(dissenting).
When there is an application for a charter for a new bank, the legislature in SDCL 51 — 17—15 sets out the complete requirements of the investigation that must be made by the director and reported to the Commission. This includes:
“(4) The need in the community where the bank would be located for banking or banking and trust facilities, or additional banking or banking and trust facilities as the case may be, giving particular consideration to the adequacy of existing bank and trust facilities in the community-
(5) The ability of the community to support the proposed bank, giving consideration to:
(a) The competition offered by existing banks;
(b) The banking history of the community;
(c) The opportunities for profitable employment of bank funds as indicated by the average demand for credit, the number of potential depositors, the volume of bank transactions, and the business and industries of the community, with particular regard for their stability, diversification and size; and
(d)If the bank is to exercise trust powers, the opportunities for profitable employment of fiduciary services.
(6) Such other facts and circumstances bearing on the proposed bank and its relation to the community as in the opinion of the director or the commission may be relevant.”
After a thorough weighing and examination of the director’s report and all other available relevant information, the Commission shall then approve or disapprove the application. In upholding the right of the Banking Commission to approve the moving of a bank chartered in one city to a location in another city, the majority opinion states “[t]o adopt Commercial’s reasoning in this case would forever foreclose any bank from moving its main office to a new location.” I feel that is the proper interpretation of the law of the case. When the legislature goes to such lengths to set out all of the considerations that must be met before a new charter may be issued for a bank to open its doors in a new community, how can we possibly say that, after determining the need in a community for a banking facility, by implication (since nowhere in the law is 'this expressly stated) the bank may now move from the place where its charter was granted without having any study or investigation required by the director or the Banking Commission as to the effects on that community of taking away its bank? According to the majority opinion, only the standards for the issuance of a new charter must be met; in other words, if the Commission determines that there is a need for a new banking facility in one city, then the fact that a city with an existing bank needs that facility will not be considered if the facility wishes to move. Although in this particular case the small town of Artesian *232will not be left without a bank as the proposal is to establish a branch bank there, this, however, is not necessarily going to be the case in all instances. The small towns in South Dakota are struggling to keep alive and, if, as in many cases, there is only one bank in the town and that bank decides there is more profit to be made in a larger city, there is absolutely no protection for that small town to have its needs even considered under this proposed rule — if the large town can support another bank that is as far as the investigation needs to go.
It is inconceivable that the legislature would intend such a result. If it had felt it was giving an implied consent to allow banks to move their charter from one town to another, it would certainly have set up standards for investigation and examination of the impact on the town which is to lose its banking facility, as well as for the one which will gain one.
This court held in Livestock State Bank v. State Banking Commission, 80 S.D. 491, 127 N.W.2d 139, that a rule of the State Banking Commission attempting to put into effect a policy on branch banking which was not written into the law by the legislature was invalid. The court specifically stated:
“The acts of our legislature to be examined for such broad policy and standards to guide the Commission here applicable are as stated above, and there is nothing therein indicating that the legislature contemplated that the rules to be adopted by the Commission for ‘the management and administration of banks’ should extend beyond the area of bank operation as contrasted to bank location.” 80 S.D. at 495, 127 N.W.2d at 141.
It is my opinion that until the legislature specifically authorizes movement of a bank’s charter from one city to another with definite guidelines for such a move there is no implication that any such permission was contemplated by the legislature.
The Banking Commission has not been granted authority by the legislature to allow a bank chartered in one city to move to another and the decision of the circuit court refusing to allow that move should be affirmed.