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

Monks, J. This proceeding was brought by the relator to compel appellant, by writ of mandate, to designate it as a depository of a part of the public funds of said township, under the provisions of section thirteen of the act of 1907 (Acts 1907, p. 391, §7534 Burns 1908). Appellant’s demurrer for want of facts to the alternative [54] writ of mandamus was overruled, and upon its refusal to plead further, judgment was rendered in favor of appellee, and a peremptory writ ordered. The errors assigned call in question the action of the court in overruling the demurrer to the alternative writ. Appellant insists that §7534, supra, provides an adequate remedy by appeal from the action of appellant, and therefore mandamus will not lie. Said section 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 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 provided in section sixteen of said act (§7537 Burns 1908), “that the commission of any depository may be revoked at any time, and an immediate accounting and settlement required by the board of finance under which it operates, for any cause deemed sufficient by such board of finance. Such depository, however, shall have the same right of appeal, and the circuit or superior court, or the judge thereof in. vacation, the same jurisdiction to try and determine the case, as provided for appeals in section 13 hereof.” [55] 1. [54] When there is an “appeal” under §7534, supra, to the circuit or superior court, or the judge thereof in vacation, the [55] court or judge is not only authorized to approve or disapprove the bond or other security as the facts may warrant, but also to investigate and determine the fitness of any such bank or trust company to be designated as a depository of public funds, and to declare the same “a public depository, ’ ’ or not, as the law and facts may warrant. 2. It is evident that under §7534, supra, the court, or the judge thereof in vacation, was authorized to determine whether relator was entitled to be designated a depository of public funds under the act of 1907, supra, and if it was, to ‘! declare it a public depository. ’ ’ Appellee had, therefore, an adequate remedy under §7534, supra. It is settled in this State, as claimed by appellant, that when the relator has an adequate remedy, as by appeal, that mandamus will not lie. Couch v. State, ex rel. (1907), 169 Ind. 269, and cases cited. It follows that the court erred in overruling appellant’s demurrer to the alternative writ. Judgment reversed, with instructions to sustain the demurrer to the alternative writ.