Equitable Bldg. and Loan Ass'n v. Davidson
| Decision Date | 05 October 1973 |
| Docket Number | No. 9570,9570 |
| Citation | 85 N.M. 621,515 P.2d 140,1973 NMSC 100 |
| Parties | EQUITABLE BUILDING AND LOAN ASSOCIATION, Roswell, New Mexico, et al., Relators-Appellants and Cross-Appellees, v. Roy DAVIDSON, Commissioner of Banking of the State of New Mexico, et al., Respondents-Appellees and Cross-Appellant, v. SANDIA SAVINGS AND LOAN ASSOCIATION, Intervenor-Appellee and Cross-Appellant. |
| Court | New Mexico Supreme Court |
On March 27, 1972, the appellee Sandia Savings and Loan Association (Sandia) and the New Mexico Savings and Loan Association (NMSLA), each with its principal place of business and home office in Albuquerque, Bernalillo County, New Mexico, filed an application before Mr. Snider Campbell (Campbell), the savings and loan supervisor of the New Mexico Department of Banking, seeking approval of the transfer from NMSLA to Sandia of permits to do business in the branch offices of NMSLA located in Clovis, Roswell and Las Cruces, New Mexico. On March 30, 1972, Campbell issued Order No. 72--3 authorizing the transfer whereby Sandia acquired the aforementioned three branch offices.
The Equitable Building and Loan Association, Roswell, New Mexico, and other savings and loan and building and loan associations located in Roswell, Clovis and Las Cruces (appellants), sought and were granted an alternative writ of mandamus in the District Court of Santa Fe County, directed to Campbell, Mr. Roy Davidson (Davidson) the commissioner of banking, and the State of New Mexico (respondents), seeking complete rescission of the aforementioned Order No. 72--3, or, in the alternative to rescind the order and set a hearing date to determine whether the acquisition of the branch offices in question was in violation of the New Mexico Savings and Loan Act. A formal written demand seeking the same remedy had been made by appellants and refused by the Banking Department prior to the application for the alternative writ of mandamus. The alternative writ alleges that appellants were parties beneficially interested; that the action of the Department of Banking was arbitrary, capricious and unlawful; that no plain speedy or adequate remedy at law existed.
After the granting of the writ, the attorney general, in behalf of Campbell, Davison and the State, filed a motion to quash the alternative writ. Shortly thereafter, Sandia sought and was granted leave to intervene and also filed a motion to quash the writ. The State, the officials of the Department of Banking and Sandia will hereinafter be referred to as 'appellees.'
Several other pretrial pleadings were filed and argued and, at the hearing on the motions to quash the alternative writ, the District Court of Santa Fe County granted the motion to quash the alternative writ and dismissed the petition.
In addition to the petition filed in the Santa Fe County District Court on the basis of which the alternative writ was granted, the appellants, after the issuance of the order by the savings and loan supervisor approving the transfer of the branch offices, filed appeals from said order in the District Court of Santa Fe County and in the district courts where the branch offices in question were located, being Curry, Chaves and Dona Ana Counties. No disposition of the appeals appears in the record, although appellants mention in their brief that the appeals filed in the Dona Ana and Curry County District Courts had been dismissed.
The Santa Fe District Court order, though containing no findings, contains recitals to the effect that the relators-appellants had 'standing herein' and that there was
'no adequate remedy at law available to Relators, but there being no clear legal duty on Respondent's (Commissioner of Banking and Savings and Loan Supervisor) part to act as requested in Relators' Alternative Writ of Mandamus (.) * * *'
This appeal and cross appeal then ensued.
Three main contentions are raised by the parties:
(1) Whether appellants lack standing to seek relief by way of mandamus;
(2) Whether the appellants had a clear, adequate legal remedy; and
(3) Whether the officials of the Banking Department had a clear, legal duty to hold a hearing prior to the issuance of its Order No. 72--3, and the right of appellants to appear and be heard at such hearing.
We address ourselves to the resolution of the third issue as we believe it will be dispositive of this appeal.
Appellants vigorously assert that there was a clear legal duty to hold a public hearing after notice before the entry of the order on the part of the savings and loan supervisor approving the transfer of the branch offices in question. It appears to be an undisputed fact that all existing savings accounts in the branch offices were to be transferred to the home office of NMSLA, and that the only difference in the operation of the branch offices was that, upon their acquisition by Sandia, the savings accounts in the branch offices would be insured and regulated by the Federal Savings and Loan Insurance Corporation, in addition to the New Mexico Department of Banking, and that the order approving the transfer required, as one of the conditions of approval, an infusion of new capital to increase the net worth of Sandia. Appellants' argument is that the clear legal duty to hold the public hearing is required by the terms of subsection 'A' of § 48--15--61, N.M.S.A., 1953 Comp. (Repl. Vol. 7, 1966, 1971 Pocket Supp.), which reads as follows:
'(1) establishment of the branch will meet the needs and promote the convenience and advantage of the community in which the business of the branch is to be conducted; and
'(2) the probable volume of business and reasonable public demand in the community are sufficient to assure and maintain the solvency of the branch and of the existing association or associations in the community.'
It is to be noted that the statute provides for the exercise of discretion by the savings and loan supervisor, setting forth factors that must be taken into account in considering such application. It is noteworthy that the statute then continues in subparagraphs (1) and (2) of said subsection 'A' supra, that the supervisor shall not approve the application until he is satisfied as required by the terms of the said subparagraphs.
It is apparent to us that subsection 'A' supra, on which appellants rely, applies only to an application for a new branch, particularly when the criteria set forth in subparagraphs (1) and (2), supra, are given a common sense and reasonable construction. In Trujillo v. Romero, 82 N.M. 301, 305, 481 P.2d 89, 93 (1971), we stated:
'* * *.
As we read the criteria, to be applied, it can only have reference to a branch that is not yet in existence, and it follows that the purpose of the hearing requirements is to have evidence presented that the factors and standards described in the statute can or cannot be met. We, therefore, hold that the hearing requirement of § 48--15--61(A), supra, does not apply to the transfer of the existing branches approved by Order No. 72--3.
Next, appellants contend that the appellees cannot claim the benefit and advantage of the so-called 'grandfather clause' contained in subsection 'D' of § 48--15--61, supra, reading as follows:
The order authorizing the transfer contains a finding that is undisputed to the effect that both Sandia and NMSLA had home offices in Albuquerque, New Mexico, and that the branch offices in question had franchises and operated under said authority since 1960. It also contains a further finding that, by express statutory provision, the three branches had been exempted from the limitations contained under § 48--15--61(D), supra....
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