Delaware County National Bank, Appellant, v. Campbell.
Supreme Court of Pennsylvania
June 28, 1954
378 Pa. 311
We hold, therefore, that Hickey‘s rights to a city pension became vested on May 10, 1930, when he completed 20 years’ service with the City and had made all pension contributions required under the Act of 1915; that this vested right was personal property held by the Pension Fund in the name of the petitioner until the latter should have attained to the age of 60 years; and that the Legislature after May 10, 1930, could in no way diminish Hickey‘s rights to the pension duly paid for in services and money as much as if it were an annuity in a private insurance company. The plaintiff is also entitled to such amounts as may be due him by the amending Acts of 1951, P. L. 1091 and 1952, P. L. 2110, with regard to cost of living increases, as claimed in Paragraph 9 of his Complaint.
Order reversed, complaint reinstated, and the cause remanded to the court below for such action as is required in accordance with the provisions of this Opinion. Costs on the appellee.
Mr. Justice JONES and Mr. Justice CHIDSEY concur in the result.
Robert L. Rubendall, Deputy Attorney General, with him Frank F. Truscott, Attorney General, for Commonwealth, appellee.
Ernest Scott, with him Augustus S. Ballard, Paul Lane Ives, C. William Kraft, Jr., Thomas B. K. Ringe, Morgan, Lewis & Bockius and Pepper, Bodine, Stokes & Hamilton, for Fidelity-Phila. Trust Co., appellee.
OPINION BY MR. JUSTICE BELL, June 28, 1954:
The Delaware County National Bank has appealed directly to this Court by certiorari from an Order or decision of the Pennsylvania Banking Board dated February 4, 1954, which approved the proposed merger of Fidelity-Philadelphia Trust Company (which has its main office and six branch offices in Philadelphia) with the First National Bank of Chester (which has a main and two branch offices in) Delaware County. Under the merger the Fidelity-Philadelphia Trust Company will establish a branch office or bank in the present banking quarters of the First National Bank of Chester—in other words, it will in effect continue the local bank as a branch bank. No serious objection was made by appellant to the merger and establish-
The Fidelity-Philadelphia Trust Company and the Attorney General of Pennsylvania moved to quash the appeal on the two-fold ground that certiorari will not lie and that in any event a national bank has no standing to contest this merger.
Three important questions are raised by this appeal: (1) will certiorari lie from the Supreme Court of Pennsylvania to review an Order of the Pennsylvania Banking Board approving such a merger and if so, is it a broad or a narrow certiorari; (2) has a national bank in the community in question any standing, position or right to contest the merger of a state bank and a national bank with the resultant branch office in that community in competition with the contesting bank; and (3) what is the interpretation of the pertinent provisions of the Banking Code* and of the Department of Banking Code?**
The Department of Banking was created not to manage or operate a bank but to supervise a bank, and to be a watchdog in the interests of depositors, creditors, shareholders and of the community in general. The Department has the power and duty, inter alia, to approve or disapprove a proposed merger or consolidation of banks: §1406 of the Banking Code. If the Department of Banking disapproves the articles of merger or of consolidation its decision “shall be conclusive and not subject to review:” §1406 C. If, however, it approves the articles of merger or of consolidation, there is no express provision that its de-
However, if a merger or consolidation is proposed, the effect of which is to establish a branch, the Department of Banking has the power and the duty to approve or disapprove the articles of merger or consolidation within 60 days. But in the event of approval, that is not the end of the matter.
“If the Department of Banking shall approve such articles it shall forward them to the Banking Board for review.*** [and] . . . The decision of the Banking Board shall be binding upon the Department of Banking.“: §204 F(2) (Banking Code).
The Banking Board is composed of 11 members—the Secretary of Banking of the Commonwealth of Pennsylvania, as Chairman, four members appointed by the Governor of Pennsylvania, and six members selected by the Governor from among the nominees submitted to him by groups of the Pennsylvania Bankers Association representing different geographical sections of the State: §501 C of the
The powers of the Banking Board, so far as they are pertinent hereto, are as follows (§501 C): “There is hereby created a board to be known as the ‘Banking Board,’ which shall hear any attorney, officer, em-
In disposing of the motions to quash we must consider the powers and authority of the Banking Board, and what power of review, if any, the Courts possess on an appeal by a national bank from an order of a State administrative agency. It will aid us in determining these questions if we first review the applicable principles of law.
