*1 ASSOCIATION, LOAN AND FEDERAL SAVINGS ELIZABETH HOWELL, APPELLANTS, ETC., AL., R. ET CHARLES AND OF INSURANCE OF BANKING COMMISSIONER JERSEY, SAVINGS COLONIAL THE STATE OF NEW ANO., ASSOCIATION, ETC., ET RESPOND AND LOAN ENTS. ASSOCIATION, ETC., AND LOAN FEDERAL SAVINGS CITY HOWELL, APPELLANTS, COMMIS- R. v. CHARLES THE STATE AND OF OF BANKING INSURANCE SIONER JERSEY, AND LOAN SAVINGS OF NEW COLONIAL ANO., ASSOCIATION, ETC., ET RESPONDENTS. COMPANY, A BANKING CORPORA- UNION COUNTY TRUST APPELLANT, JERSEY, OF THE STATE OF NEW TION HOWELL, OF BANK- COMMISSIONER v. CHARLES R. THE OF NEW JER- OF STATE ING AND INSURANCE ASSOCIATION, SEY, AND LOAN COLONIAL SAVINGS ETC., ANO., ET RESPONDENTS. Argued June 1957. March 1957 Decided *4 Mr. Frank K. the cause for the argued appellants Sauer Federal and Association, Elizabeth Loan Emerald Savings Association, Loan Bank, Union Savings County Savings and Central Home Trust & Company Bauer (Messrs. Wojcik, attorneys). Biichel, Jr., Fred G.
Mr. cause for the argued appellant (Messrs. Federal and Loan City Association Savings Stickel Stickel, Stickel, III, & Fred Mr. on the attorneys; brief).
Mr. Alan V. Lowenstein the cause for the argued appellant Lowenstein, Union Trust County Company (Messrs. Del Kean, Tufo, Callahan & Mr. Aaron attorneys; Kaufman, Sandler, counsel; Mr. Richard on the brief). M. Furman, David B. Mr. Deputy Attorney-General argued for the cause respondent Commissioner of Banking Richman, Jr., Insurance Grover (Mr. C. Attorney-General Jersey, New attorney). Mr. Richard V. Stein argued cause for respondent Stein, Colonial and Loan Savings Association Stein (Messrs. and Hughes, attorneys).
The of the court was opinion delivered by C. J. The case before involves the us appli Vanderbilt, cation of sub-section B section 21 of “Savings Act,” Loan L. c. 56 A. 17:12A-1 et (N. J. seq.) as amended L. c. 204. Under the authority of that subsection Commissioner of and Insurance Banking Colonial and Loan granted permission Asso Savings Roselle ciation of Park establish a branch office in the Elizabeth City of through purchase Excelsior and Loan Association in Elizabeth move it Building to a substitute location. appellants bank, savings —a *5 two saving with savings departments, two trust companies law, and one under federal chartered and loan associations laws the state banking under similar association organized these proceedings and by such —objected approval determination. review the Commissioner’s seek to The Pacts has its Association and Loan The Colonial Savings it has done Park, J. where in Eoselle N. office principal 3,139 1955 it had savings 1904. At the end of business since three miles About 1,029 members. members and borrowing Excelsior Elizabeth, Building away City at No. Elizabeth its office Loan Association maintained at 1887 and its since It has been business Avenue. for in an office building, an floor location, upper
present members 358 savings It has about of 25 upwards years. an entered into agree These associations
and 54 borrowers. Colonial of by ment, in essence for purchase providing a transfer of and for the assets of Excelsior all of N. under J. S. Excelsior, presumably office of principal Colonial, selected by location to be 17:12A-24, new of Banking to the Commissioner Colonial for the location of to change Insurance for permission selected by substitute” to be to a “suitable officeof Excelsior as a branch office that new office and to maintain Colonial B. The subd. Colonial, under J. S. A. N. 17:12A— upon was made contingent agreement Colonial chose location. changed
Commissioner Commissioner alternative and applied second Street, Broad at 29 a branch office to establish permission of Excelsior substitute” for office Elizabeth, as a “suitable location proposed Avenue. 715 Elizabeth at No. office principal mile from Excelsior’s of a away
about 8/10ths Eliza maintained by the establishments in the midst of Association, Loan Emerald Savings Pederal Savings beth Bank, Central Association, County Savings Union and Loan and Loan Pederal City Savings Trust Company, Home *6 the appel- and Trust Company, Association Union County herein. lants was to
No notice of Colonial’s application given it, however, wrote When learned of they they appellants. the pro their to objections to the Commissioner indicating took action and asked heard. The Commissioner to be posed B section 21 of that in subsection the position nothing an act, that notice of 17:12A-21, N. J. required in for of a branch office connection application to any a of assets be or bulk merger purchase given and that there no basis institutions, statutory other was them Nevertheless, a without recognizing formal hearing. he objectants opportunity as afforded “parties,” had in they opposi whatever evidence and present argument how These tion to the of Colonial. application proceedings, a full ever, hearing no means be characterized as by could were While the objectants in the true sense of word. evidence, their own every present they opportunity given denied the to meet were in substantial respects opportunity that relied the other side of the case and evidence on the evidence was the Commissioner. Some of upon by not ex the Commissioner and by furnished Colonial to pa/rie made available to the The Commissioner objectants. data in the his conclusion also considered available reaching and Insurance files of Department Banking of Colonial’s furnished a by departmental investigation survey question, by territory not made record. part hearing but Colonial the Commissioner application by In granting found: “* * * that the maintenance ‘Colonial’ of branch at 29 Street, Elizabeth, public interest; be in the Broad will that it served, the area to be and that it will be bene-
