First National Bank of Crown Point v. Camp

• Decision Date: 07 July 1972
• Docket Number: No. 71-1463.,71-1463.
• Citation: 463 F.2d 595
• Parties: The FIRST NATIONAL BANK OF CROWN POINT, a national banking association, and the Commercial Bank of Crown Point, a State of Indiana banking corporation, Plaintiffs-Appellants, v. William B. CAMP, Comptroller of the Currency of the United States of America, and Mercantile National Bank of Indiana, a national banking association, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

463 F.2d 595 (1972)

The FIRST NATIONAL BANK OF CROWN POINT, a national banking association, and the Commercial Bank of Crown Point, a State of Indiana banking corporation, Plaintiffs-Appellants, v. William B. CAMP, Comptroller of the Currency of the United States of America, and Mercantile National Bank of Indiana, a national banking association, Defendants-Appellees.

No. 71-1463.

United States Court of Appeals, Seventh Circuit.

Argued May 17, 1972.

Decided July 7, 1972.

William Carroll, Crown Point, Ind., Fred G. Donnersberger, Hammond, Ind., for plaintiffs-appellants.

L. Patrick Gray, III, Asst. Atty. Gen., William D. Appler, Walter H. Fleischer, Joseph B. Scott, Attys., Dept. of Justice, Washington, D. C., William C. Lee, U. S. Atty., Fort Wayne, Ind., Timothy P. Galvin, Sr., and Patrick J. Galvin, Hammond, Ind., for defendants-appellees.

Before SWYGERT, Chief Judge, and KILEY and SPRECHER, Circuit Judges.

SPRECHER, Circuit Judge.

On June 23, 1970, the Comptroller of the Currency of the United States approved an application by the Mercantile National Bank of Indiana for permission to construct a branch bank in an unincorporated area adjacent to the city of Crown Point, Indiana. The appellants in this case, the First National Bank of Crown Point and the Commercial Bank of Crown Point, raised objections to Mercantile's application at the Comptroller's informal hearing on the matter and renewed their objections in an administrative review procedure before the district court. The district court granted summary judgment for the codefendants, Mercantile Bank and the United States Comptroller, and the case is before us on appeal from that decision. We affirm.

The National Bank Act, 12 U.S.C. § 36(c), provides that banks may, with the approval of the Comptroller of the Currency, establish branch offices at any location authorized by state law.¹ The Indiana statutory provision applicable to branch bank locations in Lake County, the county in which Mercantile seeks to locate its branch, is Burns' Ind. Stat. § 18-1707. That section provides in part:

In all counties having a population of less than five hundred thousand (500,000) inhabitants, according to the last preceding decennial United States census, or in counties having three (3) or more cities of the second class, except as hereinafter otherwise provided, any bank or trust company may open or establish a branch bank in any city or town within the limits of the county in which the principal office of such bank or trust company is located, if there is no bank or trust company located in such city or town.

Appellants argue that the area in which the proposed bank was to be located was not a "city or town" within the meaning of section 1707 and that, if it was a "city or town," it was by prior de facto annexation part of the city of Crown Point, and, therefore, an objectionable site for a branch bank because both appellant banks maintain their home offices in Crown Point.

I.

In support of their contention that the district court erred in finding that the proposed site was a "town" within the meaning of the Indiana statute, appellants note that Mercantile's 1967 application for a branch banking site in the same area was denied because the Comptroller found that at that time the area "involved did not possess sufficient viability to be considered a city or town. . . ." Appellants argue that the Comptroller's conclusion that the area had developed sufficiently since that time to be a "town" within the meaning of the statute was arbitrary and capricious. We disagree.

A review of the record discloses that substantial development had occurred during the four-year period between 1967 when the first application was denied and 1970 when this application was filed. In 1967, there existed only one 27-unit single-family residential development; a proposal to build a courthouse in Lake County was stalled at the time by litigation which rendered its future uncertain. By 1970, however, the litigation had been successfully concluded, the state legislature had enacted legislation necessary for the project, and a $15 million bond issue to finance the project had been sold.² Furthermore, the number of residential units had increased from 27 units to 147 single-family units, with additional construction planned on land recently purchased in the area. Although the appellants challenge the propriety of the Comptroller's consideration of plans for future growth, the Comptroller was not restricted to the physical facts as they existed at the time of the application, but could take into consideration planned development of the area which would affect its character in the foreseeable future. First Citizens Bank & Trust Co. v. Camp, 409 F.2d 1086, 1093 (4th Cir.1969). Thus, taking into account the projected development in the additional 53 square miles encompassed by the 1970 service area and the development expected to be drawn by the location of the new Lake County court-house complex within that area,³ we believe the Comptroller's conclusion that the area in which the Mercantile wished to establish its branch bank was a "town" within the meaning of the Indiana statute⁴ was supported by substantial evidence.

II.

Appellants urge that under Indiana statutes in effect at the time of the 1970 application, the proposed site was in fact a part of the city of Crown Point by virtue of a prior de facto annexation. Although they concede that there was no formal annexation in compliance with Burns Ind.Stat. § 48-701 et seq., they advance several theories in support of their de facto annexation argument.

Appellants refer the court to a contract dated July 2, 1965, between the city of Crown Point and the owners of the property now referred to as Wirtz Crown Heights. By this contract, the developers of Wirtz Crown Heights agreed to develop the property according to the "Subdivision Control and Zoning Ordinances of the City of Crown Point" and to seek approval from the Crown Point Plan Commission for all developments in exchange for city water and sewer services. The contract contained a provision under which any rights to object to annexation of the area to the city of Crown Point were waived by the developers.⁵ It is argued that this contract represents an alternative method of annexation, expressly countenanced by Burns Ind.Stat. § 53-734, which could be used in place of the strict annexation procedure established by Burns Ind.Stat. § 48-701. Section 53-734,⁶ while giving Indiana cities the power to regulate contiguous unincorporated areas within a two-mile radius of the corporate limits, does not, we believe, represent an alternative to the annexation provisions of section 48-701. Section 48-701 is unequivocal in restricting the boundaries of cities and towns to those defined by formal ordinance.⁷ Although section 48-701 permits cities to contract with unincorporated areas for municipal services in lieu of annexation,⁸ the provision specifies limited periods of time during which any contract may continue in force,⁹ and, through a provision permitting the contracting parties to provide that annexation is not to be effected during the term of the contract,¹⁰ specifically delineates between the two procedures. We think it is clear, therefore, that neither section 53-734 nor the contractual provisions of 48-701 provide an alternative to the formal annexation procedures of sections 48-701 et seq. This decision is supported by the opinion of the Indiana Supreme Court in Pittsburgh, C.C. & St. L. Ry. v. City of Anderson, 176 Ind. 16, 18, 95 N.E. 363 (1911), in which the court states:

The municipal authorities can in no case alter the boundaries unless the power so to do is conferred upon them by the Legislature; such power, when conferred, must be exercised under the circumstances and in the manner prescribed.

Next the appellants argue that Mercantile, by voluntarily seeking to comply with the planning and zoning boards of Crown Point, even though the contract mentioned above had expired and no longer required such compliance, acquiesced to control by the city of Crown Point, and, having done so, could not challenge the validity of the annexation. In support of this theory the appellants cite DePauw Plate-Glass Co. v. City of Alexandria, 152 Ind. 443, 52 N.E. 608 (1899), which held that persons living in annexed territory may, by acquiescence and participation in the benefits conferred by the city, be precluded from disputing the validity of the annexation proceedings. That case, however, is completely inapposite to the instant controversy. De Pauw Plate-Glass involved a taxpayer whose land was erroneously omitted from a legal description of land taken...