jurisdiction over the cases in accordance with 28 U.S.C. § 1331(a).
Having recognized jurisdiction in both cases, they will be consolidated, because both involve common questions of law and fact. F.R.Civ.P. 42(a).
FAILURE TO JOIN THE COMPTROLLER OF THE CURRENCY AS A PARTY
Suburban prays that this Court adjudge that the operation of defendant's banking facility in Mountainside 'is improper and any order or approval permitting the same is invalid.' The reference in the quoted prayer to an approval of the defendant's banking activities in Mountainside relates to the allegation in the complaint that the Comptroller of the Currency approved defendant's application for permission to establish a branch banking office in Mountainside. One whose conduct is drawn in question, whether he be an individual or an official, may be made a party to the litigation. F.R.C.P. 21.
The plaintiffs contend that the Comptroller's approval lacks statutory support because the language of New Jersey statute precludes the opening of a branch in Mountainside by National. The Comptroller clearly has a visitorial and supervisory function over National banks. His approval of certain contemplated acts by such banks is expressly required. However, the limitations on branch banking by National banks are statutory, and if they stand in the way of opening a particular branch, the approval of the Comptroller cannot override the statute. Because, therefore, the question presented in the present cases is the single one of whether the National bank was entitled to establish and operate a branch bank in Mountainside, even with the approval of the Comptroller, the Comptroller is clearly not an indispensable party, because the fact of his approval becomes irrelevant and immaterial to the question presented. Johnson v. Kirkland, 5 Cir.1961, 290 F.2d 440, 445.
The Comptroller's interest is not such that a final decree cannot be entered without affecting him. See State of Washington v. United States, 9 Cir.1936, 87 F.2d 421.
Having decided that the Comptroller is not an indispensable party to either of the cases at bar, the jurisdiction of the Court is not affected by his nonjoinder. Cf. Martucci v. Mayer, 3 Cir.1954, 210 F.2d 259. Neither case before me seeks to require the Comptroller to take any action. See Williams v. Fanning, 1947, 332 U.S. 490, 68 S. Ct. 188, 92 L. Ed. 95; Colorado v. Toll, 1925, 268 U.S. 228, 45 S. Ct. 505, 69 L. Ed. 927. It is unnecessary for me, therefore, to interpret P.L. 87-748, 76 Stat. 744, approved October 5, 1962, amending 28 U.S.C. § 1391, and supplementing Chapter 85 of the same Title.
PLAINTIFFS' STANDING TO SUE
Defendant seeks a dismissal of both cases upon the alternative ground that plaintiffs lack standing to prosecute them. Defendant takes the position, expressed in its brief, that 'Inherent in all the sections of the National Banking Act is the concept that provisions of that Act are to be enforced by the Comptroller and that his powers in this regard are broad and exclusive. * * * Therefore, Congress has entrusted its administration to the Comptroller and his determinations in such administration have been consistently held to be immune from collateral attack by third parties in the absence of fraud.' We agree with defendant that the courts may not review discretionary action of the Comptroller. Smith v. Witherow, supra. However, it is not true that he may act contrary to the law as the complaints in the cases at bar assert, and not have such action reviewable by the courts.
'A national bank has only the power expressly given to it and such incidental powers as are necessary to carry on the business of the powers expressly given. * * * Courts have nothing to do with determining the policy which national banks should pursue. That is a question for the Comptroller of the Currency and the banks themselves so long as that policy is not unlawful and does not offend against public policy. But when it is unlawful and contrary to public policy, then the courts have jurisdiction. * * *' Baltimore & Ohio Railroad Co. v. Smith, 3 Cir.1932, 56 F.2d 799, 802.
Here the plaintiffs are proceeding against National, not against the Comptroller, upon the theory that National may not operate its branch, despite the Comptroller's approval. Although the situation here differs from that in Commercial State Bank of Roseville v. Gidney, supra, in which the plaintiff State bank sought to enjoin the Comptroller's (not already issued) approval of a National bank's branch, nevertheless the court there held (p. 780 of 174 F.Supp.) that because 'any new branch in (the municipality) would have to draw its business from the surrounding communities which these plaintiffs already service,' the plaintiffs had standing to prosecute the action. In the present instance the plaintiff bank is not actually in operation, but it has sufficient property interest in the certificate of authorization granted to it, to entitle it to seek relief in this Court.
This Court finds that it has jurisdiction of the parties to both of these consolidated actions. It concludes that it has jurisdiction of the cause of action alleged in each complaint under 28 U.S.C. § 1331(a). The plaintiffs have standing to prosecute the actions,
and the Comptroller of the Currency is not an indispensable party for the complete adjudication of the critical issue presented in each case, i.e., has defendant National a right to continue to operate a branch banking office in the Borough of Mountainside, New Jersey. Accordingly the motions to dismiss each complaint are denied.
An order may be presented according with the views expressed in the foregoing opinion.