The opinion
HUGHES, Justice
(dissenting).
This is another instance in which a top filed application for a banking charter is arbitrarily given preference over a previously filed and equally meritorious application, contrary to established authority and the commonest sense of fairness. When rights are equal, the first in time prevails. Yet, the Banking Board and the courts of this State, as evidenced by the majority opinion herein and this Court’s previous majority opinion in State Banking Board of Texas v. McCulloch, 316 S.W.2d 259 , 264 writ ref., N.R.E., refuse to follow this principle and the eminent authorities which sustain it.
In McCulloch this Court said: “The Board was authorized to consider the priority of the filing of the applications but it could not make such priority the controlling factor in arriving at a final decision as between them.”
This misconceives the rule. Equality of rights is the basis of it. Unless there are “equally meritorious applications,” the rule of priority is not invoked. If the applications are of this character then, in the words of Mitchie, the leading authority on banks and banking “ * * * there is * * * no discretion; the application first presented should be granted.”
In McCulloch there was absolute equality of applications insofar as the statutory requirements for a charter were concerned. The Board so found. This Court in that case referred to and considered matters *516 extr.meous to the statutory requirements. This, in my opinion, is erroneous statutory construction and, as shown by my dissent, is contrary to the pronounced policy statement of the Banking Board that it would not, in considering banking charter applications, go beyond the “factors which are enumerated in the law.”
The instant case is an even more flagrant violation of the equitable rule of priority as stated in Mitchie. The majority merely states that “A decision of the Southside application prior to a decision on the Stella Link application did not violate the Board’s rules,” and then cites and quotes from McCulloch to the effect that priority is not controlling. No extraneous, nonstatutory matters are relied on by the Court to differentiate the one application from the other. The award of the charter for this bank depended solely, completely and absolutely upon the order in which the applications for it were considered.
It is undisputed that the trade area defined for the two proposed banks was sufficient to support only one state bank. Thus, the granting of one of the charters foreclosed any possibility of the granting of the other. With the granting of the Southside application first, the denial of the Stella Link application followed as a matter of course since negative answers to the public necessity and volume of business inquiries were obliged. The order of decision was the sole decisive factor.
The majority says the rule of the Board was not violated. Perhaps not; but when did administrative fairness come to depend upon the existence of a rule requiring it? Must administrative agencies, as well as the courts, require a legislative mandate before they follow a venerable, unchallenged, authoritative rule of law based on common fairness?
On Law Day, lawyers, judges and others are wont to proclaim that we live under a Government of law and not men. If we believe in what we say, then we should practice it.
I respectfully dissent.