Benson v. San Antonio Savings Association

423 Spencer represented by any was authority. protect to defendants not au- out It was that thought It was thorized he had not groundless attorney from suits. that to person process. been held sued was entitled served with It was who was fact judgment the plaintiff known had former not on binding that the named was him. authorized the suit. plainly question us

The statute Rule do have We whether, to defendants; right County to to to between give worded bring- firm, challenge was and authorize Garrison latter defendants nothing says represent County. Rule authorized to of the suit. The ing authority County challenging is not assert- plaintiff about here or complaining Moreover, stat- not, attorney. cannot, the firm ing defendant’s does represent de- affidavit, heard and it. that the motion shall be ing Jones, Sheriff parties an- able, so far “before the have as he is termined has ratified the author- trial,” ity represent ready Rule of the Garrison nounced for firm him. application to predecessor have statute The motion to strike the challenges in the trial court or writ of error overruled. action is commenced. The judgment Ap- Court Civil 285, State, 158 Victory Tex. In v. 138 reversed, peals is the cause remanded by the the suit was (1942), S.W.2d 760 to that court with direction dismiss was delinquent taxes. The State for State appeal of McFarland. e., by at-

represented by counsel; private i. dis- torneys county who were not Ap- attorney.

trict In the Court time,

peals the first defendant rep-

challenged right State

resented as it was. held Court 12) “provides for (now

Article 320 Rule au- exclusive questioning method BENSON, Savings R. A. and Loan Commis- attorney to bring an suit.” thority of Texas, al., Petitioners, sioner of et challenge late. held came too v. ex- Victory followed as “the case was authority questioning method of ASSOCIATION, SAN ANTONIO clusive SAVINGS Respondent. attorney a suit” under Rule bring Booker, Tex.Civ.App., City 12 Cook v. No. A-9548. 232, no writ. 167 S.W.2d Supreme Court of Texas. did is assumed McFarland If 12, 1963. Nov. representation properly challenge the Rehearing Denied Feb. 1964. County County trial [by Judge] court, point preserve he did not Appeals.

appeal of Civil authority proposition

There himself can establish the defendant attorney represent purporting Spen- In Parker was unauthorized. v.

him

cer, Tex. (1884), consent decree against defendant, entered

had been

Spencer, judgment and the had become Spencer brought a suit to

final. have the set

judgment jury aside. The found that Carr, Atty. Gen.,

Waggoner Mc- Dudley Calla, Gen., Austin, Atty. Kampmann Asst. Kampmann, Antonio, & A. R. San Benson and others. Hearon,

Graves, Dougherty, &Gee Austin, for San Antonio Assn. CULVER, Justice. ap- Savings Association Antonio Savings and Loan Commissioner

plied open operate permission to of Texas City Antonio of San branch office al- existing its ten branches in addition to operation. Three other ready home offices associations with loan op- City and offered evidence intervened Upon the conclusion the hear- position. applica- refused the ing the Commissioner reasons: following stated tion convenience and 1. The promoted by allowing such not be engage business further decided in that case posed nullified. We additional govern- that the same basic taking into consideration standards only applica- 2.1 approval disapproval office is of location of said additional #7, tion applicant’s original apply Center for an charter shall to- miles from Service Road; applications office) Fredericksburg (branch opening 2716 offices, competi- excessively since zealous unduly operation proposed will 2. The quite effectively by tion may be as waged As- injure Savings and Loan setting up granting by branch offices as only presently miles distant and sociation of charters in the first instance. (land 1.7 miles from their future building purchased of) office for erection provides Article 881a-2 that before a Fredericksburg Road corner charter will issue to a building Road; Vance Jackson association Banking Commissioner must be gen- satisfied as the responsibility adequately proposed being 3. The area is eral parties fitness of the the busi- served. ness honestly will be efficiently con- ducted in accordance with the intent and The district court held that the order purpose act; public whether application denying Commissioner convenience and promoted will be supported by reasonably was not thereby; population and whether the in the evidence, contrary but to the was unreason- neighborhood place of such and in the able, capricious arbitrary and and decreed country surrounding affords a reasonable be granted permission that the Association promise adequate support. operate to maintain and the branch office applied for. regulations adopted The rules by relating Appeals The consideration Court of affirmed the his Civil of an judgment of the trial the establishment court in far so a branch or additional office set aside the with which order. Tex. we Civ.App., here concerned are as follows: 365 S.W.2d 388. “3.3. No to establish and Appeals The Court of begins its maintain additional office shall be say- discussion the merits of the case approved unless the Commissioner shall propriety ing of the Commissioner’s affirmatively find from the be- evidence gauged solely by

