# Chemical Bank & Trust Company v. Falkner > Texas Supreme Court · June 26, 1963 · 369 S.W.2d 427 URL: https://www.frixlaw.com/law-library/cases/9679623 ## Case - **Full name:** CHEMICAL BANK & TRUST COMPANY, Relator, v. Honorable J. M. FALKNER, Banking Commissioner of Texas, Respondent - **Court:** Texas Supreme Court - **Decided:** June 26, 1963 - **Citations:** 369 S.W.2d 427 - **Precedential status:** Published - **Opinion:** Dissent by Calvert - **Judges:** Hamilton, Calvert, Culver, Steakley - **Cited by:** 102 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9679623 ## How later opinions describe it (automated extraction) - holding party has vested property right in charter ## Opinion text CALVERT, Chief Justice (dissenting). I respectfully dissent. I agree with the holding that the Banking Commissioner is a state officer within the meaning of Art. 1733, and that, in a proper case, this Court has jurisdiction to issue a writ of mandamus to him. I agree also with the holding that Art. 342-115 provides for a true de novo, preponderance of the evidence, trial. I disagree with the holding that the provision for de novo trial is unconstitutional. The five findings which must be made by the State Banking Board incident to the granting of a bank charter are set out in the Court’s opinion and need not be repeated here. The only one of the issues which is said to render the granting of charters a matter of pure public policy is that which requires a finding that “A public necessity exists for the proposed bank.” We have held that the legislative function of determining matters of pure public policy may not be conferred on the judiciary, Davis v. City of Lubbock, 160 Tex. 38 , 326 S.W.2d 699, 711 , and I adhere to that opinion; but I do not regard a determination that there is a public necessity for a bank in a particular area to be a determination of public policy. To me, the question of whether there is a public need for a bank in a given area is a pure fact question — one which a trial judge or jury could decide on evidence available for introduction in court. The Court’s fear for the interests of the public if full judicial review is allowed is, I suggest, without warrant, as is its concern that the adversary system of trial would leave undeveloped that evidence most favorable to the public interest. The fixing of utility and freight rates is much more complicated and intricate and calls for much greater expertise, and yet full judicial review is allowed in both fields. See cases cited in Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227 , 318 S.W.2d 619, 624 . We have no evidence that the public interest has suffered from full judicial review of rate orders of *434 administrative bodies, and no reason to believe that the courts would be less concerned than the State Banking Board with the public interest. There is no better guaranty of full development of evidence than trial in an adversary proceeding. And while it is true that trial courts are not equipped to make independent investigations of facts, all admissible evidence of facts developed by the administrative agency would be available at the trial. In Key Western Life Ins. Co. v. State Board of Insurance, Tex.Sup., 350 S.W.2d 839 , we quoted with approval from State ex rel. Patterson v. Bates, 96 Minn. 110 , 104 N.W. 709, 711 , for the proposition that “when duties of an ambiguous character are imposed upon a judicial officer any doubt will be resolved in favor of the validity of the statute, and the powers held to be judicial.” It seems to me that the de novo trial provision of Art. 342-115 is doubtful at worst. There is nothing to be accomplished by pursuing this matter at length. It is well to remember, however, that the problem with which we are concerned is not the wisdom of the act of the Legislature in requiring de novo review by the judiciary of the State Banking Board’s decision, but the constitutional power of the Legislature to require it. While each case is decided on its own facts, this decision foreshadows a similar fate for all legislative acts which require true de novo review of administrative orders based on findings of public convenience and necessity. It is my opinion that the suit filed in the district court effectively nullified the order of the State Banking Board granting a charter to relator, and the Banking Commissioner is, therefore, under no legal duty to issue the certificate of authority. I would deny the petition for writ of mandamus. CULVER and STEAKLEY, JJ., join in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9679623. Public record. Not legal advice.