will be benefit ‘Excelsior,’ per- to the members of both ‘Colonial’ and ficial given hereby mission is to the establishment and maintenance ” branch said the ‘Colonial.’ institutions, to a review objecting asserting right of the Commissioner’s determination on the ground determination made it were since the they parties, aggrieved with them for for Colonial to compete directly possible area, under and thrift in their deposits appealed savings R. R. Division of the Superior 4:88-8 to Appellate three then moved to Court Colonial separate groups. that the appellants
dismiss all the on proceedings ground was had no Decision on appeal. question standing were consoli reserved until final and the appeals argument matters motion dated. We then certified the on our own R. of all the to R. 1:10-1 the argument pursuant (a), this court. and of all issues has conducted before been parties whether The case these presents questions: (1) seek review of the have any standing judicial appellants *7 Commissioner; the action of the whether (2) objecting a full on institutions were entitled to notice and hearing and for the Commissioner’s approval, Colonial’s application so, if whether the afforded was sufficient in the hearing circumstances; and whether the Commissioner properly (3) the to him. power discharged delegated
The Statutes and and loan and loan associations building Savings under the laws of this State are now associations organized Act,” J. A. and Loan N. by supra, controlled S. “Savings act, et Subsection A of section 21 of that 17:124.-1 seq. that if the reserve 17:124.-21,
N. J. provides capital, met, therein set forth are and undivided profit requirements in the establish branch office munici may an association it office, in which it has its main or or principal may pality in the a branch office in other any municipality establish office, but that no such branch office of its county principal in another if other state any be established may municipality has its officeor a branch office federal association principal or there. to and the Com approval by in operation Application and Insurance is made a Banking requirement missioner of action subsection A of section 21: by of such (4) any established, branch office shall be the association shall “Before approval. application for with the commissioner his file written application, approving shall determine such the commissioner Before that the maintenance public is of such branch office in the interest office, and benefit to served such branch and will be of the area any injury may undue other asso- that it be established without to proposed in the area in it is ciation or association which Federal to locate office conditions in the area be to such branch and that promise served, operation. successful reasonable afford days application such to after the submission Within ten applying give commissioner, the notice mail association shall associations, application all associations Federal such of having proposed municipality in which it is within offices municipality within and outside such locate branch if office proposed place to locate such branch miles where it is fi/ve approved by commissioner, form notice shall be The office. and shall applying association include the name of municipality such branch office to be street where address request applying association, Upon the com-
located. of the showing names and missioner furnish a list street shall written such notice addresses of all State chartered associations which investigation must be The commissioner shall conduct such sent. hearing both, be as he deem to advisable. mailing thirty days after Not less than the aforementioned ninety thereafter, days commissioner shall notice and within upon office, application file in his announce his decision a written such stating therefore, reasons shall memorandum which open inspection.” (Emphasis supplied.) B of section 21 of any express absence from subsection on an reference to a or to notice for hearing establishment of a branch office approval through another association or since merger, particularly purchase for made with respect notice or are express provisions hearing in related cases under subsections applications *8 rise C, and to the conflict this case. Subsection A gives B provides: any Notwithstanding provisions “B. of the other or limitations any section, association which association of this into another has merged acquired, by purchase, reorganization,
been or which has or any manner, portion all or a substantial of the assets other of association, may, permission commissioner, another with the of the may prescribe, under and conditions as he and such terms maintain by association, previously office maintained such the suitable other a therefor, office; provided, however, as a branch substitute the shall maintenance commissioner first determine that the of public in the interest and will of benefit to such branch is area be the by such branch and to the members of the association.” served C Subsection provides: “O. A branch be from office removed one location to another
