William R. KOSTMAN, Commissioner of Finance, Appellant, v. PINE LAWN BANK AND TRUST COMPANY, a Missouri Banking Corporation, and William J. Bollwerk, Chairman, Missouri State Banking Board, et al., Respondents.
No. 59299.
Supreme Court of Missouri, En Banc.
Sept. 13, 1976.
“In Lohmeyer * * *, the constitutional question was raised for the first time in the motion for a new trial, and it was held on review of many cases, that under the circumstances there present it could have been raised sooner, and therefore was not raised at all, so as to give this court jurisdiction. That case is on all-fours with this, and must control, if it be followed.”
The challenge to the constitutionality of
This Court has no jurisdiction of this appeal “[b]ecause the constitutional point was not timely invoked in accordance with the usual course of orderly procedure * * *” Hartzler, supra (117 S.W., l.c. 1125).
The cause is transferred to the Springfield District of the Court of Appeals for decision on the non-constitutional question raised on appeal.
SEILER, C. J., and MORGAN, HOLMAN, BARDGETT and FINCH, JJ., and WELBORN, Special Judge, concur.
HENLEY, J., not sitting.
Irven L. Friedhoff, Jefferson City, for appellant.
Albert Schoenbeck, St. Louis, Shook, Hardy & Bacon, Kansas City, D. Jeff Lance, St. Louis, and John H. Hendren, Jefferson City, for respondents.
BARDGETT, Judge.
The Commissioner of Finance of Missouri (commissioner) appealed to the Missouri court of appeals, Kansas City district, from the judgment of the circuit court of Cole county which judgment affirmed the decision of the Missouri State Banking Board (board) allowing respondent Pine Lawn Bank and Trust Co. (bank) to change its name and relocate. The board‘s decision, in effect, reversed the determination made by the commissioner on the bank‘s application.
The court of appeals by opinion held that the commissioner lacked legal standing to appeal the judgment of the circuit court and upon that ground affirmed the circuit court‘s judgment. This court sustained the commissioner‘s application for transfer pursuant to
The court has concluded that the commissioner of finance does not have the legal right or standing to seek review in circuit court from a decision and order of the state banking board. The opinion of the court of appeals, Kansas City district, authored by Ronald L. Somerville, Judge, is adopted as the opinion of this court and is set forth infra in quotes followed by additional comments of this court.
“Pitted against each other on this appeal are the Commissioner of Finance (hereinafter referred to as the Commissioner) and
“The respondents on appeal are the applicant bank and the chairman and members of the State Banking Board. The Commissioner is the sole appellant. Respondents vigorously contend that the Commissioner is not an ‘aggrieved’ person within the purview and meaning of
“On January 15, 1974, the Pine Lawn Bank and Trust Company (heretofore and hereafter referred to as the applicant bank), pursuant to
“On August 27, 1974, the Commissioner, ostensibly pursuant to
“On November 20, 1974, the Circuit Court of Cole County overruled the applicant bank‘s motion to dismiss the Commissioner‘s petition for judicial review and, after all parties were heard, found, inter alia, that the decision of the State Banking Board was ‘supported by competent and substantial evidence upon the whole record’ and entered judgment affirming same.1
“Intervenor, the City of Pine Lawn, and the opponent banks did not appeal from the judgment rendered by the Circuit Court of Cole County, and may therefore be said to have judicially acquiesced to its legal propriety. The Commissioner, however, refused to acquiesce to the legal propriety of the judgment rendered by the Circuit Court of Cole County and by a timely appeal to this court seeks reversal of said judgment on three grounds directed toward its merits. If the Commissioner be not an ‘aggrieved party’ within the purview and meaning of
“The weight of authority negates the right of an administrative officer of a branch of government, the position occupied by the Commissioner herein, who has suffered defeat at the hands of an administrative tribunal with jurisdiction to review his actions, the position occupied by the State Banking Board herein (
“That portion of subparagraph 3 of Section 361.095, supra, seized upon by the Commissioner reads as follows: ‘At any hearing provided for in Section 361.094 the Commissioner of Finance shall be deemed a party . . . .’
