(148 N.E.) save embarrassment. The motion to dismiss Jefferson streets instead of at the intersecthe appeal is overruled.

tion of the railroad with Monroe street. [4] The substantial question for our con The theory of this complaint is clearly that sideration in this appeal is the court's action of negligence, and we regard such characterin sustaining appellee's demurrers respective ization as "wanton," "willful," and "criminal ly to the second and third paragraphs of the intent" as mere expletives. They add nothcomplaint. After formal averments and pre-ing to appellant's charge of negligence. liminary facts, including the averment of a There was no motion to make the comcity speed ordinance and the violation there- plaint more specific as to the negligence of of, the second paragraph of the complaint the appellee, and the general averments of charges in substance that on November 25, negligence are sufficient to withstand demur1919, appellant's decedent was in the act of rer. Indianapolis St. R. Co. v. Schmidt crossing the tracks of the company at their (1904) 163 Ind. 360, 71 N. E, 201; Cleveland, intersection with Monroe street, in the city etc., Ry. Co. v. Clark (1912) 51 Ind. App. 392, of Franklin, traveling on foot, and without 97 N. E. 822; Ohio & Miss. Ry. Co. v. Selby any fault or negligence on his part, but sole (1874) 47 Ind. 471, 17 Am. Rep. 719; Terre ly by reason of the wanton, negligent, wrong- Haute, I. & E. Traction Co. v. Maberry (1913) ful, and willful conduct of said company, its 52 Ind. App. 114, 100 N. E. 401. agents and employees, in violation of the The specific facts averred which appellee provisions of said ordinance, he was struck contends Show contributory negligence are by the engine drawing a train of cars while not sufficient within themselves affirmatively he was upon said street; that it was the to show contributory negligence, and appelduty of said company at all times, when op- lant was not bound to aver additional facts. erating its trains along said right of way Cleveland, etc., R. Co. v. Clark, 51 Ind. App. within the corporate limits of said city, to 392, 97 N. E. 822; Indiana Union Traction keep a vigilant watch for all vehicles and Co. v. Reynolds (1911) 176 Ind. 263, 95 N. E. persons on foot, either on or moving towards 584. its tracks, and on the first appearance of dan The judgment is reversed, with instructions ger to stop in the shortest time and space to overrule the demurrer to the complaint, and otherwise to observe and perform all the and for further proceedings. municipal regulations and rules imposed upon it by said ordinance; that, had said train been running in the proper manner and in compliance with said ordinance, the employees and servants of said company, in charge

CITY OF INDIANAPOLIS V, NATIONAL thereof, would have been able to have seen

CITY BANK OF INDIANAPOLIS.* said Rink in time to have stopped and there

(No. 11473.) by saved him from injury and death; that the view from said crossing was unobstructed (Appellate Court of Indiana, Division No. 2. for 60 feet to the south of said crossing;

March 29, 1923. Rehearing Denied 141 N.

E. 249. Transfer Denied.) that said company on said day wholly disregarded its duty and the provisions of said or 1. Appeal and error Omw 1040(13)-Overruling dinance, and so negligently, unskillfully, and demurrer to answer averring substantially trith criminal intent ran said train through

same facts averred in complaint hold not

reversible error. said corporate limits; that it was run upon

Where the said Rink without his fault, thereby strik

answer averred substantially ing him with such force as to cause his the same facts averred in the complaint merely death; that said death resulted from the neg- fect thereof, and no evidence was adduced there

to present defendant's theory of the legal efligence, unskillfulness, and criminal intent under which would have been inadmissible unof the said company, its agents and servants; der the general denial, it was not reversible that said deceased was a carpenter working error, if technically erroneous, to overrule a at the carpenter trade and was wholly de- demurrer thereto. Burns' Ann. St. 1914, 8 pendent upon his daily work and labor for

350. support and for the support of his family, 2. Municipal corporations Cum 1009–Board of consisting of a wife and children; that, by public works' allowance of claims in reliance reason of the said careless, negligent, and

on street commissioner's certificate without wanton conduct of the agents, servants, and

knowledge of fraud is quasi judicial act. employees of said company producing the

Since no order can be drawn on the city death of said Rink, appellant herein was en

treasurer by the controller for payment of titled to recover from appellees damages in claims originating in the department of public the sum of $10,000.

