Bank of Rhame, Application of

Decision Date25 June 1975
Docket NumberNo. 9096,9096
Citation231 N.W.2d 801
PartiesApplication of the BANK OF RHAME for Change of Location of Corporate Headquarters and Change of Corporate Name.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. State Banking Board is administrative agency as defined by Section 28--32--01, N.D.C.C., the North Dakota Administrative Agencies Practice Act.

2. State Banking Board is acting as an administrative agency as defined by Section 28--32--01, N.D.C.C., when it hears and determines application of banking association to relocate its corporate headquarters and change its corporate name, and said determination is subject to judicial review pursuant to Section 28--32--01(1), N.D.C.C.

3. Provisions of North Dakota Administrative Agencies Practice Act (Chapter 28--32, N.D.C.C.) apply to actions of State Banking Board when acting in its capacity as administrative agency.

4. The provisions of Section 28--32--15, N.D.C.C., relating to 'any party to proceedings may appeal' the decision of an administrative agency should be liberally construed to accomplish the purpose of the provision.

5. Where the protester to an application of a bank for change of location and change of name actively participated before the State Banking Board as a party to a proceeding on such application, and where the protester claims being factually aggrieved by the decision of the Board, such protester has standing to appeal as a party to the proceedings, pursuant to Section 28--32--15, N.D.C.C.

6. Judicial review of findings of fact of administrative agency pursuant to Chapter 28--32, N.D.C.C., is limited to determining whether there is substantial evidence to support the findings of the agency, and such parameters of review apply to all reviewing courts.

7. Where the administrative agency's findings are based upon or require administrative expertise, the appellate court may not substitute its judgment for that of the agency.

8. Findings of State Banking Board are supported by substantial evidence.

Wheeler, Wolf, Wefald & Durick, Bismarck, for Bank of Rhame; argued by Albert Wolf and B. Timothy Durick, Bismarck.

Zuger & Bucklin, Bismarck, for First National Bank of Bowman; argued by John A. Zuger, Sr., Bismarck.

SAND, Judge.

The Bank of Rhame, a State chartered bank, located at Rhame, North Dakota, made application to the North Dakota Banking Board (hereinafter the Board) for authority to remove its location to Bowman, North Dakota, to change its corporate name to State Bank of Bowman County, North Dakota, and to establish a paying and receiving station in Rhame, North Dakota. The Board issued a notice of the hearing on the first two parts of the application, which notice was published in the Bowman County Pioneer on December 26, 1973, January 2, 1974, and January 9, 1974, and in addition thereto a copy of the notice was sent by certified mail to John Rouzie, the President of the First National Bank, Bowman, North Dakota. Pursuant to such notice, the application came on for hearing before the Board on January 15, 1974, at 2:00 p.m. in the State Capitol, Bismarck, North Dakota. The applicant Bank of Rhame was represented by Albert Wolf and B. Timothy Durick of Wheeler, Wolf, Wefald & Durick; and appearing in opposition was John A. Zuger, of Zuger, Bucklin & Zuger, representing First National Bank of Bowman.

The Board made its findings of fact, conclusions of law and decision on June 28, 1974, wherein it approved the application for removal of the Bank of Rhame to Bowman, North Dakota, and to change its name to State Bank of Bowman County, subject to five enumerated conditions.

First National Bank appealed the decision of the Board to Burleigh County district court. The district court reversed the decision of the Board and its judgment was entered on January 2, 1975. Subsequent thereto the Bank of Rhame served and filed a motion challenging the district court's jurisdiction and the right of First National Bank to appeal the decision to the district court. The district court denied the motion, whereupon the Bank of Rhame appealed to this court from the two decisions of the district court.

The issues argued and presented to this court are as follows:

Did the First National Bank of Bowman have standing to appeal the decision of the Board to the Burleigh County district court, and did the court have jurisdiction of the subject matter?

Did the court err in reversing the decision of the Board?

