Dissenting Opinion
Bierly, J.I disagree with the conclusion reached by the majority opinion, and dissent thereto.
Appellant asserts this is an “appeal from a decision of the Marion Superior Court No. 1 that Ira Parkman had been dis*269charged without .cause as Administrator of the hospital at the Indiana State Prison” (appellant’s brief), and the court ordered that appellee be reinstated to that position, and that he be reimbursed for all salary and wages from April 10, 1964, to August 5, 1966.
On the other hand, appellee contended that the action as stated in his answer brief “is not an appeal from the Superior Court No. 1, but rather is a judicial review of an Administra-Uve Agency” (emphasis supplied).
Appellant asserts this is a civil action, that the Marion Superior Court No. 1 held that this cause of action was not subject to the Administrative Act, and therefore ordered the case tried de novo, thus precluding the direct appeal to the Supreme Court, citing Burns’ Ind. Stat. Anno. § 63-3019, and concluded by asserting the Appellate Court had jurisdiction by virtue of Burns’ Ind. Stat. Anno. § 4-214. Appellee denied this to be a civil action, but rather an action for review of an order of an Administrative Agency, and that this court lacked jurisdiction for the reason that the appeal was filed too' late, and cited Rule 2-2 of the Supreme Court to substantiate that allegation.
There was a distinct lack of an agreement by the parties as to the issues before the trial court.
Appellant, under the title “What the Issues Were”, stated:
“1. Whether the Superior Court No. 1 of Marion County had jurisdiction of an appeal from a decision of the Indiana State Personnel Board upholding the dismissal of an employee under Burns Ind. Stat. Ann. §§ 63-3002 and 63-3014, where the employee resided in LaPorte County and the order of the Board would be executed in LaPorte County.
“a. Whether Burns’ Ind. Stat. Ann. § 60-1350 was superceded by the Administrative Adjudication Act, Burns’ §§ 63-3002 and 63-3014 in cases where the Indiana State Personnel Board reviews the dismissal of employees of the Indiana State Prison.
“2. Whether the Superior Court No. 1 of Marion County acquired jursidiction of an appeal from a decision of the Indiana State Personnel Board where summons was not *270caused to be issued nor served on the state agency or the Attorney General.
“3. Whether the Warden of the Indiana State Prison dismissed Ira Parkman, as Administrator of the hospital of the Indiana State Prison, for cause under Burns’ Ind. Stat. Anno. § 60-1335.
Appellee countered, under the title “What the Issues Were”, as follows:
“1. The appellee contends that this was an action for a judicial review under the Indiana State Personnel Act, which act is presently existing.
a. That even if the trial court erred on this point, this court has no jurisdiction.
“2. That service was had by virtue of the provision in the Indiana State Personnel Act.
“3. The appellant’s statement under this point of the heading is correct.”
Section 13-214, Burns’ Vol. 4, part 2, specified the duties of the warden of the Indiana State Prison as follows:
“The warden shall attend to the purchasing of all articles for the institution, clothing, provisions, medicines, materials for buildings and repairs; said materials to be manufactured in the penitentiary. He shall have charge of the whole operation of the institution, and shall be its executive officer.”
The theory of this case as presented by the appellant assumed that the provision of the Administrative Adjudication and Court Review Acts of 1947 was the proper vehicle to govern the proceedings in the case by the proper court on an appeal from the State Personnel Board. On the other hand, the appellee contended that in this particular case the appeal was from the State Personnel Board, created in 1941, and amended in 1965, directly to the Superior or Circuit Court of Marion County and heard de novo. The Marion Superior Court accepted jurisdiction of the case on the theory advanced by appellee.
*271We quote from § 63-3002, Burns’ 1961 Replacement, defining the term “agency” in the Administrative Adjudication Act as follows:
“The word ‘agency’ whenever used in this act (§§ 63-30-01 — 63-3030) shall mean and include any officer, board, commission, department, division, bureau or committee of the state of Indiana other than courts, the governor, military officers or military boards of the state, state colleges or universities supported in whole or part by state funds, benevolent, reformatory or penal institutions, . . (Emphasis supplied).
