Live Stock State Bank, Artesian, Application of, s. 11884

• Decision Date: 07 April 1977
• Docket Number: 11885,Nos. 11884,s. 11884
• Citation: 252 N.W.2d 227
• Parties: Application of the LIVE STOCK STATE BANK, ARTESIAN, South Dakota, to move its Main Office to Mitchell, South Dakota and to Establish a Branch Bank in Artesian, South Dakota.
• Court: South Dakota Supreme Court

Page 227

252 N.W.2d 227

Application of the LIVE STOCK STATE BANK, ARTESIAN, South

Dakota, to move its Main Office to Mitchell, South

Dakota and to Establish a Branch Bank in

Artesian, South Dakota.

Nos. 11884, 11885.

Supreme Court of South Dakota.

Argued Nov. 18, 1976.

Decided April 7, 1977.

Lawrence J. Piersol, David L. Knudson, of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for applicant and appellant, Live Stock State Bank.

R. Van Johnson, Asst. Atty. Gen., for appellant, State Banking Commission; William J. Janklow, Atty. Gen., Pierre, on brief.

David A. Gerdes, of May, Porter, Adam, Gerdes & Thompson, Pierre, for contestant and respondent, Commercial Trust and Savings Bank.

DUNN, Chief Justice.

On July 15, 1974, Live Stock State Bank of Artesian (Live Stock) applied to the State Banking Commission (the Commission) for permission to move its main office from Artesian to Mitchell and to establish a branch bank in Artesian. The matter was heard by the Commission on November 19 and 20, 1974, and on December 16, 1974. On May 23, 1975, the Commission approved the change of location and establishment of the branch bank. The Commercial Trust and Savings Bank of Mitchell (Commercial) appealed the decision to the Sixth Judicial Circuit Court. It raised five issues on appeal. They were:

(1) That the Commission was without jurisdiction or authority to allow a change of location of a bank charter beyond the town or city for which the charter was originally issued.

(2) That what the applicant was in effect doing was establishing a branch bank in Mitchell without purchasing or merging with one of the existing banks, which is prohibited by law.

(3) That the applicant failed to establish by substantial evidence a "need" of the city of Mitchell for additional banking facilities or the inadequacy of existing banking facilities.

(4) That the applicant, although adequately capitalized for its existing banking authority, failed to establish by substantial evidence that it met the new capitalization proposed in its application.

(5) That the Commission's decision was not concurred in by a majority of the Commission who had been present in person to see and hear all the witnesses, and thus denies the contestant substantive and procedural due process.

The trial court in its Memorandum Decision of January 16, 1976, ruled it would not substitute its judgment for that of the Commission on issues (3) and (4). Additionally, the court disagreed with Commercial's "reverse branching" argument issue (2), holding Live Stock's application clearly indicated the main office would be in Mitchell. The court did, however, hold that the Commission was without authority to approve the bank's move to Mitchell, issue (1). The application was reversed and remanded to the Commission with directions that it enter an order or decision denying the application. Live Stock and the Commission appealed. We reverse.

We would affirm the Commission's and trial court's findings on issues (2), (3) and (4) set out above. These findings are fully supported by the evidence. As to issue (5), it appears that a quorum of the Commission was present at all hearings and that the full Commission joined in the decision. While there was no appeal by Commercial, we nevertheless find that the Commission did afford due process in its hearings for all parties concerned.

Live Stock contends that the legislature intended to give the Commission in SDCL Title 51 the authority to comprehensively regulate the banking structure and banking practice. The Commission's authority to approve the transfer of the main office of a chartered bank to another town or city, Live Stock claims, should be viewed as an implied power under this regulatory scheme. Commercial responds that without a specific statute authorizing the Commission to approve such a transfer Live Stock can only move to Mitchell by establishing a branch bank there.

SDCL 51-16-1 establishes the division of banking and finance charges it "with supervision and control over the activities set forth in this title," and grants it jurisdiction over "such other activities as shall be conferred upon it by the Legislature." This broad grant of power over the banking industry in South Dakota, to be effective, must include "the authority to employ the means necessary for the exercise of that power." Board of Regents v. Carter, 1975, S.D., 228 N.W.2d 621, 629. It also gives the Commission power to act upon applications other than those enumerated in SDCL 51-16-15. "(T)he rule of express mention and implied exclusion should never be applied to defeat a plain legislative purpose." Rehurek v. Rapid City, 1937, 65 S.D. 542, 543, 275 N.W. 859. If the Commission does not have the power to supervise a change in location, banks, once chartered, would be free to move without restriction. See: State ex rel. Bank of Nashua v. Holt, 1941, 348 Mo. 982, 156 S.W.2d 708.

Several states do have specific statutes which permit a bank to relocate upon application and approval by the state banking board. Application of Bank of Rhame, 1975, N.D., 231 N.W.2d 801; Broadway National Bank v. Linwood State Bank, 1970, Mo., 456 S.W.2d 296; City National Bank of Austin v. Falkner, 1968, Tex.Civ.App., 428 S.W.2d 429. Unfortunately, we do not have such a specific statute in South Dakota's banking laws. The only mention of a power to regulate a bank's change in location is SDCL 51-17-21, which states:

"A bank may amend its articles of incorporation in the manner provided under chapter 47-2, upon amendment certified by its president, except that prior approval of the director shall be required for a bank to: change its name or location; acquire or abandon trust powers; change the number or par value of its shares of stock; change the amount of capital; or, extend its corporate existence. Such approval must be based upon a finding that the security of existing creditors will not be impaired by the proposed action. All such amendments shall be filed in the same manner as provided for original articles of incorporation."

Although Live Stock's application was not labeled an attempt to amend its articles of incorporation, that was its practical effect. To amend its articles under SDCL 51-17-21, a bank must proceed in the manner provided in SDCL 47-2 for amending the articles of incorporation of a business corporation, and it must obtain the prior approval of the director of the division of banking and finance. SDCL 47-2-8 provides in part:

"A corporation may amend its articles of incorporation, from time to time, in any and as many respects as may be desired, so long as its articles of incorporation as amended contain only such provisions as might lawfully be contained in original articles of incorporation at the time of making such amendment * * *."

Among the provisions of a bank's original articles of incorporation is the proposed location of the bank. SDCL 51-17-1; SDCL 47-2-5(10). The location is also an important factor to be investigated and examined by the director upon application for a charter, SDCL 51-17-15, and by the Commission in making its decision upon an application, SDCL 51-17-16; Valley State Bank of Canton v. Farmers State Bank of Canton, 1973, 87 S.D. 614, 213 N.W.2d 459.

To adopt Commercial's reasoning in this case would forever foreclose any bank from moving its main office to a new location. With this we cannot agree. We feel that the movement of the main office of a bank to a new city should be considered by the Commission with the same care and standards as the issuance of a new charter and that Live Stock should have the same burden of proof as an applicant for a new charter. By the same token, Live Stock should not be foreclosed from moving its main charter to a new location where it maintains its burden of proof as would an applicant for a new charter. In effect, this is an application for a new charter in Mitchell, South Dakota, and we feel that the Commission was correct in so considering the application. Thus, we hold that the change of the location of a bank from that location appearing in the original articles of incorporation can only be accomplished by fulfilling the requirements of SDCL 51-17-12 through 51-17-16. These sections were complied with here, and the Commission acted within the powers reasonable and necessary to discharge its supervisory duties in approving the change of location.

The director in his report and recommendation dated November 29, 1974, pursuant to SDCL 51-17-15, stated in part:

"It appears that...