action is to be the reasons fore him that: assigned by application. in denying him In other words the Court saying that the “(b) applying The association has need reviewed to determine operated principal office for at least grounds given whether the by the Commis- (3) years prior applica- supported sioner are reasonably by substan- successfully, profitably, tion properly tial evidence. just We have held to the law, and in accordance with and the contrary in Savings Gibraltar and Loan operation proposed impair will not Falkner, Ass’n v. M. Banking Commis- J. applying ability carry association’s al., Tex., sioner et 371 S.W.2d 548. operation; on its overall In Southwestern and Loan Ass’n “(c) convenience and ad- Falkner, v. 160 Tex. 331 S.W.2d vantage neighborhood in the approval we held of the Commission to be served and in the surrounding operation the establishment and country promoted allowing branch offices building and loan associa- additional office is impliedly required provisions tions engage established business at 881a-7, of Arts. 881a-2 and otherwise the proposed location, and the volume purpose the two statutes largely would be business there is such as to indicate probable operation hearing at the time of the profitable operation is that a time; period the Commissioner. If this an isolated within a reasonable area, convenience and ad- doubt operation will “(d) vantage by the establish- promoted would be unduly any association injure office, ment of a branch that is not the neighborhood of the operating in the story. whole surrounding location or country; boundary line of area so drawn map any does not follow trade “(f) The barriers, artificial, either natural or same within additional office is lots, blocks, streets, crosses railroad tracks apply- county as the home office indiscriminately. and other terrain features it where except in cases ing association protracted If begins were line as it additional appears that ends with a from radius of three miles adjacent neighboring in a office is center, exist- shopping it include would two office home county in which the to that ing branch Associa- offices of San Antonio located association is applying of the tion as well as the home of Alamo. office association, there is no considerably Portions of area near- Federal, adequately either State er, and more As- accessible two of the surround- serving neighborhood sociation’s existing branches than additional country in which such ing proposed location. One these two branch office located.” Fredericksburg offices is located on the Road approximately two from the miles branch office proposed location of the The center, shopping the other on the Bandera in what is called “Wonderland applied for is Road, Highway in State which runs edge of City” near the situated Shopping southwesterly portion of the area. on the portion City the northwest has its Association now Road, Highway No. S.U. Fredericksburg home office on the Road 2.8 Fredericksburg arteries lead- principal traffic of the one miles from the branch office of district. business With and from the ing to the San Antonio Association. Its home new miles, from two to varying a radius office will be further to located the north- roughly semi- has Association Antonio San Fredericksburg west on the Road 1.7 City, what enclosing circled Wonderland Additionally, miles from the center. San area of the as the trade described Antonio Association has branch office at population in area office. branch Pedro intersection of San and Hilde- area, 36,000 people. some is said Highway brand on U. 281 3.6 miles dis- S. de- population and commercial as to both Thus, from the center. shopping tant San rapid growth dur- enjoyed a velopment has Antonio Association has offices located on in area so past years ten ing the leading all three of the main traffic arteries savings exist a does designated quadrant City. of the through northwest nor a branch. office and loan home it has now total of ten In fact surrounding offices the business district urges Association Antonio San every covering direction and most expanding area with new of the 9S00 a new occupied 1945, principal arteries in and out of since traffic homes constructed facility City. presently There are San An- and.deserves needs which, including this branch office seven associations would tonio establishment branches, savings total 18 and loan public convenience and ad- offices promote City City may where customers is said de- vantage. to be within Wonderland All important funds. Antonio As- largest and most subur- their San posit one are located in the stores centers branches shopping State. There sociation’s ban and will large grocery follow business chain about 40 establishments proposes ing now whether advan- plan convenience and with the branch cus- tage grocery promoted by will be the establishment sampling to install. A and, though Freder- tomers Association’s additional branch taken Saturday after- decisive, some itself have icksburg Road branch on would ac- savings bearing Ordinarily would had on that issue. we noon revealed that 73% say accounts convenience and counts and had 31% promoted not be the addition Association. Antonio another was al- branch office if the area institutions All ready being served, adequately since surround- in the area City are active would tend render the service more than cus- has 650 City. Alamo Wonderland ing adequate. area; 150 mort- Travis has tomers in the de- hundred six gage loans and four The Commissioner’s Rule 3.3' loans positors; has 1200 First Federal quoted expressly provides above that an depositors. The extent eight some hundred application to shall establish a branch office the at in that section of the business done unless, not evidence, be granted from the is not shown. other three institutions the Commissioner makes four affirmative concerns of all these named Officers three of findings. It follows that the Commissioner’s is opinion the area in their testified that up order denying the must be adequately served. held say unless we can from the evidence to customers It would be convenient that his refusal any to make of the one if probably produce more business required findings arbitrary capri or every established in corner offices were problem cious. That by is to be tested the City, but grocery drug store the substantial evidence rule. As that rule not eco- obviously practice would be operates in us, the fact situation before promote public ad- nomical nor would it the refusal of the Commissioner make to contrary vantage. the would serve On particular finding affirmative cannot be competition “excessively zealous” to create arbitrary capricious or unless the evidence the public and detriment of the to to the adduced trial the supporting re industry large. It must savings and loan quired affirmative finding so conclusive hand, on the be admitted negative that a finding would not be rea some branch offices establishment of sonably supported by substantial evidence. public of interest. matter be So Since we are of the that the evi demarcation, drawing line of while conclusive, dence is not so we hold that the lie, extent, nebulous, great must to Commissioner’s finding con discretion Commissioner. venience and pro will not be moted allowing additional objects The Association also to reasonably supported office is by substantial finding of the Commissioner that area It evidence. will therefore unnecessary be adequately served and contends pass upon discuss the propriety of It is immaterial. that the maintains findings. the other adequate solely service is related matter of paragraph (f) of San Antonio Commissioner’s Association maintains be that even 3.3 which raised if the trial Rule where court erred in setting not aside order, within the same neverthe- county applying as the home office less the cause must be remanded for association, and, secondly, question that the trial for new the reason that the Commis- adequately the area is to whether served sioner and the trial court denied the As- determining Regardless anot factor. sociation access an investigative report objections merit these we believe made the Commissioner at his direction phase is one to be considered decid- in connection with this in that deprived process official regarding the Association of due action affairs ** * examined, law in the association violation so Constitutions position United of Texas. shall be from his States and the removed State * * *, office and fined Re- shall be At hearing before the ports of made to the examinations it he request that Association did not shall Banking Commissioner Texas report, on the allowed to examine this but regarded be as confidential stipulated trial before the court it was inspection, record or report parts the contents of the thereof except may for good reason same were considered the Commissioner Commissioner, public by be made upon respondent’s passing application. may, request of copies thereof reports, stipulated was further that such Association, furnished to statutes, provisions reason of Board Federal Loan Bank Home to he secret and confidential held Loan Home Federal and/or applying Associa- revealed to the meeting the purpose Bank for the tion and made for request that had been requirements Home the Federal request report the contents of ” * * * Loan Bank Act. trial have been refused. On the article Penal Code is section report the Association’s motion that Legislature 42nd of a bill enacted produced for was overruled examination defining regulating building by the court in on Falkner v. Gi- reliance permitting associations and investment Ass’n, Tex.Civ.App., 348 braltar Savings pur- Agencies. manifest Federal Loan Its 467, e., S.W.2d n. and Gibraltar v. r. against pose is shield the Association Ass’n., Tex.Civ.App., 348 S.W.2d private public which disclosure of its affairs 472, r. cases held n. e. Both of these open and records to the must its books investigation reports confidential are

