71 Ind. App. 290 | Ind. Ct. App. | 1919
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 determiné 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
. 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.
By §§11 and 12 of said act, it appears that the board of finance is given an important discretion in the matter of approving or disapproving any bond or securities offered by a bank seeking to become a depository. Board, etc. v. State ex rel., supra. By §13, supra, if the board of finance fails or refuses to approve the bond or securities, then the judgé of :the circuit court may be called upon to do two things, viz.: (1) To approve or disapprove the bond or securities; and (2) if he approves the bond or securities and finds the bank to be a proper institution to be entrusted with public funds, then he shall declare (designate or appoint) the bank a public depository. We are of the opinion that in approving the bond the judge acted in á purely ministerial capacity. State,
But it may be said that there is a third element to be determined, viz., the bank’s fitness to be designated a depository of public funds. It is true that by said §13 the judge of the circuit court is asked to transform himself into a sort of bank examiner for the purpose of investigating the financial responsibility of the bank; and he is directed also to determine the fitness of the bank as aforesaid. By what legal standard is that fitness to be determined? The act provides that no public funds shall be deposited in any bank or trust company (1) unless the institution is subject to visitation and examination by national or state bank examiners, and (2) until the institution has furnished a bond or securities, as therein specified, to the approval of the board of finance or the judge of the circuit court. But evidently the legisla
The importance of the subject justifies us in stating more specifically the reasons for the conclusions we have reached.
If we were to regard the proceeding as a civil action within the meaning of the Code, to be tried on issues joined, and the result to be established by a formal judgment; or, if we were to regard it as a special statutory proceeding and then attempt to apply the Code, note the difficulties to be encountered.
It will be observed that the bank is not required
No summons is to be issued. The statute provides that, after three days’ notice to the secretary of the board of finance', the judge shall proceed to determine the sufficiency of the bond or securities. But what is the purpose of the notice? If the members of the board should fail to appear, would a default be authorized? If a default were entered, could it be taken as a confession that the bond or securities ought to be approved and the bank designated a public depository without an investigation? The language of the statute negatives that proposition. We are of the opinion that the purpose of the notice is analogous to that of the notice served on the clerk of the circuit court in a vacation appeal — to inform him of what is taking place in order that he may know its effect on his official duties. It is. unreasonable to say that the legislature intended that there should be an adversary proceeding by the bank against the board of finance or any member thereof. It cannot be that the legislature intended that the board of finance, ■or any of its members, should assume, an attitude of
' If, however, the proceeding be regarded as adversary, then what facts, logically and legitimately, ought to be shown to make out a defense? As against thé bond, it would be germane to show that the surety company is financially weak or insolvent; that it is in bad repute for fair dealing; and any other element which a prudent and competent man would be likely to consider in' determining whether it would be sáfe to' accept the bond as indemnity against the loss of public funds. For indemnity, and indemnity without litigation or delay, is the thing desired. As against the bank, it would be germane to show that it is financially weak or insolvent; that it is not efficiently and conservatively managed; that its officers and employes are incompetent or discourteous; and ' any other element which a reasonable man would be likely to consider in determining its fitness to be designated a depository of public funds.
.To make these defenses, thoroughly and in good faith,' would require • considerable time and the expenditure of considerable money. Is it permissible for a board of finance to spend public funds for that purpose? Is it to be said that the members of the board of finance must provide money from their private funds with which to make these defenses? If the financial condition of the bank or surety company •is an issue to.be tried, would it not be required to -bring its assets into court in order that they may be ' scrutinized item by item? In every case, would not the burden be on the bank to prove its fitness to be designated a public depository? Could trial by jury be denied?
The foregoing considerations should suffice to indicate the folly of regarding the proceeding as a civil action within the Code. We are of the opinion that the legislature did not intend that there should be an adversary proceeding under the Code, requiring issues, trial, finding, and judgment, and did not intend that this function should be performed by the judge in his judicial capacity. What is presented to the judge is more in the nature of a business' proposition than a civil action. However, in determining the matter the judge should exercise a sound discretion. The discretion must be exercised in a reasonable manner, and not maliciously, wantonly, or arbitrarily, to the wrong and injury of any one. This is held to be the rule applicable to all administrative officers when exercising the discretion conferred upon them by law in the performance of their official duties. Taylor v. Robertson (1898), 16 Utah 330, 52 Pac. 1.
Section 16 of said act provides: ‘ ‘ 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
Why, then, should the hoard of finance have the right of appeal to this court? When the judge of the circuit court approved the bond and designated the. hank a depository, the hoard of finance was not thereby aggrieved, hut relieved. Henceforth the board of finance may deposit funds belonging to the school town of Port Fulton in said hank, free from either legal or moral responsibility, excepting only as provided in said §16.
We realize that the words “jurisdiction to try and determine the case,” appearing in the section last quoted,-when considered alone, tend strongly to support appellant’s theory that the legislature intended that the proceeding should he a civil action within the meaning of the Code. But when said words are considered in their relation to all other parts of the statute, it becomes apparent that the legislature could not have so intended. The legislature intended only that the judge should hear such evidence as would enable him to determine (1) whether he ought to approve the bond, and (2) whether he ought to design nate the hank a public depository. ' There was nothing else involved, and consequently nothing else to “try” in the “case” before him. Without further elaboration of this point, we are constrained to say that the last sentence of said §13 is hut an instance of the careless and unskilled use of language so often found in hasty legislation.
The appeal is dismissed.