Opinion
Rehearing Denied Nov. 19, 1974.
George J. Francis, Denver, for plaintiffs-appellants.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Del J. Ellis, Asst. Atty. Gen., Tennyson W. Grebenar, Denver, for defendants-appellees.
Page 1307
PIERCE, Judge.
Appellants' application for a state bank charter was denied by appellee banking Board. The district court upheld the order of the Board. We affirm.
At the hearing held by the Board, appellants presented the testimony of ten witnesses and entered several exhibits into evidence. No opponents appeared to contest the granting of the charter. The Board concluded that appellants had failed to sustain their burden of proving that the proposed bank would serve a public need and advantage in the service area, and that the volume of business in the service area is such that profitable operation of the bank may be reasonably projected. See C.R.S.1963, 14--9--10(3).
Appellants contend that the Board's order must be reversed, because it is not supported by substantial evidence in the record, or because it is arbitrary and capricious. See C.R.S.1963, 14--2--7(2); 1969 Perm.Supp., C.R.S.1963, 3--16--5(7). We disagree.
Theoretical problems in applying the 'substantial evidence' standard for judicial review are encountered where, as here, the application is denied although there is no evidence directly opposing granting of the bank charter. However, C.R.S.1963, 14--9--10(3), clearly places the burden of proof upon the applicants. The weight of the testimony is peculiarly within the province of the Board, Goldy v. Henry, 166 Colo. 401, 443 P.2d 994, and the Board is not bound to accept testimony at face value merely because it is not directly contradicted. Bransall v. Industrial Commission, 126 Colo. 556, 251 P.2d 935; Industrial Commission v. Bennett, 166 Colo. 101, 441 P.2d 648. In addition, the inferences which the Board draws from the evidence will not be disturbed on review unless clearly erroneous, even though this court might have drawn contrary inferences. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; Thiele v. Colorado, 30 Colo.App. 491, 495 P.2d 558; 2 F. Cooper, State Administrative Law, 728 (1965).
In weighing the evidence and drawing inferences therefrom, the Board may utilize its expertise in banking matters. 1969 Perm.Supp., C.R.S.1963, 3--16--4(7); Goldy v. Henry, Supra; and see C.R.S.1963, 14--2--2(2)(a).
The Board, applying its expertise, did not accept the appellants' projection of 75% Market penetration, and determined--from the appellants' evidence--that economic development of the service area was only nascent and speculative. We cannot say that these conclusions were clearly erroneous, nor have we discovered any strong, uncontradicted facts dictating the granting of the bank charter such as were present in Banking Board v. Holyoke Industrial Bank, 152 Colo. 489, 383 P.2d 318, and Banking Board v. Turner Industrial Bank, 165 Colo. 147, 437 P.2d 531. Therefore, the Board's determination will not be disturbed by this court.
The appellants also contend that the district court erred in denying their motion to expand the record to include proceedings of previous bank charter applications which they allege show that the Board has, in the past, arrived at contrary conclusions on similar evidence. We disagree with this contention.
An appellate court is not at liberty to consider matters outside the record presented to it in its determination of any cause. Hodge v. Terrill, 123 Colo. 196, 228 P.2d 984; See Laessig v. May D & F, 157 Colo. 260, 402 P.2d 183. The district court, in reviewing the proceedings of an administrative agency, is acting in an appellate capacity, and it is, therefore, also bound by the record before it. Civil Rights Commission v. State of Colorado, 30 Colo.App. 10, 488 P.2d 83. The trial court did not err in refusing to expand the record on review. Cronin v. Ward, 144 Colo. 192, 355 P.2d 655.
Judgment affirmed.
ENOCH and STERNBERG, JJ., concur.