¶1Dissenting Opinion
¶2There is a vast conglomeration of law, comprised of constitutional provisions, statutes both criminal and civil, and case law, which governs the procedures for seeking remedy against offending public servants. For example, Art. 6, §§ 7 and 8 provide for impeachment or removal of state and local officers. Article 7, §§ 11 and 13 provide for discipline and removal of justices, judges and prosecutors. Indiana Code 1971, 18-5-10-33, being Burns § 48-801, provides for impeachment of state officers. Indiana Code 1971, 5-8-1-35, being Burns § 49-836, provides for removal of any officer within the *234jurisdiction of a court upon petition of the prosecutor. Officers of municipal corporations are subject to removal for misfeasance under IC 1971, 18-1-20-4, being Burns § 48-1304. And any person who misapplies property of the government entrusted to him is guilty of theft. IC 1971, 35-17-5-11, being Burns § 10-3038. Likewise any public officer under the Constitution or laws of this State who fails to perform any duty in the manner and within the time prescribed is guilty of theft. IC 1971, 35-1-95-1, being Burns § 10-3701. Any public employee may have his employment terminated for many legitimate reasons upon use of fair procedures by the public employer. And of course, greatest of all statutes providing criminal and civil remedies against public officers and employees who mishandle property is the State Board of Accounts Act. IC 1971, 5-11-1-1 to 5-11-8-5, being Burns §§ 60-201 to 60-257.
¶3Every person engaged in public service, be he the highest state officer, or the lowest paid public employee of a municipal corporation or township, is subject to legal and other sanction upon proof of official incapacity or crime. No public servant is exempt from being either disciplined, removed from office or job, or required to respond in damages for loss of public funds or property entrusted to him. No governmental unit is helpless to rid itself of the officer or employee who is incompetent or criminally inclined. However, whenever a public servant is hailed by the Attorney General before the bar of justice to respond in money damages to charges of official misconduct, the statutes which govern such cases must be complied with. This is such a case. Adherence to statutory command is critical here since as all in this case agree, the duties of the Attorney General consist of only those which are specifically assigned to him by legislative enactment. State ex rel. Steers v. Holovachka (1957), 236 Ind. 565, 142 N. E. 2d 593; State ex rel. Public Service Commission v. Johnson Circuit Court (1953), 232 Ind. 501, 112 N. E. 2d 429; State ex rel. Young v. Niblack (1952), 229 Ind. 596, 99 N. E. 2d *235839. And it is the courts which have traditionally enforced the statutory limitations upon the powers of the Attorney General by barring his suits when they are found to be without specific authority. Davis v. Pelley (1951), 230 Ind. 248, 102 N. E. 2d 910; State ex rel. Bingham v. Home Brewing Co. (1941), 182 Ind. 75, 105 N. E. 909. When the suit is brought by the Attorney General against a public officer or employee for damage to property, as is the case here, the Attorney General must come armed with more than his enthusiasm for the claim.
¶4The statute which governs the case here against the trustees and employees of Indiana State University is the State Board of Accounts Act and no other. In cases of this type the Attorney General must be prepared to establish and substantiate the existence of the conditions in that statute which give rise to his authority to exhibit and file his suit. The State Board of Accounts Act, at § 9, IC 1971, 5-11-1-9, being Burns § 60-211, establishes the receipt by the Attorney General of a signed and verified copy of a report of a state examiner disclosing malfeasance, misfeasance or non-feasance in office as the condition precedent to the statutory power of the Attorney General to prosecute a civil proceeding to recover a loss against the officer who was the subject of such report. I do not agree with the majority when they conclude that such a report of a state examiner need only establish probable cause to believe a malfeasance has occurred. This interpretation is an unnecessary incursion upon the balance reached in the statute between the interests of the officer charged and that of the State; it ignores the plain words of the statute; and ignores the tremendous power granted the State Board of Accounts to compel testimony and production of evidence in furtherance of its duty to make investigation of public accounts. When the Attorney General exhibits his civil suit against a public officer for misfeasance in the handling of property, and existence of the necessary statutory precedent conditions to such suit are challenged, as they properly are *236here by a motion under Rule 12(B), the burden must be upon the Attorney General to show the conditions. In this case in resisting the challenge, the Attorney General chose to rely upon three items: namely, (1) a letter exhibited in the complaint from a state examiner, solicited by the Attorney General himself, detailing the damage to university property; and (2) a paragraph of his complaint containing a bald claim that he had authority to sue under IC 1971, 4-6-2-1, being Burns §49-1902; plus (3) a twenty-seven page memorandum and brief. The Attorney General at no time in the trial court asked for an opportunity to give evidence in support of his opposition to any of the motions of any of the defendants to dismiss. He has never claimed, up to this very day that his authority to bring this suit was not properly subjected to litigation by a motion to dismiss. And it was not until this case was on appeal that the Attorney General complained that he was denied an opportunity to submit evidence to the trial court in opposition to the motion to dismiss. And he does not even suggest to this Court what evidence he possesses, which was not considered by the trial court in ruling on the motions to dismiss, which evidence, if believed, might lead the trial court to change its mind and overrule the motions. The Attorney General did not even exercise his right to amend the complaint so as to support the existence of the statutory conditions. On the basis of this record and the allegations of the Attorney General in his briefs, it does not appear that the motion was unfairly determined in the court below, and therefore I would not reverse. AP. Rule 15(D). I would however under these circumstances retain jurisdiction of this appeal, and issue a remand order to the trial court with instructions to afford the State an opportunity to present its evidence on the motions to dismiss, and upon completion of such hearing to certify back to this Court a transcript of such evidence to this Court together with special findings and conclusions of law thereon. This is the relief which I consider appropriate in this case. AP. Rule 15 (M) (6).
¶6Note.—Reported in 294 N. E. 2d 604.