This definition of “agency” in the Administrative Adjudication Act clearly makes an exception of its application of benevolent, reformatory, or penal institutions. Hence, in our opinion the case at bar was subject to the provisions of the State Personnel Act § 60-1301, Acts of 1965, Ch. 369, Burns’ 1967 Replacement, and the Indiana Personnel Board created by § 60-1304, Acts of 1943, Ch. 101, Burns’ Anno. Stat. 1961 Replacement.
The statute covering the dismissal of employees, § 60-1335 Burns’, Acts of 1967, Ch. 339, Section 1, is identical to § 60-1335 covering the dismissal of employees, being Acts of 1941, Ch. 139, Section 35.
Appellee challenges appellant’s brief in charging that the appellant in its brief failed to comply with the court Rule 2-17 (e). We see no validity in appellee’s contention, inasmuch as a portion of said rule states in part:
“. . . the appellant shall set forth a summary of the evidence and the record which he believes to be pertinent to the issues involved in the initial portion of the argument section of the brief, . . .” (Emphasis supplied).
The specific words “which he believes to be pertinent” permits a wide latitude on the part of the appellant in the preparation of its brief; and the appellee, if he excepts to the appellant’s brief on that point, is authorized by the rules to *272submit such deficiency complained of. We hold that if appellant, in its brief, submitted what it believes essential to comply with Rule 2-17 (e), the appellee cannot be heard to complain what appellee believes to be necessary to comply with said rule, thereby attempting to put into the mouth of appellant what he believes appellant should believe as to the interpretation of said Rule 2-17 (e). We disagree and hold that appellee’s charged failure of appellant to comply with said Rule 2-17 (e) is without merit.
Appellee alleges in his answer brief that this court lacks jurisdiction to entertain this appeal. In his answer brief, at page 7, he states:
“Thus the court (appellant) is bound to take judicial knowledge of its jurisdiction. Since the appellant’s brief was filed too late, and his petition for extention [sic] of time did not extend the time, the extention [sic] of time which was granted by this court on November 21, 1966, was inoperative.
“Further, the opinion of this court on the appellee’s motion to dismiss rendered February 8, 1967, in the Indiana Personnel Board v. Ira Parkman, 140 Ind. App. 308, 223 N. E. 2d 352 struck all such entries, and the court granted 90 days to file transcript to wit: to January 18, 1967, all which was done after the time for the appeal had expired, and at a time when this .court no longer had jurisdiction.”
We take a charitable view of appellee’s criticism of this opinion in the Indiana Personnel Board case, supra, which was handed down February 8, 1967, but appellee’s petition to transfer was denied just recently on the 17th day of May, 1967. Thus, the opinion has the force of law. This court has certain inherent power. The closing paragraph of said opinion reads as follows:
“. . . the .court on its own motion, grants defendant-appellant ninety (90) days time within which to file transcript and assignment of error in this cause, and time shall run from the date of January 18, 1967.” (Emphasis supplied) .
*273Inasmuch as the opinion of February 8, 1967, in the Indiana Personnel Board, supra, is law, we hold that appellee’s position relative to attacking the opinion fails.
Appellee contends that appellant’s position that this is a court action and an appeal from the Marion Superior Court No. 1 is erroneous, but, instead, is an action for a judicial review of an Administrative Agency, under the Indiana State Personnel Act. But § 60-1350 provides, in reference to an appeal from an order of dismissal by the said Personnel Board to a Circuit or Superior Court of Marion County, Indiana, that:
“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 filing thereof to said hearing board, officer or commission within five (5) days thereafter.
“Said court, without a jury, shall try said cause de novo upon the causes specified in such order of removal and determine whether they or any of them are sustained by the evidence produced before said court, and as to whether they are sufficient to constitute causes for removal.”
