Opinion
Rehearing Denied Nov. 21, 1972.
Casey, Klene & Horan, Donald A. Klene, 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.
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 denied an application for commercial bank charter in Northglenn, Colorado.
Plaintiffs filed an application for a charter for a commercial bank. Following a hearing on the application before the Banking Board on September 24, 1970, the Board denied the application for a charter. The plaintiffs petitioned the Board for a rehearing on February 18, 1971, and filed suit in the district court on February 26, 1971. The rehearing was held before the Board on March 30, 1971, and on April 22nd the Board again denied the application. Hearings were held in the district court in July and October 1971. The district court entered an order reversing the Banking Board's decision and ordered it to approve the application and grant the bank charter. The Banking Board and State Bank Commissioner filed this appeal. We reverse the order of the district court. The applicable statute, C.R.S.1963, 14--9--10(3), provides that the applicant for a proposed bank shall have the burden of proving:
'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 '. . . 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 order subsequent to the initial hearing the Board found that the 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). In its order the Board stated that it considered the application premature at that stage in the development of the community and expressed concern for prospective depositors and other customers of the proposed bank. The Board repeated these findings in its order subsequent to the rehearing.
As provided in C.R.S.1963, 14--2--7(2), the court may reverse an order of the Banking Board if that order: '(W)as issued pursuant to an unconstitutional statutory provision; was in excess of statutory authority; was issued upon unlawful procedure; or is not supported by substantial evidence in the record.' This court, as was the district court, is faced with the issue 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.
Plaintiffs contend that the Board exceeded its authority in holding the rehearing and that their complaint, filed prior to the hearing, brought only the evidence and order from the initial hearing before the court. The plaintiffs requested and participated in the rehearing. Although plaintiffs did not amend their complaint before the district court to include the evidence and resulting order from the rehearing, the Board's answer referred to the rehearing and attached a copy of the subsequent order. The district court had before it transcripts of both hearings and considered the evidence in the total record and both orders of the Board in rendering its judgment. Even though there is no statutory provision for the Board to grant a rehearing, we need not decide whether it had an inherent authority to do so. Since the rehearing was granted at plaintiffs' request and since they then participated in the second hearing without objection, they waived any objection they might have had to its validity. See Ontario Mining Co. v. Industrial Commission, 86 Colo. 206, 280 P. 483; Mobley v. Cartwright, 141 Colo. 413, 348 P.2d 379.
While the plaintiffs showed that rapid growth was occurring in the area where the proposed bank was to be located and showed that by the time of the rehearing some of the expected development had already begun, the Board evaluated plaintiffs' evidence in terms of the present nature of the community. Statistics available at the time of the rehearing indicated a larger number of families in the area than had originally been projected but also indicated that investment yields would be lower than projected. The president of a neighboring bank, appearing as a witness for a protestant, testified that the average size of accounts in his bank was lower than that projected by the plaintiffs and that the loan demand in the area presented difficulties for area banks.
The credibility of witnesses and the weight to be accorded their testimony lie 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 protestant's 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.
The judgment of the trial court is reversed and the cause remanded with directions to affirm the judgment of the Board.
DWYER and ENOCH, JJ., concur.