Union Trust Co. v. Simmons , 116 Utah 422 ( 1949 )

I concur. But somehow, in declaring this provision unconstitutional, we seem to get the opposite result from what we should. The effect of removing this questioned provision from the statute is to limit the conditions under which a branch bank may be established rather than to enlarge them which is the opposite from what is expected. Such being the case, the petitioner is not favorably affected by the holding and therefore probably is not in a position to question the constitutionality of this provision.

The statute, section 7-3-6, U.C.A. 1943. provides that:

"No branch bank shall be established in any city, town or village in which is located a bank or banks, state or national, regularly transacting a customary banking business, unless the bank seeking to establish such branch shall take over an existing bank or obtain the consent of all banks therein located, exceptthat in cities of the first class, branches may be establishedwithout such consent; * * *." (Italics added.)

By the above emphasized provision the legislature intended to allow the establishment of a branch bank in cities of the first class not only as expressly therein provided, without obtaining the consent of all banks therein located, but also without taking over an existing bank. Otherwise, that provision would not alter the meaning of that section at all, for under the provision which applies to cities, towns and villages other than cities of the first class, without the aid of such an exception a branch bank may be established without the consent of the local banks by taking over an existing bank. But the reasoning used in arriving at such legislative intention is lacking where we declare the questioned provision unconstitutional. In dealing with cities other than cities of the first class, there is nothing in this section to indicate how the legislature intended the statute to be construed in case this provision was held to be unconstitutional. Under these circumstances we must construe the statute the same as though the unconstitutional provision had never been inserted. If we delete this provision then it is clear and unambiguous that before a branch bank can be established in the cities in question an existing bank must be taken over. I therefore concur with the prevailing opinion.