The opinion of the court was delivered by: WORTENDYKE
Plaintiff (hereinafter Sussex Bank) is a banking corporation duly chartered under the laws of the State of New Jersey. Its main office is in the Borough of Franklin, and it operates branches in the Borough of Sussex and in the Townships of Vernon and Andover in that State. The defendant (hereinafter Comptroller) is, and at all times hereto relevant, was, the Comptroller of the Currency of the United States, an agency of the Executive Branch of the Federal Government. The Peoples National Bank of Sparta, New Jersey (hereinafter Peoples Bank) is a national banking association, chartered by Comptroller, having its main office in the Township of Sparta, New Jersey where it commenced business on August 24, 1964.
On October 11, 1963 application was duly made in behalf of Sussex Bank to the New Jersey Commissioner of Banking and Insurance (hereinafter Commissioner) for permission to establish a branch of that institution in Wantage Township in the same county in which its main office is located. Following advices from the office of the Commissioner that its application for a branch had been tentatively approved pending an increase in its capitalization, Sussex Bank commenced consideration and exploration of available methods for the accomplishment of a stock increase plan submitted by the Bank's President to the Executive Committee of its Board of Directors on May 28, 1964, implemented by the action of its Board of Directors which authorized reduction of the par value of the Bank's stock from $10.00 to $5.00 per share, and a split of its outstanding stock on the basis two for one, consequently increasing the amount of the stock from 54,000 to 108,000 shares. The existing stockholders of the bank were given the privilege of purchasing one share at $25 per share for each five shares held by them, thus distributing an additional 21,600 shares to produce a new capital of $540,000. The Board's resolution authorized submission of the plan to a special meeting of the stockholders to be held in October or November, 1964.
On October 7, 1964 Peoples Bank applied to Comptroller for permission to establish a branch office in Wantage Township, New Jersey, at a location approximately two miles distant from an existing branch of the Sussex Bank in Sussex, and four miles from the main office of the Sussex Bank in Franklin. Peoples Bank was notified on October 26, 1964 that its application had been approved and on the following day moved a vehicular trailer onto the site for which it had sought permission for its branch, and commenced operation of a branch banking business therein which still continues. The Comptroller's letter of October 27, 1964, which enclosed a certificate of the same date authorizing it to establish the branch, confirmed the previous informal notice of the approval of its application.
Section 36(c) of the National Banking Act, as amended, 12 U.S.C. § 36(c) provides as follows:
The statute law of New Jersey restricts the establishment of State bank branches. N.J.S.A. 17:9A-19, subd. B provides that
"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."
Franklin, in which the main office of the Sussex Bank is located and Sparta, in which the main office of Peoples Bank is located are situate in Sussex, New Jersey, in which Wantage Township is also situate. Prior to October 27, 1964 there were no banking facilities in that Township. Therefore, under the provisions of 12 U.S.C. § 36(c) and of N.J.S.A. 17:9A-19, subd. B(3) only one branch, either of Sussex Bank or of Peoples Bank would be permissible in that Township.
Pending stockholder approval of Sussex Bank's capitalization increase, formal consent by Commissioner to its branch application was deferred. A meeting of the stockholders was noticed for November 5, 1964, for the purpose of that approval. Sussex Bank also applied to the Federal Reserve Board for permission to establish a branch office under Section 9 of the Federal Reserve Act, 12 U.S.C. § 321, as a member of the Federal Reserve System, and, after appropriate investigation, the Federal Reserve Bank of New York recommended to the Board of Governors of the Federal Reserve System that the application of the Sussex Bank for a branch in Wantage Township, New Jersey, be approved.
Sussex Bank first learned of the application of Peoples Bank from a National Bank Examiner, who called at the office of Sussex Bank on or about October 13, 1964. Sussex Bank protested verbally to the Examiner against Peoples Bank's application, and advised him of the pendency of its own application for a branch in the same Township. Sussex Bank also protested to the Regional Comptroller of the Currency in New York City by letter dated October 16, 1964. In his acknowledgment of receipt of that letter, the Regional Comptroller assured Sussex Bank that the "[Comments] and objections [contained in the protesting letter] will be carefully considered before a decision in the matter is reached." No opportunity to be heard on these protests was offered to Sussex Bank by Comptroller. The New Jersey Deputy Commissioner also protested the Peoples Bank application to the Regional Comptroller by letter of October 13, 1964, which advised that the application of the Sussex Bank to the Commissioner had already been approved contingent upon raising the additional capital, and that its Board of Directors had already voted to present the matter to the stockholders. Despite the foregoing, the application of Peoples Bank was approved by the Comptroller's Office, and on October 27, 1964 Peoples Bank commenced business from a branch office in a vehicular trailer located upon a supermarket parking lot in Wantage Township. Upon advice by Sussex Bank to the New Jersey Commissioner of the operation of the branch by Peoples Bank, the President of Sussex Bank was assured by the Commissioner that the approval of the Peoples Bank operation constituted a violation of the working agreement existing between the respective offices of the Commissioner and Comptroller, and that the latter would be urged to rescind the certificate which had been issued.
On September 14, 1965 Comptroller noticed a motion to dismiss the complaint under Rule 12(b), F.R.Civ.P., or in the alternative for summary judgment under Rule 56(b). In support of this motion defendant urged that the complaint failed to state a claim upon which relief could be granted; that the complaint failed to allege the existence of a justiciable controversy, and that plaintiff (Sussex Bank) lacks standing to maintain the action against the Comptroller.
On October 28, 1965 Peoples Bank moved for an order permitting it to intervene as a defendant and to file a motion to dismiss the complaint for failure to state a claim, or, in the alternative, to file an answer thereto. Leave to intervene for that ...