STATE EX REL. BANKING COM'N v. Bank of Rocky Mount

182 S.E.2d 625 (1971)

12 N.C. App. 112

STATE of North Carolina on relation of the BANKING COMMISSION, and First Citizens Bank & Trust Company v. BANK OF ROCKY MOUNT.

No. 7110SC213.

Court of Appeals of North Carolina.

August 4, 1971.

*626 Jordan, Morris & Hoke by John R. Jordan, Jr., and William R. Hoke, Raleigh, for First-Citizens Bank & Trust Company, plaintiff appellee.

Sanford, Cannon, Adams & McCullough by Hugh Cannon, E. D. Gaskins, Jr., and Richard G. Singer, Raleigh, for defendant appellant.

HEDRICK, Judge.

The defendant protestant first assigns as error the ruling of the Banking Commission chairman that members of the Commission who had not heard all of the evidence and oral arguments could vote on the application of First-Citizens provided that those members had received transcripts of the proceedings prior to voting.

In Crawford v. Wayne County Board of Education, 275 N.C. 354, 168 S.E.2d 33 (1969), our Supreme Court stated:

"While there are some decisions reaching a contrary result upon specific statutes involved, and not as a matter of due process, it is generally held that an administrative decision is not invalid merely because an officer who was not present when the evidence was taken made or participated in the decision, provided he considers and acts upon the evidence received in his absence. See Annot. 18 A.L.R.2d 606, and cases cited therein."

The appellant concedes in its brief that members of the Commission were furnished copies of the transcript of the hearings held on 23 July and 5 August 1970. Exhibit F indicates that the transcripts were mailed to the members on 23 August 1970, a month before the vote was taken on 23 September 1970. This assignment of error is overruled.

By assignment of error No. 2 the appellant contends that the Banking Commission committed prejudicial error by allowing one of its members, the Commissioner of Banks, to give his opinion during the hearing that the solvency of the protestant bank would not be materially affected by the approval of the application. Appellant argues first that the Commissioner was not tendered and accepted by the Commission as an expert witness. It is well settled that where there is sufficient evidence in the record to support a finding that the witness in question was an expert in his field, it will be presumed that the trial tribunal found the witness to be an expert, notwithstanding the absence of a specific finding to that effect. Olan Mills, Inc. v. Cannon Aircraft Executive Terminal, Inc., 273 N.C. 519, 160 S.E.2d 735 (1968), and cases cited therein. The record is replete with evidence that the witness is an expert in his field.

The appellant next argues that the witness was allowed to give his opinion without a proper foundation having been laid as the basis thereof. Before stating his opinion, the witness testified that it was based on "information that we have available to us in the files, and based on the reports of examination that we make of this bank. * * *"

*627 It should also be noted that the witness was called to testify by the Commission itself, and not by one of the parties; and that the protestant appellant was allowed to cross-examine the witness. For the reasons stated above, this assignment of error is overruled.

Appellant's third assignment of error is as follows:

"3. To the sending of a newspaper article denominated Exhibit D entitled `Statistics Covering Five-Year PeriodChamber Report Shows Strong Economic Growth Here,' to the Commission by mail, and the providing of a copy to each member of the Commission and consideration of such article by the Commission, for that these things were done without the knowledge of the protestant and in violation of G.S. § 143-318."

This assignment of error is not supported by a proper exception in the record. We are not directed to any place in the record which would indicate that the Commission ever received the article in question. Furthermore, assuming, arguendo, that the article was sent to the Commission, there is nothing in the record to indicate that the members of the Commission considered the article as stated by the appellant. This assignment of error is without merit.

The remainder of appellant's assignments of error deal primarily with its contention that the evidence is insufficient to support the findings and conclusions of the Commission that the branch bank applied for by First-Citizens is needed, and that its presence will not have a detrimental effect upon the solvency of existing banks in the community. G.S. § 53-62 provides for the establishment of branch banks and reads in pertinent part: "Such approval shall not be given until he shall find (i) that the establishment of such branch or teller's window will meet the needs and promote the convenience of the community to be served by the bank, and (ii) that the probable volume of business and reasonable public demand in such community are sufficient to assure and maintain the solvency of said branch or teller's window and of the existing bank or banks in said community."

In a proceeding such as this, the administrative agency is the finder of fact, and its findings and conclusions will not be disturbed if supported by competent evidence, even though there may be evidence which would support contrary findings and conclusions. Campbell v. North Carolina State Board of Alcoholic Control, 263 N.C. 224, 139 S.E.2d 197 (1964).

We have carefully reviewed the record and conclude that the findings of the Commission are supported by competent evidence, and that the findings, in turn, support the conclusions of law. The judgment of the superior court affirming the action of the State Banking Commission is affirmed.

Affirmed.

BROCK and MORRIS, JJ., concur.