Nixon v. Gerst

ON MOTION FOR REHEARING

We quote from appellants’ motion for rehearing:

“We agree that the Commissioner recognized and considered Livingston Savings, and Loan Association prior to the hearing: and permitted its representatives to appear at such hearing.
But there is no real dispute over the fact that the Commissioner failed and refused to recognize or consider Livingston Savings and Loan Association when he entered his order of September 24, approving the Trinity Valley charter application.”

In its original brief appellants quote the following testimony of Commissioner Gerst given on appeal in the District Court to sustain its position that the Commissioner *704did not recognize or consider Livingston when he entered the order approving the Trinity Valley charter application:

“Q Well, to get back to the original question, Mr. Commissioner: In making the finding that there was no undue harm, did you or did you not consider and weigh the matter of the existing judgment ordering a charter to be granted to Livingston?
“A Well, I wouldn’t think so, because it wasn’t an existing association at the time.”

Other testimony by the Commissioner on this point is as follows:

“Q Now, with respect to your order and decision in granting the Cleveland or Trinity Valley application, and in overruling the motion for rehearing of the protestants, the Livingston group, in considering the matter of undue harm did you take into consideration the order and judgment of the Court ordering the charter to be issued for the Livingston Association ?
⅝ ⅜ sjc ⅜ ⅜ if:
A Mr. Alvis, I might have taken that into consideration; I really don’t recall. But I think the main consideration was that Cleveland was some twenty-eight or thirty miles from Livingston and really wasn’t considered the same area.”

The Commissioner also testified:

“Well, it could very well be that if there had been a charter granted for Livingston, one could have very well still been granted for Cleveland. They are far enough apart to where I think it is two different areas, two different neighborhoods ; and if there had been a need for one in Livingston, it might have had some effect, but I don’t think it would preclude one from having been granted in Cleveland.”

Appellants contend that notwithstanding the rule that the trial on appeal is limited to the record made before the Commissioner that they are entitled on appeal to the district court to offer evidence of alleged irregularities in procedure before the Commissioner.

We overrule this contention here on two grounds (1) that the testimony of the Commissioner, fairly interpreted, is that he did consider Livingston when he entered his order approving the Trinity Valley charter application, and (2) no irregularity in procedure before the Commissioner is shown.

The most that appellants attempt to show is the mental process of the Commissioner in reaching his conclusions on the matters before him. This is not permissible.

In R. R. Comm. of Texas v. Galveston Chamber of Commerce, 105 Tex. 101, 116, 145 S.W. 573, 580, the court in reviewing a rate order of the Railroad Commission stated:

“It is not within the language nor the spirit of the 'law, which authorizes the courts to review the action of the Railroad Commission, that any court should investigate the methods adopted by the Commission in fixing its rates, nor the motives or purposes which prompted such action. The result and its effect upon the rights of railroads and shippers mark the limit of judicial inquiry.”

In State Banking Board v. McCulloch, Tex.Civ.App., 316 S.W.2d 259, writ ref., n.r.e., this Court in discussing the validity of an order of the State Banking Board stated:

“It is not our province to search out reasons that prompted a member to vote as he did but only to determine whether there is evidence to support the vote.”

We believe,' by analogy, the rule prohibiting inquiry into the mental processes of a juror employed in reaching a verdict is applicable here.

*705We believe that it was improper to subject the Commissioner to the type of examination conducted here and that the Commissioner should not be called upon to explain the mental processes by which he made the findings or reached the conclusions required of him.

The motion is overruled.