Syllabus by the Court.
The act of 1919, Ga.L.1919, p. 164, as several times amended provides special proceedings for incorporating banks by the Secretary of State, which include reference by the Secretary of State to the State superintendent of banks of all applications for charter for investigation and issuance or refusal of a certificate of approval.
(a) The superintendent of banks is not vested with power of absolute discretion to issue or refuse a certificate of approval.
(b) If he refuses to issue a certificate of approval, it is his duty to so notify the Secretary of State in writing.
(c) After such notice to the Secretary of State, any aggrieved applicant is afforded a special remedy in the nature of mandamus against the superintendent of banks. The remedy is not appellate in character, but is an original action based on the facts and circumstances of the particular case, into which the court will inquire and on which it will enter judgment, subject to review by the Supreme Court. If it is found that the facts and circumstances authorize and require the granting of a certificate, the court will enter judgment directing the superintendent of banks to issue a certificate of approval. If the judgment is unexcepted to, it becomes the duty of the superintendent of banks to issue the certificate, without further question.
(d) The petition alleged a cause of action for the relief sought, and was not subject to general demurrer on any of the grounds taken. The case of McGinty v. Gormley, 181 Ga. 644 (2), 183 S.E. 804, distinguished.
Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.
Mandamus proceeding by P. D. Du Bose and others against R. E. Gormley as Superintendent of Banks of the State of Georgia. To review an adverse judgment, plaintiffs bring error.
Reversed.
P. D. Du Bose and four others, all residents of Blakely, Georgia, made formal application to the secretary of State for issue of a certificate for charter of the Farmers Exchange Bank to be located in Blakely, Early County, Georgia. The secretary of State transmitted a triplicate of the application to R. E. Gormley as superintend-ent of banks of the State of Georgia, for investigation as provided by statute. The superintendent of banks approved the character and general fitness of the applicants, but refused to issue his certificate approving the application for charter. The applicants, by petition to the superior court, sought by writ of mandamus to compel the superintendent of banks to issue a certificate of approval, on the ground that under the existing facts they had a legal right to a certificate of approval, and his refusal was an abuse of discretion. The petition alleged all that is stated above, averred that establishment of the bank will promote the public convenience, and set forth the facts on which the petitioners based their right to relief, as follows:
"9. Early County is a progressive county, its farmers fast adopting the newest agricultural methods and practices. It has an area of 514.32 square miles, a population of 18, 273 (census of 1930), and a public-road mileage in excess of 550 miles. The county is traversed by the Central of Georgia, the Atlantic Coast Line, and the Seaboard Air-Line railroads, Early County receives taxes from property returned for taxation for the years 1937 and 1938, as follows: 1937, $3,601, 099; 1938, $3,756, 668. Early County is one of the largest peanut-producing counties in the State, and its people, in addition to farming, are engaged in the naval-stores industry, sawmilling, and manufacturing.
"10. Blakely, the county seat of Early County, has a population in excess of 2400 people, and received taxes from property returned for taxation in the years 1937 and 1938 as follows: 1937, $1,250, 473; 1938, $1,337, 020. Among other businesses, there are located in Blakely two wholesale grocery houses, one of the largest peanut-shelling plants in the southeast, three hotels, one hospital, a lumber mill, a hosiery mill, and four drug-stores. Blakely has a new city hall erected at a cost of $37,000, and a new postoffice building erected at a cost of $60,000.
"11. There is in Early County no national bank, and but one bank chartered by the State, viz., the First State Bank.
"12. The First State Bank has a capital of $100,000, less than $30,000 of which is owned by residents of Early County.
"13. Both the president (W. B. Haley) and the active vice-president (J. T. Haley) of the First State Bank reside in Albany
Georgia, and they own more than one half of the stock in said bank.
"14. The said W. B. Haley and J. T. Haley operate and own the majority of the stock of the City National Bank of Albany, Georgia, the Bank of Terrell of Dawson, Georgia, and the Bank of Fort Gaines, of Fort Gaines, Georgia.
"15. The statements of the condition of the First State Bank of Blakely, Georgia, at the close of business on December 31, 1937 and 1938, as called for by the defendant and furnished him by said bank, are as follows:
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|Resources |Dec. 31st |Dec. 31st |
| |1937 |1938 |
|---------------------------------------------------|------------|------------|
|Loans and Discounts |$415,147.09 |$456,964.56 |
|---------------------------------------------------|------------|------------|
|State of Georgia munici-pal bonds owned |9, 170.52 |10, 170.52 |
|---------------------------------------------------|------------|------------|
|U. S. Government Securi-ties |9.000.00 |9, 000.00 |
|---------------------------------------------------|------------|------------|
|Banking House and Lot |4, 075.00 |3, 925.00 |
|---------------------------------------------------|------------|------------|
|Furniture and Fixtures |2, 850.00 |3, 210.55 |
|---------------------------------------------------|------------|------------|
|Other Real Estate Owned |5, 225.00 |5, 225.00 |
|---------------------------------------------------|------------|------------|
|Cash in Vault and Amount Due from Approved Re-serve|132, 184.81 |218, 612.87 |
|Agents | | |
|---------------------------------------------------|------------|------------|
|Checks for Clearing and Due from Other Banks | |1, 929.08 |
|---------------------------------------------------|------------|------------|
|Advances on Cotton and Other Commodities |7, 017.16 |4, 968.32 |
|---------------------------------------------------|------------|------------|
|Other Resources |750.00 | |
|---------------------------------------------------|------------|------------|
| |$585,419.58 |$714,256.90 |
|---------------------------------------------------|------------|------------|
|Liabilities | | |
|---------------------------------------------------|------------|------------|
|Capital Stock |$100,000.00 |$100,000.00 |
|---------------------------------------------------|------------|------------|
|Surplus Fund |30, 000.00 |30, 000.00 |
|---------------------------------------------------|------------|------------|
|Undivided Profits |18, 360.41 |25, 344.89 |
|---------------------------------------------------|------------|------------|
|Reserve Funds |5, 500.00 |8, 500.00 |
|---------------------------------------------------|------------|------------|
|Dividends Unpaid |663.00 |60.00 |
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