Opinion
Rehearing Denied April 10, 1973.
Page 447
Mason, Reuler & Peek, P.C., Maurice Reuler, Denver, for plaintiffs-appellees.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Del J. Ellis, Asst. Atty. Gen., Denver, for defendants-appellants, The Banking Board of the State of Colorado and Harry Bloom, State Bank Commissioner.
Rothgerber, Appel & Powers, A. Frank Vick, Jr., Denver, for defendants-appellants, Routt County National Bank and Routt County Federal Savings and Loan Assn.
COYTE, Judge.
This is an appeal from a decision of the district court reversing an order of the Banking Board of the State of Colorado which order denied an application for a commercial bank charter in Steamboat Springs, Colorado.
Plaintiffs filed an application for a charter for a commercial bank, which was denied following a hearing before the Banking Board. Plaintiffs appealed the denial to the district court, which entered an order reversing the decision of the Banking Board and ordering it to approve the application and grant the bank charter. The Banking Board, State Banking Commissioner, and two protesting banks filed this appeal. We reverse the order of the district court.
In order for a bank charter to be granted, the applicable statute, C.R.S.1963, 14--9--10(3), provides that the Banking Board must find:
'(b) That the proposed bank will serve a public need and advantage in the communities, community, or area of the community which the bank will serve, and
'(c) 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.'
The Board found that plaintiffs had failed to sustain their burden of proof both as to public need and advantage and as to projected profitability of the bank and thus denied the charter as required by C.R.S.1963, 14--9--10(6).
C.R.S.1963, 14--2--7(2), provides that the court may reverse an order of the Banking Board if that order 'is not supported by substantial evidence in the record.' This court is faced with the issue, as was the district court, of whether the order of the Board, which was based on a failure of proof and a resultant concern for the public welfare, is supported by substantial evidence in the record.
It is uncontroverted that there were two banks in Routt County, one in Steamboat Springs and one in Hayden, some 25 miles away, and that the existing bank in Steamboat Springs had obtained a high percentage penetration of the personal checking and business accounts within the area to be served. There was testimony that the general population in the county had decreased, but that there had been some expansion in Steamboat Springs and in the Mount Werner ski resort area, that Steamboat Springs had a population of 2340 in 1970, and that there was a total population in Routt County in 1970 of 6592 people. The testimony generally was to the effect that only a small percentage of the population was dissatisfied with the present bank and desired a change, although many of those testifying testified that it would be good for the community to have a second bank in Steamboat Springs since the existing bank had reached a point of dominance in the community which amounted to a virtual monopoly. There was also testimony that the bank at Hayden derived a large percentage of its business from the Steamboat Springs area and that it would be fatal to the Hayden bank should it lose this business. There was a sharp conflict between the two experts for plaintiffs and the expert for protestants as to the profitability of the proposed bank. There was also a conflict in the testimony as to the economic growth of the community.
The credibility of witnesses and the weight to be accorded their testimony lies within the province of the Board as trier of the facts. Goldy v. Henry, 166 Colo. 401, 443 P.2d 994. The Board gave weight and credence to the testimony of protestants' witness, and applying its expertise to all of the evidence before it, determined that plaintiffs had failed to meet their burden of proof as to the statutory requirements of public need and advantage and of projected profitability. Where the record supports the findings of the Board, neither the trial court nor this court is at liberty to make an independent evaluation of the evidence and substitute its judgment for that of the Board. Linley v. Hanson, 173 Colo. 239, 477 P.2d 453; Goldy v. Henry, Supra.
Plaintiffs also contend that protestants' expert witness was not qualified to testify as an expert and that the Board abused its discretion in allowing him to testify. We disagree. The Administrative Code, C.R.S.1963, 3--16--4(7), provides in part:
'. . . The rules of evidence and requirements of proof shall conform, to the extent practicable, with those in civil nonjury cases in the district courts.'
The rule in the district courts is well stated in Starkey v. Bryan, 166 Colo. 43, 441 P.2d 314, when the court stated:
'The general rule is that the sufficiency of the evidence to establish the qualification and knowledge of a witness to entitle him to express an opinion poses a question to be determined in the first instance, at least, by the trial court and its decision is conclusive, unless clearly shown to be erroneous.'
The same rule as to the qualification of an expert witness applies to the qualification of an expert witness before an administrative body. Keller v. Federal Trade Commission, 7 Cir., 132 F.2d 59. The Board did not err in receiving the testimony of this expert.
Plaintiffs also contend that the Board abused its discretion as a matter of law in determining that the testimony of this expert was more credible and entitled to be given more weight than was given to the testimony of the two experienced, wellqualified witnesses of plaintiffs. As stated in Goldy v. Henry, Supra:
'. . . the credibility of witnesses as well as the weight of the testimony are peculiarly within the province of the commission to whom a statute entrusts the fact-finding process. When a conflict in the evidence exists, it is not within the power of a reviewing court to substitute its judgment for that of the factfinding authority as to the weight of the evidence and the credibility of witnesses. . . .'
The same rule applies as to the credibility of expert witnesses and the weight to be given to their testimony by a fact-finding board.
Plaintiffs further contend that the operation of the existing bank in Steamboat Springs is a virtual monopoly, and that the Board is fostering a monopoly by its failure to grant the license sought by plaintiffs. Even if the existence of a monopoly were acknowledged and such monopoly indicated a 'public need and advantage' for another bank, the finding that the proposed bank's reasonable profitability could not be reasonably projected would preclude the issuance of a charter.
The judgment of the trial court is reversed and the cause remanded with directions to affirm the judgment of the Board.
ENOCH and SMITH, JJ., concur.