Millburn-Short Hills Bank, Application of

• Decision Date: 22 October 1959
• Docket Number: No. A--253,MILLBURN-SHORT,A--253
• Parties: Application ofHILLS BANK for a Charter for a Bank to be Located at 170 Essex Street, in the Township of Millburn, County of Essex and State of New Jersey. . Originally
• Court: New Jersey Superior Court — Appellate Division

Page 470

59 N.J.Super. 470

158 A.2d 66

Application of MILLBURN-SHORT HILLS BANK for a Charter for a

Bank to be Located at 170 Essex Street, in the

Township of Millburn, County of Essex

and State of New Jersey.

No. A--253.

Superior Court of New Jersey, Appellate Division.

Originally Argued June 8, 1959, and Decided July 7, 1959.

Opinion Filed Oct. 22, 1959.

John E. Toolan, Perth Amboy, for appellant, National State Bank (Toolan, Haney & Romond, Perth Amboy, attorneys).

Jerome C. Eisenberg, Newark, for respondent Millburn-Short Hills Bank.

David Landau, Newark, for respondent Commissioner of Banking and Insurance (David D. Furman, Atty. Gen., attorney).

Before Judges GOLDMANN, FREUND and HANEMAN.

The opinion of the court was delivered by

HANEMAN, J.A.D.

This is an appeal from a decision of the Commissioner of Banking and Insurance, granting a charter to Millburn-Short Hills Bank. After argument, the case was remanded to the Commissioner so that he might amend his decision and order and make such factual findings, determinations and conclusions based on the complete record as he deemed necessary and appropriate. Jurisdiction over the appeal was retained pending the filing of a new or amended decision and order. We now have the Commissioner's further findings, determinations and conclusions and have the further briefs of the parties, all of which we have considered.

Appellant argues in its original and supplemental briefs that (1) there is no substantial evidence before the Commissioner to support his findings of compliance with N.J.S.A. 17:9A--11, subd. D(2), (3), (4) and (5); (2) the Commissioner's decision is arbitrary and capricious because there is no substantial evidence to support his decision and because it is based upon a small segment of the testimony before him and ignores the real issue.

At the outset it is requisite that we iterate certain basic priciples which must guide us in our deliberations.

The scope of the appellate review of administrative orders is generally limited to determining whether the factual findings are supported by substantial evidence. Hornauer v. Div. of Alcoholic Beverage Control, 40 N.J.Super. 501, 504, 123 A.2d 574 (App.Div.1956). The appellate court has the power and duty to assay the facts, but only to determine whether the evidence before the administrative body furnished a reasonable basis for its factual conclusions and action. In re West Jersey and Seashore R. Co., 46 N.J.Super. 543, 135 A.2d 35 (App.Div.1957); Roth v. Board of Trustees, etc., 49 N.J.Super. 309, 139 A.2d 761 (App.Div.1958); In re Greenville Bus Co., 17 N.J. 131, 110 A.2d 122 (1954). See also, State v. N.J. Bell Tel. Co., 30 N.J. 16, 152 A.2d 35 (1959). It is not the function of the appellate tribunal to substitute its independent judgment for that of the administrative body where there may exist a mere difference of opinion concerning the evidential persuasiveness of relevant testimony. In re Application of Hackensack Water Co., 41 N.J.Super. 408, 125 A.2d 281 (App.Div.1956). Where the record discloses substantial evidence to support factual findings of the administrative body, a presumption of reasonableness attaches to its findings. In re Greenville Bus Co., supra; Elizabeth Federal Savings & Loan Ass'n v. Howell, 24 N.J. 488, 508, 132 A.2d 779 (1957).

With these directives in mind, it becomes necessary to consider appellant's arguments.

I

N.J.S.A. 17:9A--11, subd. D(3), (4) and (5) provide:

'(3) That the directors or managers designated in the certificate of incorporation possess capacity and fitness for the duties and responsibilities with which they will be charged;

'(4) that no fees, commissions, or other compensation have been paid for the promotion of the bank or savings bank, or for the sale of the stock of the bank, or for obtaining subscriptions for the capital deposits of the savings bank; and

'(5) that, in the case of a bank, the entire capital stock has been subscribed for, and that each subscriber has undertaken in writing to pay in cash, upon approval according to law of the certificate of incorporation, his proportionate share of the capital stock, surplus and reserve fund for organization expense, specified in the certificate of incorporation; * * *.'

The Commissioner's findings in this connection were based upon biographic sketches of the proposed directors and managers introduced as an exhibit at the hearing, as well as upon affidavits, the certificate of incorporation and affidavit of the subscriber to the capital stock of the proposed bank. There were sufficient facts in these instruments to sustain the Commissioner's findings. The evidence so presented was competent for that purpose.

II

N.J.S.A. 17:9A--11, subd. D(1) and (2) provide:

'(1) that the interest of the public will be served to advantage by the establishment of the proposed bank or savings bank;

'(2) that conditions in the locality in which the proposed bank or savings bank will transact business afford reasonable promise of successful operation; * * *.'

Appellant argues that the Commissioner's statement that there were no important substantial factual disputes in regard to those subsections was erroneous. We conceive,...