200 Cal. 1, S. F. 11654, Bank of Italy v. Johnson

Docket NºS. F. 11654
Citation200 Cal. 1, 251 P. 784
Opinion JudgeSHENK, Judge
Party NameBANK OF ITALY (a Corporation), Petitioner, v. JOHN FRANKLIN JOHNSON, as Superintendent of the State Banking Department of the State of California, Respondent
AttorneyCullinan & Hickey and Garret W. McEnerney for Petitioner. James M. Oliver and Elbert W. Davis for Respondent. Thelen & Marrin, Amici Curiae.
Judge PanelJUDGES: In Bank. Shenk, J. Richards, J., Curtis, J., Waste, C. J., Finlayson, J., Sullivan, J., and Seawell, J., concurred.
Case DateDecember 15, 1926
CourtUnited States State Supreme Court (California)

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200 Cal. 1

251 P. 784

BANK OF ITALY (a Corporation), Petitioner,

v.

JOHN FRANKLIN JOHNSON, as Superintendent of the State Banking Department of the State of California, Respondent

S. F. No. 11654

Supreme Court of California

December 15, 1926

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PROCEEDING in Mandamus to compel the Superintendent of Banks to issue permits for certain branch banks.

Writ denied.

COUNSEL:

Cullinan & Hickey and Garret W. McEnerney for Petitioner.

James M. Oliver and Elbert W. Davis for Respondent.

Thelen & Marrin, Amici Curiae.

JUDGES: In Bank. Shenk, J. Richards, J., Curtis, J., Waste, C. J., Finlayson, J., Sullivan, J., and Seawell, J., concurred.

OPINION

SHENK, Judge

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[251 P. 785] This is an original proceeding in mandamus to compel the respondent superintendent of banks to issue to the petitioner two permits for the establishment and maintenance of branch banks in the city of Los Angeles, one for a branch at North Spring Street and Sunset Boulevard, and the other for a branch in the Building of the Women's Athletic Club at No. 833 South Flower Street.

The petition was filed on June 18, 1925, and an alternative writ was issued, returnable on September 15th. On the return day the respondent filed a demurrer on the ground that the petition did not state sufficient facts to entitle the petitioner to the relief sought and at the same time filed an

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answer which, in the opinion of counsel for petitioner, presented issues of fact requiring the taking of testimony. By stipulation, concurred in by the court, Mr. B. Grant Taylor, clerk of this court, was appointed commissioner with the understanding that he should not submit findings on the evidence taken before him, but that the court should make its own findings and draw its own conclusions from the record. It was also agreed that after the evidence was taken and filed the matter should be set down for oral argument. The evidence was taken from time to time before the commissioner, both in San Francisco and in Los Angeles. The hearings were protracted, the last occurring in San Francisco on March 22, 1926. The commissioner thereupon filed a transcript of the evidence which comprises 1,925 pages of oral testimony and 227 exhibits. The matter was set down for oral argument and was argued on April 9 and 10, 1926. On the request of counsel for both sides permission was granted to file briefs, the last one being filed by [251 P. 786] the petitioner on September 1, 1926. Thereafter, on application of petitioner, but over the objection of respondent, the court, on October 4th, granted leave to file amendments to its petition, which were intended in the main to conform to the proof as counsel for petitioner construed the proof to be, but such leave was granted of course without prejudice to the rights of the respondent in the premises. The matter was thereupon ordered submitted for decision.

The insistence of counsel for respondent that his general demurrer is well taken renders it necessary to determine first the sufficiency of the facts as alleged by the petitioner. In the first cause of action in its original petition it was alleged among other things that the petitioner is a banking corporation incorporated in August, 1904, under the laws of this state with its principal place of business in the city and county of San Francisco; that it is authorized by its articles of incorporation to establish and maintain branch offices in the city and county of San Francisco and elsewhere throughout the state; that on February 1, 1923, the respondent was appointed and became and ever since has been the duly qualified and acting superintendent of banks of the state banking department of the state of California as provided for in an act entitled "An act to define and regulate the business of banking" and known as the Bank Act (Stats. 1909, p. 87),

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and amendments thereto; that there are and for some years last past have been two general systems or methods of branch banking sanctioned by law in California, one known as state-wide branch banking, by which a bank maintains its principal office in one city and branches in other cities or towns within the state, and the other known as city-wide branch banking, by which a bank maintains branches in the city in which its principal place of business is located; that banks which do not maintain branches are known as unit banks; that certain banks in San Francisco and Los Angeles, including the petitioner, have adopted a branch banking system for areas beyond the territorial limits of the city in which the principal place of business is located and that the petitioner first entered upon that field and thus far has embarked upon a more extensive area than any other of such banks doing the same branch banking business; that with the exception of petitioner no bank with branches, the principal place of business whereof is north of thirty-seven degrees north latitude (which runs through the extreme southern portion of Gilroy), has established or applied for permission to establish any branch south of said line of latitude and no bank with branches, the principal place of business whereof is south of said line of latitude, has established or applied for permission to establish a branch north of said line of latitude; that both state-wide and city-wide branch banking are authorized by said bank act and have received the approval of the superintendent of banks.

