Hernando Bank v. Davidson

• Decision Date: 25 May 1964
• Docket Number: No. 43104,43104
• Citation: 250 Miss. 23,164 So.2d 403
• Parties: The HERNANDO BANK v. J. F. DAVIDSON et al.
• Court: Mississippi Supreme Court

Page 403

164 So.2d 403

250 Miss. 23

The HERNANDO BANK v. J. F. DAVIDSON et al.

No. 43104.

Supreme Court of Mississippi.

May 25, 1964.

Wilroy & Wilroy, Walker, Franks & Hamberlin, Hernando, for appellant.

John Gregg, Jackson, J. O. Clark, Iuka, for appellees.

McELROY, Justice.

This appeal is by a contestant to the organization of a new state bank in DeSoto County, to be known as the Bank of DeSoto, under authority of section 5160, Mississippi Code of 1942, Rec. The appeal involves questions of necessity, judisdiction of the banking board to act, notice, the proper record on appeal, and procedural due process law. The organization was authorized by the State Banking Board, and on appeal its action was affirmed by the Chancery Court of DeSoto County. We affirm the decree of the chancery court.

Most of the questions raised in this case were settled in Planters Bank v. Garrott et al., 239 Miss. 248, 122 So.2d 256, 123 So.2d 240 (1960). The main question for our consideration is whether, on timely application, where proper notice was given, the appellant from an administrative board ruling is entitled to have the recorded minutes of the board insofar as they apply to the matter under consideration made a part of the record on appeal, where the appeal statute does not expressly provide that the minutes be sent up as part of the appeal record, and where the appellant assigns as error certain deficiencies in the minutes.

The Banking Board is a creature of the statute, and the statute provides what the record should be and what should be brought up on appeal to the Supreme Court. As to the records to be kept by the State Comptroller, section 5178, Mississippi Code 1942, Rec., provides:

'The State Comptroller, examiners and all employees of the Department of Bank Supervision shall keep as records of their office proper books showing all acts, matters and things done by them.'

Section 5160, Mississippi Code 1942, Rec., sets out the procedure the State Comptroller must follow in making up the record for appeal:

'When the state comptroller has completed the examination and made his investigation, he shall record his findings in writing and shall draw up his recommendations to the banking board herinafter provided for. He shall thereupon, in writing, call a meeting of the board to give consideration to his findings and recommendations, * * *.

'* * * Appeals may be taken from the chancery court to the supreme court in the manner now provided by law. Upon approval of the bond by the clerk of the chancery court aforesaid, the said clerk shall give notice to the state comptroller, department of bank supervision, of the appeal from the decision of the banking board, and it thereupon shall be the duty of the state comptroller to promptly transmit to the clerk of the chancery court aforesaid in which the appeal is pending the original or a certified copy of the application, proposed charter of incorporation and his findings, or decision thereon together with the opinion and decision of the banking board, including a transcript of pleadings and testimony, both oral and documentary, * * *.

'If the decision of the banking board, or a majority thereof is favorable to the organization of the proposed bank it shall in like manner as above render a written opinion and decision, and an appeal in the manner herein set forth shall be available to any interested organizations, person or persons, who have participated in the proceedings and feel aggrieved by the decision of the banking board.'

From a thorough examination of the record, we are of the opinion that the record in this case contains the requirements as set forth in the foregoing section.

The proponents filed an application for a charter with the State Bank Comptroller dated September 24, 1960. An amended application was filed with the Comptroller dated November 27, 1961. Recommendations of the Comptroller were reduced to writing; however, the transcript does not contain the date of the original recommendations. The original recommendations were read into the record at the hearing held January 11, 1962. A second recommendation of the Comptroller dated September 11, 1962, identical with the first, was made a part of the record prior to the second hearing. The first hearing was held on January 11 and 12 and the second on September 17, 1962.