upon application to, approval by commissioner, provided and the proposed prescribed the new location is within the area for days filing application, a new branch office. ten after Within such give required the shall the association same notice as that in con- application nection loith an a new branch and the com- for office prescribed missioner shall render his decision within the limits time application (Em- in connection with a the for new branch office.” phasis supplied.) related the to Closely problem presented by instant act, ease are of 24 of the provisions section as amended L. c. N. J. by 17:12R-24. That section that: provides “Any may change principal association the location of its office but, ato new location where the is to office be from removed one
municipality another, change place only to such shall take after application to and the written of the commissioner of such change days any location. Within ten the submission after application, give such to the hearing the commissioner shall written notice mail place designated by time association a and him a for application. designated hearing such on The time such for eight shall not less than six weeks nor more than weeks after upon date which mails commissioner such notice. The give thereupon application association shall mail notice such designated by place and time and the commissioner hearing prior thereon at least three weeks to date such hearing municipality all associations located within the in which proposed it is to locate the the association. office of Upon request association, the commissioner shall furnish showing list written the names and street addresses all asso- ciations to which such notice must be sent. association, shall The notice set forth the name of the the street municipality changed address and from its which location to be municipality and the street address which its location is thirty changed. days hearing, to be Within after the close upon the commissioner shall announce his decision such stating and file in his office written memorandum the reasons inspection. therefor, open which shall be If find the commissioner shall that— (a) proposed change public interest, of location is (b) proposed be of will benefit to area to which it is to remove office, such (c) injury that the such removal of office not result in will undue other association Federal association in area to which proposed office, it is such remove *9 prospect (d) of success in will a reasonable association have approve application. location, proposed such new he shall dispense hearing discretion, may, such in his
The commissioner in the ipality (a) in munic- there no association located is event applicant association intends to locate its which the in municipality (b) such consent thereto all in office or associations supplied.) writing.” (Emphasis in followed on be specified procedure In absence of Commissioner, section approval for the applications Act, as amended supra, 99 of Loan the Savings J. 17:12A-99 66, provides: sec. N. S. A. 17, p. L. c. Applications approval. “(4) In all eases commissioner’s where for required procedure obtaining approval no commissioner’s application writing specified, be therefor shall made the same is thirty receipt shall, days after of such and application, commissioner within approving give notice the association either written may properly disposed application, ex the same be such parte, when the, designating place a time mid when mid where com- or any afford, party to the association and interest missioner will it, opportunity requests an to he heard. The commissioner who grant hearing. thirty days adjournments of such Within reasonable therefor, designated hearing, after date if no one after such appears give heard, be the commissioner shall written notice determination, shall state the of his which notice association therefor, is denied. .reasons if the any give If fails to such notice within the the commissioner therefor, prescribed failure shall be as his time such construed (Emphasis supplied.) application.” of such expressly of the act to a gives right same section determination: review of Commissioner’s Except “(1) determination. Review commissioner’s as herein any aggrieved any by any provided, or member association otherwise determination, or order of the commissioner or decision determination, failure the commissioner to make such decision thirty days thereafter, may, order, institute action in or the in the within may proceed Superior for a review thereof. The court Court summary - shall manner otherwise. It determine action law, touching upon questions, both fact and of de novo all determination, legality such and the decision or reasonableness order, judgment and make such orders as shall render such equitable just.” (Emphasis supplied.)
499 I. of to seek review of official judicial question standing
action must first be considered. It should not be confused to be heard on the of the initially subject right determination of administrative matters germane agency; to the heard in to be are discussed later this right opinion.
We are here concerned with the of the status solely question of the to call on the courts to review the appellants propriety of the Commissioner’s of the application of Colonial to establish branch office in the manner under provided 21, section subd. B.
