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Mchenry State Bank v. Harris

OPINION FILED APRIL 16, 1982.

MCHENRY STATE BANK ET AL., APPELLANTS,

v.

WILLIAM C. HARRIS, COMMISSIONER OF BANKS AND TRUST COMPANIES, ET AL., APPELLEES.



Appeal from the Circuit Court of Sangamon County, the Hon. Simon L. Friedman, Judge, presiding.

JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

Plaintiffs, McHenry State Bank, First National Bank of Lacon, State Bank of Arthur, and Marquette National Bank, appealed from the judgment of the circuit court of Sangamon County entered in favor of defendant, William C. Harris, Commissioner of Banks and Trust Companies (hereinafter Commissioner), dismissing with prejudice plaintiffs' action for declaratory judgment and injunctive relief. We allowed plaintiffs' motion filed pursuant to Supreme Court Rule 302(b) (73 Ill.2d R. 302(b)), and the cause was transferred to this court.

In their complaint, as amended, plaintiffs sought a declaratory judgment that Public Act 82-21 (Pub. Act 82-21, approved July 3, 1981, effective January 1, 1982; hereinafter the Act), which amended portions of the Bank Holding Company Act of 1957 (Ill. Rev. Stat. 1979, ch. 16 1/2, par. 71 et seq.; now found in Ill. Ann. Stat. ch. 17, par. 2501 et seq. (Smith-Hurd 1981)) and the Illinois Banking Act (Ill. Rev. Stat. 1979, ch. 16 1/2, par. 101 et seq.; now found in Ill. Ann. Stat., ch. 17, par. 301 et seq. (Smith-Hurd 1981)), was unconstitutional and also to enjoin the defendant commissioner from taking any action under the amended provisions. The Association for Modern Banking in Illinois, an Illinois not-for-profit corporation sought and was granted leave to intervene as a party defendant. Both the defendant commissioner and the intervenor defendant moved to strike the amended complaint and dismiss the action with prejudice. The complaint attacked the statute on the same grounds which are argued in this appeal, and they will be discussed to the extent necessary to this opinion. The circuit court held the statute constitutional, and upon allowance of the motions dismissed the action with prejudice.

Plaintiffs contend that the Act permits branch banking in two ways: first, that the community service facilities authorized therein are branch banks and, second, that branch banking is made possible through the multibank holding companies provided for in the Act. They argue that because the effect of the Act is to authorize branch banking it is invalid for the reason that it failed to receive the three-fifths majority in each house of the General Assembly required by article XIII, section 8, of the Illinois Constitution, which provides:

"Branch banking shall be authorized only by law approved by three-fifths of the members voting on the question or a majority of the members elected, whichever is greater, in each house of the General Assembly." Ill. Const. 1970, art. XIII, sec. 8.

They contend, too, that in enacting the Act "the General Assembly has unconstitutionally delegated its legislative authority to Congress and the Federal Reserve Board in violation of article IV, section 1 of the Illinois Constitution." They argue that the Act unconstitutionally delegates to the Federal Reserve Board the power to define branch banking and that it also automatically incorporates into the Act all future amendments to the Federal Bank Holding Company Act (12 U.S.C. § 1841 et seq. (1976)).

The circuit court held that the Act "does not in any respect authorize branch banking either by authorizing multi-bank holding companies or by permitting the establishment and operation of community service facilities"; that passage of the Act did not "require the extraordinary majority vote necessary to authorize branch banking under article XIII, section 8 of the Illinois Constitution"; and that the Act "was approved by three-fifths of the members voting on the question and by a majority of the members elected in each house of the General Assembly."

We consider first the question whether the Act authorizes branch banking within the contemplation of article XIII, section 8, of the Constitution. The Act amended section 5 of the Illinois Banking Act (Ill. Rev. Stat. 1979, ch. 16 1/2, par. 105; now found in Ill. Ann. Stat., ch. 17, par. 311 (Smith-Hurd 1981)), and plaintiffs contend that subparagraph 19 of section 5, which authorizes the establishment of community service facilities, permits branch banking. Section 5, in pertinent part, provides:

"Sec. 5. * * * A bank organized under this Act * * * shall * * * have * * * the following additional * * * powers:

(19) To establish and maintain not more than one community service facility, provided such facility complies with the following provisions:

(a) Any community service facility may be established within or outside of the county in which the main banking premises of the maintaining bank is located, provided that, if established outside of the county, any such community service facility may be no more than 10 miles from the main banking premises of the maintaining bank.

(b) The provisions of subparagraph (c), (d) and (f) of paragraph 15 of this Section are applicable to each community service facility established under this paragraph 19.

(c) No community service facility shall be closer than one mile to any then existing main banking premises of another bank unless:

(i) it is closer to the maintaining bank than to main banking premises of such other banking house, or

(ii) it is established with the irrevocable consent of such other bank, or

(iii) it is established and maintained by a bank which is located in a city of 500,000 or more inhabitants and at least some part of the main banking premises of each of 4 or more banks, including the bank proposing to maintain the community service facility, are located within the area of a circle having a radius of 1500 feet from the maintaining bank, in which case the maintaining bank may establish a community service facility anywhere in such circle, but not closer than 600 feet from the main banking premises of any bank whose main banking premises are outside of such circle without the irrevocable consent of such other bank; and provided that in any case where a community service facility is established pursuant to this subparagraph (iii) closer than 600 feet to the main banking premises of another bank, no other bank whose main banking premises are within such circle shall be required to obtain the consent of the maintaining bank in establishing a community service facility closer to it than 600 feet.

(d) No community service facility shall be closer than 2 miles to any then existing main banking premises of another bank whose main banking premises are located in a municipality of 10,000 or fewer inhabitants (according to the 1980 census) in which the main banking premises of 3 or more banks are located on the ...


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