with the exception that a bank may branch anywhere in the county where its principal office is located in three situations: (1) where there is a merger of two banks, and the proposed branch will be operated at the location of the acquired bank's branch or principal office; (2) where the proposed branch will be operated at the location of the branch or main office of the bank in liquidation; and (3) (the present case) in a municipality where no other bank 'has' a main office or branch. Since the first two situations obviously involve cases where a branch office is in actual operation, it is reasonable to infer that the third situation also contemplates a case where a branch is in actual operation. The apparent purpose of all three exceptions is, in effect, to prevent new branches in municipalities which are already being served by an operating branch or principal office.
When paragraphs A and B of R.S. 17:9A-19, N.J.S.A. speak of the power of state banks to open branches, they employ the adjectival phrase 'to establish and maintain branch offices' to modify 'power'. Consequently, when paragraph B limits the power to branch in a municipality where a bank already 'has' a branch, the context makes it reasonable to infer that 'has' should be read as 'has established and maintains' a branch. R.S. 17:9A-21, N.J.S.A. speaks of the Commissioner's approval as 'the right * * * to open the branch office' which is automatically terminated in six months on the failure 'to open and operate' the proposed branch within that time, unless the Commissioner, for good cause, grants extensions, as he did in this case to Suburban. The holding of the mere right to open a branch, which is automatically forfeited for failure to open and operate, cannot be said to constitute 'having' a branch. Since this section of Article 6 of the statute expressly uses the language 'right to open' to describe the Commissioner's approval, the failure to use that language in R.S. 17:9A-19, subd. B, N.J.S.A. in addition to the phrase 'has a branch' must be taken to mean that such language does not refer to the mere holding of an approval to open a branch, especially when used in a context which strongly suggests it intends to incorporate by implication the words 'established and maintained'.
Finally, the obvious purpose of Article 6 strongly supports the foregoing constructions. R.S. 17:9A-20, N.J.S.A. directs the Commissioner to approve the application for a new branch if he finds, inter alia, that 'the interests of the public will be served to advantage by the establishment of such branch office * * *.' If, as Suburban and the Commissioner contend, the effect of the mere approval of the application by the Commissioner is to be construed as an exclusion from the Borough of a branch of any other banking institution, the public interest would be adversely affected by successive timely extensions of the authority to commence actual operation, which could deprive the residents of the Borough of any banking facilities indefinitely and thereby defeat the statutory purpose of assuring that the public need for banking facilities will be satisfied and as soon as possible after the finding by the Commissioner that that need exists. For example, in the present case, Suburban did not open its branch until over one and one-half years after the Commissioner issued his approval, while National opened its branch one day after the Comptroller issued his approval.
The foregoing analysis of the language of the New Jersey banking statute applicable to both Suburban and National leads to the conclusion the when R.S. 17:9A-19, subd. B(3), N.J.S.A. permits a bank to establish a branch in a municipality where no other bank 'has * * * a branch office,' the quoted phrase should be read as if the statute said 'has * * * established and is maintaining and operating a branch office.'
In October of 1962, when the Comptroller issued his approval to National to open a new branch, Suburban held only the Commissioner's approval to open a branch, and a contract of buy the real property for the site of the branch mentioned in that approval. Suburban did not have a branch office in Mountainside when it received the certificate of the Commissioner's conditional approval of its application to establish a branch there on U.S. Highway Route 22. When such certificate was received, Suburban had neither ownership nor right to possession of any lands at the location specified in the certificate. Moreover, it was precluded from establishing a branch at that location by existing zoning restrictions which it never succeeded in overcoming. By its very terms, the Commissioner's certificate could become effective only provided no such restrictions existed or such restrictions, if they did exist, were eliminated.
When National obtained authorization from the Comptroller on October 15, 1962 to establish and maintain a branch office in Mountainside, no other banking institution had a branch office in that municipality. When National actually opened its branch for business, on October 16, 1962, Suburban had no branch in the same municipality. Indeed, the location therein at which Suburban was unsuccessfully attempting to establish and maintain a branch in the Borough was later abandoned for that purpose by Suburban, and the approval of the Commissioner, which Suburban had secured for a branch in Mountainside was, through supplemental application, transferred to a different location therein, after National's branch had commenced its operations.
Finally, when National opened its branch for business on October 16, 1962, it then 'had' a branch office in Mountainside within the meaning of R.S. 17:9A-19, subd. B(3), N.J.S.A., and thereafter, so long as that branch was open and operating there, neither Suburban nor any other banking institution, state or federal, could open a branch in that municipality.
In the light of the foregoing, we do not reach the question presented by National's contention that Suburban's application to the Commissioner for leave to change the location of its proposed branch in Mountainside amounted to a forfeiture or abandonment of the authority granted, although conditionally, by the Commissioner.
The material facts in these cases are uncontested. The pending motions require the Court to apply the language of the two governing statutes to the conceded facts. Such application compels the conclusion that the motion of Suburban and that of the Commissioner for summary judgment be denied, and that National Bank of Westfield is entitled to summary judgment, as a matter of law, on the demands in its counterclaim that Suburban be permanently enjoined from operating a branch in Mountainside and the operation by Suburban of a branch there by declared illegal and invalid. An order may be presented in accordance with the views herein expressed.