the or his examiners for the Commissioner inspection and the public not affairs are purpose seeing to it that its compelled to could not be Commissioner with law and in in accordance conducted ruling based the same. divulge public. investing of the the best interest 881a-2 of the of Art. the construction upon expressly provides that The statute the Statutes, 1136a-9 of and Art. may be made good reason the information Code. Penal by copies public the and that Ann.Civ.Stat., 881a-2, Vernon’s Article may Association he upon request of the shall ascer- requires the Commissioner organizations. to certain Cer- furnished necessary information from tain deny does not disclosure tainly the statute by his command at sources best We therefore Association itself. to the necessary. deem may he investigation as the statute does and so hold that believe us, situation before preclude, in the not 1136a-9, provisions Art. pertinent revealing from the con- the Commissioner Code, follows: Penal report investigative to the of the tents Banking Commissioner Further, by “The it. on demand Association inspector, deputy, examiner, assist- any preclude As- likewise does statute acting clerk, appointed or under report making ant from sociation Act, failing to provisions of so. to do if desires any or information facts secret keep follows therefore obtained in It an association regarding prevents the by statutory restraint examination no course production directing except from position, trial court official of his reason upon of the af report duty such officer when upon report or take fected association. him to required

429 this, however, re ion All of does not on the trial the district quire report investi- by of this case. made Commissioner’s reversal remand upon this gator bearing report, admissible no investigative even if have by issue. evidence in trial court reason Ann.Civ.Stat., 3731a, 1, of Art. Vernon’s § Association, proposition hearsay is necessarily and whether favor process, has been cites denied due able or As unfavorable to Antonio v. cases of of Tex. Railroad Commission sociation, could not serve to show that 68, Express, 308 Tex. S.W.2d appli rejection (1958), Telephone Co. and Ohio Bell supported cation was not Commission, v. Public Utilities 301 U.S. evidence. we must as From record 57 S.Ct. 81 L.Ed. 1093. merely sume that it cumulative was most that was introduced. Express In Alamo held we report inconceivable anything orders the Railroad Commission reflected integrity of the Associa in- any arbitrary, based evidence are unquestioned tion or its officials. It is plain valid void and in violation operated the Association has for more than duty the mandatory imposed the statute. years successfully, profitably, prop In case here there is contention that no erly and in accordance with law. Inci any the Commissioner failed to follow dentally, Attorney pointed General has mandatory procedure established either out some dealings of Association the statute or the rules. operates stores in which it its branch long offices but that custom has been known Commission, Telephone In Ohio Bell has no Commissioner. He made rates, fixing intrastate had taken into complaint practice on this either before consideration certain information which or at this hearing. We deem matter Telephone Company did not have materiality. opportunity to examine or and rebut which It presumed should be that the Commis- spread was not on the record. sioner initiated the investigation inquire pointed out that the Ohio statute did not into the according matters his provide a for review of the Commissioner’s affirmatively rules must be shown separate independent order suit application granted. could be There- question be and that different would fore only this case relates as to whether presented if such suit could main- public advantage convenience and suspension of tained an intermediate promoted; profitable opera- whether a ruling. the administrative While our tion would be conducted within a reason- strictly appeal proceeding, is not a de novo period time, able and in- whether undue ordinary nevertheless the rules of evidence jury would result neighboring are followed. associations. In our the failure trial compel production foregoing court to For reasons the order report in denying applica- the Commissioner did violate constitutional procedural process. open of San Antonio Association due tion operate and an additional branch in question decision this case is: upheld Antonio is and the judgments and Savings was the Loan Commissioner’s Ap- and trial court Court of respondent’s application refusal reason- peals judgment and reversed rendered supported ably by substantial evidence? respondent nothing. take The burden rests on the Association to show no substantial evidence reasonably SMITH, NORVELL,

which would support negative GREENHILL and STEAKLEY, In opin- JJ., dissenting. Commissioner. our STEAKLEY, unduly injure fice will (dissenting’). the Alamo Sav- Justice ings and Loan Association. Loan Asso- Savings In & Southwestern I 417, implied findings Falkner, 331 S.W.2d would also hold ciation 160 Tex. v. respond- 917, statutory standards we “The Commissioner favorable to said that advantage, application pro- ent’s the other terms of convenience and to be reasonable visions of Rule not shown adequate to assure 3.3 were population statutory for without support, basis reasonable substantial are sufficient evidence. statement regulations.” the rules and regulations referred to the rules and In view of the review of evidence mulgated by the Finance Commission Smith, dissenting opinion I of Justice governing the establish- the Commissioner pretermit will re- in this further discussion majority opin-

