Appellant brought this action in the nature of an appeal from the action of the board of finance of Seward township, Kosciusko county, Indiana, under §13 of the act of 1907 (Acts 1907 p. 391, §7534 Burns 1908), on the refusal of appellee to approve its bond tendered, and to designate it as a depository for a part of the public funds of said township, and requested the court to investigate and make a special finding of facts and conclusions of law thereon. The court found in favor of appellee.

1. Appellant bases its right to be declared a depository of the public funds of said township on the special finding of facts, which relate solely to the financial responsibility of appellant to become a depository. Nowhere in said findings do we find that appellant has filed its written proposal in due time, under §15 of said act (§7536 Burns 1908), to become a depository, nor that there were no banks or trust companies capable of being designated a public depository located in Seward township. These were material facts to be determined by the court from the investigation, and if they were facts should have been specially found. The court found that appellant was located in Harrison township, in said county.

2. The following is the provision in §21 of said act (§7542 Bums 1908): “That all funds of city, town, township and school corporations shall be deposited in banks, banking institutions or trust companies, designated as public depositories, located within the respective limits of such cities, towns, townships or school corporations, if such there be which shall accept such deposits of funds on the terms herein provided.” Under said section appellee could not legally have designated appellant as such depository, unless there was no bank or trust company in Seward township willing and qualified to accept the public funds of said township. Appellant’s right of recovery depends on the fact that there was no such bank in Seward township, *607and which fact should have been found in its favor to entitle it to the relief prayed. We cannot say from the special findings that there is no such bank or trust company in Seward township, therefore, the judgment is affirmed.

Note.—Reported in 99 N. E. 979. See, also, under (2) 13 Cyc. 814.