Appeal from an order of the State Corporation Commission.
Cochran, J., delivered the opinion of the Court.
[219 Va Page 586] Old Dominion Savings and Loan Association filed an application with the State Corporation Commission in 1977 to establish a branch at 6926 Peters Creek Road, N.W., near the City of Roanoke, in
Roanoke County. The application was opposed by Colony Savings and Loan Association, First Federal Savings and Loan Association of Roanoke, Peoples Federal Savings and Loan Association, and Southwest Virginia Savings and Loan Association (protestants). After conducting a hearing, the Commission entered an order denying the application. Old Dominion has appealed, contending that the Commission's ruling was contrary to the evidence and without evidence to support it.
The controlling statute, Code § 6.1-195.48, pursuant to which Old Dominion filed its application, provided in part as follows:
"No savings and loan association may establish a branch office, except that the Commission, when satisfied that the public convenience and necessity*fn1 will be served thereby, may authorize an association to establish a branch or branches,...."
In the order denying the application it was stated that a majority of the Commission (one Commissioner not participating) was "not satisfied" that the public convenience and necessity would be served by establishing the proposed branch "and does not so find". Thus, the Commission in effect ruled that Old Dominion had failed to carry the requisite burden of proof. The Commission's opinion, containing an analysis and evaluation of the evidence, affirmed the conclusion that the evidence failed to satisfy the Commission that the application should be approved.
There is no question as to the financial stability of Old Dominion. With its main office in Winchester, branches in Winchester, Purcellville, Woodstock, Harrisonburg, Staunton, Waynesboro, and Christiansburg, and assets of $86.1 million as of December 31, 1976, it has had an impressive record of growth and increasing profitability. Old Dominion has demonstrated that it can assume the investment risk required to establish the proposed branch.
At the hearing before the Commission two witnesses testified for Old Dominion and two for the protestants. Robert B. Dale, Jr., Old Dominion's Executive Vice-President, testified that the proposed branch would be located in a well-developed and heavily traveled section of Roanoke County, north of the City of Roanoke. Because of the steady growth of the area he anticipated that the branch would attract enough customers from Botetourt County and the northeast portion of Roanoke County to ensure success.*fn2 He did not expect the branch, which would not offer any service not presently available in the area, to affect significantly the existing savings and loan associations.
Dr. Charles Meiburg, Director of the Tayloe Murphy Institute of the University of Virginia, testified as an expert witness for Old Dominion. Meiburg asserted that the growth rate of the Roanoke Standard Metropolitan Statistical Area (SMSA) was consistent with that of the state as a whole, that savings deposits in the area had shown steady growth, and that the prospects were good for continued growth, primarily in Roanoke and Botetourt Counties. He characterized the area as a "deficit area" in respect to availability of mortgage money, because approximately 25 percent of such money was being supplied by lenders outside the area. He found only two savings and loan association offices within the service area of the proposed branch, and both were operated by the same association. Because of the growth rate and changing residential patterns of the area, it was Meiburg's opinion that the public convenience and necessity would be served by the proposed branch, and that the branch would not cause undue harm to existing lending institutions.
Old Dominion also relied upon the report made by the Commission's staff economist recommending approval of the application. The economist reported that the proposed service area was heavily traveled and highly developed, that competition among local savings and loan associations was not acute, that ...