The applicant Bank of Rhame argues that First National Bank of Bowman (hereinafter National Bank) pursuant to the provisions of Section 6--01--05, North Dakota Century Code, had no standing to appeal, and as such the district court did not have jurisdiction. Section 6--01--05 provides as follows:

'The board, the state examiner, and the deputy examiners each shall have the power to subpoena witnesses, administer oaths, and generally to do and perform any and all acts and things necessary to the complete performance of the powers and duties imposed upon them in this title, and to enforce the provisions of law relating to financial institutions. For the purpose of enabling them to perform all the duties imposed upon them, the provisions of section 27--10--23 shall be applicable to their proceedings. Any and all orders made by the board shall be operative immediately and shall remain in full force until modified, amended, or annulled by the board, or by a court of competent jurisdiction in an action commenced by the party against whom such order has been issued.'

Upon careful examination, we conclude that this section is not dispositive of this issue. The principal design of this section was to provide a safety valve for orders issued by the Board by giving the party against whom the order was issued an opportunity to commence an action which includes a review for relief in a competent court. This section was enacted some time prior to the enactment of the Administrative Agencies Practice Act and has not been amended since, but nevertheless this court, in Youmans v. Hanna, 35 N.D. 479, 160 N.W. 705, 714 (1916), referred to the statute and said:

'It is also clear that such a remedy or method of review was prescribed by the Legislature, and that no such relief was ever applied for or resorted to.'

This statement was made in relation to an order of the State Banking Board against a bank. The parties in the Youmans case which prompted the statement were state officials, of which some were ex officio members of the Board, as defendants, and Youmans as the majority stock owner of the bank, as plaintiff, at the time the order was issued. It is not clear whether the court meant that the bank itself could have or should have sought a review or that Youmans, the owner of the majority stock, could have and should have sought review under the statutory language. This case, however, does not stand for the proposition that the statutory language is to be given a narrow or limited construction as to who is a proper party for purposes of seeking a review or appeal. Whatever distinction may have been in existence between a review and an appeal has now been somewhat resolved by the adoption of the Administrative Agencies Practice Act, Chapter 28--32, N.D.C.C.

National Bank contends that in any event it is a proper party under the provisions of the Administrative Agencies Practice Act and that the Board in fact considered it a party by giving notice of a hearing by certified mail to John Rouzie, President of National Bank, by furnishing a copy of the transcript of the hearing, and by giving National Bank a copy of the decision as provided for in Chapter 28--32.

National Bank contends that by these actions and because of its interest in the subject matter it was a party, as such term is used in Section 28--32--15, N.D.C.C., which provides, in part, as follows:

'Any party to any proceeding heard by an administrative agency . . . may appeal from such decision within thirty days after notice thereof has been given . . .. Such appeal may be taken to the district court designated by law, and if none is designated, then to the district court of the county wherein the hearing or a part thereof was held.'

'Administrative agency' is defined in Section 28--32--01, N.D.C.C. This court summarized this definition in First American Bank & Trust Company v. Ellwein, 198 N.W.2d 84, 93 (N.D.1972), in the following manner:

'An administrative agency is defined by our statute to include:

'(1) Any board or commission, and

'(2) Any officer

having statewide jurisdiction and authority to make any findings, determination or orders, award or assessments which have the force and effect of law; and which findings and decisions are by express statute subject to review by the courts of this state (§ 28--32--01, N.D.C.C.).'

This court then concluded that the State Banking Board is an administrative agency:

'(1) Because it has statewide jurisdiction over all banks and financial institutions;

'(2) Because it has the express power and duty to make rules and regulations for the government thereof which have the force and effect of law;

'(3) Because it has the power and duty to file and serve complaints, specify issues for hearing, give reasonable notice to all parties interested, afford them an opportunity for a fair hearing, to make specific findings of fact and conclusions of law and render a decision based thereon, which by express statute are subject to judicial review.'

There appears to be no question that the decision of the Board is subject to review or appeal. Once it has been determined that certain acts of the Board come within the provision of Chapter 28--32, its provisions apply. The express statutory provisions providing for review, as set forth in Section 6--01--05, N.D.C.C., satisfies the requirement of subsection 1 of Section 28--32--01 relating to the decision being subject to review in the courts of this State.

This resolves the...

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