DISSENTING OPINION The State of Indiana as a sovereign brings this original action in this court against the Newton Circuit Court and the special judge thereof to prohibit the court from enforcing its judgment, entered in a proceeding for the repair of an old drain in Newton County, which ordered the ditch and drain established "over the route as laid out and described in the Surveyor's report as amended, which road extends over and across United States Highway No. 41," and which further adjudged that the "Highway Commission of Indiana construct and pay for the bridge over United States and States Highway No. 41 where said ditch crosses said highway."
Relator's petition alleged United States Highway No. 41 extends from a point on the Illinois-Indiana state line near Chicago to a point on the highway near Evansville, and connected at said respective points with adjoining highways over Illinois and Kentucky; that it was constructed in cooperation with the federal government under the Federal-Aid Acts and said funds were expended in the construction and improvement thereof; and "that the United States mail is carried over said highway, that several other important, through highways make connections with said U.S. Highway *Page 123 No. 41, and that said highway is one of the most important interstate highways of the United States and of the highway system of Indiana." The relator's petition further alleges there now exists a permanent concrete culvert for the passageway for the carrying of water six (6) feet in width and six (6) feet in height where the existing ditch crosses the highway; but that the Surveyor's Report approved by the court provided for the removal and destruction of the existing culvert and the construction of a new channel through the highway at that point five (5) feet in width at the bottom and twenty-five (25) feet wide at the top and eight (8) feet deep, which will necessitate a new bridge at the point of crossing which will cost from $20,000 to $25,000. The State of Indiana was not made a party to the proceedings at any stage, nor was any service of process or notice of any kind ever made on the Governor or the Attorney General of Indiana1. The petition to repair alleged as an owner the "State Highway Commission" and its land was described as "State Federal Highway No. 41, in Sec. 22-28-9." The assessment sheet alleged as an owner "Indiana State Highways," and the description of land was alleged as "benefit to the Right of ways on Road No. 16 No. 41."
It should be noted that the petition does not in positive terms allege that the destruction of the present culvert and the cutting of the new channel will constitute an unlawful and unreasonable burden on interstate commerce, or that it will materially interfere with national defense, or that the transportation of the United States mail will be unreasonably or unlawfully *Page 124 "hampered, interfered with, and delayed." Nor does the majority opinion in its reasoning consider these issues. See UnitedStates v. Babcock (1925), 6 F.2d 160; Babcock v. UnitedStates (1925), 9 F.2d 905.
However, the majority opinion does constitute a radical departure from the well considered cases defining and limiting the authority of public officers and servants of the state to that which may be granted by the Constitution and by the statutes enacted pursuant thereto, and it ignores the constitutional limitations against action against the State of Indiana. For these reasons I feel compelled to dissent.
"The right to enter upon another's land and dig ditches for drainage is unknown to the common law. The right is purely statutory." Kaufman v. Alexander (1909), 173 Ind. 136, 139, 88 N.E. 502. "Drainage proceedings are wholly statutory, and questions as to the authority of the court in constructing a new drain, or changing, repairing, or extending a drain already established, must be solved by a reference to the statute."Kilty v. Michael (1921), 190 Ind. 374, 382, 130 N.E. 531. See also Taylor v. Strayer (1906), 167 Ind. 23, 78 N.E. 236. The drainage act provides that the proceeding may be brought either before the board of county commissioners, or in a circuit or superior court. The board of county commissioners is a statutory board, and in common with all other statutory boards or officers, only has the powers granted by the statute. The act can not mean one thing when a proceeding is brought before a board of county commissioners, and something else with larger authority when brought in a circuit or superior court, nor does the act make it lawful for a court to do something which would be unlawful for a board of county commissioners to order. The jurisdiction of the court in a ditch proceeding is *Page 125 limited by the statute creating the right unknown to common law.
The proceedings to repair this drain were filed June 24, 1944, and so were governed by the provisions of Chapter 264 of the 1933 Acts as amended by chapter 225 of the 1935 Acts and chapter 165 of the 1941 Acts.
If it be conceded that ditch proceedings are in rem they are not ex parte in any sense of the term. "Proceedings are ex parte when relief is granted without an opportunity for the person against whom the relief is sought to be heard."Restatement, Torts § 674, p. 445.