The petition then set forth generally the reasons from the viewpoint of petitioner why as a matter of economic policy state-wide branch banking should be favored, and the status of petitioner as a sound financial institution which conducts a well managed and highly profitable banking business; that with the written approval of respondent or his predecessors in office the petitioner has heretofore opened seventy-eight branch banks in sixty-two cities and towns in the state other than the city and county of San Francisco, many of which are north and many south of the latitude aforesaid; that it maintains six branches in various parts of the city of Los Angeles; that five of said branches were authorized by the respondent's predecessor in office and the sixth required the written approval of the respondent; that of the branch banks opened and maintained by petitioner all were acquired

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by the purchase of existing banks with the exception of twenty, which were newly established, that is to say, were established where no bank had theretofore been conducted, and were and are banking offices commonly known as de novo branches. The petitioner then set forth tabulations showing the names of eight of the leading metropolitan banks in San Francisco, Oakland, and Los Angeles and the number of branches maintained by them by purchase and de novo. By comparison it is seen that the petitioner maintains ten more branches than the highest in that group of eight and has established a greater proportion of branches by purchase or merger than any bank in the group.

It was next alleged that the petitioner now maintains a branch office on the southwest corner of Temple and Spring Streets in the city of Los Angeles known as its International Branch. This bank was acquired in September, 1917, and before that time was an established and widely patronized independent bank at the same location; that the city of Los Angeles has instituted proceedings to condemn the property on which that branch bank is located, and that by reason thereof said branch must be moved to another location; that with said necessity in view the petitioner applied for and was, by respondent, granted permission to remove said branch bank from its present location to No. 214 North Main Street, which is across the street on Main Street from the present location. In its application for said removal the petitioner also applied for an additional branch at North Spring Street and Sunset Boulevard, a distance of about four blocks northerly from the location of the present international branch office. This application was denied by the respondent and the petitioner now seeks by this proceeding to compel the respondent to grant said application [251 P. 787] and in that behalf alleges that public convenience and advantage require and would be promoted by the opening of a branch bank at the corner of North Spring Street and Sunset Boulevard, and that unless said permission be granted much business conducted at its present location will be diverted to other banks and public convenience and advantage will be retarded and averted; that there is and has been no evidence of any substantial character justifying the conclusion that the public convenience and advantage would not require or be promoted by the opening of said branch bank and that

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the action of the respondent in denying permission to open a branch bank at said new location "was arbitrary and capricious and without support whatever in reason"; that the respondent "ever since his incumbency began on February 1, 1923, has administered his office upon the theory that his decisions were and are to be controlled, and the exercise of his discretion confided to him by section 9 of the Bank Act, is limited by and subordinate to and controlled by a rule of his office commonly called and sometimes herein spoken of as the de novo rule"; that Mr. Jonathan S. Dodge, the respondent's immediate predecessor in office, promulgated said rule and throughout his term declared the same to be a valid rule of and within the state banking department; that continuously and ever since the respondent's induction into office he has announced his adherence to said rule...

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    ...if the facts lead to only one choice, the court may compel the agency or official to make that choice. (See Bank of Italy v. Johnson (1926) 200 Cal. 1, 31 [251 P. 784].)7 The Foundation alleges the only reasonable preventive course of action is a regulatory order mandating condom use and he......
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    ...physical alteration to the streambeds. Its previous lack of enforcement does not rewrite the statute. (See Bank of Italy v. Johnson (1926) 200 Cal. 1, 15 [251 P. 784] [agency head “may not by the adoption of any rule of policy or procedure so circumscribe or curtail the exercise of his disc......
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    ...in the officer. A writ of mandate will not issue to force the exercise of discretion in a particular manner. Bank of Italy v. Johnson, 200 Cal. 1, 251 P. 784; Browning v. Dow, 60 Cal.App. 680, 213 P. 707; Inglin v. Hoppin, 156 Cal. 483, 105 P. 582. 'The fixing of the salaries of the many em......
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  • 272 P. 987 (Mont. 1928), 6330, Northern P. Ry. Co. v. Bennett
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    • Montana United States State Supreme Court of Montana
    • December 27, 1928
    ...in principle similar to the provision under discussion was upheld in California, over the objection here made, in Bank of Italy v. Johnson, 200 Cal. 1, 251 P. 784. There the statute prohibited any bank from opening a branch bank without the written approval of the superintendent of banks, w......
  • 76 N.W.2d 722 (S.D. 1956), 9540, Wall v. Fenner
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    • May 4, 1956
    ...function and not the exercise of a judicial power. State ex rel. Dybdal v. State Sec. Comm., supra; Bank of Italy v. Johnson, 200 Cal. 1, 251 P. 784. Because of this nature of the determination it has been held that the legislature could not constitutionally delegate such function to the co......
  • 60 Cal.App.3d 383, 38132, City of San Marcos v. California Highway Com.
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    ...Zone No. 1 (1944) 24 Cal.2d 796, 810; Cal. Drive-In Restaurant Assn. v. Clark (1943) 22 Cal.2d 287, 303; Bank of Italy v. Johnson (1926) 200 Cal. 1, 20; and Leftridge v. City of Sacramento (1943) 59 Cal.App.2d 516, 523--524.) The question is whether the regulation asserted falls within the ......
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    ...the body to which the Legislature entrusted discretion to enforce the provisions of the FPA. As stated in Bank of Italy v. Johnson (1926) 200 Cal. 1, 15 [251 P. 784], the head of an agency “may not by the adoption of any rule of policy or procedure so circumscribe or curtail the exercise of......
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