ment of branch offices. spect. I judgments would affirm below. v. Savings ion in Association Gibraltar Falkner, Supreme Court Journal Tex., NORVELL, these rules quoted J., joins opinion. 371 S.W.2d in this such regulations with the statement Building and Loan by the promulgated were SMITH, (dissenting). Justice Commission Section the Finance respectfully I The trial dissent. “acting under Banking Loan Savings held that the order powers.” legal reasonably supported Commissioner was not findings the Commissioner any I ground. the case at bar adverse only necessary have concluded that it was respondent in terms Rule 3.3 are grounds for the trial court to consider the “The convenience denial of by allowing ad- promoted will not stated in Ben- the Commissioner’s order. 1 and (Rule 3.3(c) ) ditional office” son admits that the order the Commis- unduly injure operation “the just refusing sioner states reasons Savings and Loan Association” the Alamo application. Association’s These three The additional adverse (Rule 3.3(d)). grounds (1) stated for refusal want were: being area finding “that advantage; (2) of convenience undue adequately is inconsistent with Rule served” injury Asso- Loan 3.3(f), ques- As I read Rule 3.3(f). ciation; adequacy service of (3) of adequacy of of service arises when tion reality “adequacy area. In of of additional of- ground under record service” cannot this county is not the same as the fice within separate ground considered a in of be view applying office of the Association. home the admission of the that sub- Commissioner approach (quoted by (f) which I ad- section Rules Consistent with opinion applies only seeking concurring in the in Court) vocated to associations Savings county. Association v. Falkner home Gibraltar branch outside their The 625, al., 622, Appeals Supreme Court Civil trial et 6 unlike the Court Journal Tex., court, judged 371 548. I would order S.W.2d hold that Commissioner’s solely respondent discharged grounds its burden estab- stated the order. lishing required agree I am inclined with the the evidence af- theory Appeals on the finding firmative that Civil that when Commissioner specific grounds of dissatisfaction convenience stated, grounds presumed must promoted by all other be additional be found, office, favorably must since it be assumed that the additional of- 3.8(c) 1. Gibraltar Association It is noted that Rule amended subsequent time v. Falkner. involved our