Under the due process clause of the Fourteenth Amendment of the Federal Constitution, neither a court nor a board of county commissioners may take private property in drainage proceedings without reasonable notice to the person injuriously affected.
"In the above case [Chesebro v. Los Angeles Co. Flood Control Dist. (1939), 306 U.S. 459, 83 L. Ed. 921] it is also held that where the district was not directly created by the Legislature, and there has not been a determination that certain property will be benefited by local improvements, the owners are entitled to notice under the `due process of law' clause of the Fourteenth Amendment, and further that they are entitled to be heard by some officer or tribunal empowered by the state to hear them, and to consider and decide whether or not their lands will be specially benefited. Citing Fallbrook Irrigation District v. Bradley (1896), 164 U.S. 112, 167, 41 L. Ed. 369, 391." Board of Commissioners v. Falk (1943), 221 Ind. 376, 47 N.E.2d 320.
Notice is necessary to give jurisdiction to the court in a ditch petition. Higgins v. Swygman (1923), 194 Ind. 1, 6, 141 N.E. 788. Ditch proceedings are adversary in character. Honnold v.Endicott (1908), 170 Ind. 16, 19, 83 N.E. 502.
An assessment against the land of one who is not named in the ditch proceeding, and who has no notice *Page 126 thereof, is void. Righter v. Keaton (1908), 170 Ind. 461, 84 N.E. 977; Uhl v. Moorhous, Treasurer of White County (1894),137 Ind. 445, 37 N.E. 366; McCollum v. Uhl (1891),128 Ind. 304, 27 N.E. 152, 27 N.E. 725; Prezinger v. Harness (1888),114 Ind. 491, 16 N.E. 495; Davis, Treasurer v. The Lake Shoreand Michigan Southern Railway Co. (1888), 114 Ind. 364, 16 N.E. 639; Brosemer v. Kelsey (1886), 106 Ind. 504, 7 N.E. 569;Jones v. Cardwell (1884), 98 Ind. 331; Vizzard v. Taylor,Treasurer (1884), 97 Ind. 90; Brett v. Pretorious (1911),48 Ind. App. 527, 96 N.E. 211.
Under section 20 of the Act, a proceeding for the repair of a ditch or drain has the same requirements as to notice and jurisdiction as an original proceeding for the establishment of a drain.2 Section 4 of Chapter 264 of the 1933 Acts requires that the petition "shall give the names of the owners thereof, if known, or upon diligent inquiry can be ascertained, and if unknown, shall so state. If the name of the owner is unknown and can not be ascertained on diligent inquiry, it shall be sufficient to describe such land as belonging to the person who appears to be the owner by the last tax duplicate or record of transfers kept by the auditor of the county in which such land is situated." It would be a gross absurdity to hold that private landowners must have notice, and the legislature required *Page 127 notice to the political subdivisions of the state, yet the state itself was not entitled to notice before it might be ordered to spend thousands of dollars for the benefit of private landowners even though the drain be of public utility.
Under § 36-118 Burns' 1933 (Acts 1933, ch. 18, § 18, p. 67), the State Highway Commission takes title not in its own name, but in the name of the State of Indiana. Even in the absence of this statutory provision, the ownership of the highway easement is in the state at large. Lamphier v. Karch (1915),59 Ind. App. 661, 109 N.E. 938. This ownership is recognized by the drainage act, which in § 9 (§ 27-109 Burns' 1933), provides in part, "If, by reason of a cut-off, for the purpose of shortening and straightening, it is necessary for the state, county, township or railroad to construct new bridges, the state, county, township or railroad affected, shall bear one-half of the cost and the remainder shall be borne by the improvement." (Italics added.) The petitioners in this proceeding are presumed to have known what the law was, and they are bound by it whether they knew it or not. Section 6 of the Drainage Act has specific provisions that notice of the petition shall be given to the political subdivision of the state. But there is no statutory provision authorizing the state to receive notice by served upon the Indiana State Highway Commission, nor is there any provision that the state shall be served in any manner whatever except as to swamp lands.
