Opinion
April 1, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Evidence, in hearing to determine whether industrial branch charter should be granted, was sufficient to support commissioner's finding of profitability and granting of charter. C.R.S. '73, 11-22-102(6).
Rothgerber, Appel & Powers, Gregory L. Williams, William P. Johnson, Denver, for plaintiff-appellant.
J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Tennyson W. Grebenar, Asst. Atty. Gen., Denver, for defendant-appellee Harry Bloom.
Davis, Graham & Stubbs, Arthur E. Otten, Jr., Brian T. Dolan, Christine L. Murphy, Denver, for defendants-appellees Melvin J. Roberts, Will F. Nicholson, Jr., and Vern Eliason.
COYTE, Judge.
Melvin J. Roberts, Will F. Nicholson, Jr., and Vern Eliason applied to the State Bank Commissioner for an industrial branch charter.
After hearing, the charter was granted. Century Bank & Trust Company had appeared at the hearing as a protestant, and it sought review in the district court which affirmed the action of the banking commissioner in granting the charter. It now appeals to this court alleging that the commissioner erred by imposing an erroneous burden of proof on protestant, by relying on the testimony of a witness who was not accepted as an expert by the bank commissioner, and by granting a charter when there was insufficient evidence to support the commissioner's finding of profitability. We disagree and affirm. In his findings relative to profitability, the commissioner stated:
'I have examined these projections and I am convinced that they are reasonable and that they can be achieved by the applicants. The protestant bank contended that the applicants economic expert erroneously computed his deposits. If that is correct, there is no reason to not believe that the proposed bank would still become profitable within the first three years of its operation.
In view of the record before me, I find that allowing the applicants to engage in the business of industrial banking will serve the public need and advantage in the community in which the business is to be conducted and that the volume of business in the community attributable to industrial banking is such that profitable operation of the industrial bank may reasonably be projected.'
Protestant contends that the commissioner's statement, '(t)here is no reason to not believe,' served to cast upon it the burden of showing that the proposed industrial bank would be unprofitable. We do not read the commissioner's finding in this light. He specifically found that the projections of profitability are reasonable and could be achieved.
At the hearing, applicant's witness who prepared the economic feasibility study was offered as an expert witness, and the commissioner took the request under advisement. At the conclusion of the hearing he stated that he would cover the matter in his order. Yet, in that order, the commissioner did not mention the acceptance of the witness as an expert, but he did use his data in his findings of fact.
A study prepared by this witness was introduced into evidence without objection except as to one table contained therein that stated the income and expense projections of the economic feasibility study. That table was objected to as having not been prepared by the witness. However, a witness, accepted by the commissioner as an expert, testified that, 'I see a very, very strong case, and the evidence which was presented, especially the economic aspects, tied into the income and expense, shows it will be profitable, that there will be need, and I think the public will be served by this proposed institution.' He further testified that he wholly endorsed the conclusions, recommendations, and projections as shown in the study. Finally, two other witnesses with extensive backgrounds in consumer finance and banking, and who would be in responsible management positions in the operation of the industrial bank if the charter were granted, testified that the proposed bank would be a profitable operation.
Protestants take the position that applicant's expert was not accepted as an expert witness and that, therefore, there was not sufficient evidence to support the decision of the commissioner to grant a charter for this proposed industrial bank. We disagree. Under s 11--22--102(6), C.R.S.1973 (C.R.S.1963, 14--17--2(6)) the court may only reverse or modify the order of the commissioner if it finds that he abused his discretion or exceeded his jurisdiction. He did neither in this case.
As stated in Ford Leasing Development Co. v. Board of County Commissioners, Colo., 528 P.2d 237: 'In order for a court to set aside a decision of an administrative body on certiorari review, there must be No competent evidence to support the decision.' Even if the testimony of applicant's expert is disregarded, there is still an abundance of evidence which supports the findings and decision of the commissioner.
Judgment affirmed.
PIERCE and BERMAN, JJ., concur.