Concurring Opinion
Jackson, J.— Relators here seek a writ of mandate and prohibition restricting and confining the respondents to their lawful jurisdiction in a certain causé of action filed and now pending in the Manon Superior Court, Room No. 5, Marion County, Indiana, entitled: *312State of Indiana on the relation of Nelson G. Grills, plaintiff, v. Matthew E. Welsh, Edwin M. S. Steers, James E. Noland, as the Indiana State Election Board, defendants, and being cause No. S62-1985 in such court.
Relators pray that an alternative writ of mandate and prohibition issue out of this court commanding the respondent Court and Judge thereof to sustain the motion of said relators to dismiss cause No. S62-1985, or show cause on or before a day to be fixed by this Court why the writ should not be made permanent; and, further, that said respondent court and judge thereof be prohibited from proceeding further in said cause and from entering any further orders, judgment and decrees of any kind until the further order of this Court.
We issued a temporary writ, returnable July 30, 1962. To this writ respondent made return alleging therein:
“1. The Marion Superior Court, Room 5 does possess jurisdiction over the person of the members of the State Election Board and to compel the performance by that board of any act which the law specifically enjoins, or any duty resulting from their office.
“2. That the complaint from mandate filed in the case of Nelson G. Grills v. Matthew E. Welsh, Edwin M. S. Steers, and James E. Noland as Indiana State Election Board, Cause No. S62-1985, now pending in the Marion Superior Court, Room No. 5, seeks to mandate the election board to perform acts which the law specifically enjoins upon that board.”
In the respondent court, plaintiff below, Nelson G. Grills, in cause No. S62-1985 sought the following relief:
“WHEREFORE, the relator prays the Court to mandate the Defendants to adopt rules and regu*313lations and engage in any other acts necessary in the opinions of the Defendants to provide a fair, legal and orderly conduct of the election of members of the 93rd General Assembly by providing an apportioning of the members of the General Assembly among the several counties according to the number of male inhabitants above 21 years of age, and the Defendants be mandated further not to permit in its supervision over local elections the election of members of the General Assembly from districts apportioned under Chapter 78 and Chapter 271 of the Acts of 1921, and for all further proper relief in the premises.”
The only question we are here called upon to determine is one of jurisdiction.
1. The Constitution provides the time and manner of apportionment, expressly lodging that duty in the General Assembly. Art. 4, §4, Constitution of Indiana.
2. Jurisdiction of the respondent court, in the action there pending and bearing cause No. S62-1985, is governed by Acts 1881 (Spec. Sess.), eh. 38, as amended, and as found in §3-2201 Burns’ 1961 Supp.
3. The statute establishing the State Election Board is Acts 1945, ch. 208, §§8-15, p. 680, being §§29-001 — 29-3008, Burns’ 1949 Replacement.
Number one above is clear, unambiguous and needs no elaboration or discussion; hence it is unnecessary to extend this opinion by further discussion of the constitutional requirements.
Numbers two and three, in the interest of brevity, will be discussed together.
The State Election Board is a creature of statute, in effect an administrative board, endowed only with the powers specifically delegated to it by the legislature. Its prime function is to supervise elections and administer the election laws; such powers and duties are specifically set forth in Acts 1945, ch. 208, *314§11, p. 680, being §29-3004, Burns’ 1949 Replacement. No where, in the Act or Statute do we find any authority that would permit, or give relator discretion to act as the plaintiff seeks to compel it to do in cause No. S62-1985 in respondent court.
An action in mandate cannot be used to 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. Black v. Burch (1948), 226 Ind. 445, 490, 81 N. E. 2d 850; State ex rel. v. Foland, Auditor (1921), 191 Ind. 342, 349, 350, 132 N. E. 674.
It has long been the law in Indiana that a court only has the power to mandate an administrative board to perform a duty which the board has a dear and imperative legal obligation to perform. Kent et al. v. State ex rel. Clingan et al. (1935), 208 Ind. 72, 76, 194 N. E. 616; Owen County Council v. State ex rel. (1911), 175 Ind. 610, 616, 95 N. E. 253.
The relators having no authority to perform the act or acts respondent court' and plaintiff in cause No. S62-1985 seek to compel them to perform, it is clear that the relators are entitled to the relief sought here, and that respondent court has no jurisdiction to grant the relief sought below.
I concur in the mandate of the majority opinion that the temporary writ heretofore issued should be made permanent.
Note. — Reported in 185 N. E..2d 18.