It is true that the court in State v. Douglas (1925),196 Ind. 207, 209, 144 N.E. 548, said that it did not "know of any law which provides . . . for making the highway commission or the state a party to such a proceeding." This decision was subsequently followed in Byers v. Hoskinson (1925),196 Ind. 225, *Page 128 227, 147 N.E. 810. Both of these cases proceed upon an erroneous conception as to the liability of the state, and totally ignore the express constitutional mandate limiting actions against the state.
Section 24 of Article 4 of the Constitution of Indiana is binding upon the Legislature as well as upon the courts. It provides: "Provision may be made, by general law, for bringing suit against the State, as to all liabilities originating after the adoption of this Constitution; but no special act authorizing such suit to be brought, or making compensation to any person claiming damages against the State, shall ever be passed." This provision sets the standard which must be followed, and there are no implied exceptions.
". . . It is conceded, of course, that the legislative power is limited only by the constitutional inhibitions. State constitutions are intended to restrain legislative power rather than grant it, and unless some constitutional restriction can be designated, a legislative act must be held authoritative. McComas v. Krug, supra. But the inhibition may be either express or implied. In construing constitutional provisions, a rule of general acceptance is `that which is expressed makes that which is silent to cease.' Gougar v. Timberlake (1897), 148 Ind. 38, 48, 46 N.E. 339, 37 L.R.A. 644, 62 Am. St. 487. When the constitution declares how a right may be exercised, it impliedly prohibits its exercise in some other way. Morris v. Powell (1890), 125 Ind. 281, 25 N.E. 221, 9 L.R.A. 326; Denny v. State, ex rel., supra. The rule is expressed by Cooley as follows: `When the constitution defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition, or to extend the penalty to other cases.' Cooley, Const. Lim. (7th ed.) 64. . . ." State v. Patterson (1914), 181 Ind. 660, 664, 665, 105 N.E. 228. *Page 129
The Legislature has provided by general act for bringing actions against the state from liabilities arising out of contract either express or implied. Section 4-1501, et seq. Burns' 1946 Repl. (Acts of 1889, ch. 128.) A quiet title suit may be instituted against the state. Section 2-229 Burns' 1946 Repl. (Acts 1933, ch. 225, § 1, p. 1137). But these statutes make specific provisions as to how jurisdiction shall be acquired, and upon whom notice shall be served. In the ditch law itself there is a general provision for extending drains and ditches across the swamp lands of the state, but service is to be had upon the Auditor of State, § 27-402 Burns' 1933, who has the right to remonstrate, § 27-127 Burns' 1933 (Supp.).
Nor should we assume that the Legislature intended to deprive the state of its day in court any more than it has a constitutional right to deprive a private individual of his day in court. "Suit" in § 24 of Article 4 of the Constitution means an adversary proceedings, which in turn requires notice.
The State of Indiana can not be sued without its consent,State ex rel. Fry v. Superior Court of Lake County (1933),205 Ind. 355, 186 N.E. 310; Spring Valley Coal Co. v. State (1926), 198 Ind. 620, 154 N.E. 380; State v. Mutual Life Ins.Co. (1910), 175 Ind. 59, 93 N.E. 213. Nor may the objects of an unauthorized suit be accomplished by indirection. Shoemaker,Aud. of State v. The Board of Comm'rs of Grant Co. and Another (1871), 36 Ind. 175. When the state consents to suit it must be by a general act under the Constitution. No amount of judicial legislation or wishful thinking, as was indulged in by the court in State v. Douglas (1925), 196 Ind. 207, 209, 144 N.E. 548, and Byers v. Hoskinson (1925), 196 Ind. 225, 227,147 N.E. 810, can abrogate these constitutional requirements. *Page 130 Both of these cases in the field of public law are as strange as wild deeds in a lawful and legitimate chain of title, and they should be overruled. The preposterous result in the Douglas case of unreasonable burden on interstate commerce was noted by the court in United States v. Babcock (1925), 6 F.2d 160, where the injunction against the ditch across the Lincoln Highway was modified to remain in force until satisfactory arrangements were effected to construct the permanent bridge.
