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Mutual Home Dealers Corp. v. Commissioner of Banking and Insurance

Decided: December 4, 1968.

MUTUAL HOME DEALERS CORPORATION, A CORPORATION, PLAINTIFF,
v.
COMMISSIONER OF BANKING AND INSURANCE OF THE STATE OF NEW JERSEY, DEFENDANT



Wick, J.s.c.

Wick

An order to show cause issued why defendant Commissioner of Banking and Insurance of the State of New Jersey (hereinafter called "Commissioner") should not temporarily be restrained (R.R. 4:67-2) from proceeding against plaintiff Mutual Home Dealers Corporation (hereinafter "Mutual") in conducting an administrative hearing for the purpose of deciding whether Mutual's secondary mortgage license should be revoked. N.J.S.A. 17:11 A -1 et seq. After the restraining order was signed on August 27, 1968 and a hearing date set, the Commissioner applied for an order to dissolve the restraints and to dismiss the complaint. The facts pertinent to this motion are set forth below.

On May 14, 1968, following an investigation of Mutual's lending practices, the Commissioner issued an order to show cause why the secondary mortgage license of Mutual (a licensee under the Secondary Mortgage Loan Act of 1965, N.J.S.A. 17:11 A -1 et seq.) should not be suspended, revoked or not renewed. The order, issued pursuant to N.J.S.A. 17:11 A -11, alleged that Mutual had violated various provisions of the Secondary Mortgage Loan Act and certain rules and regulations promulgated thereunder. It is not necessary for the purposes of this hearing to describe these charges in detail; suffice to say that they dealt with Mutual's alleged noncompliance with the act.

No administrative hearings have been held pursuant to the Commissioner's order for the reason that this court

issued ex parte temporary restraints on such proceedings. In its complaint regarding these restraints Mutual seeks a judgment declaring that (1) the Secondary Mortgage Loan Act is unconstitutional in certain respects, and (2) some of the grounds alleged by the Commissioner as a basis for revoking Mutual's license are ultra vires the statute. As incidental to the declaratory judgment, Mutual also seeks a restraint to prevent the administrative hearings until the questions of constitutionality and ultra vires acts are resolved.

In opposing Mutual's declaratory judgment-injunction suit, the Commissioner takes the position that the constitutional and other legal issues raised in Mutual's complaint are not substantial or meritorious and that the appropriate procedural remedy in this case is by means of an administrative hearing and, if dissatisfied thereafter, by judicial review to the Appellate Division of the Superior Court.

After reviewing the pleadings and other papers submitted by the parties and the relevant New Jersey law on this subject, I have concluded that the temporary restraints should be dissolved and Mutual's complaint should be dismissed for the reasons that the pleadings do not raise constitutional questions substantial or meritorious enough to warrant judicial interference with the administrative process at this juncture. Moreover, the evidence offered does not demonstrate sufficient irreparable harm so as to justify injunctive relief. Interstate Milk Handlers v. Hoffman, 34 N.J. Super. 356 (App. Div. 1955) certification denied 18 N.J. 496 (1955).

In order to invoke the inherent power of equity to grant injunctive relief a plaintiff must demonstrate that irreparable injury will result to his interests if the relief demanded is not granted, or that the remedy at law is inadequate. Light v. National Dyeing & Printing Co., 140 N.J. Eq. 506 (Ch. 1947). This principle of law was discussed in Interstate Milk Handlers v. Hoffman, supra, a case procedurally similar to the instant one. There plaintiff sought to

enjoin the Director of the Office of the Milk Industry from holding a hearing on an order to show cause why plaintiff dealers' licenses should not be suspended or revoked, and for a judgment declaring that the regulation of milk sales in question was invalid as in conflict with the paramount federal power over interstate commerce, and that certain administrative orders associated therewith, while generally valid, were unconstitutional when applied to these sales. The basis of the milk dealers' demand for injunction was to prevent the irreparable injury which would follow if the licenses were revoked. The relief was denied and on this question Judge (now Justice) Francis said:

"Moreover, from a practical standpoint the danger of irreparable harm resulting from an illegal order revoking the licenses is more imaginary than real. R.R. 4:88-12(a) permits application to the Appellate Division for a stay of any such order pending appeal therefrom under R.R. 4:88-8. In fact, 'when necessary, temporary relief may be granted without notice for a period not exceeding 10 days by the Appellate Division or a single judge thereof.'"

In the present case the only irreparable harm alleged by Mutual is with regard to the possibility of the loss of its license under the Secondary Mortgage Act. On the basis of the Interstate Milk Dealers case there is ...


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