*REPORTER'S NOTE—This case, as originally filed, The third paragraph of complaint is sub was published in 138 N. E. 791. stantially the same as the second except that and publication, changes in the opinion have been

made, which, while not affecting the merits of the it avers that the accident occurred upon ap- decision, make it necessary, in the interest of our pellee's right of way between Monroe and subscribers, to reprint the case here.

wFor other cases soa same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

works for work done on the streets under | persons, evidence held insufficient to show that Burns' Ann. St. 1914, $ 8696, without a warrant the payees named did not exist, or that the from the board of works, the board has power, indorsements. on the warrants were forged. under that section and section 8690, to allow 7. Appeal and error Om 1068(3)—Charge not or disallow such claims, and allowance thereof is a quasi judicial act, though done in reliance

reversible error, where jury returns only ver.

dict possible. on a certificate by the street commissioner without knowledge at they were filed for fictitious Where the jury returns the only verdict that persons.

can lawfully be rendered on the evidence, noth

ing in the charge can constitute reversible error. 3. Municipal corporations 897—Controller's act in approving and signing warrants based on

8. Constitutional law Ow52–Legislature may claims filed for fictitious persons Is quasi ju

not defeat citizen's rights by invading province dicial.

of judicial department. Since the city controller, as head of the

The Legislature may not strike down the finance department, has power, under Burns' rights of citizens by invading the province of Ann. St. 1914, § 8690, to investigate claims

the judicial department of the state government. originating in the department of public works, 9. Constitutional law w 48-Construction ren. to approve or disapprove any items in war dering statute constitutional adopted. rants presented to him by the board of works,

The Appellate Court cannot declare a stat. notwithstanding the board's allowances of the

ute unconstitutional, but where it is susceptible claims, and to summon and examine witnesses, of two constructions, one of which would renincluding officers, agents, or employees of the der it constitutional and the other unconstidepartment, his action in approving claims filed tutional, it should adopt the former, for and signing warrants issued to fictitious persons is quasi judicial.

10. Depositaries Cum Il-Report to state ex.

aminer of public accounts held inadmissible 4. Depositaries w 10-Not liable for pay

in city's action for sums paid on warrants to ments on city controller's orders based on fictitious persons. claims, allowances of which were obtained by

In a city's action against the depository of city employee's fraud.

its funds to recover amounts paid on warrants Under the Depository Law, the legal title alleged to have been issued to fictitious perto city funds vests in the municipality, not the sons, a report to the state examiner of pubtreasurer, as under the general municipal gov- lic accounts of an examination of the city conernment act, and the municipality is bound by troller's affairs held inadmissible as largely irits treasurer's action in stamping and counter-relevant and containing statements prejudicial signing orders directing the depository to pay to defendant, notwithstanding Burns' Ann. St. claims, and will not be permitted to say that 1914, § 7546i, the intent of which was to reallowances thereof were obtained by a city em quire receipt of only such reports as are comployee's fraud, in order to shift the loss to the petent under rules of evidence and in the par. depository, which is not bound to inquire as ticular kind of action authorized by the public to the regularity of the allowances.

accounting statutes. 5. Depositarios em 10—Liable for payments 11. Depositaries Emil-Question whether per. negligently made to fictitious persons on or

sons whom witness investigated had indorsed ders made by city controller in belief he names on warrants to alleged fictitious per. was making them payable to real persons;

sons held improper. "checks"; "negotiable instruments."