It is conceded in this case no summons or notice of any kind was ever served upon the Attorney General of Indiana. Section 4 of Chapter 71 of the 1889 Acts requires that, "Such Attorney General shall prosecute and defend all suits that may be instituted by or against the State of Indiana, the prosecution and defense of which is not otherwise provided for by law, whenever he shall have been given ten days' notice of the pendency thereof by the Clerk of the Court in which such suits are pending, and whenever required by the Governor or a majority of the officers of State, in writing, to be furnished him within a reasonable time; . . . ." Section 6 of Chapter 109 of the 1941 Acts, § 49-1924 Burns' 1933 (Supp.), adopted, continued and transferred to and conferred upon the Attorney General all rights, powers and duties provided by Chapter 71 of the 1889 Acts. Under these provisions notice must be served upon the Attorney General. See Smith v. Smith (1915),60 Ind. App. 263, 110 N.E. 558. The provisions of Chapter 3 of the 1945 Acts, § 49-1937 Burns' 1933 (Supp.), requiring the service of copies of complaints, petitions, briefs or pleadings upon the Attorney General do not dispense with the service of process upon the Attorney General, but are in addition to the requirements of service of process. § 49-1939 *Page 131 Burns' 1933 (Supp.), Acts 1945, ch. 3, § 3. Someone must represent the state and its interests. The public in general is not to be left helpless without counsel in court. The State of Indiana was the landowner of the right of way constituting United States Highway No. 41, and under the statutes the Attorney General was authorized to represent the state, and notice to obtain jurisdiction should have been served upon him.
There has not been any contention in this original action nor is it possible to point out any provision of the statutes either concerning ditches and drains or the Indiana State Highway Commission that there is any statutory provision authorizing or empowering the Indiana State Highway Commission to represent the interests of the state in a drainage proceeding, nor does it arise by necessary implication, especially in view of the fact that the Attorney General under the statutes is the one to represent the interests of the state. Through a long line of consistent authorities from 1852 down to the present, this court has repeatedly held that statutory officers can exercise no authority except that granted by the statute. In Hamilton v.The State (1852), 3 Ind. 452, 457, this court said:
". . . The state board [state board of equalization], like the county and district boards, is a mere creature of the statute, and can exercise no authority but such as the statute confers. . . ."
Numerous cases since that time have recognized this principle.State Board of Tax Comm. v. McDaniel (1928), 199 Ind. 708, 160 N.E. 347; Hull v. Board, etc. (1924), 195 Ind. 150,143 N.E. 589; Ransbottom v. State, ex rel. (1912), 178 Ind. 80, 96 N.E. 762, 98 N.E. 706; Hord v. State (1907), 167 Ind. 622, 79 N.E. 916; Julian v. The State (1895), 140 Ind. 581, *Page 132 39 N.E. 923; Julian v. The State (1890), 122 Ind. 68, 23 N.E. 690; The State v. The Portsmouth Savings Bank (1886),106 Ind. 435, 7 N.E. 379; McCaslin v. The State, ex rel. Auditorof State (1885), 99 Ind. 428; State ex rel. v. Clamme (1922), 80 Ind. App. 147, 134 N.E. 676.
This rule of public law limiting the authority of statutory officers was applied by the United States Supreme Court in construing the provisions of § 24, Article 4 of the Indiana Constitution, supra. Although the construction by the United States Supreme Court on the Indiana Constitution is not conclusive on this court, yet its opinions are most persuasive, and for that reason its language is particularly valuable. InFord Motor Company v. Department of Treasury (1945),323 U.S. 459, 468, 65 S. Ct. 347, 352, 89 L. Ed. 389, 396, the court said:
"We interpret this provision as indicating a policy prohibiting state consent to suit in one particular case in the absence of a general consent to suit in all similar causes of action. Since the state legislature may waive state immunity only by general law, it is not to be presumed in the absence of clear language to the contrary, that they conferred on administrative or executive officers discretionary power to grant or withhold consent in individual cases. Nor do we think that any of the general or special powers conferred by statute on the Indiana attorney general to appear and defend actions brought against the state or its officials can be deemed to confer on that officer power to consent to suit against the state in courts when the state has not consented to be sued. State court decisions construe strictly the statutory powers conferred on the Indiana state attorney general and hold that he exercises only those powers `delegated' to him by statute and does not possess the powers of the attorney general at `common law.' . . ." *Page 133
Silence in the statute never confers authority. It was well stated by Judge Fansler in Chicago E.I.R. Co. v. PublicService Comm. (1943), 221 Ind. 592, 594, 49 N.E.2d 341, concerning the authority of the Public Service Commission:
"The Public Service Commission derives its power and authority solely from the statute, and unless a grant of power and authority can be found in the statute it must be concluded that there is none."
