The opinion of the court was delivered by: BARLOW
The plaintiff Pineland State Bank (hereinafter "Pineland") is a bank organized under the laws of the State of New Jersey. Plaintiff First National Bank of Toms River (hereinafter "Toms River") is a national banking association organized pursuant to the laws of the United States. The defendant William B. Camp, Comptroller of the Currency of the United States of America (hereinafter "Comptroller"), is an officer of the Treasury Department charged with the enforcement of the laws of the United States relating to the formation and organization of national banks.
The plaintiffs here, both located in Ocean County, New Jersey, seek to set aside the preliminary approval by the Comptroller of a charter for a new national bank in Ocean County, to be named the First National Bank of Bricktown (hereinafter "Bricktown").
Following the institution of this action, and asserting that the competition to be offered by the proposed bank will cause them to suffer irreparable financial injury, the plaintiffs filed a motion for a preliminary injunction restraining the defendants from taking any further action in connection with the proposed national bank. The Comptroller, resisting the demand for injunctive relief, seeks dismissal of the complaint on the basis that it fails to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), or, in the alternative, for summary judgment in accord with the provisions of Fed. R. Civ. P. 56. The defendant Bricktown joins in the Comptroller's applications.
The facts may be summarized as follows:
The resultant hearing was held for two days, beginning October 7th, 1970, and was conducted in accordance with established federal procedures. At such hearing, the application and supporting economic data were made available for public inspection. Also, at the hearing evidence was taken and all witnesses were subject to questioning by the panel or other participants. Further, all interested parties were provided an opportunity to present additional material to the Comptroller following the hearing. Without reviewing the details of the hearing, it is sufficient to state, for the purposes of this opinion, that the application of the defendant Bricktown received unanimous recommendations of approval by the national bank examiner, the regional administrator, and the Comptroller's senior staff. As a result of the reports and recommendations made to him, as well as upon the entire record, the Comptroller, on April 14th, 1971, gave his preliminary approval to the application. Following that determination by the Comptroller, the plaintiffs instituted this action.
The complaint, in essence, requests this court to vacate the Comptroller's preliminary approval, alleging that two of the organizers of Bricktown, Robert V. Paschon and Herbert Hindin, were not acting on their own behalf but were, in fact, acting for John Giordano, Jr., and Robert Schmertz; that Mr. Giordano and Mr. Schmertz are either officers or directors of the First State Bank of Ocean County (hereinafter "Ocean County") and, as a result, that bank, its directors and shareholders, are attempting to avoid the branch banking restrictions of state and federal law by creating a new national bank as a branch or as an affiliate of Ocean County contrary to the provisions of the New Jersey Banking Act, N.J.S.A. 17:9A-3.1, as well as in violation of 12 U.S.C. § 36 of the National Banking Act.
With respect to their contentions that the approval of Bricktown's application offends the law of the State of New Jersey, the plaintiffs rely upon the language contained in N.J.S.A. 17:9A-3.1, which states:
"No officer, director or employee of any bank may be, directly or indirectly, an incorporator of another bank." [Emphasis supplied.]
The plaintiffs ignore, however, certain other provisions of New Jersey banking law which make it clear that N.J.S.A. 17:9A-3.1 is not designed to apply to the organization, as here, of new national banks.
The definitions contained in the New Jersey Banking Act of 1948 provide, in § 17:9A-1, as follows:
"As used in this act, and except as otherwise expressly ...