author: Yancey, J. C. C.

text:
    EVA GRANT, PETITIONER-APPELLEE, v. BLAZER COORDINATING COUNCIL OF YOUTH DEVELOPMENT, RESPONDENT-APPELLANT.
    Essex County Court Law Division
    Decided June 17, 1970.

      Mr. Irving Silverman for petitioner-respondent (Messrs. Jacobson and Silverman, attorneys).

      Mr. Martin B. Wallerstein for respondent-appellant (Messrs. Morgan, Melhuish, Monaghan, McCoid and Spielvogel, attorneys).
   Yancey, J. C. C.

This case is an appeal from a judgment of the Division of Workmen’s Compensation. The facts are not in dispute. Petitioner Eva Grant sustained injuries when she slipped and fell at the food preparation center of respondent-appellant Blazer Coordinating Council of Youth Development.

At the time of the accident petitioner was a trainee in the Blazer Work Program. She had been participating in this program for 1% years. Eespondent is a work-training program which is funded primarily by the Office of Economic Opportunity. As part of its entire operation respondent created the Blazer Work Training Program. This program was funded expressly to train “Title 5” students. “Title 5” is a work experience program which is an arm of the Department of Welfare of the City of Newark. The purpose of the Blazer Work Training Program was to coordinate a program in conjunction with the “Title 5” of Newark to make welfare recipients employable.

At the time of the accident petitioner was a welfare recipient. She was sent to respondent’s Blazer Work Training Program by the Department of Welfare of Newark. Most trainees in the Blazer Work Training Program were in fact referred to respondent by “Title 5” of the Department of Welfare. While trainees were in this program they received their regular assistance check from “Title 5” of the Welfare Department and an additional $44 to $50 per month for lunch money, transportation and other expenses involved in participating in the program.

Respondent is a nonprofit organization. It maintains several schools in the Newark area for the purpose of training the individuals ref erred, to them. One of their schools was designed for instruction in the preparation of food and catering. The trainees were taught how to prepare foods and how to serve them. To implement the program a lunch kitchen was opened by the food preparation section of Blazer. The restaurant so formed was not federally funded; rather, it obtained its original support from the individual staff members who contributed $33 to $35 each to the program. The monies .taken in from persons who purchased ■their luncheon at respondent’s restaurant were funneled back into the program for purchase of further foodstuffs. Eventually the food-serving program became self-supporting.

At the time of the injury petitioner was a trainee in Blazer. She slipped and fell while serving tables at respondent’s restaurant. Her total income at that time consisted of $84 a month from the Newark Department of Welfare, plus an additional $44 a month she received for the expenses incurred while working in the program. The only other income petitioner received was tips which she made while serving lunch at the Blazer Food Preparation Center. At a hearing in the Division of Workmen’s Compensation there was an award of temporary and permanent disability.

Appellant’s first contention is that an employer-employee relationship did not exist between it and petitioner. This relationship is the essential basis of recovery under the Workmen’s Compensation Law. Heget v. Christ Hospital, 26 N. J. Misc., 189 (C. P.1948). Krause v. Hamline University, 243 Minn. 416, 68 N. W. 2d 124 (Sup. Ct. 1955); 1A Larson, Workmen's Compensation Law, §47.43(a) (1967). A number of tests are used to determine whether an employer-employee relationship exists.

The payment of wages may be one of the elements of proof in determining whether a relationship of employer-employee exists at a particular moment for the purposes of Workmen’s Compensation, but it is not a controlling factor. The Court will also consider the factors of hiring, control, and power of dismissal, with control being the single most important factor. [Silagy v. State of New Jersey and County of Mercer, 101 N. J. Super. 455, 459 (Cty. Ct. 1968), aff’d 105 N. J. Super. 507 (App. Div. 1960)]

1A Larson, op. cit., § 44.00.

