Opinion
March 7, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 849
Simon, Eason, Hoyt & Malone, Englewood, for plaintiff-appellant, Alameda National Bank.
Holme, Roberts & Owen, Denver, for plaintiff-appellant, Villa National Bank.
Holley, Boatright & Villano, Gerald E. Boatright, Wheatridge, for defendants-appellees, Jess Kortz, Fred Kirschke, Norman B. Bernard, Theodore H. Mueller and Robert D. Bammerlin.
Duke Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., A. Frank Vick, Jr., Sp. Asst. Atty. Gen., for defendants-appellees, Banking Board and Harry Bloom, State Bank Commissioner.
SMITH, Judge.
This is an appeal from a District Court judgment affirming the Banking Board of the State of Colorado whose findings of fact and order approved the application of the South Jefferson County Bank for a bank charter.
The plaintiffs, Alameda National Bank and Villa National Bank, have asserted as error the fact that the district court did not review the entire record as presented to the Banking Board. They urge that had the record been reviewed, the court would have found that the banking board did not comply with the mandatory provisions of 1967 Perm.Supp., C.R.S.1963, 14--9--9(1)(c).
Defining the duty of a district court reviewing agency actions, 1969 Perm.Supp., C.R.S.1963, 3--16--5(7), states:
'If the court finds no error, it shall affirm the agency action. If it finds that the agency action is arbitrary or capricious, a denial of statutory right, contrary to constitutional right, power, privilege, or immunity, in excess of statutory jurisdiction, authority, purposes, or limitations, not in accord with the procedures or procedural limitations of this article, or otherwise required by law; an abuse or clearly unwarranted exercise of discretion, based upon findings of fact that are clearly erroneous on the whole record, unsupported by substantial evidence when the record is considered as a whole, or otherwise contrary to law, then the court shall hold unlawful and set aside the agency action and shall restrain the enforcement of the order or rule under review, compel any agency action to be taken which has been unlawfully withheld or unduly delayed, remand the case for further proceedings, and afford such other relief as may be appropriate. In making the foregoing determinations the court shall review the whole record or such portions thereof as may be cited by any party. In all cases under review the court shall determine all questions of law and interpret the statutory and constitutional provisions involved and shall apply such interpretation to the facts duly found or established.'
This statute gives the trial court discretion as to whether to review the whole record or such portions as may be cited by any party. The court candidly outlined the extent of its review of the record when announcing its ruling. The court evaluated the arguments in relation to those areas of record which had been pointed out by the parties and concluded that it did not believe that a detailed analysis of the record would be necessary. Such a review of the record is the type contemplated by the statute. The language of the above statute also requires that administrative agency action which exceeds statutory authorization shall be held unlawful and that such agency action be set aside. Plaintiffs argue that the Banking Board has violated statutory requirements and that such violation renders the action of the Board invalid. The statute makes its mandatory that on an application for a bank charter there be:
'. . . The name, business and residence address, and business and professional affiliations of each director and executive officer; the name, residence, citizenship, and occupation of each subscriber, and the number of shares for which he has subscribed; the past and present connection with any bank, other than as a customer, on terms generally available to the public of each director and each subscriber to more than five per cent of the capital stock; the amount to be borrowed and from whom borrowed on any stock issued to a subscriber to more than five per cent of the capital stock; the address at which it is proposed that the state bank do business, or if such address is not known, the area within a radius of one-half mile in which the proposed bank is to be located and the community or communities which it proposes to serve; a statement that all the proposed by-laws have been attached as an exhibit to the application; and such other information as the banking board may reasonably require to enable it to determine whether a charter should be issued. . . .' 1967 Perm.Supp., C.R.S.1963, 14--9--9(1)(c).
The application in this case stated that one Jess Kortz was subscribing for 19,000 of the 20,000 shares of capital stock 'individually and as agent of the Jefferson Trust.' At the Board's hearing plaintiffs cross-examined Kortz as to the relation between Kortz and the Jefferson Trust. The Board, after determining that Kortz had made on binding agreement with Jefferson Trust and was personally obligated to buy the 19,000 shares, found that information concerning beneficiaries of Jefferson Trust was not necessary to the application. Plaintiffs argue that information concerning beneficiaries of Jefferson Trust is mandatory to the application by provision of the statute.
In a similar case, this court has held that the trial court cannot speculate as to the future actions of subscribers as this would involve deciding abstract or contingent questions. It would have been error for the district court to have required that the board 'consider factors other than those specified by the clear provisions of the statute.' Academy Boulevard Bank v. Banking Board, Colo.App., 492 P.2d 76. Had the evidence established that Jess Kortz subscribed solely as agent for the Jefferson Trust, then the plaintiff's arguments would apply. Since the evidence established that Jess Kortz was personally obligated to buy the 19,000 shares, there was compliance with the statute and the Board had no obligation to inquire further.
We affirm.
SILVERSTEIN, C.J., and ENOCH, J., concur.