The dissent in this case rests upon the two alternative propositions; that the statute requires a hearing upon which the bank commissioner bases his decision, and, if not, that the bill of complaint does not contain allegations sufficient to demand an answer from a public officer in the discharge of a duty involving the exercise of his judgment and discretion. It is conceived that the importance of these questions of construction and of pleading justify this opinion.
1. The statute under which the bank commissioner acted commanded him to make an investigation for the purpose of ascertaining if it be expedient and desirable to permit the proposed corporation to engage in the banking business at Sykesville. The statute directed him to reach his conclusion after ascertaining from the best sources of information at his command, and by such investigation as he might deem necessary, first, whether the character, responsibility, and general fitness of the incorporators of the applicant be such as to command confidence and warrant belief that the business of the proposed corporation would be honestly and efficiently conducted in accordance with the intent and purposes of the statute, and, second, whether the public convenience and advantage would be promoted by allowing such proposed corporation *Page 97 to engage in the banking business. The first inquiry related to the personnel of the incorporators, and the second, to the public good. An adverse conclusion on either of these inquiries would compel him to reject the application, but his finding must be in the affirmative on both inquiries before he could sanction the incorporation. The statute specifies no form of procedure, and no method of investigation, nor does it allow an appeal from the commissioner's decision, which must be expressed in the words "approved" or "refused" endorsed upon the submitted certificate of incorporation over the commissioner's official signature and the date of the endorsement. Section 22 of article 11 of the Code. It is clear that the legislative intent was to commit the determination of the existence of the facts, which the statute made a condition precedent to the privilege of incorporation, to the judgment and discretion of the bank commissioner, without the right of review. The authorities cited in the opinion of this court support its conclusion that the statute is not unconstitutional, although no hearing be provided.
Since the statute does not expressly enact that the commissioner must give the incorporators of a proposed bank a hearing before he acts officially, the duty of the bank commissioner to accord the proponents of the bank a hearing must be found in the language of section 22, as interpreted and construed with the single purpose to determine and give effect to the intention of the Legislature within constitutional bounds, and under the limitation that the power of the court is judicial and not legislative. In the case of Henkel v. Millard,97 Md. 24, where the duties of the state board of pharmacy were not so extensive as under the law now being considered, this court said: "Section 8 of the Act of 1902, under which the board evidently acted in this case, requires that the applicant shall be an adult and shall have been at the date of its passage actively engaged as owner or manager in compounding drugs, etc., and that he shall make an affidavit `to that effect' before he is entitled to registration and a certificate. Other sections of the act provide for the appointment of a *Page 98 board of `skilled and competent pharmacists' who are themselves `actively engaged in the retail drug business' to pass upon the fact of the applicant's answering to the description contained in section 8, and of his having made an affidavit to that effect. Surely the duties thus imposed upon the board are not strictly ministerial." And then the court added: "Their discharge necessarily requires the examination into evidence and the exercise of judgment and discretion." At page 32. A fortiori does the performance of the bank examiner's duties under section 22 of article 11 compel "the examination into the evidence" relative to the character, responsibility, and general fitness of the incorporators, and the desirability of the establishment of the bank from the standpoint of public convenience and welfare; and then the determination of the questions of fact upon this evidence. The provisions of section 22 contemplate that this evidence shall be procured by an "investigation" by the commissioner. While he is directed "to ascertain from the best sources of information at his command, and by such investigation as he may deem necessary," the statute is silent with respect to how he shall "ascertain" and in what manner he shall conduct his "investigation," although the section does require him to be satisfied by such investigation. The intention of the Legislature depends, therefore, upon the sense in which "ascertain" and "investigation" are used. Both these words are general and comprehensive terms. A fact may be "ascertained," and an "investigation" concluded, secretly or publically, and the method in either case may be a private or ex parte procedure, or judicial, or a quasi judicial, hearing. See 5 C.J. 605, 606 and notes; 33 C.J. 808; State Tax Comm. v. Kohler, 193 Mich. 420;People v. Sharp, 107 N.Y. 427. It thus appears that these words import nothing as to the procedure to be followed, and their use renders section 22 ambiguous and its meaning uncertain, and presents a problem in construction.