In the present ease there is no conclusive evidence that petitioner received any sort of wages from appellant. Quite to the contrary, appellant is a nonprofit organization designed as a training school for unemployable welfare recipients. Tts function was not to be in the restaurant business but to operate a training school. Nevertheless, our Compensation Act does not limit the term “employee” to narrow, common law concepts or ordinary wage earners because it also “includes all natural persons * * * who perform services for an employer for financial consideration.” N. J. S. A. 34:15-36. Gross v. Pellicane, 65 N. J. Super. 386, 394 (Cty. Ct. 1961). “Financial consideration” has been held to include anything of value to be received in return for services rendered, but not hope of future favors. N. J. S. A. 34:15-7, 36. Hawksford v. Steinbacher Packing Co., 73 N. J. Super. 175 (Cty. Ct. 1962), aff’d 80 N. J. Super. 129 (App. Div. 1963) ; 1A Larson, op. cit., § 47.43(a), at 784-5. Food and lodging were held to constitute “financial consideration” in the case of Johnson v. Industrial Commission, 88 Ariz. 354, 356 P. 2d 1021 (Sup. Ct. 1960). In Johnson prisoners from the county jail were loaned to a private corporation to perform work for it. They were at all times under the direction of the corporation’s employees. The prisoners received no wages but were provided with food, lodging and sundries while they worked. Those prisoners who volunteered for such work were given three days’ credit on their sentences for each day they worked for the corporation. The court held that such a prisoner was an employee of the corporation while working, and any injury he received while working was compensable under the Workmen’s Compensation Act.

The landmark decision in New Jersey, Heget v. Christ Hospital, 26 N. J. Misc. 189 (C. P. 1948), held that a student nurse who performed services for a hospital and who in exchange received room and board while participating in a training program was an "employee” within the meaning of the compensation act. In Heget the student nurses were required to participate in a training program for three years, during which time they were to receive no wage compensation except room, board and incidentals. Their duties included being assigned to patients to take temperatures and to give bed pans, enemas, hj'podermics, medicines and such other treatments as were necessary. Similarly in the ease at bar, petitioner worked at the food preparation center as a waitress and was required to serve people who came into the restaurant as well as the trainees at appellant’s school. In addition, she at various times would also collect cash at the register from the customers of the restaurant. The Workmen’s Compensation Division held that Heget v. Christ Hospital, supra, controlled this matter and found that petitioner was an employee of appellant at the time of her injury and was therefore entitled to workmen’s compensation. This court is in agreement with that ruling. Although she received no wages from appellant, petitioner was always subject to the control of the supervisors of the Blazer Training Program and was always required to follow their directions. While she performed the services of a waitress, she received $44 a month from appellant to cover her expenses. In addition, petitioner was given instructions in the serving and preparation of food.

The public policy of the Workmen’s Compensation Act calls upon the courts to construe and apply the act liberally in order to bring as many cases as possible within its coverage. Hannigan v. Goldfarb, 53 N. J. Super. 190 (App. Div. 1958); Biglioli v. Duratest Corp., 44 N. J. Super. 93 (App. Div. 1957); Gross v. Pellicane, 65 N. J. Super. 386 (Cty. Ct. 1961). In keeping with this policy, I find that petitioner’s position as a trainee in the Blazer Training Program meets the technical requirements of the term "employee,” as used in the Workmen’s Compensation Act.

Appellant further contends' that it cannot be considered an employer of petitioner because it is a nonprofit organization. The restaurant has become self-sustaining by using the cash it receives from its customers to cover the costs of operating the school. Bearing this in mind, the test is still not whether the employer is in business for profit but whether it is in business at all. If the employer supplies a product or service, it is immaterial what it does with its profits, or whether the employer expects or gets any profits at all. 1A Larson, op. cit., § 50.44(a), at 903.

Appellant’s second argument is that the Compensation judge erred in the computation of the award. The normal unit by which benefits are measured consists of a fixed statutory percentage, usually between one-half and two-thirds of "average weekly wage.” The computation of average weekly wage is frequently based upon actual wages during the preceding year, if the claimant’s employment has been substantially continuous. 2 Larson, op. cit., § 60.00, at 88.175. In New Jersey, the payment of workmen’s compensation is usually based upon a contract of employment of which the terms of the act are a part. If the workman is injured, he is entitled to be compensated for such injury-under the act, but based largely on his rate of pay. N. J. S. A. 34:15-44. DeLorenzo v. Newark Board of Comm’rs, 134 N. J. L. 7 (E. & A. 1946).

