DISSENTING OPINION
Gilkison, J.This original action is brought by the State of Indiana on the relation of Wilbur Young as State Superintendent of Public Instruction of the State of Indiana, and in his other capacity as named in the caption, to mandate respondent court and its judge to grant a change of venue from the county to defendants upon a proper verified application therefor filed, and which has been denied by respondents, all agreeable with § 3-2201, Burns’ 1946 Replacement. The reasons for the denial are (1) that the applicant may not have an attorney of his own to represent him, but must be represented by the State’s Attorney General, and (2) that the applicant on his own application may not have a change of venue but must remain inactive and suffer the Attorney General only to direct and present his defense.
The duties of the Attorney General with respect to actions brought by or against the State of Indiana, and in defending suits brought against state officials in their official relations with the exception thereto are statutory, as follows:
“Such attorney-general shall prosecute and defend all suits that may be instituted by or against the state of Indiana, . . . and shall defend all suits brought against the state officers in their official relations, except suits brought against them by the state; . . .” (My italics) §49-1902, Burns’ 1951 Replacement.
*608Section 49-1925 referred to in the opinion is in “pari materia” with the statute noted and does not modify it in any way.
The case pending in respondent court is a mandamus action brought by the State of Indiana on the relation of the School City of Gary, Indiana, against certain state officers, including relator, in their official capacities. It is brought as a class action on behalf of relator and all other school corporations in the state similarly situated. It seeks an interpretation of certain statutes of the state of Indiana with respect to the distribution of many millions of dollars of the state' school fund, and asks to mandate the distribution in the manner prayed for in the complaint. It is an action in which every voter, citizen, taxpayer and every child of school age in the state is vitally concerned. For these reasons, I think it is a case coming precisely within the exception contained in the statute aforenoted, thus: “and he (the Attorney General) shall defend all suits brought against the state officers, except suits brought against them by the state; . . . .” (My italics). I think the attorney general should be in the case but he should be on the side of his statutory client—the state of Indiana—not on the side of .the state officers whom the state is suing ex relatione. The term ex relatione has been defined by a legal lexicographer, thus:
“. . . Legal proceedings which are instituted by the attorney general (or other proper person) in the name and on behalf of the state, but on the information and at the instigation of the individual who has a private interest in the matter, are said to be taken “on the relation” (ex relatione) of such person, who is called the relator. . . .” Black’s Law Dictionary (3rd Ed.), p. 707.
*609The first question presented to us is: Is the state of Indiana a party plaintiff in the mandamus action pending in the respondent court? If it is, it is quite clear to me that the attorney general is badly tangled in his procedure as is the respondent court and the majority of this court. This question has been rather frequently presented to this court in various actions in recent years, and in answering it, this court has expressed itself, thus:
“. . . Express statutory provision requires actions for mandate to be brought in the name of the state on the relation of the party in interest. (Sec. 3-2201, Burns’ 1946 Replacement.) It is legally impossible for an action of mandate to be prosecuted by one in his individual and personal capacity. The statute requires the State of Indiana to be included. This is not a mere nominal requirement; it is a statutory recognition of the fact that the State has an interest in the particular type of relief which is secured, in an action of mandate. In a sense the State is allowing an individual to enforce in the name of the State a remedy which the individual, as such, is not entitled to have.” (My italics) Board of Public Safety v. Walling (1933), 206 Ind. 540, 546, 187 N. E. 385; Rogers v. Youngblood, Judge (1948), 226 Ind. 165, 168, 78 N. E. 2d 663; Pembleton v. McManaman (1949), 227 Ind. 194, 196, 84 N. E. 2d 889; Per Curiam— Meek v. Baker, Judge (1951), 229 Ind. 543, 99 N. E. 2d 426.
When state officers, as such, are sued in their official relations by some one other than the state, it is agreeable with the statute, § 49-1902, Burns’ 1951 Replacement, for the attorney general to defend them. But there is nothing in the statute or elsewhere in the law that requires this representation to be exclusive. See 7 C. J. S., Attorney General, § 8, Cl. c., p. 1229; Casey v. Wait (1918), 229 Mass. 200, 202. There are many *610reasons why it should not be, some of which will appear herein.
However, when a mandamus suit is brought against a state officer, the state of Indiana is a party plaintiff— not just a nominal party. To hold otherwise in this case or to merely ignore our previous holdings, overrules the four cases last above cited, the last of which was decided by this court within the last thirty days, and was concurred in by all the present justices. In the action pending in respondent court it is quite apparent that the interests of the state in the relief sought is paramount to that of any or all of the other parties to the action combined, and certainly the state has a crying need for the services of its attorney general. The statute heretofore noted, enacted many years ago (Acts 1889, Ch. 71, § 4, p. 125) anticipated a situation like that now confronting us, and, to take care of it made the exception noted in the statute for the sole purpose of keeping the attorney general faithful and true to his statutory client—the state of Indiana. See 7 C. J. S., Attorney General, § 8 b., Conflicting Interests, p. 1229.
In the briefs before us no good reason has been stated why the attorney general has forsaken his statutory client and joined in the defense of those whom the statute expressly forbids him to join. This unprecedented procedure must have been noticed by relator and acting properly and wholly within the line of his duty as the highest school officer in the state charged by the constitution and statute with vastly important duties, caused him to employ his own attorney-at-law to defend him as such official. This he had a right and duty to do. No authority has been nor can be cited to the contrary. Had he not done so I think he would have been highly derelict as such official.
*611Our Indiana Reports have many reported cases in which the attorney general has appeared for the state. The majority opinion in this case is the only one in the books where he is recorded as appearing against the state. So far as I can find there is no recorded case in any state of the union where its attorney general appeared against the state. The fact that the state appeared in this action by other attorneys, does not release the attorney general from his duties to the state and permit him to represent the defendants.
