Dissenting Opinion
DeBruler, J.The statute conferring the duty upon certain mayors and trial judges to appoint and remove members of county boards of public welfare reads in pertinent part as follows:
“The county board of public welfare shall consist of five members, who shall have been legal residents of the county for a period of at least two years prior to the date of their appointment, who shall be persons having a recognized interest in and knowledge of the problems of public welfare, and shall be appointed by the judge of the circuit court: Provided, That no elective county official shall serve as a member of the county board of public welfare: Provided, further, That in counties wherein are located separate juvenile courts, such appointments of the county board of public welfare shall be made by the judges of such juvenile courts except however, in counties having a city of the first class according to the last preceding United States census, the mayor shall make three such appointments and the judge of the juvenile court shall make two such appointments. Not more than two members of the county board of public welfare appointed by the mayor shall be adherents of any one political party. The members appointed by the juvenile judge shall be of different political parties. All present members of the Board in counties having a city of the first class shall serve until January 1, 1966, at which time a new board shall be appointed in accordance with the provisions of this act. All members shall thereafter serve at the pleasure of the respective appointing authority: Provided, That no member shall be *24removed from such board except for misconduct, incapacity or neglect of duty after due notice in writing and hearing thereon before the appointing authority. Any vacancy occurring for any cause in the membership of the board, shall be filled for the unexpired term by the authority making the original appointment.” IC 1971, 12-1-3-2, being Burns §52-1118.
I do not believe that the Legislature, in this statute contemplates the judge as acting as a judge or that it contemplates the appointing or removal authority conferred upon him as judicial in nature. This power does not fall, in my judgment, within the judicial power vested by the Constitution in judges of courts. There are no adverse parties identified in the statute in a removal proceeding. The statute does not assign the burden of proof or the manner of receiving evidence. It does not require the recording of evidence or the making of a court record. The proceedings, of course must comport with the basic requirements of due process, tailored to the proceeding; and the decision or removal may well be subject to some form of judicial review, but those are attributes of both administrative and judicial proceedings. Extant in this statute is the legislative judgment that certain mayors and judges are the best governmental functionaries to carry out the goal the Legislature had in mind, i.e., that qualified people be appointed and kept on these important boards. The function here assigned to judges is the same function performed by administrative boards which sit to remove firemen and policemen. The fact, as is here the case, that a judge performs such an administrative function does not make that function judicial. Here it is the nature of performance that counts and not the nature of the performer.
In my view the proceedings held by a judge to appoint or remove a welfare board member are not “proceedings” within the intendment of that term in the statute and rules governing the right to change of venue from the judge. The Legislature meant just what it said when it required the hearing on removal to be heard before the appointing authority. The *25appointing authority in this case is Judge Terry and not a special judge appointed by this Court. There may well be laws which are intended to relieve a party from the decision of a biased and prejudiced administrative tribunal, however I do not believe our change of venue laws are intended to be such.
I readily agree with the majority that the cases of State ex rel. Gearhart v. Murray (1959), 239 Ind. 154, 161 N.E.2d 167, and State ex rel. Newkirk v. Sullivan Circuit Court, et al. (1949), 227 Ind. 633, 88 N.E.2d 326, support the right of this petitioner to a change of venue from Judge Terry. However since that issue has not been raised during my term on this Court, I therefore take this opportunity to express my views contrary to them. These cases fail to distinguish and recognize the difference between cases wherein a judge is acting as a judge and when he is performing a non-judicial function.
I vote to dissolve the temporary writ and deny the permanent writ.
Prentice, J., concurs.Note.—Reported at 301 N.E.2d 185.