This case arose on a certiorari and possessing as we do, and other courts of the Commonwealth do not, the powers of King‘s Bench, it was properly brought direct to this Court: Commonwealth v. Onda, 376 Pa. 405, 103 A. 2d 90; cf. also Nobles v. Piollet, 16 Pa. Superior Ct. 386; Morrison, Sec. of Com. v. Philadelphia College of Law, Inc., 56 Dauphin 265.
Review on certiorari has been recently considered and clarified by Mr. Chief Justice STERN in Kaufman Construction Co. v. Holcomb, 357 Pa. 514, 55 A. 2d 534. In that case the statute provided that the award of the Board of Arbitration shall be final and no appeal from such award to any court shall be allowed. The Chief Justice said (pp. 517-519): “Where a statute expressly denies the right of appeal to a court from the action of some agency of government, or to an appellate court from the decision of a court of original jurisdiction, to what extent is a disappointed claimant thereby prevented from obtaining a complete judicial review of his claim? After some vacillation
Assuming for the moment that an appeal will lie from this Order of the Pennsylvania Banking Board, it is clear that whether certiorari is limited to the question of jurisdiction and the regularity of the proceedings or whether it may be had in its broadest sense, i.e., a narrow certiorari or a broad certiorari, depends on whether a right of appeal to the Courts has been expressly denied. On this question the parties diametrically differ.
Section 501 B of the
Section 204 D of the
Appellees also rely on §1406 C of the
This appears in §204 F of the
“If the Department of Banking shall approve such articles, it shall forward them to the Banking Board for review. The Banking Board shall, after such investigation or hearing as it may deem advisable, either approve or disapprove the action of the Department of Banking, and shall return the articles to the Department of Banking with notice of its decision, and, in the case of disapproval, with a statement in detail of its reasons for doing so. The decision of the Banking Board shall be binding upon the Department of Banking.”
We therefore decide that there is no provision in either Code which prohibits an appeal or judicial review from the Order entered by the Banking Board in this case.
But the contention of the Attorney General and of the Fidelity-Philadelphia Trust Company goes deeper. They contend that even though no right of appeal or certiorari is prohibited, certiorari will not lie from the decisions of a nonjudicial administrative board unless specifically authorized by the legislature. Each party litigant cites in support of its position Newport Township School District v. State Tax Equalization Board, 366 Pa. 603, 607, 79 A. 2d 641. In that case the Court wisely held that it does not have any power to review directly by certiorari the findings or actions of the State Tax Equalization Board since it “functions not as a judicial body but as a legislative or administrative body designated by the legislature to supply one fact of a legislative formula by which school subsidies are allocated.* . . . No property right is involved, . . .” That case does not help the appellees. However, in its opinion the Court said (p. 609): “. . . In Short‘s Estate, 315 Pa. 561, 173 A. 319 . . . we decided we had no such right [the power to review by certiorari the findings of a nonjudicial administrative board] . . . . . . the authorities agree that certiorari does not lie to review or annul any judgment or proceeding which is not judicial in its nature, but with respect to various proceedings there is room for great
The Court further said (p. 610): “. . . It was held at an early time that the writ [of certiorari] was available against bodies other than courts and would issue to boards or commissions created by statute, such as the Commissioners of Sewers, in order to keep them within their proper jurisdiction.’ . . . It will be observed also that this old English case is in keeping with the rule that at common law the writ was available to review the proceedings of inferior judicial tribunals, judicial officers or bodies exercising judicial acts. . . .”*
Appellees rely mainly upon Short‘s Estate, 315 Pa. 561, supra. In an exceptionally short Per Curiam opinion, this Court there held that an appeal should be quashed where the Board of Finance and Revenue refused a petition for refund of inheritance taxes paid by an executor, for the reason that an appeal from the action of this administrative body does not lie unless expressly authorized by statute. The Fiscal Code of April 9, 1929, gave the Board authority to hear and determine petitions for refund of transfer inheritance
Appellees also cite Glen Alden Coal Co. v. State Tax Equalization Board, 367 Pa. 63, 79 A. 2d 645, as holding that certiorari will not lie from an order of an administrative board. The case is not authority for such a proposition. In that case a bill in equity was brought to restrain the Board from certifying the valuation of all taxable real property in a certain township because the determined value was grossly excessive. The Court below correctly held that a bill in equity would not lie; that the determinations of the Board are used solely for the purpose of ascertaining the amount of the state subsidy for each school district and had no bearing whatever on local taxes; that the Board was not obliged to hear testimony or divulge the basis of its findings; and finally, that “A bill in equity may not be used as a substitute for an appeal in order to circumvent the legislative prohibition [against review].” This was clearly not appealable for the additional reasons set forth in Newport Township School District v. State Tax Equalization Board, 366 Pa. 603, supra.