“Thus, in the administrative hierarchy involving appeals from specified actions and refusals of the Commissioner, the State Banking Board is statutorily clothed with an unfettered right to speak anew with finality at the administrative level regardless of any conflicting views the Commissioner might possess. In a very real and practical sense, so far as echelons of administrative review are concerned, the Commissioner is subordinate to the State Banking Board and it is the superior authority. This conclusion is bolstered not only by the judicially recognized broad power of review bestowed upon the State Banking Board by
“The Commissioner contends he is ‘aggrieved’ within the contemplation of
“A virtually unlimited number of persuasive arguments can be marshaled to support the sagacity of the general assembly in withholding authority from the Commissioner of Finance to affirmatively invoke judicial review of decisions of the State Banking Board at any level of the judicial process. The following are but a few of many. To permit the Commissioner to invoke judicial review would put him in the position of a subordinate administrative officer seeking to nullify the legislatively authorized action of a superior authority, the State Banking Board. Such would not be conducive to intradivisional harmony and accord and would serve only to invite dissension
“The Commissioner has cited numerous decisions in his brief from this and other jurisdictions in support of his claim that he is ‘aggrieved’ within the meaning of
”Dubinsky Brothers, Inc. v. Industrial Commission of Mo., 373 S.W.2d 9 (Mo.1963), holds that the Industrial Commission and the Division of Employment Security were ‘aggrieved’ and entitled to appeal from an adverse circuit court judgment, the effect of which would have depleted the general unemployment benefit fund, since they were charged with the protection of said fund. No legal parallel can be drawn between the status of the Industrial Commission and the Division of Employment Security in Dubinsky Brothers and the Commissioner in the present case.
“The relevant issue in In Re St. Joseph Lead Company, 352 S.W.2d 656 (Mo.1961), was whether St. Francois County was ‘aggrieved’ by an order of the State Tax Commission reducing the assessed valuation of St. Joseph Lead Company‘s property, thereby entitling the county to judicial review of the State Tax Commission‘s order. In essence, the court held that the county was ‘aggrieved’ inasmuch as it stood to lose considerable tax revenue if the order of the State Tax Commission was permitted to stand. No comparable situation exists in the present case.
”State v. Donnelly, [365 Mo. 686] 285 S.W.2d 669 (Mo. banc 1956), factually involving earlier and quite different applicable law, basically presented the same question now before this court, i. e., whether the then Commissioner of Finance had legal standing to seek judicial review of a decision of the Board of Bank Appeals, the antecedent counterpart of the State Banking Board, which set aside an order of the then Commissioner refusing a certificate of incorporation to the proposed incorporators of a new bank and ordered him to grant the requested certificate of incorporation. As previously noted, the issue was subject to the banking laws in existence prior to extensive amendments made to them in 1955. When the case reached the Supreme Court it referred to present
“Only a perfunctory reference need be made to Central Bank of Clayton v. State Banking Bd. of Mo., 509 S.W.2d 175 (Mo.App.1974), since the Commissioner cites it for the sole purpose that the public has an interest ‘in a healthy bank system‘.
”Cunningham v. Leimkuehler, 276 S.W.2d 633 (Mo.App.1955), and Shelley v. Missouri Commission for the Blind, 309 Mo. 612, 274 S.W. 688, 691 (banc 1925), cited by the Commissioner, involve situations where aggrieved private parties initiated judicial review at the circuit court level and upon achieving success, the administrative tribunals involved, which were the highest echelons in the administrative review process, appealed from circuit court judgments adverse to them. In both cases it was held on appeal that the respective administrative tribunals were ‘aggrieved’ by the respective circuit court judgments since they had an interest in vindicating and upholding their official acts. The Commissioner‘s status here is in no way akin to the administrative tribunals in Cunningham and Shelley. No official act of the Commissioner is involved in the present appeal. His initial refusal to grant the applicant bank permission to amend its articles of incorporation in order to change its name and relocate ceased to have even the slightest semblance of an official act when the State Banking Board held otherwise in view of the latter‘s broad and all inclusive power of review. The State Banking Board‘s order completely dissipated the Commissioner‘s act and for all practical purposes rendered it a nullity ab initio. The only official act involved in the judicial review before the Circuit Court of Cole County was that of the State Banking Board. By his appeal to this court the Commissioner seeks to upset the official act of the State Banking Board. He does not seek to uphold or vindicate the official act of the State Banking Board and no presently viable act on his own exists to be vindicated or upheld.