In a city's action against the depository of While salary warrants, drawn by the city its funds to recover amounts paid on war. controller on the city treasurer, directing pay rants alleged to have been issued to fictitious ment of certain sums to persons named, "sub- persons, a question asked a witness, who had ject to all delinquent taxes," are not "checks” been a member of two grand juries and clerk nor even "negotiable instruments” within Burns' of another and had otherwise investigated the Ann. St. 1914, 88 9089a, 9089b, though stamp- matter, as to whether persons of the same ed and counter signed by the treasurer, but names as payees had indorsed their names on orders specially designed to meet the require the warrants, was improper. ments of the depository law, the depository of 12. Depositaries all-City directory held in. the city's funds must exercise the same care in admissible to prove nonresidence of alleged paying them that a bank must exercise in pay fictitious person. ing checks, and hence would be liable to the

A page of a city directory the names in city for payments negligently made to fictitious which were procured between October 1 and persons, if the controller believed he was mak- December 31, 1914, held inadmissible, in the ing the orders payable to real persons, in which city's action against the depository of its case they would not be payable to bearer.

funds, to recover sums paid on warrants alleged [Ed. Note.-For other definitions, see Words to have been issued to fictitious persons, for and Phrases, First and Second Series, Check; the purpose of proving that no such person Negotiable Instrument.]

as one named in a warrant issued June 2, 1913, 6. Depositaries Coll-Evidence held insuffi. resided in the city.

cient to show that indorsements on warrants | 13. Appeal and error w 174–Attorney Gen. paid by depository were forged.

eral's right to suo in city's name regarded as In a city's action against the depository of waived where not questioned. its funds to recover payments made on war Under Burns' Ann. St. 1914, § 344, c. 6, rants alleged to have been issued to fictitious and section 348, the Attorney General's right

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Carl Von Hake,

(148 N.E.) to sue in the name of a city to recover sums

to countersign the warrants and stamp them paid by its depository will be regarded as waived with the name of the defendant, thereby makwbere not questioned.

ing the warrants checks payable to fictitious

or nonexisting persons; that the checks which Appeal from Superior Court, Marion Coun- said officers were thus induced to execute and ty; L. D. Hay, Judge,

deliver as aforesaid were as follows: Action by U. S. Lesh, Attorney General, in

Office of City Controller No. 15296. the name of the City of Indianapolis, against

Board of Public Works-Salaries
the National City Bank of Indianapolis.
Judgment for defendant, and plaintiff ap-

Treasurer of the City of Indianapolis:

642-15. peals. Affir med.

Pay Frank Akers or order

$17.00 For opinion on rehearing, see 141 N. E. 219.

subject to all delinquent taxes

seventeen and no, 100 dollars. Allowed by This action was instituted by the Attor

Board of Public Works. ney General, in the name of the City of In

Payable at National City Bank, Indiandianapolis, against the National City Bank

apolis, Iod. of Indianapolis, by filing the following com

J. P. Dunn, City Controller. plaint: "The plaintiff, city of Indianapolis, com copied in full.}

"[Here the other 82 checks involved are plains of the defendant National City Bank of Indianapolis, a corporation, and alleges:

**That there were no such persons as Frank *That the plaintiff is now, and during the Akers (and the other 82 named as payees in years 1914 and 1915 was, a municipal cor

the checks); that the city controller and the poration and a city of the first class; that the city treasurer believed at said times that there defendant during said years was carrying on a

were such persons, and so believed when said general banking business in the city of Indian-checks were executed and delivered as aforeapolis, and was a duly selected and acting pub- said; that the city controller had no knowledge lic depository of said city.