431 against view findings application. on all In granting the made that the Commissioner statutory his specific finding on the stated statutory grounds, necessity,” ap ground “public convenience against order found those he issues therefore, any finding on were, reasons absence of plicant and which sup- adequate promise the Com “reasonable requires for The refusal. statute port” es- re management,” and “fitness of for such “the reason missioner to state require- pecially statutory his in view of the has stated fusal.” Commissioner in the ment that state the Commissioner shall reasons for denial of reason I order, statute for his conclude consideration. order under statutory presume can cannot all ultimate Commission does not mean grounds findings not found Commissioner only part his unfavorable state they findings against though express An 881a-3, Vernon’s Article in the order. order Association. The the Com says that notated Statutes “ ** * he did cannot be sustained reasons which on missioner, shall endorse may give party not in the Either incorporation order. copy each of the articles ‘refused’, introduce evidence relative to the Com- the word application] [in [branch order, the missioner’s evi- whether or not that dissatisfaction], together case of * * dence was introduced at the seems or considered reason refusal for question of hearing, administrative but the since the follows logically to me it may what evidence is not con- re considered definitely the reasons states order cerned with the more and different that the basic fusal, presume it is reasonable question may grounds of what As order favorably to found supported on. order. not recited sociation on issues rea another conclusion is sound Benson cites Com- the case of Railroad administra that an It has been held son. Co., Magnolia mission v. 130 Petroleum appeal on upheld may order not tive Tex. That (1937). 967 S.W.2d when specified in order ground case was decided before the Gulf Land by the ad specific fact finding is a case, Company supra, specifically and was recited ground ministrator on another approved. Magnolia discussed and See basis the decision. the order simply case holds that the administrative Co., Refining Land Co. v. Atlantic Gulf agency will legal not be held to the reasons Kerr (1939); Tex. 131 S.W.2d 73 sup- theories it advances in its order in System, Bus v. ville Bus Co. Continental port particular ground or action. But 586, wr. Tex.Civ.App. (1947), 208 S.W.2d decision in clearly Gulf Land demon- ref. n. r. e. strates that specific when there is a fact statutory issue, on one the courts appeal did not from Since uphold will not the order on the basis of judgment there was court’s trial some statutory other unfound ground. the Com- substantial evidence injury finding that undue would missioner’s stated, For the reasons the Court of Civil Alamo, properly the issue be- to result Appeals refusing did not err in to consider Appeals was that of fore Court the disposition “as essential to a appeal” of this advantage.” It “public convenience and phases of this case which were not found aspect no either Rules follows that the by Association the the Commis- against should be considered in of the statute sioner. order, the ex- support now to the trial bearing Reverting that basic fact found court’s cept judg- those on opinion support thereof, its in the Association the ment and against Commis- the opinion by the Express findings have been sioner. made unusual-written Honorable reflects that the This is not a Herman trial the Commissioner. case Jones carefully considered whether only general findings have been made was where whole; An- as a the San support Region Commis- western the substantial evidence to metropolitan the one of the fast- tonio area is opinion reflects sioner’s order. state; the the grounds developing est areas within trial Court limit the did not instead, quadrant City Commissioner, but, northwestern the found developing trial Antonio fastest Obviously, the is one grounds. covered all area, particu- metropolitan sections in grounds merits all judge considered on their larly respect growth; un- and to residential (both stated by Benson advanced and, finally probaby important and most the order stated), concluded that all, be (the proposed on office is to branch supported by evidence substantial far village con- located in a which is shopping the same any ground. I have reached away metropolitan opinion largest in the incorporate hereby clusion and area largest of San Antonio one of the dissent. part of this of the trial court as a nation.) the entire reads: must parties agree “All that this case “Since denied tlie Commissioner has evidence substantial determined under the application Plaintiff’s locate a branch rule of this rule. the statement While men- in the above office simple, the evidence its tioned shopping village notwithstanding difficulty. presents particular great a case undisputed out, facts set believed rule in the principle involved The cardinal closely required Court is to examine evidence is believed to be that what, presented evidence if to determine case, the when, exists trial of the any, peculiar circumstances exist here support the administrative evidence in branch, condemn when reasonable agency such as will convince picture overall indicate that if men, is, reasonable evidence such branch is justified there is virtual- here accept adequate to might mind ly place within the state where such record, If, on the whole conclusion. branch justified. could be might men evidence is such that reasonable 881A-2, which, “Referring ac- to article differ, reasonably irrespective what Court, Supreme cording in the vests justice might think of the wisdom or Court deny authority grant Defendant decision, deci- such of the administrative applications offices, Legis- for branch stand, prohib- sion and the Court must ap- lature that the Defendant shall directs substituting judgment for ited from prove if a branch agency. should administrative