In State ex rel. v. Sloan (1926), 197 Ind. 556, 151 N.E. 418, it was held that a director of the department of conservation, being a statutory officer of limited authority, had no right to intervene in a drainage proceeding since the statute was silent as to that authority. This is a wholesome and salutory principle of public law. If mere silence in a statute gave consent to a public servant to act as his discretion might dictate, our public servants, whether officers or employees, would soon become our masters, and we would have a "government of men and not of laws."
"Public office is a public trust." Those who deal with a trustee of a private trust and are charged with notice of his authorities under the trust instrument, are not protected against action by the beneficiaries for a breach of the trust when the trustee acts beyond the authority of the instrument and the law of trusts. And persons who deal with the state must take notice of the Constitution, statutes and opinions of our courts of last resort which limit the authority of the officer or employee of the state when he purports to act for the state.
Nor does any statutory officer have authority to waive the rights of the state, nor can the state be *Page 134 estopped by such action, nor may laches be applied against the state in acting in its governmental capacity.
". . . When the right to do a thing depends upon legislative authority, and the Legislature has failed to authorize it, or has forbidden it, no amount of acquiescence, or consent, or approval by the doing of it by a ministerial officer, can create a right to do the thing which is unauthorized or forbidden. The administrative officers of the state, as well as the appellee, were bound by the statute. The insurance department had no power to authorize or acquiesce in the issuance of policies unauthorized or forbidden by the statute. An estoppel against the state cannot arise out of the unauthorized acts of state officers. Platter v. Board of Com'rs (1885), 103 Ind. 360, 381, 2 N.E. 544, 556, 557; Sandy v. Board of Com'rs (1909), 171 Ind. 674, 677, 87 N.E. 131, 132; Ness v. Board of Com'rs., etc., et al. (1912), 178 Ind. 221, 232, 98 N.E. 33, 1002; 21 C.J. § 193, p. 1191; 19 American Jurisprudence, § 166, p. 818." Department of Ins. v. Church Members Relief Assn. (1940), 217 Ind. 58, 60, 26 N.E.2d 51, 52, 128 A.L.R. 635.
Any suggestion that any estoppel or waiver by reason of the action of any employee of the State Highway Commission is particularly unfortunate. The state is a representative of all the people in their collective capacity. The rights of all the people are too important to be prejudiced by unauthorized acts of employees. If laches, waiver or estoppel did apply against the public, a dishonest, incompetent or negligent public official could wreck the interests of the public. Had this principle of law not been true, or if waiver or estoppel had been applied against the federal government in the Teapot Dome Cases, the ultra vires lease would have protected the pipe line company without knowledge of the fraud. Mammoth Oil Co. v. UnitedStates (1927), 275 U.S. 13, 72 L. Ed. 137, 48 S. Ct. 1. *Page 135
There never was any jurisdiction acquired over the State of Indiana, and for this reason the alternate writ of prohibition should have been made permanent. State ex rel. Wadsworth v.Mead (1947), 225 Ind. 123, 73 N.E.2d 53. It is not the function of this court by judicial legislation to rewrite the ditch statutes or the state highway acts. That is the function of the Legislature under the Constitution.
Gilkison, J. concurs in this opinion.
NOTE. — Reported in 78 N.E.2d 440.
1 Since 1796, the rule in the Federal Courts has been that process shall be served upon the Governor and Attorney General of a state when it is a party. Grayson v. Virginia (1796), 3
Dallas 320, 1 L. Ed. 619.
2 "The form and contents of such petition and other provisions thereof, so far as applicable, shall conform and be similar to the petition provided in this act relative to original petitions for construction of drains; as well as the provisions of this act relative to notice of docketing thereof, objections thereto, and the reference of such petition to the surveyor and viewers, the findings of the viewers, the filing of the surveyor's report, and other proceedings, shall, so far as applicable, conform and apply to the proceedings in this section specified for the repair, change or extension of any such drain." Acts 1933, ch. 264, § 20, p. 1183,
§ 27-120 Burns' 1933.