Southgate Bank v. STATE BANKING COMR.

379 Mich. 1 (1967)

148 N.W.2d 858

SOUTHGATE BANK v. STATE BANKING COMMISSIONER.

Calendar No. 4, Docket No. 51,486.

Supreme Court of Michigan.

Decided March 13, 1967.

Rehearing denied May 2, 1967.

*3 Wm. Henry Gallagher and Reymont Paul, for plaintiff.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Maurice M. Moule, Assistant Attorney General, for defendant.

PER CURIAM:

Refer to the appellate decision below (3 Mich App 204), affirming circuit court reversal of the defendant banking commissioner's negative view of plaintiff's statutory applications. This Court, concerned that the impact pendente of PA 1966, No 23, amending CL 1948, § 487.39 (Stat Ann 1968 Cum Supp § 23.767), might require another result,[1] granted leave to appeal.

In mind is the jurisdictional nature of plaintiff's complaint. By express pleading and recital of the pretrial statement it is here under and in pursuance of section 21 of the financial institutions act (CL 1948, § 487.21 [Stat Ann 1957 Rev § 23.739]). To the statutory marrow thereof this is an equity proceeding, *4 brought up now for de novo consideration. See detailed comment upon section 21 in Bank of Dearborn v. Banking Commissioner, 365 Mich 567, 574. The circuit court by that section having been

"given jurisdiction of such suits and empowered to affirm, modify, vacate, or set aside the order of the commissioner in whole or in part and to make such other order or decree as the court shall decide to be proper and in accordance with the facts and the law.";[2]

the Court of Appeals and this Court in turn are equipped with like jurisdiction. These introductory thoughts lead to the merits.

A majority of the Justices find themselves in agreement with the attorney general's position that the legislative history as well as the wording of former section 39 of the financial institutions act (CL 1948, § 487.39 [Stat Ann 1957 Rev § 23.767]) lead necessarily to conclusion that the legislature intended from the beginning to permit a change of location of the main office of a bank only with the banking commissioner's approval, subject of course to the right under section 21 of judicial consideration and determination de novo. Decision nevertheless is planted upon unanimous view that the 1966 amendment, effecting as it does clear requirement of administrative approval, calls for vacation of both judgments below with remand for reconsideration in circuit of all presented issues in the light of that amendment. To this we add firm determination that no right in property is involved and that the plaintiff bank had before as well as now no vested right to a change of location of its main office.

Followed procedurally is Burlington Truck Lines v. United States, 371 US 156 (83 S Ct 239, 9 L ed 2d *5 207). There a three-judge court upheld an order of the interstate commerce commission granting a carrier's application for leave to transport commodities between specified interstate points. Between the date of the Commission's order and the date of decision by the three-judge court, Congress added a section to the scrutinized statute which in the Supreme Court's view affected the reasons for each of the decisions below. This result followed (371 US 156, at 172):

"These intervening facts so changed the complexion of the case that (even putting aside the considerations discussed above) the reviewing equity court, in the exercise of its sound discretion, should not have affirmed the order, as it did, but should have vacated it and remanded it to the commission for further consideration in the light of the changed conditions. See Ford Motor Co. v. NLRB, 305 US 364, 373, 374 [59 S Ct 301; 83 L ed 221, 229, 230]; Missouri, ex rel. Wabash R. Co., v. Public Serv. Com. 273 US 126, 130, 131 (47 S Ct 311; 71 L ed 575, 577); Gulf, C. & S.F.R. Co. v. Dennis, 224 US 503, 506-509, 32 S Ct 542, 56 L ed 860-862."[3]

Since section 21 as construed in the Dearborn Case requires no adversary proceeding or hearing before the commissioner and provides adequate due process in circuit with consideration de novo of all the rights of the plaintiff bank and of the public (the latter represented by the commissioner), we direct remand to the circuit court rather than to the commissioner. On remand that court will consider the bank's respective *6 applications anew in light of the 1966 amendment of section 39 and also of the responsibility and fitness requirements of preceding section 26 (CL 1948, § 487.26 [Stat Ann 1957 Rev § 23.754]), which last mentioned section should be read and applied with current section 39 to attain the broadly unitary purposes of the two sections. The circuit court may as a matter of discretion take such additional testimony as the parties may desire and, with or without such testimony but with appropriate findings of fact, will enter a new decision for or against plaintiff's said applications. Thereupon the present record, together with such record as may be made on remand, will be certified to this Court for such further proceedings as may then be directed by order. No costs.

KELLY, BLACK, T.M. KAVANAGH, SOURIS, and ADAMS, JJ., concurred.

O'HARA, J. (dissenting).

I am not in accord with the per curiam opinion in this case. Specifically, I oppose remand.

It is inherent in the appellate process that time elapses between the date of appeal and the date of appellate decision. Thus, to remand a record made because a statute passed during this interlude but not expressly made retroactive by the legislature might change a given result is, to me, inconsistent with the function of judicial review. Absent the interim-passed statute, no basis for remand is presented.

I would affirm the trial judge and the Court of Appeals.

DETHMERS, C.J., and BRENNAN, J., concurred with O'HARA, J.

[1] Such say as Chief Judge LESINSKI proposed by dissent; 3 Mich App at 219.

[2] This paragraph of section 21 concludes with the sentence: "Any party shall have the right to appeal from such decree to the Supreme Court in the same manner as from other chancery suits."

[3] The Burlington Case has caused the editors of current American Jurisprudence to add this by supplement (2 Am Jur 2d Administrative Law § 757, "Effect of Change of Law," p 657; current pocket supp. p 21):

"On the other hand, it has been held that where the law is changed during the review proceedings the court should vacate the order based on the old law and remand the case to the administrative agency for consideration in light of the changed conditions."