When relator’s attorney appeared in the respondent court and filed relator’s verified motion for a change of venue from the county, the attorney general filed a motion asking that relator be denied the right to appear by his own attorney or to ask for a change of venue from the county and this motion was sustained by the court, leaving relator, State Superintendent of Public Instruction, without an attorney of his own and in substance compelled to accept only the services of the attorney general, notwithstanding his expressed lack of confidence in that representation. Thus, we have the state, represented in the respondent court by independent attorneys, which could be only with the consent, expressed or implied, of the attorney general (See 7 C. J. S., Attorney General, § 8 b., p. 1229), and the defendants represented solely by the attorney general. It makes the attorney general an arbitrator, representing both sides in the case. An arbitrary statement to the contrary in the majority opinion cannot change the unquestioned facts or the law. This novel situation is fraught with so many perils it should not be permitted to become a part of the procedural law of Indiana. It was to assist in avoiding situations like this, among other things, that a right to a change of venue from the county was and is provided by law. § 2-1401, Burns’ 1946 Replacement.
*612The legal ethics applicable to an attorney at law on this proposition are applicable to the attorney general acting as an attorney at law in this case. I quote therefrom thus:
“An attorney is by virtue of his office disqualified from representing interests which are adverse in the sense that they are hostile, antagonistic, or in conflict with each other.” 7 C. J. S., Attorney and Client, § 47—Representing Adverse Interests, p. 828.
“ (1) No man can serve two masters; for either he will hate one, and love the other, or he will cling to one and slight the other. Ye can not serve God and mammon.” (Quoted from Matthew 6-24). Sun Building & Loan Ass’n. of Newark v. Rashkes (1936), 119 N. J. Eq. 443, 449, 183 Atl. 274, 277.
“(2) The unamendable mandate of both law and morals forbids an attorney, in the homely phrase of the field, ‘to run with the rabbits and bark with the dogs/ ” Gilliam v. Saunders (1933), 204 N. C. 206, 209, 167 S. E. 799, 800.
“(5) The rule is designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties, or be led to an attempt to reconcile conflicting interests rather than to enforce, to their full extent, the rights of the interest which he should alone represent.”
Notes 1, 2 and 5 to § 47, 7 C. J. S., p. 823.
The rule in Indiana on this subject follows the rule as above noted and may be found in the following cases. Wilson v. The State (1861), 16 Ind. 392, 394; Price v. The Grand Rapids and Indiana R. R. Co. (1862), 18 Ind, 137, 140; Bowman v. Bowman (1899), 153 Ind. 498, 504, 55 N. E. 422; State v. Robbins (1943), 221 Ind. 125, 149, 46 N. E. 2d 691. To me *613it is impossible that the state may both prosecute and defend the action in respondent court.
The judiciary is one of the three coordinate divisions of our state and national governments. Through the judiciary it was the thought and design of our constitution makers, to provide for litigants, trial forums that are open, unprejudiced, impartial and fair; that will hear before they condemn; that will proceed upon inquiry and render judgment only after trial. Art. 1, § 12, Indiana Constitution. Daniel Webster in The Trustees of Dartmouth College v. Woodward (1819), 4 Wheat. (17 U. S.) 518, 579, 4 L. Ed. 629, 645, 656. It has been held rather frequently by this court that:
“The court can not add to or take from the law ‘one jot or tittle’. It must adjudicate and administer the law as it is.” Krutz et al. v. Howard (1880), 70 Ind. 174, 178.
It long has been the law in Indiana that one of several defendants or plaintiffs may avail himself of the right to a change of venue and when he does so it necessarily changes the venue as to all his co-parties. Krutz v. Howard, supra; Peters et al. v. Banta (1889), 120 Ind. 416, 422, 22 N. E. 95, 23 N. E. 84; Dill v. Fraze (1907), 169 Ind. 53, 60, 79 N. E. 971; State ex rel. Flaherty and Nye v. Ermstrom, Spec. J. (1935), 209 Ind. 117, 123, 197 N. E. 908.
When as in the instant case, a party is made a defendant in his official capacity, and brought into court by a summons regularly issued and served upon him, it seems ludicrous to say that he must show a statutory right to be sued before he can claim the rights of a defendant in the case. In the case in the trial court plaintiff made the relator State Superintendent of Public Instruction a party defendant. Cer*614tainly neither the plaintiff nor this court is now in a position to say he is not a party defendant. The plaintiff is seeking a writ of mandate against the relator in his official capacity. If he is not a party defendant how is it possible for the trial court to issue a writ of mandate against him? The opinion does not attempt to advise us just what is the position of relator in the trial court. The relator does not seek to intervene in the case either as a plaintiff or defendant nor does he seek any relief, affirmative or negative, in that court. The authorities listed in the opinion on that proposition are wholly inapplicable and foreign to the question presented to this court. I think it is a serious error to say that a defendant has the burden of proving that the plaintiff has properly made him a defendant before he has the procedural rights of a defendant in the case.
To me it is wholly anomalous to say that one who is made a party defendant by the complaining party may defend himself in the action only as an amicus curiae on permission granted by the presiding judge. No authority for this position has been given in the opinion. To me this position initiates a serious procedural error that may prove quite devastating in future litigation.
For the reasons given I respectfully dissent to the majority opinion. The writ of mandate should issue compelling the granting of the change of venue from the court agreeable with § 3-2201, Burns’ 1946 Replacement.
Bobbitt, J., concurring.Note.—Reported in 99 N. E. 2d 839.