“In re Halifax Paper Company, Inc., [259 N.C. 589] 131 S.E.2d 441 (N.C.1963), Dixon v. Zoning Board of Appeals, [19 Conn.Sup. 349] 113 A.2d 606 (Conn.1955), Muench v. Public Service Commission, [261 Wis. 492] 53 N.W.2d 514 (Wisc.1952), Board of Adjustment of City of Fort Worth v. Stovall, [147 Tex. 366] 216 S.W.2d 171 (Tex.1949), Rommell v. Walsh, [127 Conn. 16] 15 A.2d 6 (Conn.1940), Board of Com‘rs. v. Woodford Consol. School Dist. No. 36, [165 Okl. 227] 25 P.2d 1057 (Okla.1933), and Moode v. Board of County Com‘rs., [43 Minn. 312] 45 N.W. 435 (Minn.1890), relied on by the Commissioner, have been carefully noted by this court. After doing so, it concludes that the statutory provisions and facts in each are so dissimilar to the statutory provisions and facts pervading the issue before this court that they lack persuasive force or directional assistance.
“In summation this court concludes that no statute expressly authorizes the Commissioner to invoke judicial review of orders of the State Banking Board at any judicial level and when the various statutory provisions heretofore cited which are in pari materia are collectively viewed no legislative intent to vest the Commissioner with such a right emerges. Although the effort of the Commissioner to seek judicial review
“Since the Commissioner, the sole appellant, lacks legal standing to maintain this appeal the judgment entered by the Circuit Court of Cole County in this cause must stand and, accordingly, said judgment is affirmed.”
The commissioner, before this court, continues to place heavy reliance upon the provision of
The provision of
Under the law prior to 1955, when these appeals were heard by a board of appeals, the commissioner was required to present all statements, reports, data and files, and any other information bearing on the subject to the board of appeals and thus was required to participate in the appeal before the board of appeals.
Under the 1955 act the banking board continues to have access to all of the records and information used by the commissioner in making his decision,
Under the law prior to 1955, the commissioner was required to “act in accordance with such decision” of the board of appeals,
Under the law prior to 1955, the judicial review was governed by the provision of
The provision of
The initial decision of the commissioner is not subject to judicial review. His is merely the initial decision within the agency on the matter. The board‘s hearing is fully de novo and the board need give no weight whatever to the decision of the commissioner. Standing to appeal to circuit court from the board‘s decision is governed by
The question of whether the commissioner of savings and loan in Wisconsin was an aggrieved party so as to seek judicial review of a decision of the savings and loan review board which reversed the commissioner‘s decision was the issue in Mortensen v. Pyramid Sav. & L. Ass‘n of Milwaukee, 53 Wis.2d 81, 191 N.W.2d 730 (1971). In Mortensen the trial court dismissed the commissioner‘s petition for review from the review board‘s decision on the ground that the commissioner is not a person aggrieved and directly affected by a decision of the review board. The Supreme Court of Wisconsin affirmed the trial court saying at 191 N.W.2d at 731-732:
“The basic reason for this interpretation of the statute is that the commissioner of savings and loan is a part of the decisional process of the savings and loan department and his decision only initially determines the issue in the administrative proceeding. An administrative officer is not a party for the purposes of seeking a review of a reversal of his determination by a board of appeals. See 2 Am.Jur., Administrative Law, p. 177, sec. 368. It is stated in 2 Am.Jur., Administrative Law, p. 397, sec. 576 ‘An administrative officer who made an original decision which was appealed to a higher administrative authority was held to have no interest as a party which would entitle him to appeal from the overruling of his decision.’ To the same effect is 73 C.J.S. Public Administrative Bodies and Procedures § 159, p. 497; Dept. of Labor v. Unemployment Comp. Bd. of Rev. (1949), 362 Pa. 342, 67 A.2d 114. Unless the statute expressly so provides, an aggrieved party is one outside the decisional process who is directly affected.
