Jacobs, Donges and Bigelow. The opinion of the court was delivered by Jacobs, S.j.a.d.
This is an appeal from the decision of the Acting Commissioner of Banking and Insurance approving the application of the respondent, Union County Trust Company, to change the location of its branch office in the City of Elizabeth.
Under date of October 29, 1948, the Union County Trust Company addressed a letter to the Honorable John Dickerson, then Commissioner of the Department of Banking and Insurance, which it described as its application for "the change of location" of one of its branch offices from 113 Broad Street to the southwest corner of Westminster Avenue and Prince Street in the City of Elizabeth. The letter set forth its reasons for the desired change and expressed the hope that "we
have given you adequate information to justify the removal of the branch and that you will give us your early approval of our request so that we may commence negotiations for the various purchases and sales, the drawing of plans, and the letting of the contract." In response to this letter the Commissioner, by letter dated December 29, 1948, advised the Union County Trust Company that, pursuant to section 22 of The Banking Act of 1948 (R.S. 17:9A-22), he had caused an investigation to be made, had made a personal inspection of the area, had concluded that the area which would be served by the branch office after its change of location was substantially different from the area presently served by it and did thereby disapprove the application. There was no notice or hearing prior to this action. By letter dated January 10, 1949, the Union County Trust Company requested that the Commissioner's disapproval be set aside, pointing out that it had not been called upon for any additional proof in support of its application and stating that, "inasmuch as you did not require proof, we were entitled to assume that you considered the facts as set forth, in our application sufficient to justify the granting of the application. If on the contrary you required proof, then we should have received a request from you to furnish such proof." Immediately upon receipt of this letter, Acting Commissioner Gough advised by letter dated January 11, 1949, that, since Commissioner Dickerson's resignation he was Acting Commissioner and that he had reviewed the file and was not prepared to set aside Commissioner Dickerson's action.
Thereafter, under date of March 11, 1949, the Union County Trust Company addressed a letter to Acting Commissioner Gough making application to change the location of its branch office to premises which included the proposed new premises referred to in the original letter application to Commissioner Dickerson. After the filing of the March 11th application, the Acting Commissioner notified the applicant and the other banking institutions in Elizabeth that hearing thereon would be held on March 25, 1949. The hearing was duly held, the applicant and the Central Home Trust Company,
an objector, were represented by counsel and testimony was taken. On April 12, 1949, Acting Commissioner Gough rendered his decision which set forth that hearing had been held, that he had made personal inspection and was satisfied "that the area which would be served by such branch office after its change in location would not substantially differ from the area theretofore served by such office" and approved the application. The Central Home Trust Company filed notice of appeal from this decision. See Rule 3:81-8. On its appeal it does not attack the propriety of the Commissioner's exercise of discretion or the sufficiency of the supporting evidence; it confines its attack to the single ground that the determination by Commissioner Dickerson was res judicata and that, consequently, Acting Commissioner Gough's contrary determination was beyond his lawful authority. The courts have, with increasing frequency, been called upon to deal with this issue as to when common law concepts of res judicata should be applied to determinations by administrative agencies. See Schopflocher, The Doctrine of Res Judicata in Administrative Law, Wis. L. Rev., pp. 5, 198 (1942); Res Judicata in Administrative Law , 49 Yale L.J. 1250 (1940); 42 Am. Juris., p. 519 (1942).
In Federal C.C. v. Pottsville Broadcasting Co. , 309 U.S. 134 (1940), the Supreme Court pointed out that modern administrative tribunals "are the outgrowth of conditions far different" from those applicable to common law courts; that, unlike common law courts which deal primarily with adversary proceedings between litigants seeking to adjust conflicting claims, administrative agencies such as those regulating transportation, banking and other industries, are primarily concerned with the public interest in its relation to the needs of the community; and that this difference precludes the "wholesale transplantation of the rules of procedure, trial and review which have evolved from the history and experience of courts." In recognition of the foregoing, we find many expressions in the federal cases that, in general, rules of res judicata will not be applied to preclude an administrator from departing from an earlier determination. See Grandview
Dairy v. Jones , 61 F. Supp. 460, 462 (D.C.N.Y. 1945); affirmed, 157 F.2d 5 (C.C.A.2d 1946); certiorari denied, 329 U.S. 787 (1946). See, also, Pearson v. Williams , 202 U.S. 281 (1906), where Mr. Justice Holmes pointed out that decisions by the Immigration Board which were required to be made promptly and in somewhat summary fashion "cannot constitute res judicata in a technical sense," and Wilbur v. United States , 281 U.S. 206 (1930), where the court held that a new Secretary of Interior was not precluded from revoking a determination by his predecessor as to whether a particular individual could participate in the distribution of tribal funds. vom Baur, in his treatise on Federal Administrative Law, states flatly that, in the absence of statutory provision evidencing a contrary Congressional intent, res judicata does not apply to administrative determinations and that a question determined by an administrative agency may be determined anew when raised in a later proceeding. 1 vom Baur, Federal Administrative Law , § 256 (1942). See Wallace Corp. v. National Lab. Rel. Bd. , 323 U.S. 248 (1944); rehearing denied, 324 U.S. 885 (1945). However, in National Labor Relations Board v. Baltimore T. Co. , 140 F.2d 51, 54 (C.C.A. 4 th 1944); certiorari denied, 321 U.S. 795 (1944), Judge Parker, speaking more cautiously, pointed out that the doctrine of res judicata is not to be applied to administrative proceedings at least where they are not "quasi-judicial" in nature.
In New Jersey, as in many of the other states, courts have sought to rest their decisions upon concepts which distinguish "quasi-judicial" action of administrative agencies from their "quasi-legislative or executive" and "administrative or ministerial" action, holding that quasi-judicial determinations have the res judicata incidents of common law judgments. See Finnegan v. Miller , 132 N.J.L. 192, 195 (Sup. Ct. 1944). We find these quoted terms troublesome since their precise meaning is unclear and courts frequently differ in their judgments as to whether particular ...