At the first hearing, a special, called meeting of the Banking Board in the State Office Building, Jackson, Mississippi on January 11, 1962, The Hernando Bank, appellant, and the Bank of Olive Branch, Mississippi, which apparently does not participate in this appeal, were admitted as parties for the purpose of contesting the application, although they had filed no pleadings, and had given no notice formally or otherwise that they intended to protest the application. Several witnesses testified for the bank and several against the bank. The Board remained in session from January 11 to January 12, then recessed, and reconvened on September 17, 1962 with all parties present, including the members of the board and interested parties.

The record shows that when the Board met on September 17, 1962, their chairman, Mr. Travis, stated: '* * * this is a continuation of an adjourned meeting of the State Banking Board. We adjourned while we were in the process of considering the application for a new bank at Horn Lake. The style of it is: Proposed Bank of DeSoto, Horn Lake, Miss.' This was clearly called to the attention of the proponents, and the attorneys representing the opponents. Further testimony was taken, and at the conclusion the Banking Board rendered its written opinion and decision, into the record, which recited the Board in executive session had determined it had sufficient information and evidence upon which it could dispose of the application and had decided by a majority vote of all members in favor of the charter of the proposed bank, for the reason public necessity required the proposed bank be chartered and permitted to operate.

The record reveals that all notices were given to all proponents, opponents, and members of the Banking Board. It shows all were present at all times at the hearing, and that they actively participated. Questions were asked by proponents and opponents, and witnesses were introduced by both. The record reveals these facts to be true, the clerk certified the truthfulness of the record, and the chancellor found the facts revealed to be true.

The opinion and decision of the Banking Board to create the bank was properly signed by the members of the Banking Board and properly certified to by Llewellyn Brown, State Comptroller, Department of Bank Supervision and Ex Officio Member of Banking Board, as follows:

'I, Llewellyn Brown, State Comptroller, Department of Bank Supervision, State of Mississippi do hereby certify that I issued proper Notices to members of the State Banking Board, and interested parties, calling meetings held on January 11, 1962, and September 17, 1962, in accordance with the provisions of Section 5160, Mississippi Code of 1942, Recompiled, and

'I further certify that the attached copies of notice are true and correct copies of original notices mailed.'

The record is replete with notices given to both members of the Banking Board, as well as those opposed to the organization of the new bank. No objection was ever made in the hearing before the Banking Board as to the notices given or as to the record as it was made up at the trial before the Banking Board.

The learned chancellor held that the Board was in legal meeting as of September 17, 1962, and intimated that they legally had notice and had legal meetings prior thereto. He cited Technical Radio Laboratory v. Federal Radio Commission, 59 App.D.C. 125, 36 F.2d 111, 66 A.L.R. 1335 (Dist.Col.App.1929), where the appellants complained they were not given lawful notice of the charges made against the station, nor of the time and place of the meeting to be held by the commission. This complaint was answered by the fact that the appellants actually appeared by counsel at all of the hearings and submitted evidence and otherwise participated therein.

In sustaining in part the appellant's motion for writ of certiorari, the chancellor quoted from section 5160 of the Code, which provides what shall be included in a record for appeal. It states the Comptroller shall transmit to the clerk 'the original or a certified copy of the application, proposed charter of incorporation and his findings or decision thereon together with the opinion and decision of the banking board, including a transcript of pleadings and testimony, both oral and documentary.' The chancellor stated he believed these provisions to have been met, though highly informally and inartificially, and the request for certiorari was in part overruled.

The chancellor further stated in his opinion that it appeared that everyone who has made a careful study of the matter has found that public necessity requires the establishment of new banking services in the area which the proposed new Bank of DeSoto seeks to serve. The Banking Board, having heard all the testimony and having the benefit of the Comptroller's findings, found in favor of the new bank on the basis of 'information and evidence.' The chancellor, having throughly considered the entire record, declared that on the basis of 'material, competent, relevant testimony, it is the Court's finding that the decision of the Banking Board is supported by substantial evidence.'

At the beginning of the hearing on January 11, 1962, the Banking Board was given the benefit of the Comptroller's findings. Obviously, the Comptroller in making his examination had been very careful to adhere closely to Code section 5160, which provides in part:

'The state comptroller shall then make an investigation of the number of unit banks and location thereof (excluding branch offices which branch offices shall not be considered as...