Stillwater Sav. and Loan Ass'n v. Oklahoma Sav. and Loan Bd.

• Citation: 534 P.2d 9
• Decision Date: 01 April 1975
• Docket Number: No. 46752,46752
• Parties: STILLWATER SAVINGS & LOAN ASSOCIATION, Appellant, v. OKLAHOMA SAVINGS AND LOAN BOARD et al., Appellees.
• Court: Oklahoma Supreme Court

Page 9

534 P.2d 9

STILLWATER SAVINGS & LOAN ASSOCIATION, Appellant, v. OKLAHOMA SAVINGS AND LOAN BOARD et al., Appellees.

No. 46752.

Supreme Court of Oklahoma.

April 1, 1975.

Sam P. Daniel, Jr., Doerner, Stuart, Saunders, Daniel & Langenkamp, Tulsa, and Everett E. Berry, Berry & Murphy, Stillwater, for appellant.

R. Forney Sandlin, Muskogee, and C. D. Northcutt, Ponca City, for appellees.

BARNES, Justice:

On October 18, 1972, the Oklahoma Savings and Loan Board heard all the evidence and arguments on Ponca City Savings & Loan Association's application for a branch office in Stillwater, Oklahoma. Appellant, Stillwater Savings & Loan Association, opposed the application. The Board requested findings of fact and conclusions of law from both parties to be submitted within ten days. On October 31, 1972, all members of the Savings and Loan Board were present at a meeting to determine whether to approve said application. Attorneys for the Appellant state that they were not present and were not advised of the meeting. At this meeting the Board determined that the application should be approved.

On November 7, 1972, Appellee, Ponca City Savings & Loan Association, was granted, by the Savings and Loan Board, a Certificate of Authority to open a branch office in Stillwater, Oklahoma. On December 4, 1972, the Appellant, Stillwater Savings & Loan Association, appealed the decision of the Savings and Loan Board to the District Court of Payne County, Oklahoma. On June 27, 1973, the District Court of Payne County affirmed the decision of the Savings and Loan Board. Appellant filed an appeal with this Court.

Appellant contends that the Board was arbitrary and capricious in refusing to take judicial notice of its prior decision in a similar application for a branch office in Stillwater, Oklahoma, filed by Appellee, which was denied by order of the Board dated December 30, 1970. That contention, along with Appellant's allegation that the Board's approval of this application reflects an unauthorized change of mind, are in fact arguments that the denial of the first application is res judicata as to this application. Although there is some question concerning the application of the doctrine of res judicata to administrative orders where the administrative decision has not been judicially reviewed, 2 Am.Jur.2d, § 496, the doctrine does not apply where, as here, there are changed conditions and new facts which did not exist at the time of the prior judgment. Whittle v. Board of Zoning Appeals, 211 Md. 36, 125 A.2d 41, 71 A.L.R.2d 1353.

Appellant further contends that the Board's Order was in violation of the 'Open Meeting Law,' 25 O.S.1971, § 201 et seq., governing State agencies such as the Oklahoma Savings and Loan Board. The 'Open Meeting Law,' which was enacted in 1959, does not include hearings before the Oklahoma Savings and Loan Board when it acts in a quasi judicial manner in individual proceeding such as the present case.

In 1963 the 'Administrative Procedures Act' was passed. Subsequent to the passage of the Administrative Procedures Act, the Legislature enacted the Oklahoma Savings and Loan Code of 1970, 18 O.S.1971, § 381.1 et seq. The Savings and Loan Code states that the proceedings of the Board will be conducted under the 'Administrative Procedures Act.'

18 O.S.1971, § 381.5, provides:

'The Oklahoma Savings and Loan Board heretofore created by law is hereby redesignated as a legally existing state board, and the prior appointment of each present member of said Board is hereby confirmed. The Board shall have the general control over associations doing business in this state, shall have power to promulgate, amend, revoke and enforce rules and regulations governing activities and conduct of the business of associations, and shall have such other powers as are conferred upon it by the provisions of this act. The Administrative Procedures Act and related laws apply to proceedings of said Board, and all rules and regulations of the Board shall be promulgated, and all individual proceedings shall be conducted, as required by said laws. Laws 1970, c. 101, § 5, eff. June 1, 1970.'

18 O.S.1971, § 381.19, provides as follows:

'The Board shall act upon and issue its order granting or denying each application for a Certificate of Authority, after a hearing upon the application conducted as an individual proceeding under the Uniform Procedures Act of this state. * * *'

The 'Administrative Procedures Act,' 75 O.S.1971, § 301 et seq., provides for hearings before agencies under its authority, standards for decisions and appellate processes. Section 312 of the Act provides that the parties shall be notified either personally or by mail of any order. Section 301(6) of the Act provides:

'As used in this Act:

'(6) 'order' means all or part of the final or intermediate decision (whether affirmative, negative, injunctive or declaratory in form) by an agency in any matter * * *.'

The above provision of the 'Administrative Procedures Act,' which specified that the parties shall be notified either personally or by mail of any order, indicates there is no need for the Decision to be reached in open session. The Administrative Procedures Act provides for open hearing under specified procedures up to the point the decision making is reached. The final decision, being a quasi judicial action, is not required to be reached in an open meeting.

In this case, Appellee would be required to show need for a branch office. 'Need,' as it appears in Section 381.18, is community or public need in light of the elements concerning which information is to be furnished and the accompanying requirement of financial stability, which is to be implemented procedurally as set forth in 18 O.S.1971, § 381.19:

'* * * If the Board finds that the application should be granted, it shall designate the amount of savings accounts required and fix a reasonable time within which the funds subscribed may be placed in escrow in a bank or trust company approved by the Commissioner, to be delivered to the association after incorporation or returned to the subscribers if incorporation is not completed. The Board may also require the incorporators to advance funds necessary to pay expenses of incorporation and starting of business operations, such advances to be repaid by the association after its income is sufficient to meet reserve requirements, to pay operating expenses and to pay reasonable earnings on its savings accounts. If any when all requirements of the Board are met, a Certificate of Authority shall be issued and the Commissioner shall then endorse the approval of the Board on the Articles of Incorporation. The Secretary of State shall issue a Certificate of Incorporation to the new association upon receipt of the approved articles and the incorporation fee.'

Appellant's last two contentions will be considered together. Appellant contends that the only evidence of 'public need' was the result of a survey which the Board permitted to be introduced over Appellant's objection, which survey constitutes a self-serving declaration and hearsay evidence. Appellant's last contention is whether or not the decision is supported by reliable, material, probative, and substantial competent evidence. The survey,...