If this were strictly construed and thus applied to this case it would mean that only the two banks involved in the merger and their respective stockholders or creditors could have any standing to object or appeal. A state bank next door would, under this interpretation, have no standing to object. Even the appellees concede that this is not the rule in this class of case.
In order to determine whether a national bank, not a party to the merger, has a direct and substantial interest in the question here involved, we must examine further the facts.
The Banking Board found as a fact: “11. That the banking facilities in the City of Chester are not over-adequate and that the City of Chester would be without adequate banking facilities if it did not have the banking facilities afforded by the First National Bank of Chester, Pennsylvania.”
On the basis of the Board‘s findings of fact the Board made the following conclusion of law: “3. The State Banking Board concludes that the City of Ches-
There was ample evidence to support all of the findings of fact of the Pennsylvania Banking Board,—what appellant seriously challenges is the Board‘s aforesaid conclusion of law. We shall discuss this question more at length when we come to the merits of the case, but on the question of quashing we must review all of the surrounding and attendant circumstances in order to determine whether the Delaware County National Bank has a standing in this appeal.
While neither the
Part of the powers and duties of the Department of Banking, and in cases of mergers with resultant branch banking, part of the powers and duties of the Banking Board, is to determine, as the Department and Board did in the present case, whether the community served and from which a bank draws its depositors and clients has adequate banking facilities and is not overbanked. Appellees admit this throughout their brief. Appellees say: “As interpreted by the Banking Board in accordance with its plain terms, the clear intention of the statute in regard to establishment of branches, both by new branch and by merger, is the same: to guard against ‘overbanking’ on the one hand, and ‘underbanking’ on the other; . . .“. The legislature, as appellees further admit, did not exclude or intend to exclude competition between banks; it intended, inter alia, to exclude such competition as would likely weaken or destroy some banks in an overbanked community and thus weaken or injure the entire banking system, to the detriment of depositors, creditors, stockholders and the public alike.
The language of §204 D of the
We therefore hold that the Delaware County National Bank has a standing in this case; that it is a proper party in interest and possesses a right to attack this proposed merger; that an appeal lies by certiorari, and that certiorari lies in its broadest sense. The motions to quash are therefore dismissed.
We now come to a consideration of the appeal on its merits and that depends upon the interpretation of §204 D of the
The argument boils down to an interpretation of the words “other than“; appellant contends they mean “including” the banks involved in the merger, while appellees contend they mean “excluding” the banks involved in the merger.
The Banking Board found, as we have seen, that the community was without adequate banking facilities excluding the merging institutions.
While the
Appellant contends that the purpose and intent of the Act and particularly of this Section of the Act was to protect small rural banks from branch banking by large city banks and consequently §204 D must have meant “without adequate banking facilities including the branch to be established as the result of the merger.” We cannot so read the Act. “Other than” in its ordinary meaning means what it says, i.e., “excluding” and does not mean “including“, as appellant argues. If this interpretation does not protect small rural banks from branch banking by big city banks—a bitterly controversial subject—the problem can best be solved by the legislature, but in no event can or should be solved by the Courts.