Appellee, as heretofore pointed out, contended that this cause of action was not one for a judicial review in the trial court below, but was governed by the Personnel Act, Burns’ § 60-1350, thereby granting a full trial de novo. As a consequence of this position appellee sought, and the trial court ruled, that the transcripts of the proceedings before the board be stricken from the record.
We are deeply concerned as to how appellee could classify this case as one for judicial review when he requested of the court that the only records of the proceedings before the agency be stricken, which request was sustained.
By striking from the record all proceedings before the board, we may well wonder what remained for review.
*274Section 60-1350, supra, under which, provisions the appellee prosecuted his appeal, has Ch. 180, Sec. 1 and 2 of the 1941 Acts, in full force on March 8, 1941, the title of which reads as follows:
“An Act Concerning the Right of a Review by a Court of Orders or Decisions of Boards, Officers or Employees of the State Who is Removable after a Hearing on Charges.”
Thus the title of the act certainly presupposes a review of the charges before the board, or evidence adduced thereto, the order of the board, the “specific grounds and cause for such removal” of the person so charged.
While said § 60-1350 states the cause shall be appealed to the Circuit or Superior Court of Marion County, Indiana, and be heard by the court without a jury and by trial de novo, we are of the opinion that the term “de novo” has not the customary usage that is attributable to a regular de novo proceedings, since the title of the Act 180, supra, specifiees “an act concerning the right of a review of a court of orders or decisions of the board.”
We are of the opinion that the trial court erred in striking the transcript of the evidence which had been offered in the hearing in the Superior Court, and that the ruling of the court constituted prejudicial error.
We reiterate our conclusions that this action was not within the purview of the Administrative Act.
Appellee contends, on page 14 of his brief, that:
“There is no inconsistency between the Administrative Adjudication Act, and the Indiana Personnel Board Act, since the Indiana Administrative Adjudication Act is applicable in all cases whether no specific provision is provided for appeals, and the Indiana Personnel Act is a complete act including provisions for Judicial Review.”
We take judicial notice that Acts of 1941, Ch. 180, contains only two sections. Section 2, (being Bums’ 60-1350), has the heading: “Appeal from Dismissal Order — Procedure—Notice *275—Trial de Novo — Reinstatement.” This section specifically authorizes am, appeal from such order of dismissal by the Personnel Boards, while § 60-3014 of the Administrative Adjudication Act and Court Review Act has the heading: Judicial Review — Courts—Procedure.” The first sentence of this section reads as follows:
“Any party or person aggrieved by any order or determination made by any such agency shall be entitled to a Judicial Review thereof in accordance with the provisions of this act (§§ 63-3001 — 63-3030).”
Said § 63-3014 further provides that such review may be had by filing with the Circuit or Superior Court “of any county in which said person resides or in any county in which said order or determination is to be carried out or enforced. . . .” Appellee, having brought his case before this court under aforementioned Section 60-1350, supra, did so1 by way of an appeal from a dismissal of an employee by the State Personnel Act, wherein the agency is excepted by § 63-3002 from the application of the Administrative Adjudication and Court Review Act.
It appears the General Assembly used the words “appeal” and “review” rather loosely. In Square D Company v. O’Neal (1947), 225 Ind. 49, 72 N. E. 2d 654, the court said:
“It is fair to assume that by the term ‘appeals’ is included reviews by the Appellate Court of proceedings of the industrial board or any other administrative board. The General Assembly has often used the word ‘appeal’ instead of ‘review’ where it has provided for a court review of the findings of an administrative body. For example see § 63-1306, Burns’ 1943 Replacement which provides for ‘appeals’ from the State Board of Medical Registration and Examination of Indiana. Also see § 40-1512, Burns’ 1940 Replacement, Acts 1929, Ch. 172, § 61 which provides for ‘appeals’ from an award by the Industrial Board to the Appellate Court. It will be noted that the title of the last cited act nowhere provides for a review by the Appellate Court; the language used is ‘. . . to provide for appeals. . .’ ” (Emphasis supplied).
