Opinion
Nov. 26, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Holme, Roberts & Owen, Donald K. Bain, Lawrence L. Levin, Denver, for plaintiffs-appellants.
Rothgerber, Appel & Powers, William P. Johnson, James M. Lyons, A. Frank Vick, Jr., Denver, for defendant-appellee The Bank of Breckenridge.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Tennyson W. Grebenar, Asst. Atty. Gen., Denver, for defendants-appellees The Banking Board of the State of Colorado, and Harry Bloom, State Bank Commissioner.
Simon, Eason, Hoyt & Malone, P.C., Richard L. Eason, Stephen G. Everall, Englewood, for defendant-appellee Summit County Bank.
STERNBERG, Judge.
The plaintiffs-appellants applied for a charter permitting them to locate the 'United Bank of Summit County' in Silverthorne, a town in that county. The communities of Dillon, Frisco, and Breckenridge are also located in Summit County. The county residents are served by three existing commercial banks, the Summit County Bank in Frisco and The Bank of Breckenridge, both in the primary service area of the proposed bank, and the Bank of Kremmling located in adjoining Grand County. The appellee banks, Summit County Bank and The Bank of Breckenridge, protested the issuance of the charter. Following a public hearing before the appellee Banking Board of the State of Colorado, at which vigorous presentations were made by the applicants and the protestant banks, the application for a charter was denied. The district court affirmed that order and applicants appeal. We affirm.
Applicants' first contention of error is founded upon the language in C.R.S.1963, 14--9--10(3)(c), which places the burden on the applicant to prove:
'That the volume of business in the communities, community, or area of the community which the proposed bank will serve is such that profitable operation of the bank may be reasonably projected.'
In its findings, the Board stated that 'we are necessarily required to look at the area in its present stage of development.' Applicants urge that this statement indicates that the Board did not look at the area in its present stage of development.' Applicants urge that this statement indicates that the Board did not look to projected growth and development of the service area, but rather limited its analysis of the banking needs of the service area to present development only. We see nothing wrong with the Board's statement, and, therefore, reject applicants' contention. The argument is really one of semantics. The statute, by its use of the present tense 'is,' refers to the present volume of business, and then permits projection into the future as to profitable operation of a proposed bank on the present volume of business which does not exist.
The applicants also contend that they have met their statutory burden of proof and, therefore, are entitled to issuance of a bank charter as a matter of law. We do not agree.
There is conflicting evidence in the record on several important issues. Experts testified for the applicants and for the protestants. They presented contrasting computations on the issues of profitability and public need and advantage, and reached divergent conclusions. There is substantial competent evidence in the record to support the Board in either approving or denying issuance of the charter. The Board, not this court, is vested with the power to weigh and evaluate that testimony. C.R.S.1963, 14--2--7(2); C.R.S.1963, 3--16--4(8); Academy Boulevard Bank v. Banking Board, 30 Colo.App. 331, 492 P.2d 76.
Citing Goldy v. Gerber, 151 Colo. 180, 377 P.2d 111, applicants urge that since there was no evidence that any detriment to the public health, morals, or welfare would follow issuance of the charter, failure of the Board to approve the application was error. We do not agree. The cited case relates to an industrial bank charter, and was based on a statute which has since been amended. 1965 Perm.Supp., C.R.S.1963, 14--17--2(3). The requirements an applicant must meet for a commercial bank charter are contained in C.R.S.1963, 14--9--10.
The conclusions of the Board are supported by the evidence, and provide an adequate basis for the order denying issuance of the charter. The trial court properly upheld that order.
Judgment affirmed.
ENOCH and SMITH, JJ., concur.