Board of Finance v. State ex rel. Tell City National Bank

On Petition fob Reheabing.

Monks, J.

Appellee has filed an earnest petition for a rehearing in which it is urged: “ (1) That there is no appeal under §7534 Burns 1908, Acts 1907, p. 391, §13, unless the board of finance fails or refuses to approve the bond or securities tendered; (2) that the bond of a surety company, legally authorized to do business in this State, is sufficient if properly executed in a penalty equal to the amount of public funds the applicant proposes to receive, and its approval must be presumed; (3) that §§7534, 7537 Burns 1908, Acts 1907, p. 391, §§13,16, provide for an appeal to a judicial officer from the action of a non judicial board, and are therefore unconstitutional. ’ ’

*56 3.

*55True, it is alleged in the alternative writ that relator “ten*56dered and delivered to appellant the bond of a surety company, duly authorized to carry on business in this State, ’ ’ and that said bond was in the proper penalty, but it was not alleged that said bond was approved by appellant board.

There is no presumption that appellant approved said bond merely because it was the bond of a surety company authorized to carry on business in this State. That the board of finance has the authority to pass upon the sufficiency of the bond or securities of any bank or trust company is clear from the provisions of said act, and, in ease of failure or refusal of said board to approve such bond or other security, an appeal is given by §7534, supra, as we have already shown.

4.

Even if it be conceded that relator bank was entitled to be designated as a depository of public funds on approval of the bond or securities tendered by it, a question we need not and do not decide, the alternative writ was certainly insufficient on demurrer, for the reason that it was not alleged that the bond or other security of appellees was approved by appellant board. It is settled in this State that, to render an alternative writ of mandate sufficient to withstand a demurrer for want of facts, it must appear therefrom that it was the duty of the officer or tribunal to perfoi’m the act sought to be enforced. Waters v. State, ex rel. (1909), 172 Ind. 251, and cases cited.

No bank or trust company is entitled to be designated as a public depository under said act, by the board of finance, under any circumstance until the bond or other security tendered by such bank or trust company is approved by said board of finance. It is evident, therefore, that the court erred in overruling the demurrer to the alternative writ.

5.

It is true that appellant board is not a judicial body, but this fact does not make §§7534, 7537, supra, which grant an appeal from its action to the circuit or superior court, unconstitutional. Spurgeon v. Rhodes (1906), 167 Ind. 1, 11-13, and cases cited. As was said by this *57court in State, ex rel., v. Webster (1898), 150 Ind. 607, 621, 41 L. R. A. 212, quoting from Board, etc., v. Heaston (1896), 144 Ind. 583, 55 Am. St. 192': “The appeal in such cases is not permitted because the action of the board is considered judicial, but it is granted as a method of getting the matter involved before a court that it may be determined judicially. ’ ’

The petition for rehearing is therefore overruled.