that said claims for fictitious and nonexisting "That on each of the dates hereinafter men

persons were false and fraudulent when he tioned the plaintiff had on deposit with the approved them, and had no knowledge that the defendant, as a public depository of said city, claims were filed in the names of fictitious or subject to be drawn out by check, a sum of nonexisting persons and when he signed the money greater than the amount of the checks warrants he did not know that the payees therehereinafter described; that on the dates here- in named were fictitious or nonexisting persons; inafter mentioned in the years 1914 and 1915 that when the city treasurer countersigned said one Dennis J. Bush, street commissioner of warrants and stamped them with the name of said city, praeticed a fraud on plaintiff and the a public depository and returned them to the members of the board of public works, the city city controller, he had no knowledge that the controller, and the city treasurer by filing with payees therein named were fictitious or nonand presenting to the board of public works existing persons; the members of the board of false and fraudulent claims in the names of public works, the city controller, and the city fictitious or nonexisting persons for work al treasurer were not careless or negligent releged to have been done for the city; that the specting the said transactions, but instead were members of the board of public works relying ordinarily careful and prudent in respect thereupon the certificate of said street commissioner, I of. and not knowing or ascertaining that said "That after said checks were delivered by claims were filed for fictitious or nonexisting the city controller to the street department to persons, allowed them; that thereafter the be delivered to the payees therein named, one claims, as allowed by the board of public works, James McCrossan, chief clerk of said departwere presented to Jacob P. Dunn, city con ment, or some other person or persons unknown troller, who approved them and drew warrants to plaintiff, wrote the name of the payee named on the treasurer of the city for their payment, in each check across the back thereof, and which warrants were signed by him as such of each was presented to the defendant and paid, ficer by writing his name, J. P. Dunn; that and the defendant charged the amount of each thereafter the warrants were presented by the of said checks against the account of plaintiff ; city controller to Carl Von Hake, treasurer of that the members of the board of public works, the city, who countersigned them and stamped the city controller and the city treasurer had thereon the name of the defendant, National no knowledge of the forged indorsements of City Bank, Indianapolis, Ind.,' as the public de- the names of fictitious or nonexisting persons, pository and banking institution where the war on said checks until after the defendant had rants would be paid, thereby making the war- paid them; that the plaintiff, before the comrants checks on the defendant; that the city mencement of this action, demanded of the detreasurer delivered the checks to the city con fendant the payment of the sum paid by it on troller, who delivered them to the street de said checks, which defendant refused, and has partment for the purpose of delivery to the not, either before or since said demand, paid payee therein named.

the sum or any part thereof. "That on account of the fraud practiced on "That the amount paid by the defendant in the members of the board of public works, on payment of said checks and charged to the the city controller and the city treasurer, the plaintiff was $1,359.20, which sum, with interest city controller was induced to approve, sign, thereon from the dates of the various payments, and present to the city treasurer the warrants, is unpaid and due from the defendant to the which were payable to fictitious or nonexist- plaintiff; that heretofore by authority of the ing persons; and the city treasurer was induced state examiner of the state board of accounts,

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an examination was made of the office of city U. S. Lesh, Atty. Gen., Taylor E. Groninger controller of the city of Indianapolis, and that a report of said examination was made, signed, and Willard B. Gemmill, of Marion, for ap

and Dale F. Stansbury, both of Indianapolis, verified, and filed (as directed by statute); that one copy was transmitted by the Gover

pellant. nor to the Attorney General, and the Attorney

Chas. W. Miller and Henry M. Dowling, General hereby institutes and prosecutes this both of Indianapolis, for appellee. civ proceeding against the defendant in order to carry into effect the findings resulting from

DAUSMAN, J. (after stating the facts as such examination, and to secure to the said above). [1] An extended discussion of the city of Indianapolis the amount due it from the merits of the second, sixth, and eighth paradefendant as hereinbefore alleged.

