Fritz, Ard and Pressler. The opinion of the court was delivered by Pressler, J.A.D.
This controversy arises under the Title Insurance Act of 1974, N.J.S.A. 17:46B-1, et seq. , which represents the first comprehensive regulation of title insurance companies doing business in this State and which requires, among other things, that rates charged by such insurers comport with filed rate schedules which have been first approved by the Commissioner of Insurance. The matter before us is the challenge by the title insurance industry to the power of the Commissioner, pending his approval of the initial filings, to require the use of pre-filing rates.
Resolution of the question here raised requires reference to several provisions of the act as well as to the essentially undisputed factual background. First, although the effective date of the act was May 29, 1975, the Commissioner was accorded the express power to suspend the operation of all or any part thereof for a period of up to 90 days thereafter.*fn1 Further, N.J.S.A. 17:46B-42(d), relating to rate filing, provides for an additional 90-day grace period. The Commissioner having exercised his authority to suspend the operation of the rate filing provisions for the full 90 days, the additional 90-day grace period provided by N.J.S.A. 17:46B-42(d) did not expire until November 26, 1975,
namely, 180 days following the stated effective date of the act.
In the meantime, and pursuant to N.J.S.A. 17:46B-46, the New Jersey Land Title Insurance Rating Bureau (Rating Bureau), appellant herein, was formed to represent 18 of the 20 title insurance companies doing business in New Jersey. Rating Bureau undertook the preparation of a rate schedule for its members, discussing its work in progress with representatives of the Department of Insurance during the summer and into the fall of 1975. Its first filing was made on October 20, technical revisions thereof were filed on October 22, and finally, on November 25, the day before the legislatively anticipated effective date of the filed rates, a substantial group of revisions was filed. Obviously the 24 hours remaining after the final filing could hardly have allowed the Commissioner to commence, no less complete, the thorough review contemplated by the act prior to his approval or disapproval of the filed rates. N.J.S.A. 17:46B-45. Accordingly, the Commissioner advised Title Bureau that although the rates were not and could not yet be approved, the title companies could nevertheless use the filed rates pending his further action. He also advised Rating Bureau that pursuant to the discretion accorded him by N.J.S.A. 17:46B-45(a), he would conduct a pre-approval public hearing on the filed rates, which as a matter of fact, represented a generally higher cost for title insurance than previously prevailed.
The public hearing commenced as scheduled on December 15, 1975. At its outset the Public Advocate, supported by other interested parties, applied to the Commissioner for suspension of the filed but not yet approved rates. The Commissioner, persuaded by the oral argument on that application, directed that
It is from that directive that Rating Bureau appeals.*fn2
In order to focus the issue, certain negative propositions must be stated. The Commissioner does not suggest that Rating Bureau has been in any way, through dilatoriness or otherwise, responsible for his inaction to date on the filed rates. Nor does Rating Bureau suggest that that inaction is the result of any dilatoriness or other abuse of discretion on the part of the Commissioner. Nor does Rating Bureau seriously argue that the Commissioner was without the inherent discretion to have reversed his initial authorization for the use of the unapproved filed rates, provided only he has the power, here challenged, to require use of the pre-filing rates. It is thus apparent that the present impasse was caused essentially by the Legislature's miscalculation of the time that would be required for ultimate approval of the initial rate filings. In that posture, as Rating Bureau correctly points out, the Commissioner had only the three possible alternatives open to him after the statutory deadline for the effective date of the new rates had passed:
1. To direct the title insurance companies to cease doing business until rate approval.
2. To permit the effectiveness of the yet unapproved filed rates.
3. To require the use of pre-filing rates.
The gross impracticality of the first of the above-stated options, which, if followed, would have ...