character, (1) responsibility, gen- however, emphasized, the authorities persons operate eral fitness of the agree whether or not sub- uniformly same are such as to command confidence exists must determined stantial evidence and warrant belief that business consideration of Court honestly effi- will be whole record. ciently conducted in with the accordance case, appears to the “In the instant act, purpose (2) pub- intent and specific pre- that the more lic convenience and will be against back- be considered sented must by allowing branch to moted : following undisputed facts ground business, population engage (3) Region of the United the Southwestern place of such neighborhood States, population strength, economic country affords a surrounding reason- considerably developing at a presently support promise adequate of able whole, country as a and than rate faster proposed branch. development such outlook statute, to this the Defendant “Pursuant bright- bright or region is this in future adopted regu- has rules and is Commissioner the State of Texas present; than the er lations, which, Chapter dealing 3 of with rate than the South- a faster at developing per- sponsibility general of the and fitness applicable particularly offices, is additional as to making and sons are that such rules here. It is assumed belief command warrant confidence and support the statute regulations must find in building proposed that the business the action Commissioner and of honestly and and in loan will association under review here must find efficiently as, conducted in accordance with in regulations such of rules and purpose Chap- intent act. this turn, supported by the statute. the standards ter sociation must have Chapter 3.3 of the rules and a branch Commissioner 3.3 provides office. which adequate Sub-paragraph that the must be approve application regulations sets reserves applying met (a) out as- located in a ply in “Sub-section (f) only ^{[*] [*]} if the principal county proposed appears other than the officeis clearly to located. office county ap- is surplus place of warrant additional (d) (c). “This leaves sub-sections recognizes that business. While that, It is record believed under all of the may be the action of the Commissioner here, only gen these two sub-sections are supported upon grounds not considered uinely case, although at con issue at the Commissioner if evidence testimony which, in siderable heard one was the trial shows the existence of such way another, presented other under grounds; the Court thinks it nevertheless, to sub With reference sub-sections. relevant that the Commissioner made (d), provided section it is that the wherein suggestion inadequacy re- must find Commissioner that the Further, serves surplus. the Defend- unduly injure any branch will not ant specifically Commissioner testified operating association neighborhood surplus adequate. reserves and country, or in surrounding it should be While the evidence showed that Plaintiff’s noted suggestion there is no of this surplus dropped reserves and from 5.49% standard the statute it be un unless February between of 1961 5.34% injury due an existing association will March nevertheless, the reserves be detrimental to ‘the convenience surplus are still well in excess of Court, advantage.’ Supreme requirements. record, In view of all the Southwestern and Loan Associa it seems clear that there is no substantial Falkner, tion v. 160 Tex. 331 S.W.2d inadequacy evidence of reserves 917, evidently gave the statute such con surplus. What has been said with refer- struction, because is there stated that the ence to surplus reserves and thought purpose protect against the statute is to applicable Chapter last clause of excessively competi evils zealous 3.3, sub-paragraph is, (b), that that there by conferring upon tion the Commissioner no substantial indicating building control the number of operation of branch would Further, specified ain area. associations impair ability carry the Plaintiff’s its clearly holds that the Commis case operation. overall protect against the evils of ex may sioner competition by cessively controlling zealous “Turning to sub-paragraph (b) Chap- and location of number branch offices. ter 3.3, it seen that case, the Defendant must find “In the instant Com- operated that Plaintiff has principal found that Plaintiff’s has years prior least missioner unduly injure Alamo, posed branch will successfully, profitably, which is three properly miles from and in accordance home office law. branch, reciting also regulation sup- assumed that Plaintiff’s finds proposed branch will be 1.7 port requires statute which Com- character, future location missioner to find that miles from the re- approved such has choice was the Defendant The Court Alamo’s home office. Commissioner, notwithstanding fact difficulty the rea- following considerable respect that such location was somewhat surround- soning of the Commissioner ed three branch offices the Plaintiff. to Alamo’s location. future present considerably Its that, office is nearer undisputed evidence when here is ap- than Plaintiff’s branch to Plaintiff’s Commissioner acted Plaintiff’s #7 posed plication, move The Court believes application had to Alamo no #23. Commissioner, it would be undue its home unreasonable to hold that office before the injury did not did result to Plaintiff’s application and until not file #7 the location of Alamo’s home close following month denial office the Commissioner’s it, to application, indica- and the that branch although of Plaintiff’s evidence shows unduly injured by the purchased its site was not location tions that Alamo had #7 office, of Alamo’s to hold that and that fact the Com- home and was known to operation has been missioner Plaintiff’s Alamo’s home office not at the time he denied unduly injured proximity application. presents by the of Plain- This the obvious and, #7, show, question tiff’s branch to the Com- as the facts whether time, at missioner is Plaintiff’s the same hold