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. 17:9 A -11, subd. D (1), (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 principles 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 (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 (App. Div. 1957); Roth v. Board of Trustees, etc. , 49 N.J. Super. 309 (App. Div. 1958); In re Greenville Bus Co. , 17 N.J. 131 (1954). See also, State v. N.J. Bell Tel. Co. , 30 N.J. 16 (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 (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 (1957).
With these directives in mind, it becomes necessary to consider appellant's arguments.
N.J.S.A. 17:9 A -11, subd. D (3), (4) and (5) provides:
"(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 ...