We start with the that an basic adminis principle trative officer is a creature must of who act legislation only within the bounds him, of authority delegated that the courts exercise of their are judicial power to review the ultimate permitted of the law which has been entrusted to the administrative officer when neces for the of the sary protection of rights persons property Sutherland, abuse of the 3 against power delegated, Construction, Statutory 66. “The chapter responsibility the limits of determining statutory grants authority instances,” Wickard, such Mr. Reed in says Justice v. Stark 310, 288, 559, 321 U. 64 571, 733, S. Ct. 88 L. Ed. 738 “is a (1944), function entrusted judicial to the Courts * * We condition the to invoke the right judicial power, however, by there some requirement be interest abstraction; to be a mere protected beyond but yet, in cases substantial interest, the courts involving public have held interest, that “but slight private added to and harmoniz- with the interest” is sufficient ing to give standing, etc., Hudson Bergen, Ass’n v. Board Com’rs City A. n & Hobolcen, 135 J. L. 502, N. (E. 1947); Greenspan Control, v. Division Alcoholic 12 N. J. Beverage Walicer, Al Inc. (1953); Borough Stanhope, 23 N. J. 657 Moreover, (March 1957). this right seek judicial review of administrative decisions inheres not in those who are direct only to'the initial parties proceedings is here fact which recog- (a an administrative agency
before N. S. A. act, 17:124-99(1)) nized and J. expressed affected are directly to all who persons also belongs but action sought the particular as a result of and aggrieved v. Civil review. In Carls the courts for before brought 17 N. J. 215 (1955), New Jersey, Commission Service and Insur- in the of Banking examiners Department where Commission, the the Civil Service were reclassified ance meritorious issue court, against while disposing had contentions, they recognized standing plaintiffs’ *11 action. There the court said: the Commission’s to challenge procedure governing prerogative in lieu of writs con- “Our rules comprehensive provisions designed to which are well afford tain reviewing simple expeditious state and modes of determinations ** * agencies Service administrative such as the Civil Commission. clearly action fell within broad orbit of The Commission’s prescribed simplest 4:88) (now Rule 3:81 R. R. which (17 N. judicial review;” J., mode most available its effective pages 21&). 218, at Walker, Inc., In the recent Al v. Borough case of Stan 25, 23 N. J. 657 hope, supra, where dealer (March 1957), trailer in homes who was not a owner or even a property resident of was held have Borough Stanhope standing in maintain an action lieu of writ prerogative attacking of an ordinance the use validity of trailers restricting residences, as we said: Constitution, express language “Unlike the Federal there is no in our State Constitution which be said to confine the exercise * * * judicial power our to actual cases and controversies. passing upon plaintiff’s standing required properly In court conflicting weigh questions balance considerations re degree.”
moteness and Early in our judicial history courts of this State in almost a more every respect took liberal view of the province of the writ certiorari prerogative than the courts Certiorari,” Goodnow, state, Writ other “The Q. Pol. 493, 510, Sc. New Jersey courts (1891). extended the of certiorari far scope beyond its limited use include acts, so as to at law to review judicial common administrative and munic- gwasi-judicial, gwasi-legislative, tradition, this this liberal ipal Notwithstanding action. was further official action protecton against improper
form of V, 1947, VI, Art. Sec. broadened the Constitution as a matter of right to make its relief available par. Keenan, discretion, Ward as a matter of only not
3 N. J. 302-309 (1949). have respondent urges appellants Colonial they initiate review because standing proceedings no “have to serve in their Com- nothing objection more missioner’s determination than their own self-interest.” “have are it and as such “They merely competitors,” says, interest neither a not a substantial certainly direct the Commissioner’s Order.” a new
But it well be that the establishment of may very substantially prejudice branch at the location in will question adverse institutions, existing banking resulting similar effects other upon general through For, if institution institutions the area. one banking should fail in the as an ill-advised the result of community environment, other burdening competitive existing financial institutions do not continue unaffected. Some *12 elements of distrust and faith are public inevitably lack of them, transmitted to Delaware National Bank County cf. 311, v. 378 Pa. 106 A. 2d Campbell, 416 Ct. (Sup. 1954). will still remember the
Many unfortunate incidents attach the ing to of some charters in the boom of granting days a aof institu quarter century ago. Competing banking tions be the with sufficient in only persons private terest in with the concern for the of harmony safety deposits and bank the attention the savings bring to of courts in an to errors of law administrative granting action a a license to establish branch the contrary to standards set the statute so If such authority to act. bank delegating ing institutions do not have the necessary who standing, then is there who can will an or administrative challenge decision favorable the in applicant? to Without standing
