State ex rel. Rouveyrol v. Donnelly

• Decision Date: 09 January 1956
• Docket Number: No. 44843,44843
• Citation: 365 Mo. 686,285 S.W.2d 669
• Parties: STATE of Missouri ex rel. J. A. ROUVEYROL, Commissioner of Finance, and University Bank, a corporation, Relators, University Bank, a corporation, Appellant, v. Phil M. DONNELLY, Governor, James T. Blair, Jr., Lieutenant-Governor, and John M. Dalton, Attorney General, Members of the Board of Appeals, and C. H. Goppert, R. E. Oliphant, M. A. Vodney, C. L. Keyser and Porter C. Jeffries, intervenors, Respondents.
• Court: Missouri Supreme Court

Page 669

285 S.W.2d 669

365 Mo. 686

STATE of Missouri ex rel. J. A. ROUVEYROL, Commissioner of Finance, and University Bank, a corporation Relators, University Bank, a corporation, Appellant, v. Phil M. DONNELLY, Governor, James T. Blair, Jr. Lieutenant-Governor, and John M. Dalton, Attorney General Members of the Board of Appeals, and C. H. Goppert, R. E Oliphant, M. A. Vodney, C. L. Keyser and Porter C. Jeffries, intervenors, Respondents.

No. 44843.

Supreme Court of Missouri, En Banc.

Jan. 9, 1956.

John W. Oliver, Kansas City, Henry Andrae, Jefferson City, for petitioner. Caldwell, Downing, Garrity & Eastin, Kansas City, Hendren & Andrae, Jefferson City, of counsel.

James T. Riley, Jefferson City, Ike Skelton, Lexington, for intervenors. Skelton & Bradley, Lexington, of counsel.

STORCKMAN, Judge.

This appeal grows out of a proceeding to incorporate a bank under the provisions of Chapter 362, RSMo 1949, V.A.M.S. The commissioner of finance refused the charter and the proposed incorporators appealed to the board of bank appeals. The board overruled and set aside the decision of the commissioner of finance and ordered him to grant the certificate of incorporation. The commissioner and an objecting bank were granted a writ of review by the Circuit Court of Cole County. After a hearing the circuit court dismissed the application for a writ of certiorari or review and ordered that the writ be quashed. The objecting bank then filed a notice of appeal to this court. The bank also filed in this court a mandamus action, the object of which is to require the judge of the Circuit Court of Cole County to hear the case and review the order of the board of appeals on its merits. The mandamus action, No. 44,831 State ex rel. University Bank v. Blair, Mo., 285 S.W.2d 678, and the appeal, No. 44,843, were consolidated for argument in this court.

On January 18, 1952, Clarence H. Goppert and four others, herein sometimes referred to as the proposed incorporators, filed their application for a bank charter with the commissioner of the Division of Finance. The proposed location of the bank is in a place known as Dodson which, at the time the application was filed, was an unincorporated area just outside of the southern limits of Kansas City in Jackson County. On July 13, 1953, the commissioner, J. A. Rouveyrol, refused to issue the charter and so notified the proposed incorporators who thereafter, on July 21, 1953, appealed to the board of appeals as provided in Section 362.045, RSMo 1949, V.A.M.S. This board, composed of the governor, the lieutenant-governor and the attorney general, held hearings on September 9 and October 9, 1953, and on March 8, 1954, a majority of the board reversed the order of the commissioner of finance and ordered the bank charter to issue. Attorneys representing the University Bank of Kansas City appeared at the hearings before the board of bank appeals on September 9 and October 9, and opposed the granting of the charter.

On March 25, 1954, J. A. Rouveyrol, 'a person interested in the order of the Board of Appeals, both in his official capacity as Commissioner of Finance, and also as a person interested in representing the position of the Protestant in the above entitled cause'; and the University Bank, 'the Protestant herein, a corporation interested in the order of the Board of Appeals,' petitioned the board of appeals for a rehearing. On the same day the board of appeals, by unanimous action, purporting to act in accordance with its rule-making power, Sec. 362.045, subd. 1, made an 'Order Regarding Application for Rehearing' which stated that the board 'acknowledges receipt and accepts jurisdiction of said Application for Rehearing, and by this order determines and provides that the time for appeal to the Circuit Court of Cole County, Missouri from the ultimate decision of this Board of Appeal shall be 'within thirty days after the application for rehearing is denied, or if the application is granted, then within thirty days after the rendition of the decision on rehearing,' as provided in Section 386.510, R.S.M., 1949 [V.A.M.S.], to which express reference is made by Paragraph (3) of Section 362.045.' Thereafter, on April 1, 1954, the incorporators of the proposed bank of Dodson filed with the board of appeals a motion to strike the application for rehearing or, in lieu thereof, to overrule the same, alleging among other reasons that neither the commissioner of finance nor the University Bank were proper parties to the proceedings. On June 10, 1954, the board of bank appeals, by a majority vote with the governor dissenting, entered its order overruling relators' application for rehearing.

