First Nat. Bank & Trust Co. of Beatrice v. Ley
| Decision Date | 27 October 1967 |
| Docket Number | No. 365565,No. 36565,36565,365565 |
| Court | Nebraska Supreme Court |
| Parties | The FIRST NATIONAL BANK & TRUST COMPANY OF BEATRICE, Appellant, v. Henry E. LEY, Byron Dunn, Department of State Bank, Appellees. |
Syllabus by the Court
1. Where it appears in an error proceeding that an administrative agency has acted within its jurisdiction and there is some competent evidence to sustain its findings and order, the order of the administrative agency will be affirmed.
2. The requirement in the Banking Act that only a corporation may conduct a bank in this state is satisfied if the corporate organization of the proposed bank is complete before the charter is issued.
3. All of the requirements of the Banking Act must be satisfied before the Department of Banking may issue a charter or the certificate provided for in section 8--121, R.S.Supp., 1965, but the department may determine matters which are discretionary in nature before all other requirements of the act have been satisfied.
4. A finding by the Department of Banking in the language of section 8--122, R.S.Supp., 1965, may be adequate in a particular case.
Nelson, harding, Acklie, Leonard & Tate, Lincoln, Luebs, Tracy & Huebner, Vincent L. Dowding, Grand Island, for appellant.
Clarence A. H. Meyer, Atty. Gen., Richard H. Williams, Asst. Atty. Gen., Woods, Aitken & Aitken, Bert L. Overcash, Allen L. Overcash, Lincoln, for appellees.
Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH and NEWTON, JJ.
This is a proceeding in error to review an order of the Department of Banking of the State of Nebraska granting a charter to the Beatrice State Bank of Beatrice, Nebraska. The trial court found that the action should be dismissed and affirmed the order of the Department of Banking. The First National Bank & Trust Company of Beatrice, the plaintiff in error, has appealed.
The Banking Act provides that it shall be unlawful to conduct a bank within this state except by means of a corporation organized for such purpose. Section 8--114, R.S.Supp., 1965. It further provides that every corporation organized for and desiring to transact a banking business shall, before commencing business, transmit a statement to the Department of Banking containing a certified copy of the articles of incorporation. Section 8--120, R.S.Supp., 1965.
The record in this case shows that a preliminary statement of application was filed with the Department of Banking on January 15, 1965, but that the articles of incorporation of the proposed bank were not filed in the office of the Secretary of State until March 22, 1966. The appellant contends that the entire proceeding before the Department of Banking is void because the application was filed by a corporation that had not been completely organized at the time the application was filed.
Section 8--122, R.S.Supp., 1965, prescribes certain requirements that must be satisfied before the Department of Banking may grant a charter. One requirement is that the department, upon investigation, shall be satisfied that the 'parties requesting such charter are parties of integrity and responsibility'. This language indicates that the application for a bank charter may be made by individuals.
We think that the requirements of the statute are satisfied if the corporation has been fully organized at the time the charter is issued. In this case the order granting the charter was conditional, and the chapter has not been issued. We find no merit in the first contention of the appellant.
The appellant makes several objections to the form of the order of the Department of Banking. The appellant complains that the order is defective in that the issuance of the charter and the certificate described in section 8--121, R.S.Supp., 1965, is not made conditional upon compliance with certain further statutory requirements that have not been satisfied. The particular requirements consist of a statement under oath that no compensation was paid for the sale of the stock, Federal Deposit Insurance Corporation membership, payment in of the capital stock, and minimum surplus and paid-in undivided profit requirements. The appellees concede that these particular requirements have not been complied with, but take the position that the...
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