The opinion of the court was delivered by: WORTENDYKE
These two actions will herein be referred to by their respective docket numbers. Each case rests upon the same factual foundation and involves similar ultimate questions of law. They have, therefore, been consolidated, and are considered together herein.
837-62 was instituted in this court, whose jurisdiction was invoked under the provisions of 28 U.S.C. § 1331(a). Docket 875-62 was initially instituted in the Law Division of the Superior Court of New Jersey, by the filing of a complaint in lieu of a prerogative writ, and was thereafter removed to this court by reason of the existence of original jurisdiction in this court under 28 U.S.C.A. § 1331(a). At the time of that removal, there was pending but undetermined in the Superior Court of New Jersey a motion by the plaintiffs for ad interim relief which was heard by this Court following removal. That motion was denied by this Court's order of December 26, 1962.
Cross-motions for summary judgment by all parties (including defendant as counterclaimant) were duly noticed and argued in each of these cases, and by this opinion the Court disposes of all of said motions. All parties concede that there is no genuine issue as to any material fact and that the cross-motions are appropriately brought under F.R.Civ.P. 56.
The uncontradicted facts disclosed upon the cross-motions for summary judgment may be summarized as follows. Suburban is a banking institution duly chartered by the appropriate authority of the State of New Jersey, with its principal office in the Town of Westfield, Union County, New Jersey, and National is a federally-chartered bank with its principal office in the same municipality. The Borough of Mountainside is a municipality located in the same County and State, and each of the banking institutions involved in this litigation is at present operating a branch bank in that municipality. On May 26, 1960, National filed an application with the Comptroller of the Currency (hereinafter 'Comptroller') to establish a branch office in the Borough of Mountainside and, within a month thereafter, entered into a contract for the purchase of two parcels of real estate in that Borough upon which it would erect the branch office for which it sought authorization. Title to the real estate was taken by National in July, 1960. By his certificate dated October 15, 1962, the Comptroller authorized National to establish and operate a branch in the Borough of Mountainside upon the property which National had acquired. On January 19, 1961, while National's application was pending before the Comptroller, Suburban filed with the Commissioner of Banking and Insurance of the State of New Jersey (hereafter 'Commissioner') an application for permission to open a branch office in the Borough of Mountainside. Pending such approval, Suburban entered into a contract for the purchase of land in the Borough upon which to establish and operate such a branch. The Commissioner issued his approval to Suburban on October 3, 1961, but the zoning ordinance of the Borough was found by Suburban to prohibit the use of the land which it had contracted to purchase for its intended branch. Accordingly, suburban applied to the appropriate municipal authority for a variance of the zoning restrictions to permit its desired use. Such variance was denied, and further relief from the restriction was thereupon sought by Suburban. During the period of time which elapsed in the course of Suburban's efforts to obtain relief from the zoning restrictions, the Commissioner extended, for successive six-month periods to October 3, 1963, his approval of Suburban's contemplated establishment of the branch. At all times, National had knowledge of that approval and of the extensions thereof. On October 16, 1962, pursuant to the certified approval of the Comptroller, National opened a branch bank in a temporary movable structure, on the land which it had purchased in the Borough for that purpose, and has been continuously, since that date, conducting its banking business at that location. After the institution of the present litigation, Suburban applied to the Commissioner for permission to change the location of its contemplated branch from the site which the Commissioner had approved, which still remained unavailable for such use under the existing zoning restrictions, the a different site in the same Borough. This request was granted by the Commissioner on April 2, 1963, following which, on May 23, 1963, Suburban opened a branch facility in a temporary structure on the new site, 905 Woodland Avenue, Mountainside, which is within 125 yards of the branch which National has been operating since October of 1962.
'Before any branch office shall be established, except those branches established pursuant to paragraph (1) of subsection B of section 19, the bank * * * shall file written application in the department for the commissioner's approval thereof. If, after such investigation or hearings, or both, as the commissioner may determine to be advisable, he shall find (1) that the bank * * * has complied with the requirements of section 19, (2) that the interests of the public will be served to advantage by the establishment of such branch office, and (3) that conditions in the locality in which the proposed branch office is to be established afford reasonable promise of successful operation, the commissioner shall, within ninety days after the filing of the application, approve such application.'
Suburban invoked the provisions of the foregoing New Jersey statutory section in seeking the approval of the Commissioner of its applications to establish the branch office in Mountainside.
R.S. 17:9A-19, N.J.S.A., insofar as relevant to the questions presented upon the pending motions, provides as follows:
'A. Any bank * * * may * * * establish and maintain branch offices, subject to the conditions and limitations of this article (Article 6 of Title 17).
'B. No bank * * * shall establish or maintain a branch office which is located outside the municipality in which it maintains its principal office; except that a bank * * * may establish and maintain a branch office or offices anywhere in the same county as that in which it maintains its principal office * * * (3) when each proposed branch will be established in a municipality in which no banking institution has its principal office or a branch office.'
N.J.R.S. 17:9A-1(2), N.J.S.A. defines 'banking institution' as '* * * a bank * * * and a national banking association having its principal office in this State'; 'bank' is defined in R.S. 17:9A-1(1), N.J.S.A. as any bank chartered by the State of New Jersey.
At all times relevant to the questions presented upon the pending motions, 12 U.S.C. § 36 provided in part as follows:
'The conditions upon which a national banking association may retain or establish and operate a branch or branches are the following: * * * (c) A national banking association may, with the approval of the Comptroller of the Currency, establish and operate new branches: * * * (2) at any point within the State in which said association is situated, if such establishment and operation are at the time authorized to State banks by the statute law of the State in question by language specifically granting such authority affirmatively and not ...