891), 4 Ind. App. 77, 79, 30 N.E. 430; Diamond Flint Glass Co. v. Boyd (1903),30 Ind. App. 485, 488, 66 N.E. 479; C. Callahan *Page 59 Co. v. Wall Rice, etc. Co. (1909), 44 Ind. App. 372, 373, 89 N.E. 418, supra.
In discussing this matter, New, J. has properly said:
"It therefore follows that a party's plea in abatement should not be entertained, that is to say, issue ought not to be joined upon it, unless the facts alleged in the plea, if proven, would give to the plaintiff a better writ. It must be so pleaded as to enable the plaintiff . . . to supply the defect, or avoid the mistake upon which the plea is founded."
Brown v. Underhill et al. (1892), 4 Ind. App. 77, 79, 30 N.E. 430, supra.
The majority opinion bases its refusal to consider the defects in the plea in abatement on Hopkins v. Matters (1916),62 Ind. App. 676, 112 N.E. 248, which holds in substance that if no memorandum is filed with the demurrer to the plea in abatement, no question is presented by the demurrer. This holding is based upon three Indiana decisions, as follows: Pittsburgh, etc., R.Co. v. Home Ins. Co. (1915), 183 Ind. 355, 108 N.E. 525;Wagner v. Wagner et al. (1915), 183 Ind. 528, 109 N.E. 47; and Quality Clothes Shop v. Keeney (1914), 57 Ind. App. 500, 106 N.E. 541. No plea in abatement was filed in either of these cases and therefore no question was presented concerning the propriety of a memorandum to a demurrer to a plea in abatement or the sufficiency thereof and at least upon that proposition the decision is not substantially based.
I think the decision of Willoughby, Judge, in Randolph v.State (1928), 200 Ind. 210, 214, 162 N.E. 650, supra, seventeen years after the decision in the Hopkins-Matters case, states the law correctly and impliedly wholly overrules the decision in the Hopkins-Matters case no matter whether the demurrer is overruled or *Page 60 sustained by the lower court. It is likewise overruled by Poer,Trustee v. State ex rel. Hinshaw (1918), 188 Ind. 55, 121 N.E. 83, supra; Board of Commissioners of Vigo County v. Moore (1929), 93 Ind. App. 180, 166 N.E. 779, supra. The law remains as it always has been that "If a plea in abatement is bad from any cause as against a demurrer, neither the trial court nor this court is bound by the statement of defects contained in the memorandum, nor by the failure of the demurring party to file a memorandum." This must, of necessity, be true because of the nature of a plea in abatement, the requisites of which are well stated, with many supporting authorities as follows:
"Answers in abatement are not favored, and therefore the utmost fullness and particularity of statement, as well as the highest attainable accuracy and precision, are required, leaving nothing to be supplied by intendment or construction, and they must anticipate and exclude all such supposable matter as would, if alleged by the opposite party, defeat the plea. And a plea in abatement must not only point out the plaintiff's error, but must show him how it may be corrected, and point out how he may avoid the same mistake in another suit on the same cause of action. There are no presumptions in favor of a plea in abatement, and nothing can be supplied by intendment or construction."
1 Watson's Rev., Works' Practice Forms 413, § 558.
See also 1 Gavit's Indiana Pleading and Practice 657, Cl. (d), § 140; Flanagan's Indiana Pleading and Procedure, § 109, p. 166, § 111, p. 169; 1 C.J.S., Abatement, § 3, p. 30; State exrel. Dept. of Fin. Inst. v. Sonntag (1935), 101 Ind. App. 557, 565, 195 N.E. 601.
"There are no presumptions in favor of a plea in abatement, and nothing can be supplied by intendment or construction. A plea in abatement *Page 61 cannot be aided by reference to the process or other papers in the case."
