12 N.C. App. 232 | N.C. Ct. App. | 1971
Lead Opinion
By its three assignments of error, the appellant contends the superior court erred in affirming the findings of fact and order of the Banking Commission and in finding and concluding that the decision of the Banking Commission, approving the two applications of Branch Banking and Trust Company to
G.S. 53-62, in pertinent part, provides:
“Such approval shall not be given until he shall find (i) that the establishment of such branch or teller’s window will meet the needs and promote the convenience of the community to be served by the bank, and (ii) that the probable volume of business and reasonable public demand in such community are sufficient to assure and maintain the solvency of said branch or teller’s window and of the existing bank or banks in said community.”
In a proceeding such as this, the administrative agency is the finder of fact, and its findings and conclusions will not be disturbed if supported by competent evidence, even though there may be evidence which would support contrary findings and conclusions. Campbell v. Board of Alcoholic Control, 263 N.C. 224, 139 S.E. 2d 197 (1964) ; State of North Carolina On Relation of the Banking Commission, and First-Citizens Bank & Trust Company v. Bank of Rocky Mount, 12 N.C. App. 112, 182 S.E. 2d 625 (1971).
The Commission’s findings and conclusions are supported by competent evidence in the record. The fact that the Commission consolidated the two applications for hearing, and made findings and conclusions applicable to both branches, does not of itself invalidate the order approving the applications.
In our opinion, the Commission’s experience, technical competence, and specialized knowledge enabled it to analyze and evaluate all the evidence in arriving at its findings and conclusions.
We hold that the action of the Commission is not arbitrary and capricious, for the findings and conclusions are supported by competent evidence.
The order appealed from is
Affirmed.
Dissenting Opinion
dissenting.
It does not cause me concern that Branch Banking and Trust Company elected to file, at the same time, two applications for separate full service branches to be established in Lexington. Also, it does not cause me concern that the Banking Commission permitted a consolidated hearing upon the two applications. However, each application should stand on its own bottom, and the evidence must support findings by the Commission that each branch meets the criteria established by G.S. 53-62 without one leaning upon the other for support.
The Legislature clearly spoke in the singular when it provided that approval for the establishment of a branch shall not be given until it is found (1) that the establishment of such branch will meet the needs and promote the convenience of the community, and (2) that the probable volume of business and reasonable public demand in such community are sufficient to assure and maintain the solvency of said branch. G.S. 53-62. Whether the statutory criteria are adequate or inadequate is a matter for the Legislature. It is the function of the Commission and the courts to apply the standards created by the Legislature and not some standard that might seem more expedient at the moment.
In this case the Commission merely found and concluded in the aggregate, apparently treating the two full service branches as a composite unit. From the findings and conclusions of the Commission it is conceivable that one branch meets the needs and convenience of the community, that the other branch does not; but that, when considered as a composite unit, the two branches together do. In a like manner it is conceivable that maintaining the solvency of one of the branches is assured, while it is not assured as to the other; but that, when considered as a composite unit, the solvency of the two is assured. In both examples the inadequacy of one branch is buttressed by the extra strength of the other. It seems to me that such a result is precisely what the Legislature intended to prevent.
Also, although the Commission does not articulate the theory, it seems clear that it has been strongly influenced in
I recognize that the Federal Court adopted the view that the solvency requirement of G.S. 53-62 was satisfied by the solvency of an entire organization. First-Citizens Bank & Trust Co. v. Camp, 409 F. 2d 1086 (4th Circuit). However, I do not agree that such an interpretation correctly reflects the intent of our Legislature. It appears to me that our Legislature intended for the need and volume of business to be such that the ability of each branch to maintain its own solvency is reasonably assured. Otherwise the statute has little regulatory effect.
I vote to reverse and remand for definitive findings by the Commission as to each individual branch with respect to the need and convenience test and the solvency test.
