Opinion
Rehearing Denied Nov. 22, 1974.
Page 1361
Simon, Eason, Hoyt & Malone, P.C., Richard L. Eason, Englewood, for plaintiffs-appellees.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Del. J. Ellis, Asst. Atty. Gen., Denver, for defendants-appellants.
SILVERSTEIN, Chief Judge.
Plaintiffs-appellees (applicants) applied to defendants-appellants (Banking Board) for a charter for a commercial bank, to be located in Colorado City, in Pueblo County, Colorado. No one contested the issuance of the charter. A public hearing was held, and the Banking Board denied the charter. The applicants then began an action in the district court under C.R.C.P. 106(a) requesting the court to order issuance of a charter. The trial court directed the Board to issue the requested charter, and the Board appeals from that judgment. We reverse.
The Banking Board denied the charter on the grounds that the applicants failed to prove that the proposed bank would serve a public need and advantage; that a profitable operation of the bank could not be reasonably projected; and thus the applicants failed to meet the requirements of C.R.S.1963, 14--9--10(3). In reversing the order of the Board, the trial court found that the order was 'not supported by substantial evidence in the record.' The trial court also indicated that the Board had erroneously considered matters outside the record, without notice to the applicants, contrary to C.R.S.1963, 3--16--4(8).
I.
At the hearing before the Board, the applicants introduced into evidence a feasibility study prepared by qualified experts who also testified and gave their opinions as to the public need for a bank in the area and as to the probability of a profitable operation. Residents of the area and persons who would be officers and directors of the proposed bank also testified. In its findings and order, the Board accepted the facts presented by the applicants but disagreed with the applicants' projections based on those facts.
Specifically, the order sets forth the pertinent data supplied by the applicants and then states the Board's conclusions, and the reasons why it does not accept the projections of the applicants and its experts in three basic areas, namely: the median family income in the primary service area, the projection of commercial deposits, and the projection of personal deposits. Our review of the record convinces us that the inferences and conclusions of the Board are reasonable and are substantiated by the evidence, both written and oral. The Board's reasons for its conclusions, as set forth in the order, likewise are supported by the evidence.
As stated in 2 F. Cooper, State Administrative Law, 728 (1965),
'(T)he 'substantial evidence' rule is apt in its application to findings of basic facts, but it does not lend itself to meaningful application to findings of ultimate fact which represent inferences derived from basic facts. When the point of attack concerns the conclusions of ultimate fact inferred by an agency from its findings of basic fact . . . the issue is whether the agency's inference 'rests on erroneous legal foundations' (NLRB v. Babcock & Wilson Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975) or is 'without reasonable foundation'--(NLRB v. Truit (Truitt) Mfg. Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027)--in short, whether the agency's inference is clearly erroneous.'
This rule has been applied in Colorado to reviews of records of agencies and trial courts alike. See Colorado Civil Rights Commission v. Colorado, 30 Colo.App. 10, 488 P.2d 83. In Thiele v. Colorado, 30 Colo.App. 491, 495 P.2d 558, we said,
'(T)he inferences and conclusions to be drawn (from all the evidence) were all within the province of the trial court whose conclusions will not be disturbed on review unless so clearly erroneous as to find no support in the record. (citing cases) A court's finding based . . . upon a choice between conflicting inferences from the evidence is not clearly erroneous.'
Here the inferences to be drawn from the evidence are clearly conflicting and the reviewing court may not displace an administrative agency's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456.
II.
In discussing the median family income in its order, the Board stated, '(W)e would have to take note of the fact that these median incomes are somewhat below the income figures which have been presented to this Board in recent applications.' The trial court held this to be in violation of C.R.S.1963, 3--16--4(8), which provides that an agency may take notice of general, technical, or scientific facts if the fact is specified in the record or is brought to the attention of the parties before final decision. The trial court held the Board failed to comply with the notice requirement. However, the facts on which the Board relied were in the record. Applicants referred the Board to an application pursuant to which a charter had been granted, which application applicants claimed presented a similar situation to theirs. Further, at the hearing the applicants admitted that the median income was below the Colorado average. In addition 1969 Perm.Supp., C.R.S.1963, 3--16--4(7), provides, 'An agency may utilize its experience, technical competence, and specialized knowledge in the evaluation of the evidence presented to it.' We conclude that the Board did not violate the statute.
III.
Appellees contend the appellants have no standing to appeal the trial court's judgment. This contention is without merit. 1969 Perm.Supp., C.R.S.1963, 3--16--5(9), authorizes such appeal. The right of the Board and the commissioner to appeal has long been recognized. See, e.g., Goldy v. Henry, 166 Colo. 401, 443 P.2d 994; Goldy v. Gerber, 151 Colo. 180, 377 P.2d 111.
The judgment is reversed and the cause remanded with directions to reinstate the order of the Board.
COYTE and ENOCH, JJ., concur.