Beasley v. Burt
| Decision Date | 03 July 1946 |
| Docket Number | No. 15498.,15498. |
| Citation | 39 S.E.2d 51 |
| Parties | BEASLEY, Superintendent of Banks. v. BURT et al. |
| Court | Georgia Supreme Court |
Motions for Rehearing Denied July 16, 1946.
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1. On an application for a charter under the banking act, a judge is not disqualified because related within the prohibited degree to one who owns an interest in the stock of another banking corporation which is not a party to the litigation, but presently carrying on a banking business in the city where the proposed bank is to be located, and where the only interest that the existing corporation has is the probable loss of income through competition if a charter be granted. A judge is not disqualified because he is interested in the subject to be decided, where he has no direct and immediate interest in the judgment to be pronounced. To work a disqualification, the interest must be a direct, certain, and immediate interest, and not one which is indirect, incidental, or remote.
2. On refusal of the superintendent of banks to issue a certificate authorizing the incorporation of a bank, the aggrieved applicants may file a proceeding in the nature of a mandamus in the superior court of the county in which such bank is sought to be incorporated. The issues made by such a proceeding shall be determined by the trial judge, and if from the evidence he is of the opinion that the certificate has been wrongfully or improperly refused or withheld, and that the facts and circumstances authorize and require the granting of the certificate, he shall render an order, judgment, or decree directing its issuance. The statute in such cases does not contemplate or provide for a trial by jury.
3. Since necessarily whether the establishment of a new bank in a named locality will be of public convenience and advantage is a matter of opinion and not of fact, a nonexpert witness, after stating the facts on which it is based, may express his opinion as to whether or not the granting of a charter to a proposed new bank would be advisable from the standpoint of convenience and advantage.
4. A plaintiff is entitled to prove everything alleged in his petition upon which he is permitted to go to trial without ob jection on the part of the defendant, either as to its form or its substance.
5. Hearsay evidence is that which does not derive its value solely from the credit of the witness, but rests mainly on the veracity and competency of other persons. Testimony given by a witness, to the effect that he had interviewed a large number of people residing in the community where a proposed hew bank was sought to be established and they were in favor of the bank, was objectionable as hearsay, and on timely and proper objection should have been excluded.
6. The 25th assignment of error is not well taken. The evidence to which it refers, and which was allowed over the defendant's objection, was directly responsive to a question propounded by his counsel, which was in line with other questions immediately preceding it.
7. The 26th and 27th assignments of error are without merit.
8. Testimony by superintendent of banks that certificates for charter of various banks had been previously issued by him, giving the established banking facilities and populations of localities where the certificates were issued, is relevant upon cross examination.
Error from Superior Court, Pierce County; Walter Thomas, Judge.
Proceeding in the nature of mandamus by N. W. Burt and others against J. C. Beasley, Superintendent of Banks, to compel the Superintendent to issue his certificate of approval of a proposed bank. To review an adverse judgment, defendant brings error.
Reversed.
N. W. Burt and five others, all residents of Blackshear, Georgia, made formal application to the Secretary of State for a charter of Peoples Bank to be located in Black-shear, Pierce County, Georgia. It was represented that a capital stock of $50,000 and a like amount as surplus had been fully subscribed and would be paid in before thebank began business. The Secretary of State caused a copy of the application to be immediately transmitted to the superintendent of banks of Georgia for investigation as required by statute. The superintendent, after investigation, approved the character and general fitness of the applicants, but refused to issue a certificate approving the application for charter, on the ground "that the businesses of the City of Blackshear and the surrounding territory were insufficient to afford two banks in Blackshear, and that by establishment of another bank an unhealthy competition would result, which would have the effect of destroying public convenience and advantage, and would destroy the effectiveness of the Blackshear Bank in rendering to the people of the community proper banking service." The applicants brought a proceeding in the nature of a mandamus to the superior court of that county to compel the superintendent of banks to issue his certificate of approval on the ground that under existing facts they had a legal right to such certificate and the refusal to grant the same was an abuse of discretion. The petition alleged all that is stated above, and averred that public convenience and advantage would be promoted by the establishment of the proposed bank--that one bank was not sufficient to supply the banking needs of Black-shear and its trade area. The establishment of the proposed bank was expedient and desirable. It was further alleged: No national bank was located in the county. Blackshear Bank, with a capital stock of $50,000, and Patterson Bank, of Patterson, Georgia, with a capital of $15,000, were the only banks in the county. A majority of the stock of Blackshear Bank was owned by the "Brantley interests, " composed of the descendants and relatives of A. P. Brantley and his three brothers, all now deceased. Brantley interests own the majority stock also in several other large businesses located in the county, and public convenience and advantage are not promoted in a county when one family largely owned and had executive control of the banking business in Blackshear and other large industries of the county. Such ownership and control tended to create a monopoly and to stifle business.
The defendant admitted that an application for charter had been filed; that he had been served with a copy of the same, and, after investigation, had found the character and general fitness of applicants satisfactory, but denied under all existing facts that the proposed bank would be of publicconvenience and advantage. He insisted that the present banking facilities of Black-shear and the county were adequate, and contended that the establishment of the proposed bank was neither expedient nor desirable from a standpoint of good banking principles. He admitted that Blackshear was the trade center of a large agricultural territory, and that the major part of the section's fertilizer, seed, mules, hardware, tobacco flues, supplies, and other articles are bought there, but denied that Black-shear Bank and the other corporations affiliated with it by reason of a common ownership of stock lead to the creation of a monopoly. For want of sufficient information, he neither admitted nor denied certain statistical information alleged with reference to the area of the county, its road mileage, taxes collected annually, etc. He insisted that a full and fair investigation had been made, and that the establishment of the proposed bank would not be advisable from the standpoint of good banking practices.
On the call of the case for trial, a motion was made to disqualify Honorable Walter Thomas, who then presided as trial judge, because of his relationship to one (his wife) who owned an interest in stock of Blackshear Bank. It was insisted that the wife of Judge Thomas owned an interest in this stock of Blackshear Bank formerly held by her deceased father, W. S. Davis, and that this stock was still owned by his estate. Judge Thomas admitted that his wife then...
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