COMMONWEALTH OF VA. EX REL. STATE CORP. COM'N v. Camp

• Decision Date: 28 October 1971
• Docket Number: Civ. A. No. 472-70-N.
• Citation: 333 F. Supp. 847
• Parties: COMMONWEALTH OF VIRGINIA ex rel. STATE CORPORATION COMMISSION, Plaintiff, v. William B. CAMP, Comptroller of the Currency of the United States and Virginia National Bank, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

333 F. Supp. 847

COMMONWEALTH OF VIRGINIA ex rel. STATE CORPORATION COMMISSION, Plaintiff, v. William B. CAMP, Comptroller of the Currency of the United States and Virginia National Bank, Defendants.

Civ. A. No. 472-70-N.

United States District Court, E. D. Virginia, Norfolk Division.

October 28, 1971.

Andrew P. Miller, Atty. Gen., of Virginia, Anthony F. Troy, Asst. Atty. Gen., A. Grey Staples, Jr., Richmond, Va., Jordan, Morris & Hoke, Raleigh, N. C., for plaintiff.

John E. Shockey, Jr., Office of Comptroller of Currency, Washington, D. C., for William B. Camp.

Kaufman, Oberndorfer & Spainhour, Norfolk, Va., for Virginia National Bank.

OPINION

WALTER E. HOFFMAN, Chief Judge.

Much of the factual history of this case is contained within the memorandum opinion in a related case, Virginia National Bank v. Commonwealth of Virginia ex rel. State Corporation Commission et al., D.C., 320 F.Supp. 260, decided December 8, 1970.¹ For convenient reference, the prior opinion of this Court is incorporated as a part and parcel of this opinion.

Since December 8, 1970, the Court has heard all of the evidence on the cross-motions for summary judgment,² and the matter has been extensively briefed and argued. The Court withheld its decision pending the outcome of the appeal to the United States Court of Appeals for the Fourth Circuit in Virginia National Bank v. Commonwealth of Virginia ex rel. State Corporation Commission et al.

We thus approach the pertinent issue in this case which may be succinctly stated as follows:

Is the word "contiguous" as used in section 6.1-39(c) of the Code of Virginia 1950, as amended, applied in the "geographical sense" as contended by the Comptroller and the Virginia National Bank, or is it applied in the "economic sense" as urged by the State Corporation Commission?

An ancillary question is whether, armed with the facts at hand, the Comptroller's findings and conclusions were substantially and rationally supported, and were neither unfair, arbitrary, nor capricious. As indicated by First-Citizens Bank and Trust Company v. Camp, 409 F.2d 1086, 1095 (4 Cir., 1969), not every error on the part of the Comptroller calls for a reversal.

The Virginia National Bank has its parent office in the City of Norfolk. Thus, according to section 6.1-39(c), it is permitted to establish branch banks "in cities contiguous to the county or city in which the parent bank is located."³

The history of the development of the cities of Norfolk and Hampton is set forth in a stipulation filed herein.⁴ Suffice it to say that, at all pertinent times, the boundary lines of the two cities met, although said boundary line was under water. They have a common corporate and political boundary of more than two miles in length. The western terminus of the Hampton boundary line commences at the northernmost point of the Port Warden's line adjacent to Sewells Point off the Naval Operating Base in Norfolk, with said boundary line then running in a generally easterly direction adjacent to the northern shoreline of the City of Norfolk in the waters of Hampton Roads for a distance of more than two miles. The nearest distance from shore to shore is approximately 2¼ miles. The shorelines of the two cities are connected by a two-lane vehicular bridge-tunnel about three miles in length; the driving speed requiring approximately six minutes from the police guardhouse on the Norfolk side to the toll booth on the Hampton side. Construction of a second bridge-tunnel parallel to the existing one is now in process. The City of Hampton exercises jurisdiction over traffic and other violations occurring on the bridge-tunnel within the boundaries of that city which, as noted, run to the low water mark or Port Warden's line in the waters of Hampton Roads.

The Comptroller granted the certificate of authority for the Virginia National Bank, a national banking association, to establish and operate a branch in the City of Hampton pursuant to 12 U.S.C. section 36(c), which reads in part as follows:

"(c) A national banking association may, with the approval of the Comptroller of the Currency, establish and operate new branches: * * * (2) at any point within the State in which said association is situated, if such establishment and operation are at the time authorized to State banks by the statute law of the State in question by language specifically granting such authority affirmatively and not merely by implication or recognition, and subject to the restrictions as to location imposed by the law of the State on State banks * * *" (Emphasis added.)