502 the review, the of power judicial the to invoke appellants Colonial, wrong, or right action favorable to Commissioner’s a character to takes on conclusive arbitrary, proper a as whole. detriment of possible people great Bulletin, in Administrative Law 9 122 As (March, stated in Schwartz, editor, crtically its Professor Bernard 1957) by Commission, v. Power Home Gas Co. Federal reviewing App. D. 2d 253 C. Ct. (D. 97 U. C. F. 300, 231 App. S. a approach of the authorities narrow 1956) taking as one of standing: question “* * * tendency opinion a to confuse the there is in question question petitioner aggrieved (i. e., of whether is prevail standing) that it on the of whether is entitled aggrieved petitioner not merits. Insofar as court holds that is grant competitor, is both a to a its decision license recognized contrary unreal to much of the case-law. It is See, denying standing competitor. a cases that are there aggrieved competitor g., not 8 To hold that a is Bull. e. Ad. L. 75. rely is, however, fiction in such on the kind formalistic a case disrepute. brought the law into that has so often they do, courts, holding, in as sometimes that someone like sight standing, competitor have has no lost consumer system overriding sure that someone shall need our make —to It able to review of administrative action. is fact be secure only principle of administrative if this need is satisfied legality munity truly be It com- can enforced. is in the interest of the illegal agency action be left untouched. as whole that not judiciary by ensuring interest It is to vindicate this seeking unnecessary path there no obstacles those are legality challenge administrative action. To construe the 'the place standing requirement unnecessary courts do as our sometimes justice.” road obstruction on the Atchison, & Ry. Santa Fe Co. v. Summer Topeka See also F. 2d 777 C. Ct. 97 U. S. D. C. field, App. 229 (D. Commis Granik Federal Communications App. 1955); sion, App. 2d C. Ct. 682 D. C. App. (D. U. S. F. Commission, Power v. Federal City Pittsburgh 1956); 2d C. App. 99 U. D. F. Ct. 113, 237 App. (D. C. 1956).
Moreover, ap had the refused to hear Commissioner *13 be his action reviewable unquestionably would pellants,
503 reviewable is no less His action R. R. 4:88-8. court, this be heard. them to he permitted because interest sufficient have demonstrated
The appellants to have standing to they challenge action which Walker, Inc., Borough v. review, Al maintain this action for Neiden 25, 1957); 657 23 N. J. (March Stanhope, supra, of Newark, Bd., etc., the City Municipal Bar and Grill v. of of Methodist Florence Div. 1956); 24 40 N. J. Super. (App. 38 Township, Florence Committee Church v. Township of that in though Even Div. 1955).
N. J. 85 Super. (App. public with the substantial coupled terest be when slight, from their endeavor involved, it removes interest here in public a general to vindicate attempt realm a mere of them stand law, and gives the rule of terest in maintaining review, Greenspan invoke the judicial power ing Control, N. J. 456 12 Beverage supra, Alcoholic Division of etc., v. Board Com’rs Ass’n Hudson Bergen, (1953); & Hoboken, 502 A. 1947). J. L. (E. N. City supra, nature, enacted are regulatory laws banking way designed are in no public, protection have been institutions who benefits to exclusive give if But banking. conduct the business license to granted an act check abusive are denied status to appellants sought Commissioner, the interest of importance matter of such suffer. No protected may interest of and the community welfare of the economic review. insulated from judicial should be public generally discretion, but are, course, areas of unregulated There Freund, The matters, exist to minor they only respect Freund, Power, Adminis- Police section (1904), section (1928). trative Powers Over Persons Property, as facil- importance banking Matters far-reaching of such entirely category fall different many ities in locations into should be given and it official any public is unthinkable relief in these grant deny unreviewable discretion to matters. are decision here appears
We not unaware our etc., Service, v. Newark-Eliza- with Public Transp. conflict *14 504
beth, etc., Ass’n, 3 J. 118 where this held N. court (1949), that competitors of Public Service Coordinated Transport had no a standing to attack statute constitutionality under which the Board of Utility Public Commissioners were the substitution of autobuses empowered approve on line where buses had been trolley previously author- ized or to the action taken thereunder. That case question a situation presents factual different from the altogether one us here. While the confronting fact the parties were mere competitors was there looked as upon making taken, them to the action strangers of the majority court undertook to that: point out appellants “The record discloses no evidence that have been affected, adversely any usurpation trespass or will be or upon rights their has resulted or will as a result conse futuro quence challenged proceedings statute thereunder. The respondent uncontroverted evidence shows that Public Service Co Transport, ordinated has been authorized to substitute 35 autobuses trolley operation for a similar number buses its over question. respondent’s parallel route It is runs true that bus line appellants part route, with the bus lines of the but over previously changed that condition existed and has not been challenged proceedings. appear It does not how the substitution trolley buses, operating of the same number of autobuses over exactly route, upon the same could have an adverse effect existing appellants. proof business of the The absence of of real injury endeavoring has been held to be fatal to one to attack the validity [Board Freeholders] of an enactment. Bowers v. Chosen County, (Sup. 1941).” Middlesex N. J. L. Ct. case, In that while there have been some may slight private action, interest in the there was not the slightest public interest to harmonize with it. The effect of that practical decision, however, was grant competitors, standing to because the court of the issues with disposed respect of the statute on the merits. constitutionality
