Walker Bank & Trust Co. v. Brimhall

461 P.2d 730, 23 Utah 2d 264, 1969 Utah LEXIS 534

• Court: Utah Supreme Court
• Decided: November 20, 1969
• Docket: No. 11628
• Status: Published

Opinions

HENRIOD, Justice:

Review¹ of a declaratory judgment, which 1) set aside the Commissioner’s denial of Walker’s application to establish a branch hank in South Ogden, and which 2) ordered the Commissioner to grant the application. Affirmed in part and reversed in part, with instructions. No costs awarded.

Walker’s main office is at Salt Lake City, and County, Utah. The proposed branch would be situate in South Ogden, Weber County. Ogden City has about 75,-000 people, and South Ogden has about 7,-500. Both are municipalities. Ogden has “unit” or established banks. South Ogden has no unit banks but there are “branch” banks (agencies of unit banks) in both Ogden and South Ogden. Under the statute,² except for cities of the first class, (the only one in Utah being Salt Lake City) no branch may be established if there is an existing “unit” bank, with a possible exception not pertinent here. There is none in South Ogden. Hence (and it is conceded by both sides) a branch bank can be established in South Ogden, if, among other things, certain statutory requirements are met. Such requirements generally are 1) adequate capitalization, 2) designation of place of proposed business and 3) proof to the satisfaction of - the Commissioner that the proposed branch will serve the public convenience and advantage.

It appears that everyone agrees that 1) and. 2) above are extant here. No. 3) seems to be the nub, involving the factor of discretion in the Commission. “To the satisfaction of the Commissioner” is something akin to “the satisfaction of a trial court, a poser to this court that more than once has resulted in either an approval or a reversal. No matter how satisfied a Commissioner or a trial judge may be, such satisfaction may not be satisfactory on appeal. Counsel appeal cases on that assumption. This is such a case.

Appellants urged that the Commissioner’s ruling is unrealistic and not in harmony with the spirit of the statute in this case. Walker proposed to put its branch on the South side of a street that is the boundary between Ogden and South Ogden. It could not establish a branch just a few feet north on the other side of the street, a fact that Walker concedes. Also it is conceded that the application was filed, not primarily or hardly at all, to serve the inhabitants of South Ogden, — but to serve inhabitants to the north and across the street.³ Any fair-minded person might conclude that such procedure appears to be an attempt to do indirectly that which could be not done directly. The answer is that the act does not interdict such a result. Although appellants urge that the application should be restricted to the political geographic area in which the branch is proposed to be located, the legislation does not share such conclusion. Nonetheless, it seems to us that geograph}', in a given case, could be some sort of a factor contributing to “public convenience and advantage” established “to the satisfaction” of the Commissioner, but there is nothing in the act making such factor conclusive, compelling or otherwise binding unless such factor fairly weighed, along with others, clearly would load the scales in a fashion reflecting caprice on the part of the Commissioner, in the opinion of the reviewing court.

The appellants filed an answer in which a defense was asserted that the facts did not support the conclusion of the Commissioner that public convenience and advantage would be served by establishment of the branch. Walker countered with a motion to dismiss such defense for the reason it was “an improper and insufficient defense and immaterial to the determination” of the matter. This motion was granted. All that was left was the order of the Commissioner based solely on the advice of the Attorney General, and a review of the evidence and a decision based thereon effectively were eliminated by the granting of the motion to dismiss. The court then granted summary judgment in favor of Walker and declared that the Commissioner’s denial of the application based on his adherence to the Attorney General’s opinion, was in error as a matter of law. We can and do affirm the trial court’s action in this respect since the Attorney General’s opinion was based strictly on the geographical factor.

The trial court, in ordering the Commissioner to grant the application, was in error, however, since, by eliminating a review of the facts by granting the motion to dismiss a defense based thereon, he could not then inconsistently require the Commissioner to grant the application which necessarily was dependent upon the excluded facts. Having exercised a restricted power to set aside the ruling or order of the Commissioner, it then would be either an invasion of the executive department’s prerogative, or a departure from legislative sanctions anent the authority of the Commissioner, for the court to order the Commissioner to grant the application.

It seems that the legislature generally has intended to restrict the power of courts, on review, to an approval or disapproval of an administrative official’s judgment. Although the wording of 7-1-26(4), U.C.A. 1953, having to do with judicial review under our Banks and Banking legislation, is not identical to that of Public Utilities legislation,⁴ or that under our Workmen’s Compensation Act,⁵ it seems rather obvious that the statute restricts the reviewing court, requiring it to approve or set aside the order or judgment of the Commissioner as is the case with the other administrative agencies mentioned.⁶ We so conclude. Doing so, we remand the case to the trial court. The trial court has already set aside the Commissioner’s order, which decision we affirm as above stated, and reverse the trial court’s judgment ordering the Commissioner to grant the application.

The Bank Commissioner will have to take it from there.

CALLISTER and TUCKETT, JJ., concur.

1 . Under Title 7-1-26(4), Utah Code Annotated 1953, as amended. (See Vol. 1, 1969, Pocket Supplement, pp. 279-80.)

2 . Title 7-3-6, Utah Code Annotated 1953, as amended. (See Vol. 1, 1969, Pocket Supplement, p. 282, et seq.).

3 .An official of Walker frankly conceded this by asserting that it would be as advisable to have its branch on Antelope Island in the middle of Great Salt Lake if it were restricted to serving South Ogden inhabitants only.

4 . Title 54-7-16, U.C.A.1953, where the decision on review is restricted to “either affirming or setting aside the order or decision of the commission.”

5 . Title 35-1-85, U.C.A.1953, where, on review the court is confined to entering judgment either “affirming or setting aside the award.”

6 .See Mountain State Tel. & Tel. Co. v. Public Service Comm., 107 Utah 502, 155 P.2d 184 (1945) ; Salt Lake Transfer Co. v. Public Service Comm., 11 Utah 2d 121, 355 P.2d 706 (1960).