The Division found that petitioner received a gross of $138 a month for participating in the training program, and gave her an award based on the constructed wages of $39.54. The $128 a month consisted of a regular welfare payment of $84 a month, which petitioner received prior to her participation in the training program, and an additional $44 a month which she was paid only during the time she was in the program in order to cover the extra expenses she incurred while participating in the program. Appellant contends that the $84 a month welfare payment should not have been used as a basis for the compensation award.

This court cannot see how a welfare payment can be considered to be remuneration or wages. Petitioner received the $84 a month from the Newark Department of Welfare. This was not -i payment for services rendered by petitioner but rather a transfer payment made by the government to insure an individual of a subsistence living.

The term “wages” is defined in Blades Law Dictionary (4th ed. 1951) as

A compensation given to a hired person for his or her services; the compensation agreed upon by a master to be paid to a servant, or any other person hired to do work or business for him. * * * Every form of remuneration payable for a given period to an individual for personal services, including salaries, commissions, vacation pay, dismissal wages, bonuses and reasonable value of board, rent, housing, lodging, payments in kind, tips, and any other similar advantage received from the individual’s employer or directly with respect to work for him. [at 1750].

The welfare payment could not by any stretch of the imagination be considered wages paid to petitioner by appellant Blazer Coordinating Council of Youth Development. She did not perform any service for the Welfare Department, nor was any advantage received by it while petitioner was in this program. Since a workman’s wages or rate of pay is used as the basis for making a workmen’s compensation award, I am of the opinion that the monthly welfare payment should not have been used in computing the compensation award. See DeLorenzo v. Newark Board of Comm’rs, supra; 2 Larson’s Workmen’s Compensation Law (1969) § 60.00.

In a compensation case, the entire philosophy of the legislation assumes that the worker is in a gainful occupation at the time of injury. The essence of compensation protection is a restoration of a part of the loss of wages which are assumed to have existed.” 1A Larson, op. cit., § 47.10, at 754.

This court therefore finds that the only income petitioner received which can be considered as financial consideration or wages paid by appellant, is the $44 a month she received from appellant for expenses plus the tips she received while waiting on tables. I therefore determine that petitioner’s constructed wages were $17 per week ($11 per week for expenses plus $6 per week in tips.)

In view of the foregoing, I make the following determinations :

1. Petitioner was in the employ of appellant on October 25, 1966, on which date she sustained personal injury when she slipped on some grease on appellant’s floor and fell. She is therefore entitled to compensation under the statute, N. J. S. A. 34:15-1.

2. Petitioner’s wages were $17 per week, which she received for expenses from appellant, plus tips, making the temporary and permanent disability compensation rates $12 and $12 per week, respectively.

3. The permanent disability resulting from said accident is orthopedic in nature, involving petitioner’s back and right leg, and neursopsychiatric in the nature of an anxiety state, and the extent thereof I find and determine to be 10% loss of use of the right leg (27)4 weeks), and 4% of total, orthopedic and neuropsychiatric (22 weeks), aggregating 49)4 weeks at $12 per week, amounting to $594.

The temporary disability, resulting from said accident for the period of November 1 to December 20, 1966, seven weeks at $12 per week, amounts to $84.

Appellant is to pay the reasonable bills of Dr. Chase and Dr. Washington, upon presentation of itemized bills, for medical care and treatment, and petitioner’s attorney, Louis C. Jacobson, a counsel fee of $300, and the stenographic fees involved of $90.

Petitioner will pay Dr. Sidney Keats $25 for his examination and report and Dr. Samuel L. Pollock $25 for his examination and report.


source: Caselaw Access Project

author: Collester, J. A. D.

license: Public Domain

text:
    WILLIAM J. B. STOKES, II, HELEN BENDLEY, ANTHONY N. STEFANELLI, HELEN M. WEIGEL, AND MILTON L. CRANSTOUN, PLAINTIFFS-APPELLANTS, v. TOWNSHIP OF LAWRENCE, A MUNICIPAL CORPORATION, ET AL., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued June 1, 1970
    Decided July 7, 1970.

      Before Judges Conford, Colt,ester and Kolovsky.