Plaintiff’s justified denying #23 unduly operations application injure would at because he wishes to reserve Alamo’s present question which, its when Plaintiff’s the area in at will for Alamo #23 subsequent date, may ap- be much farther removed from Alamo’s some file will home we plication office than is Plaintiff’s If to move its home office into the #7. protect seek Alamo’s questioned any rate, area. to location At the Court required injury, from they is facts undue the case becomes weak- to review the exist- er, proposes its 26, 1961, because Alamo to locate ed October the date new home office much nearer to Plaintiff’s Commissioner’s order involved in suit. As case, date, undisputed presently than is of that is that evidence #7 purchased had here Alamo its new evidence indicates that Commis- site planning given to move its has home office sioner reasonable assurance that to that site. seem, however, approved. It does not of Alamo will that these facts move give plans any would to Alamo’s is tantamount to Alamo’s com- future preference ing over Plaintiff’s closer to Plaintiff’s will neither in- #7 actually had Plaintiff’s nor Alamo’s jure which been filed with home office #7 operation. unwilling some and a The Court find half months Commissioner injury occurring October undue 1961. Court does that no Alamo that, although quite law, present its location under the the Com- near believe #7; protect injury Plaintiff’s undue was entitled to Alamo’s missioner by deny- occurring to Plaintiff’s plans against'competition because of future #7 office; present Alamo’s home no un- Plaintiff’s which was ac- ing strange injury will occur to Plaintiff’s from tually before in- due him. #7 office; of Alamo’s deny entry could the relocation home if deed injury undue will occur to into an area because that no Alamo association he by one moving home office still from its nearer area for to reserve that another as- wished #7; Plaintiff’s then condemn plans had enter it. sociation injury because of undue Plaintiff’s #23 although independently located much far- “However, Alamo the views ex- #23 growing area, in a away, new preceding last ther paragraph, pressed virtually city. that, shopping self-sufficient opinion of in a light to be must be there is For evidence all evidence not substantial n reasonable, appears and it in- the contention credible that un- to the Court and unreasonable injury result to credible Alamo. due Alamo n chose suffering injury from present voluntarily, is not undue nearby, but that will tomers. Plaintiff’s branch That the needs and convenience pro- people by much injury suffer from a branch these undue will be served posed as- distant from Alamo. office is self It is more evident. industry sumed that is Com- “In Defendant findings, his grounded part proposi- upon at least is area proposed finds that missioner tion that saving is and that a virtue stand- this being adequately served. Since public advantage nur- promoted by will be nor the statute ard is found neither turing and The encouraging that virtue. it is assumed regulations, location of a office in savings and loan public way saying that that it is another conveniently this center where it is acces- neighbor- advantage and in the convenience public constantly sible to the and is where it the sur- be served and in hood eyes in- countless thousands promoted country rounding will not evitably encourage thereby will saving gets to sub- proposed branch. This us promote public advantage. The Court dealing regulations (c) of the section suggests a commercial center of this in the public advantage convenience magnitude is unbalanced if it shows its neighborhood surrounding and in the coun- patrons easy only ways attractive public try. finds spending facility providing while them will not convenience security which will afford against the crises proposed branch because ‘the moted of the future. The ‘grass- needs of the of said additional office met, hoppers’ public must ad- applicant’s only miles from the serv- is 2.1 heavily dependent vantage is is assumed that ice center #7.’ society; ‘ants’ of our needs, con- their meeting that Plaintiff’s is means #7 venience, encouragement ig- cannot be and convenience the same needs nored. would be served Plaintiff’s “It is the #23. Court that the record here shows no substantial evidence regarded 2.1 miles is “While convenience and advantage will distance in considerable the con- promoted by operation not be Plain- city gested traffic of modern and the tiff’s #23. thought of such is traversing distance pub- entail substantial inconvenience “Finally, (c), Chapter 3, sub-section lic, look to distance we cannot provides regulations that the Commis- eyes our to the numerous other fac- close approval sioner shall withhold of a branch presented in the area here involved. tors area he unless finds impossible precisely Obviously, ‘the of business volume such as to the trade area delineate of Wonderland profitable operation indicate that a prob- City; nevertheless, it must be Shopping within a period able reasonable of time.’ drawing power admitted The statute directs that the Commissioner center will be far-reaching. commercial approve shall if popula- designed to meet virtually center all neighborhood place tion in the of such requirements public. shopping surrounding country affords a rea- testimony shows that the retail floor adequate promise of sonable comparable in the center to that to space proposed branch. city size of New Braun- be found fels; center, cost been that the total of this in- “What has said above is believed land, was some cluding probable seven million dol- be sufficient establish the operation people profitable Hundreds of thousands of lars. branch. present year. However, to the center Many each and anticipated be attracted presently savings growth of area customers of cannot be of these overlooked. Plaintiff; many potential more are shows that rate cus- The evidence of resi- upholds If is substantial evidence. this growth