"Wherefore, the plaintiff demands judgment graphs of the answer would serve no useful against the defendant for $1,900, and all other purpose. It is sufficient to say that, except.

ing the averments relating to the balancing proper relief."

of the passbook, the facts averred in these A demurrer to the complaint on the ground paragraphs were substantially the facts averthat it does not state facts sufficient to con- red in the complaint. The only purpose of stitute a cause of action was overruled. these paragraphs (with the exception above The defendant filed an answer in eight para- stated) was to present the defendant's theory graphs. A demurrer was sustained to the of the legal effect of the facts. See Trinkle third, fourth, and fifth paragraphs of the an- v. Ladoga Bldg. Loan Fund & Savings Ass'n. swer, and overruled as to the second, sixth, (1917) 65 Ind. App. 415, 117 N. E. 542. No eviand eighth. The first paragraph of the an- dence was adduced under these paragraphs swer is the general denial; the second is on which would not have been admissible under the theory of estoppel, and avers that the the general denial, and therefore because of bank was deceived by the negligent conduct the provision of the Code applicable to this of the city officers; the sixth pleads facts feature the ruling on the demurrer could not tending to show that each order was pay- be reversible error even if technically erroneable to bearer; and the eighth is on the ous. Section 350, Burns' 1914; section 345, theory of estoppel, and avers (in addition R. S. 1881. to other averments) that once each month We must now discover, if possible, the the bank balanced the plaintiff's passbook, true theory of the complaint; for a definite and delivered the passbook, together with understanding of that theory is essential to the orders for the payment of which the an intelligent consideration of the motion bank claimed credit, to the plaintiff; and for a new trial. By indulging inferences that the plaintiff never complained or gave with a liberality which can hardly be justi. notice to the defendant that any of the orders fied, it may be said that the cause of action were fraudulent until long after the last rests on the ground that the street commis. order had been paid. A reply in denial clos- sioner, for the purpose of defrauding the city, ed the issues. The trial resulted in a ver- falsely represented to the board of public dict for the defendant.

works that certain persons were entitled to The plaintiff filed a motion for a new

wages for work done by them on the streets; trial on the following grounds: (1) That the that in truth there were no such persons, verdict is not sustained by sufficient evi- and that they had no existence except in the dence; (2) that the verdict is contrary imagination of the street commissioner; that to law; (3) that the court erred in excluding in making the allowances, in preparing and from the evidence the Plaintiff's Exhibit delivering the orders to the street commisNo. 2, which is a report, made to the state sioner, the city officers believed that the examiner by the field examiners, of an ex

payees were real persons; that since in truth amination of the affairs of the city control the payees were the exclusive creatures of ler; (4) that the court erred in refusing to the street commissioner's imagination, any permit the witness Mr. Thomas, one of the signature which purports to be the indorse field examiners, to state to the jury whether ment of any payee must necessarily be a his investigation disclosed that persons bear- forgery; and that therefore the depository ing the names used as the names of payees is liable for paying the orders on the forged in the orders had indorsed the orders; (5) indorsements. No other valid theory of liathat the court erred in excluding from the bility can be constructed from the facts evidence a portion of page 163 of the In- averred. No cross-error has been assigned dianapolis City Directory for the year 1915, and the sufficiency of the complaint is not published by R. L. Polk & Co., after iden- questioned in this court. tification and explanation; and (6) that To meet the contentions of the parties an the court erred in certain instructions given, inquiry into the regularity of the method and in rejecting certain instructions ten- pursued by the city officers in allowing the dered. The motion for a new trial was over claims and issuing the orders is essential. ruled. The errors assigned challenged the The General Act of 1905, prescribing the ruling on the demurrer to the second, sixth, details of municipal government, as amended, and eighth paragraphs of answer, and the provides that the board of public works shall ruling on the motion for a new trial.

have power to repair, clean, light, and sprin.

p. 253.