*276As heretofore stated, the title to Acts 1941, Ch. 180, is: “An Act Concerning the Right of a Review by the Court”, which paragraph 2 of said Burns’ § 60-1350 states, “Such appeal shall be taken . . .”
We are of the opinion that the term “appeal” should therefore be in reality a “review” to conform with the title and with the opinion in Square D Company, supra.
In case of State Board of Medical Registration, etc. v. Scherer (1943), 221 Ind. 92, 46 N. E. 2d 602, the Supreme Court speaking by Fansler, Judge, at page 96, said:
“Ministerial boards act as fact-finding bodies to ascertain whether applicants conform to a legislative formula by which the right to a license is fixed. It is well settled that under the division of powers, these ministerial fact-finding duties may not be delegated to courts, and that the so-called appeal provisions of statutes which undertake to vest in courts jurisdiction to try and determine de novo the facts entitling an applicant to a license, or to continue to operate under a license, must be treated as merely providing procedure by which the proceeding may be brought before the court for an investigation to determine whether the ministerial body has acted legally and within its powers. In all of such cases, if the ministerial board has conformed to statutory procedural methods, and its decision is supported by substantial evidence, its findings and determination will not be disturbed.”
(Citations omitted).
“It is true that the statute here in question seems to contemplate a de novo proceeding before the court, and a finding of ‘guilty’ or ‘not guilty’, but, regardless of what may seem a legislative intention to the contrary, this court has consistently construed similar statutes as vesting in the courts only such jurisdiction as the Constitution permits.
“It is clear that courts cannot decide for themselves the cases in which they will assume jurisdiction to weigh evidence as to qualifications and those in which they will not.”
The court in the above opinion concluded with this pronouncement:
*277“We have concluded, however, that the only jurisdiction of the court was to review the decision of the board, and that the decision of the board must be sustained if it was supported by substantial evidence, which it dearly was.” (Emphasis supplied).
We must bear in mind that this case at bar was a review of the decision of the Indiana State Personnel Board, a ministerial body; that such cause before us differs greatly from civil actions we are called upon to hear and determine.
The trial court in this petition to review the decision of the Indiana State Personnel Board was required to have before it all matters constituting the complete record of all proceedings had before the Indiana State Personnel Board. This was not done. The appellant was denied the introduction of the transcript of the proceedings before the Indiana State Personnel Board by the trial court. Furthermore, it seems abundantly clear the proceeding before the trial court was not in harmony with what was intended by way of a petition for a review of a decision of the Indiana State Personnel Board. (Our emphasis).
As a result of the majority opinion, we have an anomalous situation of the appellee being reinstated in his former position as Administrator of the prison hospital, but subordinate to the same warden, who may naturally assume that the appellee, fortified by the opinion of this court, would be devoid of any restraint and subordination in the generally accepted or continuity of command, the head authority reposing in the person of the warden.
When we have the situation, as in the case at bar, a warden of the State Prison, in his judgment and for good cause, dismissing an employee; when said discharge was officially approved by the Indiana State Personnel Board; and when this court has required a reinstatement of such discharged employee, we have a broken continuity of a harmonious command which is so vital in any. successful political or business enter*278prise, and especially so in the operations of eleemosynary and penal institutions of the state.
I could think of nothing more vital to discipline at the State Prison than that the action of the Indiana State Personnel Board in the case at bar be upheld.
The last paragraph of § 60-1850 reads as follows: “The order and determination of said court shall be final.” In view of our decision in this cause, it becomes unnecessary for this court to consider this paragraph.
I am of the opinion that reversible error was committed and that the decision of the trial court should be reversed.
I would reverse the judgment of the trial court.
Note. — Reported in 233 N. E. 2d 798.