Independent Bankers Ass'n of Georgia, Inc. v. Dunn

Undercofler, Presiding Justice. This appeal is from the refusal of the trial court to hold the Commissioner of Banking and Finance of the State of Georgia in contempt for failure to comply with a mandamus absolute. It had ordered him to take appropriate action to require the Citizens & Southern National Bank, the Citizens & Southern Holding Company, and the ten associate correspondent banks to comply with the Georgia banking laws relating to bank holding companies. The Independent Bankers Association of Georgia filed a petition for contempt against the commissioner alleging that he had failed to take such action. The trial court found, among other things, that the commissioner"... has endeavored in good faith to comply with this court’s order...” The petition for contempt was denied. This is the third appearance of this case. In Independent Bankers Assn. of Ga. v. Dunn, 230 Ga. 345 (197 SE2d 129) (1973) it was held that the Citizens & Southern National Bank and the Citizens & Southern Holding Company were in violation of the Georgia banking law relating to holding companies and that the trial court should issue a mandamus ordering the Georgia Commissioner of Banking and Finance to compel compliance. Thereafter the trial court issued a mandamus absolute directing the commissioner to take specified action. In Citizens & Southern Nat. Bank v. Independent Bankers Assn. of Ga., 231 Ga. 421 (202 SE2d 78) (1973) it was held that the mandamus absolute should not have given specific directions as to how the commissioner should compel compliance with the banking laws. Accordingly the trial court issued the mandamus absolute directing the commissioner "... to take appropriate action against [the defendants] ... to require said banks and holding company to comply with and obey the applicable provisions of the banking laws of the State of Georgia relating to bank holding companies in accordance with [253] the decision of the Supreme Court of Georgia. . .” In compliance with the mandamus absolute the commissioner issued an order containing nine separate provisions, a schedule of completion dates, and reversing the right to amend the order and make examinations to insure compliance with the order. The Independent Bankers Association claims the commissioner’s order,"... was totally abortive to compel compliance with the decisions of this court.” Held: Argued March 10, 1976 Decided June 22, 1976 Rehearing denied July 14, 1976, in case no. 31072. Martin, Snow, Grant & Napier, Cubbedge Snow, Charles M. Stapleton, Timothy J. Sweeney, Assistant Attorney General, for Independent Bankers Association of Georgia, Inc. et al. Alston, Miller & Gains, Daniel B. Hodgson, Ben F. Johnson, III, Timothy J. Sweeney, Assistant Attorney General, for Dunn et al. Alston, Miller & Gaines, Daniel B. Hodgson, Ben F. Johnson, III, Charles Gordon Brown, for C. & S. National Bank et al. The record of the hearing on the contempt citation is voluminous. In our opinion it would overburden this opinion to set out the evidence of the respective parties as to the commissioner’s compliance or noncompliance with the mandamus absolute. We think it is sufficient to state that the record has been reviewed and we have concluded that any failure of the commissioner to comply with the mandamus absolute was not wilful and the trial court did not abuse his discretion in refusing to hold him in contempt. Bankers Life & Cas. Co. v. Cravey, 209 Ga. 274 (71 SE2d 659) (1952); Bd. of Ed. of Loganville v. City of Loganville, 166 Ga. 640 (144 SE 25) (1928). Judgment affirmed; cross appeal dismissed. Undercofler, P. J., Hall and Hill, JJ., and Judge Lamar Knight, Judge George L. Jackson and Judge Frank S. Cheatham, Jr., concur. Jordan, J., dissents.Nichols, C.J., Gunter and Ingram, JJ., disqualified.