II. This us a consideration brings second question, before the Commissioner. relating hearing in the above, competitor out pointed As here in action attack the administrative interest such, may urge question As competitor volved. his power action exceeded the Commissioner’s
whether in exercise of it. objecting an arbitrary constituted of hear to notice stitutions, however, are entitled they urge with the of a to the party proceeding and the status ing There that status would afford. broader review which *15 claim; exists, if it further no constitutional basis for this it. for statutory provision it is because only of A. 21, N. J. S. It B of section is that subsection urged matters with 17:12A-21, involves the same policy supra,, we A are concerned and hence which and C subsections and hearing B same notice read subsection the should into We A and need in subsections O. provision appears which latter the which the sub hearing not the nature of consider them that It with respect sections is require. provided “The conduct such investigation commissioner shall both, as he deem to be advisable.” Assum may hearing full has the the import objecting the cited ing provision it, we the institutions attribute cannot conclude yet B intended it to to subsection notwith Legislature apply it. B the omission of Subsection patent plainly standing the or limitations of this “any provisions excludes of other section.” N. J.
Nor are the institutions aided objecting its for excluded from 17:12A-99(4), purview appli ex disposed cation which be of “may properly parte” falls under subsection B within the exclusion. application here is how the problem presented objecting The practical the bring institutions before the court entire may reviewing to the end record which Commissioner acted that upon the issue of excess or exercise of arbitrary power may reviewed. These institutions were free to for an apply under R. R. 4:88-9 and disposition upon order an order have been made might appropriately the further record be made directing before Com- himself, v. Council Div. Bailey missioner Planning, etc., Family N. J. New Jersey, (1956), State cf. 10 N. J. 25-26 (App. Finance Corp. Gough, Super. review that since upon It be observed 1950). Div. indicated, the course the matter be handled as just would if per the Commissioner expedited would be litigation in the first mitted all to be heard appearing objectors fully instance, are entitled the status of they not because him, upon to the before but because parties proceeding make, will be accorded they they ultimately attack can the same to attack the opportunity sufficiency proof under the standard review described above.
The institutions were not full objecting given opportunity into the essential made inquire petition facts of Colonial. record indicates “considerable informa- tion” was to the Colonial ex supplied Department by parte Furthermore, not disclosed to the objectors. pro- ceedings indicate that the Commissioner relied in his de- termination on factual material the files of his depart- ment and developed specifically for purpose deciding Colonial, pending application without divulging substance of his material and giving objectors op- *16 portunity explore to it.
The determination the of Commissioner cannot be made to rest upon information outside the record in the him case before which the parties have not had the op to meet. portunity This of principle exclusiveness of the Cavicchia, was discussed in record Mazza v. N. J. 498 and was held there (1954) to established law in this J., case, state. We said in that 15 N. at 514: page any judicial proceeding nature, “In is in whether in a court agency, process in an or administrative the of decision must be governed by principle the basic of the exclusiveness of the record. hearing prescribed by statute, nothing ‘Where a is must be taken by arriving into account the tribunal in administrative at its de termination that has not been introduced in some manner into the hearing.’ Benjamin, Adjudication record of the Administrative in York, (1942). principle observed, right New Unless this hearing meaningless. to a itself becomes Of what real worth is right present argue significance to evidence and to its at a hearing, may stray formal if the one who decides the case at will reaching consult another’s decision? Or record in his from the recommendations, law, fact, findings or even or conclusions of with him?” hold conferences gained knowledge of expert use Beyond, question the administra attribute of is a desirable by Department a manner which it need not be applied tive but process, of such notice official appropriate is unfair. By taking and record and such facts part material making meet, explain fair to parties giving opportunity satisfy requirements can it, refute Commissioner all con the interests protect fairness and adequately Railroad Depart stated in Co. Pennsylvania cerned. As Utilities, : 411, 427 (1954) 14 N. J. ment Public may stay and rest “In the board within the record this fashion adequate findings accompanied by which determine order thereon its years this In recent facts and the conclusions therefrom. the basic findings frequently upon point out that such court has been called only insuring responsible importance not are of the utmost according just proper basis the board but also determination expressly judicial afforded statute review which is rules.”