“But it is argued by the commissioner that because he alone has the legal responsibility to supervise the savings and loan industry and he is charged with the protection of public rights, these interests are sufficient to place him within the category of an aggrieved person directly affected by the decision of the savings and loan review board. While the commissioner has a personal interest in seeing his opinion affirmed, such interest does not constitute him as an official an aggrieved person. He relies on Muench v. Public Service Commission (1951), 261 Wis. 492, 53 N.W.2d 514, and Norway v. State Board of Health (1966), 32 Wis.2d 362, 145 N.W.2d 790. In Muench we held a citizen had sufficient legal interest in the use of navigable waters to challenge a public service commission‘s decision; and in Norway, we held the town‘s governmental right to prevent pollution was a sufficient basis to render the town an aggrieved person entitled to challenge an administrative agency‘s sewerage treatment plan. But the important point is that in neither of these decisions was the citizen or the town a part of the decisional administrative process; they were bystanders, outside the decisional process.
“Nor is the commissioner the final authority of this department so as to give him a legal interest. The review board may review certain actions of the commissioner. While it is true that sec. 15.821, Stats., defining the review board‘s responsibility does not list sec. 215.03(9) respecting an application for a branch, the review board may, contrary to the arguments of the commissioner, review such decision under sec. 215.04(4) by virtue of sec. 215.03(9)(c); and sec. 15.821(1) does give the review board jurisdiction of matters covered by sec. 215.04.
“The commissioner‘s decision in this matter is not final also because in reviewing the decision of the commissioner, the review board may substitute its judgment, although the findings of the commissioner are supported by substantial evidence. No statute limits the scope of review by the review board and without such limitation it may substitute its own judgment in determining the facts and the law applicable thereto. Prior to 1961 the savings and loan review board, then known as the advisory committee, reviewed the commissioner‘s denials of applications for certificates of authority in the manner provided in sec. 220.035, Stats., which requires the acceptance of factual findings which were supported by substantial evidence. However, the recreation of ch. 215 by ch. 315, Laws of 1963, made the review of denials of applications for certificates of authority reviewable under statutes which are now numbered 215.04(1) and 215.04(4) and these sections do not provide the review board must give weight to the factual findings of the commissioner. Although this change involves only the specific duty of the commissioner in reference to applications for certificates of authority, the change makes the scope of review of this type of decision compatible with the broader review of other decisions of the commissioner.”
In Minn. Bd. of Health v. Gov., Etc., App. Bd., 230 N.W.2d 176 (Minn.1975), the issue was presented as to whether the state board of health was a “person aggrieved” so as to seek judicial review of a decision of the certificate of need appeal board which reversed the decision of the board of health. In the context of the instant case, the Minnesota board of health is comparable to our commissioner of finance and the governor‘s certificate of need appeal board is comparable to the banking board of Missouri.
The Minnesota Supreme Court quoted with approval from Mortensen, supra, and held the Minnesota board of health was not a “person aggrieved” so as to have standing to seek judicial review. The reasoning of the Wisconsin Supreme Court in Mortensen and the Minnesota Supreme Court in Minn. Bd. of Health is sound and in accordance with the prevailing law on the subject. There are no cases cited in the commissioner‘s brief nor has this court found any case where it was held that a person occupying a position similar to our commissioner of finance was an aggrieved party so as to give him standing to seek judicial review of the decision of the administrative board (banking board) which heard appeals from the initial decision of the commissioner.
The court holds that the commissioner of finance is not a person aggrieved by a decision of the banking board and therefore does not have standing to seek judicial review of the banking board‘s decision. He lacks standing to maintain this appeal and therefore the judgment of the circuit court is affirmed.
MORGAN, HENLEY, DONNELLY, JJ., and HIGGINS, Special Judge, concur.
FINCH, J., dissents in separate dissenting opinion filed.
SEILER, C. J., dissents and concurs in separate dissenting opinion of FINCH, J.
HOLMAN, J., not sitting.
FINCH, Judge (dissenting).
I must respectfully dissent.