As has been stated, the words are broad but their meaning is restricted to a quasi judicial hearing by force of the purpose of the Legislature in the passage of the law, its subject *Page 99 matter, and the nature of the duties of its administrative officer. The object of the enactment was to permit corporate banking and to safeguard the public convenience and interests. If the incorporators possessed the qualifications prescribed and the public welfare would be subserved by the establishment or continuation of the enterprise, the statute contemplated the approval and authorization of the incorporation; and made it the duty of the commissioner to give his approval. To secure at once the privilege of the citizen to incorporate and organize a bank, and the welfare of the public against the formation of a bank by undesirable or incompetent incorporators or when it would be of no public service, the enactment empowered and directed the bank commissioner to weigh the evidence, and decide the facts specified according to his judgment and discretion. The nature of his duties constituted him a quasi judicial officer, and it is contrary to the genius of our institutions that an official, charged with securing and weighing evidence, and determining issues of fact involving the privilege of citizens to combine to do business in a corporate form, on the one hand, and the convenience and welfare of the public, on the other, should not ascertain the facts and conduct his investigation at a hearing, where the incorporators and the State, through the bank commissioner, would produce all the evidence available upon which the commissioner would base his decision according to his judgment and discretion. The construction advocated gives to the words "ascertain" and "investigation" a fair and sensible construction, and effects the reasonable purpose and object of the legislation. Unless the meaning of the general words employed be so confined, the commissioner would be at liberty to adopt any form of investigation, and to vary his course according to his will in any particular instance, and render his decision upon evidence secretly or privately obtained, without the incorporators having any knowledge of its purport or opportunity to refute or disprove it. It is necessary to conclude that such an undesirable and dangerous procedure was not a part *Page 100 of the legislative design. From the nature of the terms it is clear that bounds must be placed upon the method by which the commissioner is to procure evidence and to conduct his investigation; and since there is nothing in section 22, or in the circumstances cognizable by the court under which the terms were inserted, defining this restriction, it becomes a judicial duty to declare their meaning through the process of construction. The words of the statute admit of two constructions. The first is that the commissioner may ascertain his facts and make his investigation without a hearing accorded the incorporators; and the second is that a hearing, after notice to the incorporators, must be had, or an opportunity be afforded the incorporators for a hearing, at which all the evidence on the part of the incorporators and the State shall be presented to the commissioner for his decision. The first construction allows an unregulated course which partakes too much of star-chamber methods, while the second assures a formal procedure which is fair, open, and just, and so should be adopted by the court as the more rational and beneficial construction. Roland Park v.State, 80 Md. 448, 451; Hooper v. Creager, 84 Md. 195, 248;Merrill v. Military Department, 152 Md. 474, 477, 479; Frazierv. Leas, 127 Md. 572, 575; United States Fid. Guar. Co. v.Taylor, 136 Md. 545, 548; Riggin v. Wyatt, 139 Md. 476, 478-480; Mersey Steel and Iron Co. v. Naylor (1882), 2 Q.B.D. 648, at p. 660; Countess of Rothes v. Kirkcaldy WatermansCommission (1882), 7 App. Cas. 694, 702; Llewellyn v. Vale ofGlenargan Railway (1898), 1 Q.B. 473, 478; Sullivan v. Metcalf (1880), 5 C.P.D. 455, 459, 460.
2. The decision of this court is that the statute did not compel the commissioner to give the applicants a hearing. If this conclusion be given effect, it is difficult to see why the commissioner is required to answer the bill of complaint, which expressly exculpates the commissioner from all fraud, misconduct, or intentional error, and which shows that the commissioner informed the incorporators that his decision was based upon "a careful investigation" and his "opinion *Page 101 that there is no need for the bank there, and it would not have a reasonable chance for success." The commissioner, therefore, put his refusal squarely upon the ground that his investigation had convinced him that the public convenience and interest would not be promoted by the establishment of the proposed bank. As against this official action and assignment of its basis, the complainants bring nothing of substance to warrant a court of equity in rescinding the commissioner's official disapproval. It is, of course, true that his findings of fact are alleged by the bill of complaint to have been unreasonable, arbitrary, and "without evidence to support them and contrary to the evidence known to the complainants and ascertainable from any source in the Sykesville area, except from those few who identify with or place above the public advantage and convenience their prospects of extravagant and excessive returns from their investments in the present bank at Sykesville, and these complainants know and believe and therefore aver that because of the conditions, prospects, possibilities, needs and demands of the farming, dairying, and commercial interest of the community, that any adverse conclusion purporting to be based on so-called technical, scientific, skilled, or expert, farsighted or foresighted, precautionary or preventive, safety or security, prescience or experience, is contrary to all the evidence, without any evidence to support it, illogical to the decree of absurdity, and could not be arrived at on the evidence, facts and conditions by any fair-minded man, be he expert or otherwise."