III. relating final question, Turning action, has it been argued of the Commissioner’s propriety has B 21 the Commissioner that under subsection of section aof branch office no the establishment authority approve area in the immediate Colonial at a location outside located, and that Excelsior is which the office of principal without therefore the must be dismissed regard assume But we must deficiencies in proceedings. and Loan that the over-all purpose policy Savings 17:12A-1 amended, L. N. J. A. Act, 1946, c. as supra, of control et was to consistent seq., provide pattern under one section accomplishment what is capable not under some indirectly will not be capable accomplishment *17 of the be isolated section. act cannot Component parts other vacuum, in a distorts their true construed to do so the enact- contemplated and fosters results not by meaning 508
ment, Reichenstein, Horwitz v. 15 N. 8 2 6, J. (1954), Sutherland, Statutory Construction sections 4703-4. (3d ed.), Under construction of B by subsection espoused what claim plaintiffs, they the Commissioner was powerless do could easily accomplished by combining change of location Excelsior by from 715 Elizabeth Avenue to a location in new the immediate area of 29 under Broad Street the authority of N. J. 17:12A-24 S. A. and without necessity Commissioner, approval by with applica tion Colonial under B such subsection. to establish new office of Excelsior or a “suitable substitute” as a branch. It is axiomatic that constructions for unreasonable calling results will be avoided where reasonable results consistent with the indicated act as are purpose of the a whole equally Okzewski, Pine possible, 429, 112 N. J. L. 433 v. & A. (E. 1933); Clark, State v. 29 L. 96, N. J. 99 Ct. (Sup. 1860). it not Certainly, could have been intended to withhold from the Commissioner the authority approve substitute location for the proposed branch office of Colonial in a different Elizabeth, him part but authority give approve, effect, the same after application made location change Excelsior. We can but conclude that there no merit to this assertion of lack of authority.
Judicial review of the substantive propriety Commissioner’s determination should be undertaken only on a complete record, v. Council the Div. Bailey Planning, etc., State New 22 Jersey, N. J. 374-375 supra, Since the (1956). objectors were denied contact appropriate record, fairness dictates that they be given Cavicchia, v. opportunity, Mazza 498 supra, N. J. (1954); Family Finance v. Corp. Gough, supra, N. J. Super. 13, 25-26 Div. (App. 1950).
The objecting institutions here misconceived the nature scope review to which are they entitled. On appeal have the they burden of overcoming presump tion reasonableness which attaches to the Commissioner’s action, State Board Milk Co., Control v. Newark Milk 118 N. J. Eq. (E. & 1935), Dutcher Depart- *18 Service, 7 N. J. Div. ment Civil Super. (App. of therefore, the will In the interest of cause 1950). justice, for the returned to the Commissioner of record completion further as the and such determination Com- findings make. missioner Remanded. J. Colonial (dissenting). Savings
Burling, Park Loan Association of Roselle has contracted to purchase the the Excelsior and Loan assets of Association of Building is the Elizabeth. Performance conditioned upon approval the Banking Commissioner Insurance office by establishment of branch Colonial Elizabeth different area of that than entirely in an where the city has for 25 years. Excelsior office been business Colonial doing Commissioner applied approval pursuant B 17:12A-21, A. subd. which J. S. provides: N. “Notwithstanding any provisions of the other limitations section, any this association into which another association has merged acquired, by purchase, reorganization, or which has
been manner, any portion other or a substantial all of the assets of association, may, permission commissioner, another may prescribe, maintain such and under terms conditions as he previously association, maintained such other or a office therefor, office; provided, however, suitable substitute a branch as the commissioner shall determine that the maintenance first such branch is interest and will be to the\ of benefit area served such branch and to the members the association.” (Emphasis supplied.)
I deem it to determine whether the unnecessary competing institutions are entitled full to a as the hearing majority holds, I for as view the facts of the instant case and the law, the Commissioner has applicable no statutory authority Colonial's for a grant branch office at a location divorced from the immediate area where completely office is Excelsior maintained in presently Elizabeth.
