Banking Bd. v. District Court In and For City and County of Denver

• Decision Date: 17 January 1972
• Docket Number: No. 25337,25337
• Citation: 492 P.2d 837,177 Colo. 77
• Parties: BANKING BOARD of the State of Colorado et al., Petitioners, v. DISTRICT COURT IN AND FOR the CITY AND COUNTY OF DENVER, State of Colorado, Honorable Joseph Lilly, District Court Judge, Respondents.
• Court: Colorado Supreme Court

Page 837

492 P.2d 837

177 Colo. 77

BANKING BOARD of the State of Colorado et al., Petitioners, v. DISTRICT COURT IN AND FOR the CITY AND COUNTY OF DENVER State of Colorado, Honorable Joseph Lilly District Court Judge, Respondents.

No. 25337.

Supreme Court of Colorado, En Banc.

Jan. 17, 1972.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Del J. Ellis, Asst. Atty. Gen., for Colo. State Banking Bd. and Harry Bloom, Colo. State Bank Commissioner.

Raymond E. Wilder, Colorado Springs, for applicants.

Van Cise, Freeman, Tooley & McClearn, R. Dale Tooley, Denver, for respondents.

DAY, Justice.

This is an original proceeding by which the Banking Board of Colorado, hereinafter referred to as board, and certain applicants for a commercial bank charter, seek a writ prohibiting the Denver District Court from acting so as to prevent the board from holding a hearing in the execution of its duties under C.R.S.1963, Ch. 14.

The board scheduled a public hearing pursuant to section 14--9--10(3), Supra, for October 28, 1971, to consider applicants' application. The Northern National Bank, hereinafter referred to as Northern, indicated its intent to appear before the board in opposition to the granting of the application, and requested a continuance of the hearing date, asserting that it needed more time to hire counsel and for preparation. The postponement was denied.

On October 26, 1971, a hearing was held before the district court, apparently pursuant to either C.R.C.P. 65 and 106, or 1969 Perm.Supp., C.R.S.1963, 3--16--5(4) and C.R.S.1963, 14--2--7, wherein Northern sought to restrain the board from holding the October 28th hearing. At the conclusion of the testimony, the court stated that it would grant the restraining order and continue the matter until December 15, 1971, for hearing. To obviate the formality of preparing and signing an appropriate order, and apparently to save time, the court thereafter requested that the Bank Commissioner and Northern 'get together and prevent the Court from having to issue an order on this thing.' Consequently, a stipulation was entered into whereby the October 28th hearing was reset for December 15th. This stipulation was then approved by the court. The determinative question is whether the district court had jurisdiction to grant a restraining order as sought by Northern.

We hold that the district court had no authority to act in any manner so as to prevent the board from holding its hearing as originally scheduled. See People ex rel. Heckers v. District Court, 170 Colo. 533, 463 P.2d 310 (1969); People ex rel. Orcutt v. District Court, 167 Colo. 162, 445 P.2d 887 (1968); and Colorado State Board v. District Court, 138 Colo. 227, 331 P.2d 502 (1958), wherein under similar circumstances this court held the district court's action to be a Direct and unjustified judicial interference with a function properly delegated to the executive branch of our government. Rule 106 limits the issuance of orders in the nature of prohibition to cases where an inferior tribunal has exceeded its jurisdiction or abused its discretion in exercising judicial or quasi-judicial functions, and where there is no plain, speedy, or adequate remedy. People ex rel. Orcutt v. District Court, Supra. In the instant case, the board was merely attempting to perform its statutory duty of determining whether to grant or deny a charter. C.R.S.1963, 14--9--10. The board, consequently, unquestionably had jurisdiction to set the hearing date. Determination by the district court that a hearing should be held on some other date is usurpation of the board's prerogative. Compare People ex rel. Orcutt v. District Court, Supra, with section 14--9--10(3)(2) Supra, and C.R.C.P. 106. Northern has a plain, speedy and adequate remedy by appeal under 1969 Perm.Supp., C.R.S.1963, 3--16--5(4) and C.R.S.1963, 14--2--7 (See 1969 Perm.Supp., C.R.S.1963, 3--16--6), to contest the lawfulness of the procedures followed and actions taken by the board. Judicial interference at the stage of the administrative process here involved, however, is premature.

Northern asserts that the action below was in reality a review of the board's refusal of Northern's request for an extension pursuant to 1969 Perm.Supp., C.R.S.1963, 3--16--5(4). The statement of the proposition...