This expression of opinion or belief is based upon an amplification in the bill of complaint of the statement laid before the commissioner when the articles of incorporation were presented. These averments of the bill are affected by the vice of being general, vague, and argumentative, and conclude with the allegation that the things stated "were and are matters of actual knowledge or of ready ascertainment by the respondent," or "all of which evidence is and was either known to or ascertainable by the respondent." The bill of complaint, therefore, admits the commissioner made *Page 102 an investigation and that the facts were disputed by interested parties, and nowhere denies that every element of evidence relied upon by the appellants was considered by the commissioner. The bill of complaint leaves in doubt and uncertainty whether any relevant fact was unascertained by the commissioner, and in a bill for a mandatory injunction a clear and definite statement of the facts relied on must be made.
As the writer reads the bill of complaint, its allegations are, at bottom, a dissent from the commissioner's decision on controversial facts alleged to be either known to or ascertainable by the commissioner. If the evidence was before the commissioner, it was his exclusive province to decide the issue of fact according to his judgment and in the exercise of his discretion. If his finding of fact be erroneous, his mistake gave the appellants no equity. On the other hand, it should be borne in mind that the appellants assembled the pertinent facts and stated the grounds upon which they rested their assertion that the public convenience and welfare demanded the commissioner's approval at the time the articles of incorporation were submitted. And even if, in the discharge of his duty, which the appellants declare was free of all impropriety, the commissioner did not find, consider, nor ascertain in his investigation some other relevant facts, this court, in the nature of the matter, could not correct his omission. As the commissioner did not act as a ministerial officer, the applicable and well established rule of law deprives a court of any power to review, reverse, or correct an erroneous decision, or to control the commissioner's action, even though the statute does not provide any other method to remedy his errors of judgment, since the bill of complaint avows that the commissioner was neither personally nor officially dishonest or dishonorable, and that he did not act corruptly or fraudulently nor from bias or prejudice. It is firmly established that, in the absence of fraud, corruption, or mistake of law, the exercise of judgment and discretion by a public official, in ascertaining and declaring the existence or non-existence of certain facts, is final, where, *Page 103 as here, the statute conferring the power makes no provision for an appeal. Manger v. Board of Examiners, 90 Md. 659, 673-674;Blundon v. Crosier, 93 Md. 355, 361-363; Henkel v. Millard,97 Md. 24, 30-32; Graham v. Gaither, 140 Md. 330, 346; Woodsv. Simpson, 146 Md. 548, 551; Funeral Directors v. StateBoard, 150 Md. 294, 297; Wiley v. School Commrs., 51 Md. 401, 404; Shober v. Cochrane, 53 Md. 544, 549; Saari v. State,149 Minn. 102; Dodd v. Hill, 84 W. Va. 468; Quinby v. Conlan,104 U.S. 420, 425, 426.
It is submitted that the better rule is that, in exercising aquasi judicial power, a public official will be assumed not to have acted arbitrarily or otherwise than in the exercise of a sound discretion, and that the pleader must clearly and unequivocally allege matters of fact which, if true, would establish the contrary, before a proceeding for a mandatory injunction will require an answer from a public official. SeeChappell v. Funk, 57 Md. 465, 475, 476. For the reasons stated the writer believes the bill of complaint to be defective, especially when it is accompanied by the bank commissioner's statement of the reasons for his conclusion and of the fact that his decision was reached as the result of a "careful investigation."
BOND, C.J., also dissents. *Page 104