On June 15, 1954, the commissioner of finance and the University Bank filed their application for a writ of review in the Circuit Court of Cole County, Missouri, and the court issued its writ of certiorari or review to the board of bank appeals. A return was made by the members of the board on July 8, 1954, and the entire record, including transcripts of the evidence and the documents before the board of appeals, was lodged with the circuit court. On July 17, 1954, the proposed incorporators filed a motion to intervene in the Circuit Court of Cole County, which was granted. The proposed incorporators then filed their motion to dismiss relators' application for review and to quash the certiorari or review, in which they reiterated their contention that the relators had no legal standing in the matter as parties to the proceedings either before the board of appeals or before the circuit court.

The entries on the circuit judge's docket for September 8, 1954, are as follows: 'Parties announce ready. Motions presented and taken with the case. Trial by the Court. Passed for submission of briefs, Mr. Skelton granted 10 days to file brief. Mr. Oliver granted 5 days thereafter to file brief.' On December 2, 1954, the court granted the motion of the proposed incorporators to dismiss relators' application for a writ of certiorari or review, and the proceedings for a review by the relators was dismissed and the writ quashed on the ground that 'the relators have no standing' in the case.

On December 11, 1954, the relators filed their joint motion to set aside the order dismissing relators' application for a writ of certiorari or review and to set aside the order quashing the writ of certiorari or review. Relators' motion was presented to the court on January 3, 1955, and taken under advisement. On February 5, 1955, the court refused to give a form of order offered by the commissioner of finance and the University Bank entitled, 'Order and Statement of Grounds of Decision Regarding Intervenors' Motion to Dismiss Relators' Application for Review and to Quash the Certiorari or Review.' This proposed order related to declarations with respect to jurisdiction, procedure and parties on the appeal. On the same day, February 5, the court overruled and denied relators' motion to set aside its order dismissing and quashing the writ of certiorari or review.

On February 14, 1955, the University Bank, as relator, filed its petition for writ of mandamus directed to the judge of the Circuit Court of Cole County in which it was charged that the court had a duty under the constitution and statutes to review on its merits the order of the board of bank appeals and that it had not done so. On February 15 the 'University Bank, one of the Relators above named' filed its notice of appeal to this court. It will be noted that the commissioner of the Division of Finance is not a party to the petition for a writ of mandamus nor did he appeal from the decision of the circuit court. The University Bank alone is the relator and appellant in this court.

In considering the questions involved, it is well to bear in mind that the subject matter with which we are dealing is the exercise of the police power of the state. This has been defined as 'the power inherent in a government to enact laws, within constitutional limits, to promote the order, safety, health, morals, and general welfare of society.' 16 C.J.S., Constitutional Law, Sec. 174, p. 537; State ex rel. Carpenter v. City of St. Louis, 318 Mo. 870, 2 S.W.2d 713, 722. It is generally recognized that 'the banking business is properly subject to reasonable legislative regulation under the police power of the state'. 9 C.J.S., Banks and Banking, Sec. 5, p. 32. In State on Inf. of Taylor, v. Currency Services, Inc., 358 Mo. 983, 218 S.W.2d 600, 605[8, 9], this court, in considering our banking statutes, quoted with approval from a decision by the Supreme Court of Illinois [Wedesweiler v. Brundage, 297 Ill. 228, 130 N.E. 520] as follows: "The privilege of engaging in any lawful business is the right of every individual, of which no one can be deprived except by a general law acting equally on all individuals in the same situation. It is subject to the police power, and must be exercised in accordance with the requirements of statutes passed in the exercise of that power for the protection of the public."

The state cannot divest itself of the right to exercise the police power. State ex rel. Kansas City Public Service Co. v. Latshaw, 325 Mo. 909, 30 S.W.2d 105, 109. It cannot be delegated to private persons. State ex rel. Normandy Fire Protection District v. Smith, 358 Mo. 572, 216 S.W.2d 440; 16 C.J.S., Constitutional Law, Sec. 178, p. 548. The police power can be delegated to subordinate state agencies and can be exercised by such agencies to the extent of such delegation of authority. State ex inf. Gentry v. Curtis, 319 Mo. 316, 4 S.W.2d 467, 470. Within these limitations it is for the General Assembly to say to what extent the police power shall be exercised in the regulation of the incorporation of banks and in what manner and by whom it shall be used. A person, official or private, can have no greater part in the exercise of the police power than is accorded him by law....