Board of Finance of School Town of Port Fulton v. First National Bank of Jeffersonville

• Decision Date: 05 November 1919
• Docket Number: 10,589
• Citation: 124 N.E. 768,71 Ind.App. 290
• Parties: BOARD OF FINANCE OF SCHOOL TOWN OF PORT FULTON v. FIRST NATIONAL BANK OF JEFFERSONVILLE
• Court: Indiana Appellate Court

124 N.E. 768

71 Ind.App. 290

BOARD OF FINANCE OF SCHOOL TOWN OF PORT FULTON v. FIRST NATIONAL BANK OF JEFFERSONVILLE

No. 10,589

Court of Appeals of Indiana

November 5, 1919

From Clark Circuit Court; James W. Fortune, Judge.

The bond of the First National Bank of Jeffersonville, tendered to the board of finance of the school town of Port Fulton to qualify such bank to become a depository of public funds, not having been approved, was presented, with a petition for its approval, to the judge of the Clark Circuit Court in vacation, and by him heard and approved, and said bank declared a depository. From the action of the judge, the board of finance appeals.

This proceeding is governed by the act of the legislature concerning depositories of public funds. Acts 1907 p. 391; Acts 1909 pp. 182, 437; Acts 1911 p. 182; § 7522 et seq. Burns 1914; Acts 1919 p. 698. It appears from the record that in January, 1919, there was no bank or trust company in the town of Port Fulton; that sometime in said month the following banking institutions of the city of Jeffersonville filed with appellant their several proposals to receive on deposit funds belonging to the school town of Port Fulton viz., the appellee, First National Bank, the Citizens Trust Company, and the Clark County State Bank. The appellee tendered a bond executed by the Southern Surety Company; the Citizens Trust Company tendered a bond executed by a surety company, the name of which surety company does not appear in the record; and the Clark County State Bank tendered a personal bond. The appellant approved the bond of the Clark County State Bank, but failed to approve either of the other two.

The secretary of the board of finance gave the following testimony in explanation of the action of the board: "We knew the surety at the time and most of the signatures of the six who signed it; did not * * * know anything concerning the solvency of the sureties offered by the other two banks, or anything about the validity of the bonds tendered, or whether or not they were executed legally. We considered the Clark County State Bank the most convenient as a depository for our Board."

The president of the board testified: "I knew the signatures of all the persons who executed the bond of the Clark County State Bank and knew their solvency. I did not know the solvency of the surety companies which executed the bonds tendered by the other two banks, or whether they were legally executed. The members of the Board preferred a personal bond to a surety company bond."

On February 4, 1919, being in vacation, the appellee filed its petition in the office of the clerk of the Clark Circuit Court. The petition is entitled "The First National Bank, etc. v. The Board of Finance, etc.," and is addressed "To the Honorable James W. Fortune, Judge of the Clark Circuit Court, in Vacation:"

The following is the substance of the petition: "The First National Bank of Jeffersonville, Indiana, hereby presents to you a bond executed by said Bank as principal, and the Southern Surety Company of Iowa as surety, in the sum of $ 1000.00, in favor of said Board of Finance, dated Dec. 21 1918, which bond was presented to said Board of Finance on the first Monday in January, 1919, and which bond said Board of Finance failed and refused to approve. This matter is presented to the end that you may proceed to hear and determine the sufficiency of said bond, and approve or disapprove said bond, as the facts warrant, and investigate the financial responsibility of said Bank and determine its fitness to be designated a depository of public funds; and on approval of said bond by said Judge, to declare said Bank a public depository."

The bond was filed at the time of filing the petition. Pursuant to the request indorsed on the petition, the clerk issued a summons commanding "the defendant to be and appear" in said court on February 7, 1919, "to answer or demur herein." On February 11, 1919, the parties appeared by counsel and the defendant filed a demurrer to the petition on the ground "that plaintiff's complaint does not state facts sufficient to constitute a cause of action." In the memorandum filed with the demurrer six reasons are specified why "the complaint" is insufficient. The record, signed by the judge, recites that the "demurrer is by me overruled. * * * Thereupon, the defendant files its answer in denial to the petition." After hearing the evidence, the judge took the matter under advisement.

