On appeal from the Supreme Court, Essex County.
For the appellant, Francis P. Meehan.
For the respondent, Walter P. Reilly and James L. Handford.
The opinion of the court was delivered by
PERSKIE, J. Three interrelated questions of prime importance require decision in this cause.
1. By R.S. 17:12-53 (Source, L. 1925, c. 65, sec. 52, p. 212, as amended by L. 1932, c. 102, sec. 1, p. 175, L. 1935, c. 59, sec. 11, p. 153, L. 1936, c. 118, sec. 4, p. 295), the legislature prescribed the method and order to be employed by building and loan associations for the payment of maturities and withdrawals, and prohibited suit against such associations by any member thereof to recover the maturity or withdrawal value of his share so long as the funds in the treasury of the association are applied as required by the statute. Is this statute constitutional as applied to a member
who, as plaintiff here, gave notice for the withdrawal value of his prepaid shares prior to its passage?
2. By chapters 48, 166, 258 and 381 of Pamph. L. 1933, now R.S. App. A:7-3 to 7, the legislature, declaring the existence of a public emergency by reason of a prolonged period of economic depression, conferred additional powers on the Commissioner of Banking and Insurance "to make orders for the purpose of conserving the assets of the building and loan associations of this state." Is this statute constitutional?
3. The Commissioner of Banking and Insurance by an order (Number One-A) made, on March 14th, 1933, in pursuance of c. 48, L. 1933, imposed restrictions and limitations upon the operation of defendant association, and prohibited suit against such association by any member thereof to recover the maturity or withdrawal value of his shares so long as the defendant association complied with this and subsequent orders of the Commissioner of Banking and Insurance, hereafter referred to as Commissioner. By this order plaintiff was prohibited from bringing his action against defendant association. Is this order constitutional?
Plaintiff, on October 7th, 1931, purchased ten prepaid shares in the defendant building and loan association. Each share had a par value of $200 and provided, inter alia, that it "shall bear interest at six per cent. per annum;" that it may be "called in and canceled" by defendant upon giving "thirty days' written notice to the owner upon the payment of par value and interest to date of cancellation," and that the shares may be surrendered at any time subject to the provisions of defendant's constitution and amendments thereto.
On April 19th, 1932, plaintiff gave the defendant written notice of the withdrawal of said shares in accordance with the provisions of Pamph. L. 1925, ch. 65, § 52. This statute, in existence both at the time the plaintiff purchased his shares and at the time he gave his withdrawal notice, provided, amongst other things, that "* * * in no case shall payment be postponed for a period longer than six months from the date of such notice, and any member who has given the said notice may sue for and recover the withdrawal value
of his shares in any such association in any court of competent jurisdiction, if the same is not paid in six months from the date of the giving of said notice of withdrawal * * *." Accordingly, not having been paid by defendant, plaintiff brought suit in the Supreme Court, Essex County, on June 12th, 1934, alleging defendant ...