Bank of Italy v. Johnson (200 Cal. 1, 1926)

SHENK, J.

—This is an original proceeding in mandamus to compel the respondent superintendent of banks to issue to the petitioner two permits for the establishment and maintenance of branch banks in the city of Los Angeles, one for a branch at North Spring Street and Sunset Boulevard, and the other for a branch in the Building of the Women’s Athletic Club at No. 833 South Flower Street.

The petition was filed on June 18, 1925, and an alternative writ was issued, returnable on September 15th. On the return day the respondent filed a demurrer on the ground that the petition did not state sufficient facts to entitle the petitioner to the relief sought and at the same time filed an answer which, in the opinion of counsel for petitioner, presented issues of fact requiring the taking of testimony. By stipulation, concurred in by the court, Mr. B. Grant Taylor, clerk of this court, was appointed commissioner with the understanding that he should not submit findings on the evidence taken before him, but that the court should make its own findings and draw its own conclusions from the record. It was also agreed that after the evidence was taken and filed the matter should be set down for oral argument. The evidence was taken from time to time before the commissioner, both in San Francisco and in Los Angeles. The hearings were protracted, the last occurring in San Francisco on March 22, 1926. The commissioner thereupon filed a transcript of the evidence which comprises 1,925 pages of oral testimony and 227 exhibits. The matter was set down for oral argument and was argued on April 9 and 10, 1926. On the request of counsel for both sides permission was granted to file briefs, the last one being filed by the petitioner on September 1, 1926. Thereafter, on application of petitioner, but over the objection of respondent, the court, on October 4th, granted leave to file amendments to its petition, which were intended in the main to conform to the proof as counsel for petitioner construed the proof to be, but such leave was granted of course without prejudice to the rights of the respondent in the premises. The matter was thereupon ordered submitted for decision.

The insistence of counsel for respondent that his general demurrer is well taken renders it necessary to determine first the sufficiency of the facts as alleged by the petitioner. In the first cause of action in its original petition it was alleged among other things that the petitioner is a banking corporation incorporated in August, 1904, under the laws of this state with its principal place of business in the city and county of San Francisco; that it is authorized by its articles of incorporation to establish and maintain branch offices in the city and county of San Francisco and elsewhere throughout the state; that on February 1, 1923, the respondent was appointed and became and ever since has been the duly qualified and acting superintendent of banks of the state banking department of the state of California as provided for in an act entitled