      Mr. Theodore T. Tams, Jr. argued the cause for appellants.

      Mr. Ivan G. Bash argued the cause for respondents Charles E. Peterson, Jr., Peterson’s Nurseries and Garden Markets, Inc., and Charles E. Peterson, Jr., t/a Peterson’s Garden Market.

      Mr. Joseph L. Stonaker filed a statement in lieu of brief for respondents Board of Adjustment of the Township of Lawrence and Mark A. Cermele, Building Inspector.

      Mr. Thomas G. Jamieson, Jr. filed a statement in lieu of brief for respondent Township of Lawrence (Messrs. Jamieson, Walsh, McCardell and Moore, attorneys).
   The opinion of the court was delivered by

Collester, J. A. D.

Plaintiffs appeal from a judgment of the Law Division dismissing their complaint to set aside a variance granted by the Township of Lawrence. The matter is submitted to us on an agreed statement of facts pursuant to R. 2:5-3(c).

Peterson’s Nurseries and Garden Markets, Inc. (Peterson) applied to the Board of Adjustment of the Township of Lawrence for recommendation of a variance, pursuant to N. J. S. A. 40:55-39 (d), to use its premises for the sale of farm and garden products not produced thereon. The property is located in a residential zone where such use is prohibited. Following a hearing on November 8, 1967 the board adopted a resolution recommending that the variance be granted. The township committee considered the recommendation at a meeting on December 6, 1967 and remanded the matter to the board for the purpose of securing additional evidence as to certain details of the application. The board held a special meeting on January 24, 1968, as a result of which it again adopted a resolution recommending that the variance be granted. At a meeting held on February 7, 1968 the township committee adopted a resolution granting the variance subject to certain conditions.

The conditions set forth in the resolution listed the kind of garden and farm products which the applicant could sell and limited the period of operation from April 1 to November 1 during the daylight hours. They provided for a buffer strip, an area for the storage of products and off-street parking facilities, and prohibited the display of merchandise (other than nursery stock) except within a greenhouse. The resolution required the applicant to eliminate an existing nonconforming garden market use, to obtain from two record property owners a release in recordable form of their interest in that use, and to remove a structure located on the premises. It provided that the applicant would be given 60 days to submit the release to the township attorney, or within the 60-day period to submit evidence of the institution of legal proceedings to determine the rights, if any, of the other property owners in the nonconforming use.

Plaintiffs, neighboring property owners, were present and represented by counsel at all of the meetings for the purpose of contesting the application, and their objections to the variance were noted. Vo publication of a notice of the township committee’s resolution, provided for under R. R. 4:88-15(b) (3), now R. 4:69-6(b) (3), was ever made.

On March 25, 1968 p’aiutiffs brought an action in lieu of prerogative writs against the township attacking the grant of the variance. Thereafter the township served a notice of motion, returnable May 3, to dismiss the complaint on the ground that Peterson, alleged to be an indispensable party, had not been joined in the action. The hearing on the motion was carried pending the filing of an amended complaint. On April 22, prior to the hearing on the motion, the township committee adopted a resolution amending the resolution granting the variance to include in the conditions attached to the variance permission to sell one specific item which had been omitted from the list recommended by the board of adjustment.

On May 20, 1968 plaintiffs filed an amended complaint joining as parties defendant the township, Peterson, the board of adjustment, and Mark A. C'ermele, the township building inspector.

On September 30, 1968, after all defendants had filed their answers, Peterson moved for summary judgment on the ground that the amended complaint joining it as a party defendant had not been filed within the time limited by R. R. 4:88-15(b) (3). After hearing argument the court filed a letter opinion in which it ruled that the township’s motion to dismiss the original complaint should be granted because of plaintiffs’ failure to join Peterson, an indispensable party, as a defendant, and that Peterson’s motion for summary judgment as to the amended complaint should be granted because the amended complaint was not filed within 45 days after plaintiffs knew of the township committee’s action granting the variance. Following the entry of judgment plaintiffs appealed.

