Goldmann, Lewis and Matthews. The opinion of the court was delivered by Goldmann, P.J.A.D.
County Trust Company, objector, appeals from a determination of the Commissioner of Banking and Insurance granting a charter to the Peoples Bank of Montvale. This case is another in a series of protracted controversies involving the Branch Banking Act of 1968 (L. 1968, c. 415), approved January 17, 1969 and effective six months thereafter, July 17, 1969.
An important aspect of the act was section 6 (N.J.S.A. 17:9A-3.1), whose effect was to prohibit affiliate banks, theretofore permissible in this State. In re Kenilworth State Bank , 49 N.J. 330, 339-340 (1967). Section 6 provided that "No officer, director or employee of any bank may be, directly or indirectly, an incorporator of another bank." This and section 1 (N.J.S.A. 17:9A-19(B)(3)), the so-called "home office protection" provision, have resulted in a race against time to gain banking advantage in communities throughout the State, and a resort to our courts to preclude approval of a banking charter, e.g., In re Kenilworth State Bank , above; In re Springfield State Bank , 107 N.J. Super. 230 (App. Div. 1969), certif. den. 55 N.J. 312 (1970); and In re Peoples Bank of Ridgewood , 109 N.J. Super. 149 (App. Div. 1970).
Peoples Bank of Montvale submitted its application for a bank charter, together with its certification of incorporation dated February 9, 1968, months before the passage of the Branch Banking Act by the Legislature and its approval by the Governor on January 15, 1969. The required statutory hearings on the application were held pursuant to
N.J.S.A. 17:9A-10 and continued over eight days, the last hearing date being April 8, 1969, at which time the hearing officer permitted oral argument. After reviewing the record, and particularly the economic feasibility study prepared by Herbert H. Smith Associates, the Commissioner concluded that (1) a home-based commercial bank in Montvale was desirable; (2) there is a substantial likelihood of a dramatic increase in population in the Montvale area which will benefit the proposed bank and all competing banking facilities in the area; (3) there is sufficient population and industrial and commercial activity in the area to justify the existence of the proposed bank, and industrial activity is likely to increase substantially within the next decade; (4) the trade area delineated in the economic feasibility study was reasonable; (5) projections of deposits were reasonable and based upon normal expectations; (6) the existing banking facilities in the primary trade area or immediately outside thereof would not be harmed by the establishment of the proposed bank, and (7) "the proposed institution will serve the public interest and * * * it affords reasonable promise of successful operation."
The Commissioner stated that it was understood that "the officers who will have control or supervision of the bank's operations, and acceptable to me, will be engaged prior to the request for a certificate of authority to commence business." On October 2, 1969 there was a continuation to ascertain the qualifications and fitness of the chief executive officer. See N.J.S.A. 17:9A-11(D)(3). In a supplementary determination dated October 24, 1969 the Commissioner found that the person proposed as president and chief executive officer of the Peoples Bank of Montvale possessed the required qualifications, experience and character.
We note that the objector failed either to produce or offer any negative evidence. Nowhere in its main brief, supplemental brief or reply brief does the objector as much as suggest that there is not substantial evidence to support the Commissioner's findings and conclusions. That being
so, his determination will not be upset, absent any showing that it was arbitrary, capricious or unreasonable, or lacked fair support in the evidence, or violated explicit or implicit legislative policies. In re Howard Savings Institution of Newark , 32 N.J. 29, 52-54 (1960); cf. Campbell v. Dept. of Civil Service , 39 N.J. 556, 562 (1969). Indeed, we give due regard to the Commissioner's expertise regarding the economic feasibility of a proposed bank. In re Kenilworth State Bank , above, 49 N.J. at 334; In re State Bank of Plainfield , 61 N.J. Super. 150, 158 (App. Div. 1960).
County Trust Company's attack upon the grant of the charter takes quite another direction. In its main brief it first contends that the law effective at the time it appealed (July 2, 1969) should be applied so as to render nugatory the Commissioner's approval of the charter application. The determination reached by the Commissioner, it is said, was not a final judgment which ended the status of the bank's incorporators, a number of whom were at the time directors and officers of Peoples Trust Company of New Jersey, of which the Montvale bank is an affiliate -- and therefore the quoted prohibition of L. 1968, c. 415, § 6 (N.J.S.A. 17:9A-3.1) was fully effective.
Approval of the charter here under attack came down on June 17, 1969, over the signature of Deputy and Acting Commissioner of Banking and Insurance Wesner. That date was well before the effective date of the Branch Banking Act of 1968, namely, July 17, 1969. Accordingly, our holding in In re Springfield State Bank, above , 107 N.J. Super. at 233-234, is dispositive of the argument now made. Pendency of the appeal did not make applicable the prohibitory section of the statute, N.J.S.A. 17:9A-3.1, which could only apply to a factual situation existing subsequent to its effective date. The chartering of an affiliate bank was not illegal at the time the charter for Peoples Bank ...