dential in the area unexcelled denial of Associa- city most of this Antonio elsewhere in the and that application, simply it will mean that growth northwest tion’s occurring is north and is, savings go no location, and loan association could proposed so that shopping far nearer into the involved. Cer- lie center branch office will tainly a part justification there is a branch developing rapidly the most center, savings office should not existing any area than other merely denied because it be located loan office. grocery a dubbed store and has been possible the evidence “It is to detail “grocery of the Com- branch.” order beyond which the Court believes establishes arbitrary missioner is rec- under the whole opera- profitable doubt that reasonable order, ord in this case. The if allowed probable tion of the branch stand, deny- could authority be used as time, it seems suf- within a reasonable ing any regardless of whether exceptional ficient to mention: (1) applicant not the other association had recently con- number of residences new branches in the area. being constructed presently structed judgments below of the courts should sub- and, important, more the residential developed affirmed. which being actively divisions rapid growth indicate an even more ahead; magnitude of the

years (2) the GREENHILL, J., joins in this dissent. of which commercial area part; opening (3) branch will be University Tex-

the near future of hospital and and the

as Medical Branch developments are certain school; the acces- (4)

come with office be-

sibility traffic arteries of its location on vital

cause city. parte Ex G. C. MARTIN. presented in the evidence of all “In view No. 36334. there case, it believed that city of San Antonio in the entire Appeals Court Criminal Texas. profitable prospects brighter Dec. 1963. loan operation of a branch Rehearing Denied Feb. 1984. here, and the one under review than therefore, judgment is, evidence in this no substantial profitable support a that a

record probable

operation of branch is not reasonable time.

within

“ ^{[*] [*] [*]}

“Believing whole record the supported by is not the Defendant

order evidence, judgment prayed for.”

Plaintiff court’s is a suf- the trial

I think holding the Court’s answer

ficient supported by order is

Case Details

Case Name: Benson v. San Antonio Savings Association

Court Name: Texas Supreme Court

Date Published: Nov 12, 1963

Citation: 374 S.W.2d 423

Docket Number: A-9548

Court Abbreviation: Tex.