Contrary to appellants’ argument, we agree with the trial court that Peterson, the successful applicant, was an indispensable party in the action to set aside the grant of the variance. Peterson had a real and substantial interest in the subject matter of the action, and a judgment could not justly be made without adjudging or necessarily affecting his interest. See Allen B. Du Mont Labs., Inc. v. Marcalus Mfg. Co., 30 N. J. 290, 298 (1959); Sturmer v. Readington Tp., 90 N. J. Super. 341, 343 (App. Div. 1966).

Plaintiffs argue that the court erred in granting Peterson’s motion for summary judgment on the ground that their amended complaint adding Peterson as a party defendant had not been served within the 45 days limited by R. R. 4:88-15. The trial court had held that since plaintiffs had actual knowledge of the township committee’s action on February 7, 1968, the limitation period began on that day, citing Riedel v. Sheeran, 73 N. J. Super. 105 (Law Div. 1962).

R. R. 4:88-15 required that proceedings in lieu of prerogative writs be commenced within 45 days of the accrual of the right to review, except that under (b) of the rule review of a resolution by a governing body approving a recommendation made by the board of adjustment may not be commenced after 45 days from the publication of a notice once in the official newspaper of the municipality or a newspaper of general circulation in the municipality.

In granting Peterson’s motion for summary judgment the court observed that nearly four months elapsed before service of the amended complaint apprised Peterson that the variance granted was disputed, and that during this period Peterson, presumably relying upon the authority conferred upon it by the variance, had significantly altered its position by making substantial improvements upon the premises. Riedel v. Sheeran, supra, held that in the absence of publication, the 45-day period of limitation within which to seek a review begins running from the date of actual knowledge by the party of the adoption of the resolution.

In Toutphoeus v. Joy, 81 N. J. Super. 526 (App. Div. 1963), this court held that an action to set aside a variance by a board of adjustment was commenced within the time limitation of R. R. 4:88-15 when the complaint was filed 42 days after newspaper publication of the board’s decision, even though it was not filed until more than 45 days after plaintiffs had actual knowledge of the board’s decision. The court stated that it was not called upon to decide the correctness of the decision in Riedel v. Sheeran because there was never any publication of the municipal board action in that case, whereas there was in the Toutphoeus case. In a case where publication had occurred, the rule expressed in Riedel was not to be followed. The court further said in Toutphoeus that the Riedel decision represented a departure from the plain language of R. R. 4:88-15(b) upon which members of the bar had a right to rely, and that the court’s reservation in passing judgment on the correctness of the decision was due to judicial restraint rather than any tacit approval.

Riedel ignored the plain language of R. R. 4:88-15(b)(3). We see no justification for adoption of the rule expressed in that case, the correctness of which was seriously questioned in Toutphoeus v. Joy. In our view, an objector, even though having actual knowledge of the grant of the variance, is justified in relying on the provision in the rule fox publication of notice of the municipal decision and in holding up his action at least for a reasonable time with the expectation of filing his complaint within 45 days after such publication. We need not here express any view as to a situation where an objector with actual knowledge of a grant of variance waits an unreasonable period of time for a publication which never takes place before bringing his action.

In the instant case we think that plaintiffs could properly have withheld their action until they ascertained that a condition precedent for the grant of the variance had been complied with, viz., the delivery by Peterson of the release obtained from the two property owners. Moreover, in view of their opposition to the application expressed before both municipal bodies they could reasonably anticipate that notice of the township’s final action would be published in accordance with the rule.

Instead of waiting, plaintiffs acted promptly. They filed their original complaint against the township 36 days after the variance was conditionally granted and 28 days before the terms of the variance were amended by the township committee, presumably at Peterson’s request. While plaintiffs failed to join Peterson as a party defendant in the original complaint because of a mistaken belief that Peterson was not a necessary party, we find it difficult to believe that Peterson was not aware of the action instituted by its neighbors, who had objected to the application for the variance at all meetings of the board of adjustment and the township committee.