The foregoing sections, subject to amendments adopted in 1967 which are not material to the question at issue,2 were enacted in 1955.3 Prior thereto, appeals from actions by the commissioner were to a board of appeals. The statute then provided that the board of appeals should have access to “any and all statements, reports, data and files in the office of the commissioner” and that he “shall present all such documents and any other information bearing on the subject, in his possession, to the board.”
The foregoing provisions of Chapter 362 of RSMo 1949 were repealed in 1955. As previously noted, a new statute was enacted whereby a state banking board was created and appeals from decisions of the commissioner of finance were to be heard by said banking board.
Shortly thereafter, this court decided State ex rel. Rouveyrol v. Donnelly, 365 Mo. 686, 285 S.W.2d 669 (banc 1956), a unanimous opinion authored by Judge Storckman. In that case, in construing the law as it existed prior to the 1955 changes, the court said “Nor is there any provision in the applicable statutes giving to the commissioner of finance any rights as a party after the board of appeals has obtained jurisdiction. * * * An administrative agency is not a part to a litigation as that term is customarily used and should not be so considered unless the legislature has so provided.” 285 S.W.2d at 677.
After so stating, the opinion then took note of the enactment of the new chapter in 1955, saying at 677-678:
“The legislative construction of the banking act confirms the conclusions which we have reached. The 68th General Assembly amended the banking laws to provide for an appeal board of five members to be appointed by the governor and further specifically provided that the commissioner of finance shall be deemed a party to an appeal proceeding before the board and that certain specified banks may intervene.
Section 361.095, RSMo 1955 Supp., V.A.M.S., L.1955, H.B. 212, § 5 . The fact of this amendment is ‘a significant factor’ and highly persuasive that the prior law did not contemplate that the commissioner of finance and the banks specified were parties to the proceedings or their review. State ex inf. Gentry v. Long-Bell Lumber Co., 321 Mo. 461, 12 S.W.2d 64, 80[5]. The specific provision of the amendment that the commissioner be deemed a party on appeal and that other banks be permitted to intervene is a legislative construction that the right did not exist under the law applicable to this case. State ex rel. Bank of Nashua v. Holt, 348 Mo. 982, 156 S.W.2d 708, 712[3]. This rule of construction was applied in the case of Drainage District No. 23 v. Hetlage, 231 Mo.App. 355, 102 S.W.2d 702, 709[8], wherein it was held: “We conclude, that from the legislative construction of article 1, chap-ter 64 [Section 242.020 et seq. RSMo 1949, V.A.M.S.], as indicated by the subsequent amendment thereof, drainage districts organized under the provisions of said article 1, chapter 64, did not have the power to bring suit to redeem or to bid at tax sales for state and county taxes prior to this amendment, and that consequently, it enacted this statute for the purpose of expressly conferring such authority upon circuit court districts. While this legislative interpretation is not conclusive, it is highly persuasive.’ ” (Emphasis supplied.)
Clearly, the court was expressing the view that now certain specified banks could intervene and be parties and that they, together with the commissioner of finance, were for the first time parties to the proceedings on appeal. That was the interpretation of
The principal opinion dismisses Donnelly as merely containing dicta, even though “concededly strong and suggestive“, and as not having ruled the question of the commissioner‘s right as a party to appeal since the meaning of
The interpretation of the statute expressed in Donnelly may not be dismissed or disregarded so casually as mere dicta. In Phillips Pipe Line Co. v. Brandstetter, 241 Mo.App. 1138, 263 S.W.2d 880 (1954), the court had before it the question of whether a statute authorized pipe line companies to institute condemnation proceedings. In holding that they did have such authority, the court pointed out that it was construing a statute enacted in 1919 and then said, at 884-885: “We * * * must take into consideration the comments which have been made by courts (conceding that none have ruled this precise issue), as well as the practical use made of the statute.” The court then noted four decisions containing dictum to the effect that the statute conferred on pipe line companies the power of eminent domain. Then, significantly, the court stated at 885:
“Thus on four distinct occasions in Missouri judicial comments have been made, although not directly necessary, to the effect that
Section 523.010 RSMo 1949 , V.A.M.S. has granted a substantive right of condemnation to pipe line companies. The earlier two of the four Missouri cases just cited are especially significant because after those opinions were published (in 1935 and 1940, respectively,) there was no effort, in any of the several sessions of the General Assembly subsequently convened, to amend the law or to express any other or different legislative intent, not in accord with said judicial dicta. See Willott v. Willott, 333 Mo. 896, 62 S.W.2d 1084, loc. cit. 1085-1086, 89 A.L.R. 114; Curtis Pub. Co. v. Bates, 363 Mo. 287, 250 S.W.2d 521; Robertson v. Manufacturing Lumbermen‘s Underwriters, 346 Mo. 1103, 145 S.W.2d 134.” (Emphasis supplied.)