On the fourteenth day of the ensuing term, the following entry was made: "Come the parties by counsel, and the court, being sufficiently advised, now approves the bond in question and finds the plaintiff, the said First National Bank of Jeffersonville, Indiana, a proper institution to be entrusted with public funds and declares said bank a public depository. It is therefore ordered and adjudged by the court that said bond be, and the same is hereby approved; and that said bank be, and is hereby declared to be a proper institution to be entrusted with public funds, and is declared to be a public depository of public funds; and that said defendant deposit seventy-four per cent. of its funds in said bank, not exceeding, however, the sum of $ 2000.00."

The board of finance filed a motion for a new trial, based on the sixth and eighth grounds specified in the Code of Civil Procedure as grounds for a new trial. The bank moved to strike from the files the motion for a new trial, on the theory that, because there is no provision for a new trial in the statute governing the proceeding, the granting of a new trial is not permissible. The motion to strike from the files was overruled. The motion for a new trial was overruled. Appeal granted.

The errors assigned are the overruling of the demurrer and the motion for a new trial.

Appellee has moved to dismiss the appeal on the ground that the legislature has not authorized an appeal from the action of the circuit court in a proceeding under said statute.

Dismissed.

George C Kopp, W. B. Allison and L. A. Douglass, for appellant.

Henry A. Burtt and James E. Taggart, for appellee.

DAUSMAN J. McMahan, J., dissents.

OPINION

DAUSMAN, J. (After making the foregoing statement.)--

In this jurisdiction the right of appeal is purely statutory. It is not unusual for the legislature of this state to authorize "appeals" from administrative boards to the courts; but in all such so-called appeals the word "appeal" is used in a special and restricted sense. Hall v. Kincaid (1917), 64 Ind.App. 103, 115 N.E. 361; Board, etc. v. Heaston (1896), 144 Ind. 583, 41 N.E. 457, 43 N.E. 651, 55 Am. St. 192; Board, etc. v. State, ex rel. (1909), 173 Ind. 52, 88 N.E. 673, 89 N.E. 367.

Section 13 of said act, supra, reads as follows: "If any board of finance fails or refuses to approve the bond or securities of any such bank or trust company, the same may be presented to the circuit or superior court in the county, or the judge thereof in vacation, which, after three (3) days' notice to the secretary of any such board of finance, shall proceed to hear and determine the sufficiency of such bond or security, and shall approve or disapprove the same as the facts warrant. Such court or the judge thereof in vacation shall also investigate the financial responsibility of any such bank or trust company and determine its fitness to be designated a depository of public funds. If such court or the judge thereof in vacation approves said bond or security, and finds said bank or trust company a proper institution to be entrusted with such funds, said bank or trust company shall be declared by such court or the judge thereof in vacation a public depository."

It is well settled that there can be no "appeal" from an administrative officer or from an administrative board to a court unless specifically authorized by the legislature. It is equally well settled that, where an "appeal" is authorized from an administrative officer or board to the circuit court, the action of the circuit court therein is final, and that there can be no appeal therein from the circuit court except in two instances, viz.: (1) Where an appeal from the circuit court is specifically authorized; and (2) where the proceeding in the circuit court is of such a character that it comes within the general provision of the Code of Civil Procedure which authorizes an appeal from all final judgments. Indiana State Board, etc. v. Davis (1918), 69 Ind.App. 109, 117 N.E. 883, 118 N.E. 978.

In the statute governing this proceeding there is no provision for an appeal from the circuit court. It follows that appellee's motion must be sustained unless said general provision of the Code is applicable.

It is well settled that the provisions of the Code of Civil Procedure do not apply to special statutory proceedings which do not involve the exercise of judicial power. Randolph v. City of Indianapolis (1909) 172 Ind. 510, 88 N.E. 949; City of Indianapolis v. Hawkins (1913), 180 Ind. 382, 103 N.E. 10. In the case at bar the board of finance could not, of course, have acted judicially; for judicial power can be exercised only by a court. Art. 7, § 1, Constitution of Indiana, § 161 Burns 1914; Shoultz v. McPheeters (1881), 79 Ind. 373; Little v. State (1883), 90 Ind. 338, 46 Am. Rep. 224; Edwards v. Dykeman (1884), 95 Ind. 509, 518; State, ex rel. v. Noble (1889), 118 Ind. 350, 21 N.E. 244, 4 L. R. A. 101, 10 Am. St. 143. But judges do not always act in their judicial capacity. It seems that the legislature is permitted to call upon the judges to perform acts which are not judicial, but which are purely ministerial, executive, or administrative. We are of the opinion that in the case at bar the action of the judge of the circuit court, pursuant to...