We therefore interpret §204 D as the Banking Board did, namely, a merger may be approved if the city, borough, or other community in which such branch is to be established is without adequate banking facilities excluding the institutions which are a party to the plan of merger.
We will not overrule or reverse the Banking Board if there is adequate evidence to support its
We have considered all of the contentions made by each of the parties in this case, but deem further discussion unnecessary.
The Order of the Pennsylvania Banking Board dated February 4, 1954 is affirmed; each party to pay its respective costs.
OPINION BY MR. JUSTICE JONES dissenting and concurring in part:
The writ of certiorari sued out by the appellant should be quashed. The order of the Banking Board of Pennsylvania approving the articles of merger is not judicially reviewable. It is a legislatively authorized administrative and non-judicial act from which no appeal has been provided by the legislature. The action of the majority in according a right of appeal from an order of the Banking Board in the absence of legislative authorization constitutes a flagrant departure from established rules of legal procedure. It veritably works an unconstitutional intrusion by the judiciary upon the province of the legislative branch of our State Government.
The non-appealability of an order of similar character has been directly ruled by this court. Cf. Short‘s Estate, 315 Pa. 561, 173 A. 319, where we quashed an appeal, in the nature of a certiorari, from the refusal
In Newport Township School District v. State Tax Equalization Board, 366 Pa. 603, 608, 609, 79 A. 2d 641, where an appeal was sought to be taken from an order of the State Tax Equalization Board, the late Mr. Justice Ladner, speaking for a unanimous court, after recognizing our plenary power to review and supervise proceedings of inferior courts or judicial officers or judicial tribunals of this Commonwealth by the common law writ of certiorari, observed that “Whether we have the power to review directly by certiorari, the findings or actions of a non-judicial administrative board in the absence of any such authorization by the legislature is an entirely different question.” And, in answering the “different” question, the learned Justice said, “In Short‘s Estate, [cit. supra], we decided we had no such right. . . . ‘[T]he authorities agree that certiorari does not lie to review or annul any judgment or proceeding which is not judicial in its nature, but with respect to various proceedings there
An order of an administrative body which does not adjudicate property rights is non-judicial, and that is the status of the order of the Banking Board with which this case is concerned. The merger did not pass upon anyone‘s rights. It was the voluntary corporate action of the constituent banking institutions and required only the approval of the Banking Board and the Department of Banking. It did not require the approval of a court. It is interesting to note that our decision in the Newport Township case, supra, which denied judicial review of an order of the State Tax Equalization Board, was handed down on March 22, 1951, and that, six months later, by amendment of the Administrative Agency Law of 1945, P. L. 1388, an order of the State Tax Equalization Board was made judicially reviewable by way of appeal to the Court of Common Pleas of Dauphin County: see Section 7 of the Act of September 28, 1951, P. L. 1561, 71 PS §1710.51 (a) (44). That, the legislature could competently do; but for this court to accord such a right amounts to a wilful assumption of a jurisdiction which is not ours.
Neither the
The instant action of the Banking Board is an authorized administrative exercise of the legislature‘s power “by general law to provide for the incorporation of banks and trust companies, and to prescribe the powers thereof“:
The discussion in the majority opinion as to the relative scope of review upon a broad or a narrow certiorari is wholly irrelevant to the question of appealability of an order of the Banking Board. The inquiry here is not how one gets into court for the review of such an order, but whether he gets there at all. Insofar as the cases cited in the majority opinion involved appellate review on certiorari, they were concerned with judgments, orders or decrees of judicial or quasi-judicial bodies where, of course, certiorari by this court lies. Even in respect of such judicial bodies, when an appeal is statutorily denied, a review by this court on certiorari is narrowly limited to questions of jurisdiction and regularity of the proceedings. How, then, can the majority, aside from the error of allowing an appeal from the administrative order of the Banking Board, say that “certiorari lies in its broadest sense” in the present instance? It is simply not possible to overestimate the harm that will ensue from this court‘s allowance of an appeal in this case.
If, however, the appeal is to be entertained and the appellant accorded standing which it manifestly does not have,1 I agree that the order should be affirmed.
Mr. Justice ALLEN M. STEARNE and Mr. Justice CHIDSEY join in this opinion.