Twenty years have passed since this court in Donnelly expressed the view that the effect of newly enacted
Another matter of significance is the fact that in 1967 the legislature made some changes in
“We regard as significant the fact that notwithstanding the construction which has been put upon these laws by the decisions of this court referred to, by the acts of the various Governors making appointments, and by the certificates contained in the official publication of the session acts, the Legislature, in 1909, adopted the same phraseology in the declaratory act, and also in the general act concerning the time when laws should go into effect. According to the ordinary rules of construction, it must be held that the Legislature re-enacted these laws with the construction which had been so placed upon them. * * *” (Emphasis supplied.)
In addition to the foregoing, it is well settled under the doctrine of contemporaneous construction that interpretation of a statute by those charged with its administration is entitled to great weight. L & R Distributing, Inc. v. Missouri Department of Revenue, 529 S.W.2d 375 (Mo.1975); State ex rel. Jackson County v. Public Service Commission, 532 S.W.2d 20 (Mo. banc 1975); Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193 (Mo. banc 1972). The commissioner of finance is charged with the administration of the statutes relating to the Department of Finance and to banks. Over the intervening years he has interpreted
Another example of such an interpretation of the statute appears in Mark Twain Cape Girardeau Bank v. State Banking Board, 528 S.W.2d 443 (Mo.App.1975), wherein the commissioner issued a charter for the proposed bank. On appeal by objecting banks, the banking board revoked the charter. The circuit court affirmed and an appeal was taken. The commissioner as well as the Mark Twain Bank are shown as parties to that appeal in the court of appeals and, of course, the commissioner necessarily was a party in the circuit court.
Again, in the instant case, the commissioner followed the interpretation of
The principal opinion holds that the commissioner has no interest in the outcome and cannot be an aggrieved party, but I cannot agree. He is charged with the administration of the State Division of Finance, including supervision of the banking industry, (
The principal opinion places considerable reliance on Mortensen v. Pyramid Sav. & L. Ass‘n of Milwaukee, 53 Wis.2d 81, 191 N.W.2d 730 (1971). However, that decision was based on the general philosophy that an administrative officer whose decision is appealed to and overruled by a higher administrative authority is not a party and has no interest as a party which would entitle him to appeal and seek judicial review of the decision of the higher administrative authority. It was not based upon an interpretation of the meaning and effect of a Wisconsin statute containing the language which appears in
Subsequent to the decision in Mortensen, the Wisconsin legislature amended
The principal opinion also places considerable reliance on the case of Minn. Bd. of Health v. Gov., Etc., App. Bd., 230 N.W.2d 176 (Minn.1975). I consider it to be inapplicable. In the first place, the Minnesota statute did not contain a provision such as
STATE of Missouri, Respondent, v. Michael Richard HOWARD, Appellant.
No. 59353.
Supreme Court of Missouri, En Banc.
Sept. 13, 1976.
John C. Danforth, Atty. Gen., Scott A. Raisher, and Charles L. Howard, Asst. Attys. Gen., Jefferson City, for respondent.
James C. Jones, St. Louis, for appellant.
DONNELLY, Judge.
Appellant, Michael Richard Howard, was convicted of rape under
Appellant asserts the trial judge erred when, in the presence of the jury, he commented on appellant‘s “failure to testify.”
At the close of all the evidence, as the trial judge proceeded to read his instructions to the jury, the following transpired: