Young v. Roberts , 252 N.C. 9 ( 1960 )

112 S.E.2d 758 (1960) 252 N.C. 9

H. Fields YOUNG, Jr., Paris L. Yelton, Lamar L. Young and C. Franklin Harry, Jr.
v.
Benjamin R. ROBERTS, as Commissioner of Banks of the State of North Carolina; J. Clint Newton and Sam M. Schenck.

No. 453.

Supreme Court of North Carolina.

February 24, 1960.

Poyner, Geraghty, Hartsfield & Townsend and Archibald E. Lynch, Jr., Raleigh, for plaintiffs, appellees.

Malcolm B. Seawell, Atty. Gen., and Harry W. McGalliard, Asst. Atty. Gen., for defendant, Commissioner of Banks, appellant.

BOBBITT, Justice.

While it appears plainly that plaintiffs and W. W. Jones, former Commissioner of Banks, contemplated that the proposed banking corporation would obtain insurance of its deposits with the Federal Deposit Insurance Corporation before it commenced business, nothing in Jones' report of June 4, 1955, or in the Commission's resolution of July 20, 1955, states that the approvals then given were otherwise than unconditional. Hence, without reviewing the evidence, the assignments of error directed to the court's findings of fact to the effect that such approvals were unconditional are overruled.

The judgment contains no findings of fact bearing upon whether plaintiffs constitute "the same group as originally sought approval of an application to form a new bank." Pertinent to this subject, the record shows: 1. Plaintiffs alleged that J. Clint Newton and Sam M. Schenck, two of the six persons named as incorporators, "declined to join and unite herein as parties plaintiff," and were joined as defendants "to the end that all matters in controversy may be fully and finally determined." (The record does not show that defendants Newton and Schenck, or either of them, were served with process; nor does it show that any appearance was made or pleading filed in behalf of either of them.) 2. Sam M. Schenck died on February 10, 1959. 3. A reapplication on July 30, 1958, for Federal Deposit Insurance Corporation approval was signed only by the present plaintiffs.

Uncontradicted evidence is to the effect that substantial changes in economic conditions in Cleveland County have occurred since 1955 on account of the location therein of new industries.

"A banking corporation is wholly a creature of statute, doing business by legislative grace, and the right to carry on a banking business through the agency of a corporation is a franchise which is dependent on a grant of corporate powers by the state, * * *". 9 C.J.S. Banks and Banking § 4; Pue v. Hood, 222 N.C. 310, 22 S.E.2d 896.

The prerequisites for the incorporation of a banking corporation are set forth in G.S. § 53-2 through G.S. § 53-5, as amended. Five or more persons are required as incorporators. G.S. § 53-2.

If and when the Commissioner of Banks certifies that the proposed corporation, if formed, will be lawfully entitled to commence the business of banking, the Secretary of State, upon receipt of such certificate, shall record the certificate of incorporation in his office, and thereupon "the said persons shall be a body politic and corporate under the name stated in such certificate." (Our italics.) G.S. § 53-5, G.S. § 53-4.

G.S. § 53-5 contains this provision: "The charter of any bank which fails to complete its organization and open for business to the public within six months after the date of the filing its certificate of incorporation with the Secretary of State shall be void: Provided, however, the Commissioner of Banks may for cause extend the limitation herein imposed." This limitation, in our opinion, applies only in the event "the said persons" have become "a body politic and corporate" and the certificate of incorporation has been recorded and issued. It is noted that appellees so contend.

G.S. § 53-4 requires that the Commissioner of Banks, before issuing such certificate to the Secretary of State, "shall at once examine into all the facts connected with the formation of such proposed corporation, including its location and proposed stockholders, * * *". In so doing, the Commissioner of Banks is to determine whether the proposed bank complies with legislative standards. Pue v. Hood, supra.

G.S. § 53-4 contains this provision: "But the Commissioner of Banks may refuse to so certify to the Secretary of State, if upon examination and investigation he has reason to believe that the proposed corporation is formed for any other than legitimate banking business, or that the character, general fitness, and responsibility of the persons proposed as stockholders in such corporation are not such as to command the confidence of the community in which said bank is proposed to be located; or that the public convenience and advantage will not be promoted by its establishment, or that the name of the proposed corporation is likely to mislead the public as to its character or purpose; or if the proposed name is the same as one already adopted, or appropriated by an existing bank in this State, or so similar thereto as to be likely to mislead the public."

Thus, if the certificate of incorporation complies with statutory requirements in all other respects, the authority of the Commissioner of Banks to refuse to issue such certificate to the Secretary of State must be based on a finding adverse to the proposed banking corporation in respect of one or more of the legislative standards defined in the quoted portion of G.S. § 53-4. "* * * the discretion vested in the Commissioner of Banks bears only upon the question whether certain conditions exist justifying the creation of the proposed bank under the terms and procedure laid down in the statute." Pue v. Hood, supra [222 N.C. 310, 22 S.E.2d 900].

G.S. § 53-92, as amended by Chapter 1209, Session Laws of 1953, in pertinent part, provides:

"The Commissioner of Banks shall act as the executive officer of the Banking Commission, but the Commission shall provide, by rules and regulations, for hearings before the Commission upon any matter or thing which may arise in connection with the banking laws of this State upon the request of any person interested therein, and review any action taken or done by the Commissioner of Banks.

"The Banking Commission is hereby vested with full power and authority to supervise, direct and review the exercise by the Commissioner of Banks of all powers, duties, and functions now vested in or exercised by the Commissioner of Banks under the banking laws of this State; any party to a proceeding before the Banking Commission may, within twenty days after a final order of said Commission and by written notice to the Commissioner of Banks, appeal to the Superior Court of Wake County for a final determination of any question of law which may be involved. The cause shall be entitled ``State of North Carolina on Relation of the Banking Commission against (here insert name of appellant)'. It shall be placed on the civil issue docket of such court and shall have precedence over other civil actions. In event of an appeal the Commissioner shall certify the record to the clerk of Superior Court of Wake County within fifteen days thereafter."

Under G.S. § 53-4 and G.S. § 53-92, construed in pari materia, any decision made by the Commissioner of Banks in the exercise of the responsibility and authority conferred upon him by G.S. § 53-4 is subject to review by the Commission upon application by any adversely affected interested person. However, upon review of a decision of the Commissioner of Banks, with reference to a certificate of incorporation of a proposed banking corporation otherwise in compliance with statutory requirements, the Commission has no authority to direct the Commissioner of Banks to refuse to issue a certificate of approval except on a finding adverse to the proposed banking corporation in respect of one or more of the legislative standards defined in the quoted portion of G.S. § 53-4. Needless to say, such finding or determination must be made in good faith, not capriciously or arbitrarily. Pue v. Hood, supra; Bank of Italy v. Johnson, 200 Cal. 1, 251 P. 784; State ex rel. Chamberlin v. Morehead, 99 Neb. 146, 155 N.W. 879; Leuhrs v. Spaulding, 80 Idaho 326, 328 P.2d 582; Wall v. Fenner, 76 S.D. 252, 76 N.W.2d 722; Dakota Nat. Ins. Co. v. Commissioner of Insurance, 79 N.D. 97, 54 N.W.2d 745; Vale v. Messenger, 184 Iowa 553, 168 N.W. 281.

Appellees contend, and rightly so, that neither the Commissioner of Banks nor the Commission is authorized to require, as a prerequisite for the issuance of a certificate of approval, that the proposed banking corporation shall obtain insurance of its deposits with the Federal Deposit Insurance Corporation. Verhelle v. Eveland, 347 Mich. 612, 81 N.W.2d 397. However, inability to obtain such insurance, together with all circumstances relating to the disapproval of an application therefor, may be considered by the Commissioner of Banks and by the Commission, along with all other relevant facts and circumstances, in determining whether the proposed banking corporation meets the legislative standards defined in the quoted portion of G.S. § 53-4.