We are satisfied that it would be a manifest injustice if plaintiffs were not permitted to have their day in court. We hold that the trial court erred in dismissing their action as untimely. The judgment entered in the Law Division is reversed and the case is remanded for a trial on the merits.


author: Goldmann, P. J. A. D.

text:
    IN THE MATTER OF THE APPLICATION OF PEOPLES BANK OF MONTVALE FOR A CHARTER FOR A BANK TO BE LOCATED AT 80 CHESTNUT RIDGE ROAD, IN THE BOROUGH OF MONTVALE, COUNTY OF BERGEN AND STATE OF NEW JERSEY. COUNTY TRUST COMPANY, OBJECTOR-APPELLANT, v. HORACE J. BRYANT, JR., COMMISSIONER OF BANKING AND INSURANCE OF THE STATE OF NEW JERSEY AND PEOPLES BANK OF MONTVALE, RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued March 2, 1970
    Decided July 14, 1970.

      Before Judges Goldmann, Lewis and Matthews.

      Mr. Edwin C. Landis, Jr. argued the cause for appellant (Messrs. Meyner and Wiley, attorneys; Mr. John R. Kelly, of counsel; Mr. Thomas D. Hogan, on the brief).

      Mr. Peter G. Banta argued the cause for respondent (Messrs. Winne & Banta, attorneys).

      Mr. Arthur J. Sills, Attorney General, filed a statement in lieu of brief on behalf of the Commissioner of Banking and Insurance (Mr. Joel L. Shain, Deputy Attorney General, of counsel and on the brief).
   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 “Ho 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 populaton 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 bo 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, 29 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 A. 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 of Montvale was approved. See National Community Bank of Rutherford v. Howell, 106 N. J. Super. 317, 322 (App. Div. 1969), citing In re Kenilworth State Bank, above.

Notwithstanding the decision in the Springfield State Bank case, County Trust Company maintains that we should apply N. J. S. A. 17:9A-3.1 in resolving this appeal. It relies particularly on Whitney Nat’l Bank in Jefferson Parish v. Bank of New Orleans & Trust Co., 211 F. Supp. 576 (D. D. C. 1962), aff’d 116 U. S. App D. C. 285, 323 F. 2d 290 (1963), rev’d on other grounds, 379 U. S. 411, 85 S. Ct. 551, 13 L. Ed. 2d 386 (1965), and the subsequent litigation in Whitney Nat’l Bank in Jefferson Parish v. James, 189 So. 2d 430 (La. Ct. App. 1966), cert. den. 249 La. 759, 191 So. 2d 140 (Sup. Ct. 1966), where the extremely complex factual situation is well summarized.

The case before us is clearly distinguishable on several grounds. First, the Commissioner here, unlike the Comptroller of Currency in Whitney, considered the public policy underlying the new act, the matter being raised in the record. Second, an affiliate bank was not, at the date of the charter approval here in question, in contravention of our banking laws, whereas the authorization given the bank in Whitney was clearly contrary to Louisiana’s then effective branch banking law. Indeed, that bank was a subterfuge for indirectly controlling an illegal affiliate bank by utilizing the guise and nomenclature of a branch bank, while here Peoples Bank of Montvale was a permissible affiliate bank designed to be independently structured and operated. And third, the Louisiana statute had no future effective date as did our Branch Banking Act of 1968, and so there was no grace period to permit of the disposition of pending matters. Whitney should be contrasted with First Nat’l Bank in Billings v. First Bank Stock Corp., 306 F. 2d 937 (9 Cir. 1962).

On analysis, County Trust Company’s main brief is, at bottom, devoted to the validity of the affiliate relationship existing between Peoples Bank of Montvale and Peoples Trust of New Jersey, a matter settled by our Supreme Court in the Kenilworth State Bank case, 49 N. J. 330. It was legally not disqualifying that Peoples Trust was closely involved in the organization of the Montvale bank as a sponsoring bank. Without question, the nature of the affiliate relationship was a matter for consideration by the Banking and Insurance Commissioner, Applicant Peoples Bank of Montvale disclosed at the very onset of the hearings the fact that the new bank would be an affiliate of Peoples Trust. The exact interests of the incorporators and Peoples Trust in stock distribution were disclosed in the testimony of Edward A. Jesser, Jr., president of Peoples Trust. The subscription agreement was received in evidence and testified to by Jesser and Kenneth C. Eisher, executive vice-president of Peoples Trust. The objectors were allowed to question the applicant’s witnesses at length about the affiliate relationship. There having been a full disclosure and a complete opportunity afforded to explore the relationship of the officers and directors of Peoples Trust to the new affiliate, there can be no substance in any argument that there was resort to a subterfuge. See National Community Bank of Rutherford v. Howell, above, 106 N. J. Super. at 322.