We are thus required to look to the statute law of Virginia which brings us to the use of the word "contiguous" as set forth in section 6.1-39(c) of the Code of Virginia 1950, as amended.⁵

There can be no doubt but that the General Assembly of Virginia could, if it so elected to do so, amend section 6.1-39(c) by using the term "economically contiguous" or something similar thereto. We fear that the State Corporation Commission is assuming the function of the legislative branch of Virginia's government, and this it should not do although, quite candidly, certain courts are inclined to rewrite statutes from time to time. We conclude that the Comptroller of the Currency correctly construed the pertinent Virginia statute as it existed on July 1, 1970, and, even if incorrect in this conclusion, the Comptroller was not obliged to accept the version advanced by a single member of the State Corporation Commission, the Honorable Ralph T. Catterall. The action of the Comptroller was neither unfair, arbitrary, nor capricious, and his findings and conclusions were substantially and rationally supported.

Authorities are legion in construing the word "contiguous." Dictionary definitions generally refer to terms such as "touching," "adjacent," "nearby," "close," "continuous," "in close proximity," "near though not in contact," and many other expressions. Clearly the dictionary definition is geographic. More than one hundred decided cases refer to the word "contiguous" and not once has the word been given an "economic" interpretation.

In First Federal Savings & Loan Association of Nashua v. State Board of Trust, 109 N.H. 467, 254 A.2d 835 (1969), the Supreme Court of New Hampshire had occasion to construe the word "contiguity" which was defined by the statute as boundary touching as used in banking circles. It was urged that where two towns were separated by water and not accessible—therefore clearly not economically related—the towns were not contiguous. Nevertheless, the New Hampshire court held otherwise. This case would be directly in point but for the fact that the New Hampshire statute expressly defined "contiguity" in terms of boundary touching, whereas Virginia did not see fit to be so precise in defining "contiguous."⁶

Some of the authorities hold that "contiguous" means "adjacent to" or "touching." Others recognize the issue of "nearness." True, there are rare instances in which the word must be given a different meaning, such as that exemplified in United States v. Hunter, 80 F.2d 968 (5 Cir., 1936), where the words "contiguous countries" as used in section 459 of the Tariff Act of 1930, 19 U.S.C., section 1459, were held to be inapplicable as between the British West Indies and the United States. Since Hunter is strongly urged by the plaintiff herein, we quote in part from the opinion where it is said:

"All lands separated by water touch one another in a sense beneath the water, but when the intervening water is the high seas over which neither of them has exclusive jurisdiction they are not contiguous countries though no dry land intervenes." (Emphasis added.)

In the present case we are not confronted by high seas; the City of Hampton owns the underwater land to the point where the City of Norfolk begins at the low water line; the City of Hampton exercises jurisdiction over the area to the same point where Norfolk takes over. In all respects the true meaning of the word "contiguous" has been geographic and, as indicated above, this is the first attempt to inject the word "economically" as a part of the word "contiguous." We conclude, for reasons herein stated, that the word "contiguous" was used by the General Assembly of Virginia in a geographic sense, and that the word means "adjacent to or nearby."

In a related case which is no longer pending, Civil Action No. 436-70-N, the Comptroller granted a certificate to United Virginia Bank/Seaboard National, located in Norfolk, to operate a branch bank in Portsmouth. This action was taken with the approval of Commissioner Catterall who advised the Comptroller that Norfolk and Portsmouth are "contiguous." These two cities are separated by the Elizabeth River which is approximately one mile in width. Two tunnels under the river permit the passage of vehicular traffic. The two cities are not "adjacent" to one another as the bed of the river is owned by the city of Chesapeake. Admittedly they are "nearby." Thus, in the Portsmouth bank case, it was permissible with Commissioner Catterall to jump over the bed of the river owned by another city. That the General Assembly of Virginia was aware of the many rivers separating cities and counties in Virginia is a foregone conclusion. They are, indeed, natural geographic boundaries for cities and counties throughout Virginia.

The position in which the Comptroller is placed in interpreting plain and unambiguous words of a state statute is indeed difficult. With no legislative history on which to rely, and no formal action of a judicial or quasi-judicial body on which to base his judgment, should the Comptroller disregard his duty and accept, without question, the statement of an individual Commissioner who has seen fit to place his own interpretation on a word which is readily definable? We think not. As stated by Judge Winter in First-Citizens Bank and Trust Company v. Camp, 409 F.2d 1086, 1095 (4 Cir., 1969...