1 Lowe's Rev., Works Indiana Practice 594, 595, § 15.13. (See many Indiana authorities cited in Note 3).
Since there are no presumptions in favor of a plea in abatement and nothing can be supplied by intendment or construction we must take the two paragraphs of plea in abatement in this case just as they are. We can add nothing to them nor take anything from them by intendment, construction, addition or otherwise. State exrel. Dept. of Fin. Inst. v. Sonntag (1935), 101 Ind. App. 557, 565, 195 N.E. 601, supra. The majority opinion points out no averment in either paragraph of the plea, which if true would warrant an abatement of the action, nor is it contended in the opinion that if all the averments in either or both paragraphs of the plea are accepted as true there would be any justification whatever for abating the action. I find nothing in either paragraph of the plea that would even tend to authorize a judgment abating the action. The record shows that the trial court heard no evidence on the abatement plea, but attempted to render judgment in abatement as on default. The judgment in abatement rendered is general and final in its nature. It leaves no provision for relator to renew his suit in another place or form, or at another time. It seems to be a permanent abatement. Such is unknown to the law. The judgment is therefore erroneous and should be reversed.
The opinion passes over the procedural errors noted and then following the further error of the trial court, proceeds to discuss the case on its merits. Since the case did not proceed to trial on its merits, either by demurrer to the complaint or by answer or otherwise, *Page 62 the trial court was never in a position to pass upon the merits of the case. Also its judgment in abatement barred it as well as the parties from then considering the case on its merits. 1 C.J.S., Abatement, §§ 1 and 2, pp. 28, 29. 1 Watson's Rev.,Works' Practice Forms 682, 683, §§ 1028, 1029. Therefore, the last sentence of the judgment noted above, adjudging "that the acts questioned in said complaint are legal, valid and constitutional enactments of the 1949 General Assembly of the State of Indiana . . ." is wholly void.
In an effort to justify the trial court for rendering a judgment on the merits of an action in the same judgment and immediately after it had rendered a solemn judgment abating the action, the majority opinion says: "From the record made in the trial court, we are advised that the appellants and appellees considered as proper the manner used to raise the question of the validity of the acts of the Legislature, even though it was unorthodox." It then proceeds to cite and discuss cases where the procedure taken had been requested by the complaining party, or where he had agreed to the procedure taken. Such cases of course hold that he may not thereafter be heard to complain of the results reached or the "regularity of the steps he had induced the court to take." I have no objection to the law as stated in the cases and text-books cited in the opinion on this proposition. They are correct. However, I sincerely challenge the statement that anyone can be advised from the record made by the trial court that the appellants by any act, word, or deed ever indicated that they considered proper the methods used by the trial court to render a final judgment on the merits of the case. Appellants' only action, as shown by the record, which purports absolute verity, was to file their complaint; to file and present their demurrer to each paragraph of the plea in abatement, and when it was *Page 63 overruled to stand on the demurrer and refuse to plead further; and then to appeal from the decision. They were never able to induce the trial court to take any action or follow any course they wanted or suggested. They stood firmly upon what they believed to be an erroneous ruling on the demurrer by the trial court, and appealed the case to this court in the sincere hope that the error might be corrected. Since this is the only record before us, it seems a monstrous thing to intimate, as does the majority opinion, that appellants must abide by the unorthodox procedure because they induced the court to follow it. Not only is the procedure unorthodox, it is unlawful in that it denied appellants their "remedy of due course of law" as provided for by Art. 1, § 12, of the Constitution of Indiana, and likewise of "due process of law" as provided for by Section 1, of the 14th Amendment of the Federal Constitution.
I think the entire opinion after the rather summary consideration of the demurrer to the plea in abatement is dicta only. It is about a matter that never came before the trial court for decision. In this situation a decision by our court on the matter cannot give life to the void judgment of the trial court noted above. Any decision we make thereon is likewise void.
The judgment should be reversed for the errors noted. The case should be sent back to the trial court that proper issues may be made and passed upon, and that a lawful judgment may be rendered.
NOTE. — Reported in 88 N.E.2d 746.
ON PETITION FOR REHEARING
Petition denied.
Gilkison, J., dissents with opinion. *Page 64