County Trust Company also contends that since the incorporators of the Montvale bank are not the “true and only parties in interest,” as they asserted in their affidavits presented in connection with the charter application, we should declare the Commissioner’s approval null and void. The basis of this argument is N. J. S. A. 17:9A-9 which requires that

A. The certificate of incorporation of every bank and savings bank shall be submitted to the commissioner within 60 days after its execution, together with an affidavit made by each of the incorporators, setting forth:
v * * # ❖ * * *
(3) that, except as otherwise stated in the affidavit, the incorporators are the true and ouly parties in interest; * * *

The situation with respect to the affidavits in this case is identical to that in National Community Bank of Rutherford v. Howell, above, decided July 1, 1969, after the Peoples Bank of Montvale charter had been approved. The affidavits filed with the Commissioner in Howell stated that the affiants were each “acting on [their] own behalf as an incorporator of the proposed bank and to [their] knowledge and belief the incorporators * * * are the true and only parties in interest.” As fully developed at the hearing in that case, the fact was that the incorporators contemplated, and soon after entered into, a contract with Peoples Trust of Bergen County (the real sponsor of the applicant bank, which would be an affiliate thereof) for assignment to the shareholders of Peoples Trust of an aggregate of not less than 53% of the common capital stock of the applicant bank. Such, too, was the case here. The Howell court held that there was thus an “inexcusable falsity” in the affidavits, not to be condoned by the court either in that case or as a precedent for practice in other cases. However, this was held not to he fatal to the application, for

* * * the statute 'loos not require substantively that the incorporators shall be the only parties in interest, but only that the affidavit shall reveal whether or not they are. The true fads were developed in full on the hearing before the Commissioner. Neither he nor the objector was pr ¡judicially misled by the affidavits. [106 N. J. Super. at 322]

And this was precisely the siination in the present case. There is no allegation or evidence that either County Trust Company, as objector, or the Acting Commissioner was misled as to the true relationship of the incorporators to the bank.

This brings us to County Trust Company's supplemental brief, addressed to events subsequent to the approval of the charter and the filing of its original brief and appendix with this court on September 17, 1969. The supplemental brief was filed pursuant to our order of October 29, 1969 granting the objector’s motion to supplement the record and for leave to file such a brief.

As noted above, the charter approval given by Acting Commissioner Wesner included the reservation that the officers who would have control or supervision of the Montvale bank’s operations, and who were “acceptable to me, will be engaged prior to the request for a Certificate of Authority to commence business.” Pursuant to that reservation, and as required by statute, the applicant incorporators sought to qualify Peter H. Christensen as president and chief executive officer of the proposed bank. The matter was considered at a so-called “continuation hearing” held October 2, 1969.

On September 30, 1969 County Trust Company, through its present attorneys, wrote Deputy Commissioner Wesner requesting that the incorporators of Peoples Bank of Montvale, 44 in number, be produced at the scheduled October 2 hearing. The purpose was “to inquire as to the truth or falsity of the statements contained in the affidavits of the incorporators,” especially as they related to the matter we have discussed above, namely, that the incorporators were the “true and only parties in interest.” No such request had ever been made during the pendency of the hearings on the application for the charter itself, a period extending from May 14, 1968 to April 8, 1969. After argument at the beginning of the October 2 hearing, Deputy Commissioner Wesner denied the request, and that denial was confirmed in the formal decision of the Commissioner dated October 24, 1969.

The objector’s last-minute request was not timely. It now argues that the October 2 hearing for the purpose of qualifying Christensen actually constituted part of the application for the bank charter. Clearly, that is not so. The hearings on the bank charter and the hearing to qualify Christensen were two entirely different matters. Indeed, in approving the charter the Commissioner had expressly reserved for subsequent determination the qualifications of the officers to be engaged by the Montvale bank, a procedure expressly approved in National Community Bank of Rutherford v. Howell, above.