In all situations where a is expressly hearing required would exclude subsection (which B) Commissioner is determine, as a condition to the obliged precedent approval office “will application, proposed not result in undue other injury association or Federal associa- is to locate office.
tion in the area” where it proposed a new This must finding precede (1) savings 17:124-16.1); (2) and loan association J. S. (N. the same of a branch office in establishment independent J. office located S. A. (N. as the municipality principal *19 17:124-21, the establishment subd. 4); (3) independent the same a in another of municipality of branch office J. A. wherein office located S. (N. the is county principal this branch not 17:124-21, subd situation a 4) (in office of another be established where a branch principal is in the but municipality, association already operating five and than miles offices outside the not more municipality are distant from the situs of the branch proposed recognized office in where a is principal as parties interest); (4) from J. S. A. removed one another municipality (N. where a is moved from 17:124-24); branch office one (5) A. 17:12A-21, J. subd. (subsection location another S. 0) (N. require C the aiid substantive incorporates procedural ments of subsection A). B omits finding subsection of required
Significantly, “that an absence of “undue injury” only requires maintenance shall first determine that of commissioner branch is in the and will of such interest be benefit to the area served such branch and to the members of association.” is location within a major
Geographic municipality in the factor combat between loan competitive savings of associations. Practical this observation is found proof in the instant a more case where Colonial seeks strategic situs, a mile from the location Excel competitive nearly sior’s this present headquarters. Statutory cognizance evidenced by factor is determination significant agency of “undue in of absence other associations injury” is area which in all instances of new offices required estab relocated, old under B except lished or offices subsection a is where office relocated within the principal also same J. Where a municipality (N. 17:124-24). finding “undue is it to made injury” required clearly anticipates offices the immediate associations other maintaining area as interest. parties are to be recognized There a calculated intention on part Legis- was B. lature in this in subsection omitting finding required That which section association permits merges assets of “maintain the office acquires pre- another to association, maintained such or a suitable other viously office,” therefor, substitute as upon branch The the omission is appreciated meaning Commissioner.
if it that subsection B anticipates once be acknowledged at the same locational situs as branch office conducted substitute” connotes no more office, “suitable previous than office the same immediate area as the office a branch it is maintained. If so construed that com- clear formerly in the have interest associations no petitive recognized in the same immediate area branch office operation The status where another office was maintained. formerly quo unchanged. cmte the treatment branch accorded history legislative *20 out the restrictive advanced. The interpretation
officesbears initial treatment to statutory (accorded savings generally “An and loan was act to associations) merely encourage associations,” of mutual loan and establishment building 28, 1849, By enacted 1849 February (Laws p. 227). need for legislation
1903 the comprehensive regulatory Loan Jersey New and Records Building History, (Warren, 1903, in L. 218. 16 of that resulted c. Section —1936) the establishment of enactment branch offices. prohibited 1925 was continued in a further com- by prohibition enactment which 1903 prehensive displaced legislation. Indeed, 17. 1925, 65,
L. c. sec. not until 1952 was establishment of prohibition independent branch against removed, 204, L. 1952, 1, sec. and even then it offices c. 17:12A~21, A. circumscribed. N. J. S. subd. A. strictly was would provision The first be the merger (which statutory N. J. B, 17:12A-21, of the subsection present antecedent in L. 1932, 94, 1, c. sec. this subd. B) appears provided for that office be conducted a “not might a branch to period “in or years” place places exceed two which affairs 512 * * * has association or consolidating
of such merging was required. The Commissioner’s been conducted.” removed, was 1, the time limitation 1942, 163, sec. L. c. By the branch office that indication there is no persuading but where other than located merger might from arising conducted. had association been the former the affairs of first appeared “suitable substitute” The descriptive phrase 21, of reasoning sec. 1946, 56, parity L. c. contended it cannot be persuasively heretofore advanced new into entirely the relocation this contemplates phrase seeks here. Colonial area which offices are not is clear. Branch
The legislative policy hit the evil The aim is to at random. be established must be endeavor construed and the legislative at its source 8 N. J. Borough Edgewater, in this v. Lynch light. design recognized And the purpose once (1951). a subversion permit not be construed the statute should N. J. Grogan DeSapio, (1953), the policy, Excel- In the instant situation either directly indirectly. chang- It had no intention whatever of sior was out. selling city a new area of continue its office to ing principal There was no apparent justification its enlarge operation. size of the association it to incur in view of the small rental incident considerably enlarged charges obligations city, furnishings business portion central full- thereto for appropriate and embellishments quarters itself time The contract of operation. purchase provided directed, if the Colonial so Excelsior was purchaser a cause transfer of its officeto location selected principal Colonial. Excelsior would out of exist- pass Thereafter ence; Colonial would have branch office.
I would reverse determination and agency direct dismissal of application.
For remandment —Chief Justice Vanderbilt, and Justices Oliphant, Jacobs Weintraub —4.
For and Wachenfeld —2. Heher affirmance-—Justices Burling For reversal—Justice —1.