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(148 N.E.) kle the streets, alleys, and other public places, and his action in that regard was quasi juwithin the city, and that this work may be dicial. done either by contract or by the board it [4] It is of the utmost importance to note self. Section 8696, Burns' 1914; Acts 1913, and the fact should be clearly understood

and fully appreciated that the city officials The only inference to be drawn from the and the depository were operating under the complaint is that the board elected to do direction of certain statutes. There can be the street work itself by and through its own no accurate reasoning on the subject, which employees. See Brunaugh v. State (1910) 173 does not rest on that foundation. The govInd. 483, 90 N. E. 1019. No statute has been ernmental act of 1905 made the treasurer the pointed out to us, and we know of none,

custodian of city funds, and made it his which provides for any such officer as street duty to pay all city orders when presented commissioner. Therefore we indulge the and "properly, indorsed.” Under that law further inference that the street-working

would be his duty, when an order is preforce was organized, and for convenience was sented, to ascertain if the payee owes the designated "street department”; that one

city on account of "any debt, tax or assessDennis J. Bush had general supervision of the ment," and if anything is found to be due laborers engaged in street work, and for con

the city from the payee, then to apply the venience was designated “Street Commis- order, or so much thereof as necessary for sioner”; that the department in all respecte that purpose, to the payment of the tax or was under the immediate direction and con- assessment; and upon the payment of any trol of the board of public works; and that order, to stamp on its face the word “reBush furnished the board, from time to time, deemed.” That law also requires the treasinformation concerning wages due the men

urer to furnish the controller, on the first employed in the street department.

day of each month, a statement of all re[2] Under the statutory plan for the pay. ing the previous month; to deliver to the con

ceipts and disbursements made by him dur. -ment of claims originating in the department troller all orders redeemed and canceled by of public works, if the workmen were to receive their wages, it was essential that the controller's receipt therefor. It requires the

him during the same period; and to take the board should take some action on the claims reported to it by Bush; for no order could controller to lay the statement, together with be drawn on the treasurer by the controller council at its next meeting, to be disposed

the redeemed orders, before the common for the payment of the claims without a "warrant" from the board.

of as the council may direct. Sections 8835

Section 8690,
Burns' 1914; Acts 1909, p. 385. By implica-section 8656, Burns 1914 (Acts 1909, p. 459).

8837, Burns' 1914 (Acts 1905, pp. 371, 372); tion, the statute confers ample power upon From the language of that statute it clearly the board to allow or disallow claims of that

appears that the Legislature intended that kind. Sections 8690, 8696, Burns' 1914, su every order should be delivered to the payee pra; Brunaugh v. State, supra. The aver. when drawn, and that the payee should prement is that, relying on some sort of certific sent it to the treasurer for payment. Under cate made by Bush, and “not knowing or as that law the legal title to the funds vested in certaining that the claims were filed for fic- the treasurer, and when the funds were detitious or nonexisting persons,” the board al-posited, the relation of bank and depositor lowed them.

existed between the bank and the treasurer, [3] It is averred that the claims, as al- and payments were made by the bank on the lowed by the board, were presented to the treasurer's checks. But the act of 1907, comcontroller. That averment may be taken to monly known as the Depository Law, has mean that the board presented to the control. changed that plan. The later act provides ler what the statute denominates a "war- thatrant," and that the “warrant" was based "All warrants and orders for the payment upon the claims thus allowed. With respect of public money, excepting state and township to this averment it should be observed that funds shall be drawn by the proper officer upon

shall be prethe controller, as head of the finance depart the proper treasurer;

* who ment, had ample power to investigate the sented to the proper treasurer

shall stamp upon the warrant or orclaims and to approve or disapprove any item der the name of the depository by which such in the warrant, notwithstanding the allow

warrant or order is payable, and countersign ance by the board, He had power to require the same, and no warrant or order shall be evidence to enable him to determine whether effective until so stamped and countersigned." the amount claimed in any item was justly Section 7545, Burns' 1914; Acts 1907, p. 391, due; and for that purpose he was authorized as amended Acts 1911, p. 616. to summon before him any officer, agent, or Under the act of 1907 the legal title to the employee, of any department, or any other funds vests in the municipality; and when person, and to examine him upon oath rela- the funds are deposited in a public depositive to the claims or the warrant. Section

tory the relation of depository and deposi8690, Burns' 1914, supra; Brunaugh v. State, tor is thereby created between the depository supra. The controller approved the claims, I and the municipality. The Legislature bas



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