Neither W. W. Jones, former Commissioner of Banks, nor Benjamin R. Roberts, present Commissioner of Banks, has certified to the Secretary of State that the proposed corporation, if formed, will be lawfully entitled to commence the business of banking. Plaintiffs' action is for a writ of mandamus requiring the present Commissioner of Banks to so certify.

Approval or disapproval of a certificate of incorporation of a proposed banking corporation by the Commissioner of Banks and the Commission is necessarily based on the facts existent as of the time such determinations are made. If approved, the statutes contemplate that the Commissioner of Banks will then certify his approval to the Secretary of State. It may be conceded that, upon the facts established by the court's findings, the persons named as incorporators were then entitled to such certificate of approval. In the view most favorable to plaintiffs, the former Commissioner of Banks did not so certify at that time because, in his desire to cooperate with plaintiffs, he deferred certification to avoid application of the said six months limitation in G.S. § 53-5. Suffice to say, it does not appear that plaintiffs ever requested the former Commissioner of Banks to so certify; and their demand that the present Commissioner of Banks so certify was not made until October 27, 1958.

Plaintiffs seek to compel the defendant Commissioner of Banks to certify his approval of a certificate of incorporation dated March 17, 1955, not on the basis of any investigation and determinations made by him in the light of present conditions but solely on the basis of an investigation and determination made by the former Commissioner of Banks and the Commission in 1955 in the light of conditions then existing. Their position assumes that they acquired a vested right in the determinations made in 1955 and that neither the present Commissioner of Banks nor the Commission may now determine whether under present conditions the proposed banking corporation meets the legislative standards prescribed in G.S. § 53-4. We are of opinion, and so hold, that plaintiffs did not acquire such vested right in the determinations made in 1955. Rather, pending actual certification by the Commissioner of Banks, the matter remained in fieri; and the Commissioner of Banks and the Commission were and are now at liberty to determine whether in the light of existing conditions such certification should be made.

The refusal of defendant Commissioner of Banks to certify approval of the certificate of incorporation of March 17, 1955, was and is subject to review by the Commission as provided in G.S. § 53-92. Plaintiffs seek a determination of their legal rights in this original action rather than upon appeal from such decision as the Commission might make. If permitted, they would by-pass the Commission, notwithstanding G.S. § 53-92 confers upon the Commission full authority "to supervise, direct and review" the actions of the Commissioner of Banks.

"* * * the issuance of a writ of mandamus is an exercise of original and not appellate jurisdiction * * * and is never used as a substitute for an appeal." Pue v. Hood, supra; Board of Managers of James Walker Memorial Hospital, etc. v. City of Wilmington, 235 N.C. 597, 70 S.E.2d 833; Wilson Realty Co. v. City and County Planning Board, 243 N.C. 648, 92 S.E.2d 82.

"Mandamus lies only to enforce a clear legal right and will be issued only where there is no other legal remedy." Board of Managers of James Walker Memorial Hospital, etc. v. City of Wilmington, supra [235 N.C. 597, 70 S.E.2d 836], and cases cited; 34 Am.Jur., Mandamus § 42; 55 C.J.S. Mandamus § 17.

"Mandamus is very generally described as an extraordinary remedy in the sense * * * that it can be used only in cases of necessity where the usual forms of procedure are powerless to afford relief; where there is no other clear, adequate, efficient, and speedy remedy." 55 C.J.S. Mandamus § 2, c; Edgerton v. Kirby, 156 N.C. 347, 72 S.E. 365.

In our view, the remedy provided by G.S. § 53-92 afforded plaintiffs a clear and adequate procedure for the full determination of their legal rights. Absent an attempt to avail themselves of the procedure so provided, they are not entitled in this original action to the extraordinary writ (of mandamus) sought herein. Their clear legal right is to have the Commission review the decision of defendant Commissioner of Banks as provided in G.S. § 53-92.

For the reasons stated, the judgment of the court below is reversed.

Reversed.

RODMAN, J., took no part in the consideration or decision of this case.