Opinion
Feb. 6, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Bradley, Campbell, Carney & Johnson, William J. Cambpell, Golden, for plaintiffs-appellants.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Del J. Ellis, Asst. Atty. Gen., Denver, for defendants-appellees Banking Board of State of Colorado, Harry Bloom, State Banking Commissioner and their respective successors in office.
Simon, Eason, Hoyt & Malone, P.C., Richard L. Eason, Englewood, for defendants-appellees Daniel Herbert Sebastian et al., incorporators and applicants.
SILVERSTEIN, Chief Judge.
This is an appeal from a district court judgment affirming an order of the Banking Board of the State of Colorado (the Board). The order of the Board directed the State Bank Commissioner to grant a charter for a commercial state bank (to be named Bank of Applewood) to the applicants. The Board, the Commissioner, and the applicants are appellees. The appellants are two national banking associations and one state bank, whose banking houses are located from 2.3 miles to 4.5 miles from the site of the proposed bank.
Appellants, who protested the granting of the charter before the Board, contend that the evidence at the hearing before the Board does not support the findings and conclusions of the Board, and that the trial court erred in affirming the Board's order. We do not agree with these contentions and affirm the judgment of the trial court.
Specifically, appellants contend that the applicants failed to meet their statutory burden of proving under the pertinent provision of the Colorado Banking Code, C.R.S.1963, 14--9--10(3), that: (a) the proposed bank will serve a public need and advantage; and that (b) the volume of business in the community which the proposed bank would serve is such that a profitable operation of the bank can be reasonably projected. The Board conducted two days of public hearings on the proposed charter, during the course of which, extensive evidence, including numerous exhibits and testimony was presented. In addition, both applicants and protestants submitted comprehensive economic feasibility studies, supplemented by lengthy expert testimony in support of their respective positions.
Based on conflicting evidence, the Board found the primary service area of the proposed bank to be substantially as outlined by the applicants; consisting of between 16,000 and 17,000 residents with an annual growth rate of three to five percent. The Board further found that there were no banks within the primary service area and that the commercial-retail business within this community would soon achieve significant growth from which the proposed bank would greatly benefit. Although there was sharp conflict in the evidence as to the future profitability of the proposed bank, the Board found the applicants' deposit estimates to be the more reasonable and credible of the two presented. The applicants' feasibility study, which the Board found was the more reliable study, projected a first and second year loss, but a profit of $26,336 by the third year of operation. The Board concluded that the proposed Bank of Applewood would serve a public need and advantage in the community and that the volume of business in that community was such that profitable operation could be reasonably projected.
Examination of the record discloses that there was sufficient evidence to support the Board's findings and conclusions. It is the responsibility of the Banking Board to determine the weight and credibility to be given the evidence presented. When a conflict in the evidence exists, it is beyond the power of the reviewing court to substitute its judgment for that of the fact-finding authority. Goldy v. Henry, 166 Colo. 401, 443 P.2d 994; Academy Boulevard Bank v. Banking Board, 30 Colo.App. 331, 492 P.2d 76.
Appellants place reliance on a finding by the Board which states that the proposed bank would have a 'loss' of $26,336 in the third year. However the findings clearly indicate that the profit and loss figures set forth in the findings were quoted from the applicants' studies, and in those studies the $26,336 figure was a profit and not a loss. Further, the Board's conclusions clearly demonstrate that the Board correctly considered the figure to represent a profit and not a loss.
The conclusions of the Board are supported by the evidence and, in turn, support the order directing the issuance of the charter. The trial court properly upheld the order of the Board.
Judgment affirmed.
COYTE and ENOCH, JJ., concur.