There was nothing which constrained the objecting bank from requesting that the incorporators be produced during the extended hearings on the charter application, as was done in In re Hamilton State Bank, 106 N. J. Super. 285 (App. Div. 1969). Instead, and obviously inspired by the decision in that case, the objector sought to recover lost ground by making its ex parte application that the Peoples Bank of Montvale, on less than 24 hours’ notice, produce 44 incorporators, and this without an opportunity to be heard on the merits of the application. One can only view the request as a delaying tactic.

Entirely aside from what we have said, the offer of proof made by the attorney for County Trust Company was nothing more than what he had already indicated in his September 30 letter, namely, to determine if the incorporators’ affidavits were true or false. As the Commissioner properly observed, this would not change any of the material facts in the record which were the basis of his earlier approval of the charter. The affidavits were false, but there was no prejudice since the true facts had been fully developed at the charter hearings, and neither the Acting Commissioner nor the objector was prejudicially misled by the affidavits. National Community Bank of Rutherford v. Howell, above, 106 N. J. Super. at 322. Incidentally, the application and arguments of the objector were silent as to the fact that the testimony of 12 of the incorporators, who were also proposed as directors, had been taken at the charter hearings. As witnesses, they were available for the kind of questioning that County Trust Company now claims it wanted to employ at the October 2 hearing.

A second argument advanced in the supplemental brief of the objector is that the hearings which culminated in the decision of June 17, 1969 did not comply with N. J. S. A. 17:1-8.8. That section of the statute provides:

Any hearing- pursuant to this Title may be held before the commissioner, or before any deputy commissioner or any employee of the department authorized by the commissioner for such purpose. Any such person, other than the commissioner, shall report his findings, in writing, to the commissioner with or without recommendation. Such report shall be submitted to the party or parties to the hearing who shall be entitled to file exceptions thereto prior to the commissioner’ll determination. Such report, if adopted by the commissioner, may be the basis of any determination made by him. The commissioner may dispense with the preparation of such report and determine the matter upon the record presented, allowing the party or parties to the hearing the opportunity to file briefs or present oral argument prior to his determination. * * *”

The hearings on the charter application were conducted by Deputy Commissioner Wesner. County Trust Company requested and was granted oral argument before him at the April 8, 1969 hearing. Others who participated were similarly afforded an opportunity for summation. The decision of June 17, 1969 was rendered by Wesner, not only as Deputy but also as Acting Commissioner of Banking and Insurance. Thus, the decision to grant the charter was rendered by the very person who heard the evidence and before whom final arguments were made. We fail to see how what was done did not comply with N. J. S. A. 17:1-8.8. County Trust Company, through its attorney, cannot complain, for it did have an opportunity to make “an impressionable contact with the powers of decision.” Fifth Street Pier Corp. v. Hoboken, 22 N. J. 326, 337 (1956).

We are referred by the objector to the Administrative Procedure Act of 1968 (L. 1968, c. 410; N. J. S. A. 52:14B-1 et seq.), and particularly N. J. S. A. 52:14B-10(c). That statute cannot apply to the charter hearings because N. J. S. A. 52:14B-13 states that nothing in the act shall be deemed to affect any agency proceedings initiated prior to the effective date thereof (September 1, 1969). Nor can it apply to the October 2, 1969 hearing because the determination of the qualification of the chief executive officer dates from the time of the filing of the Acting Commissioner’s decision on June 11, 1969, when that specific issue was reserved for further hearing and determination.

Although County Trust Company argues that it did not have an opportunity to submit oral argument or a brief to the Commissioner, it did address a letter memorandum to him on October 23, 1969. The loiter did not argue the issue of Christensen’s qualifications, the subject of the October 2 hearing, hut rather the question as to the applicability of the statute to all proposed officers. That the letter memorandum did have an eifeet is demonstrated by the fact that the Commissioner, in his decision of October 24, adopted the bank’s argument that there would have to be hearings as to all other officers. To that extent, he modified the preliminary determination made by Deputy Commissioner Wesner at the October 2 hearing when he said he would require that only the chief executive officer be produced for bearing and approval.

Finally, the supplemental brief argues that the Commissioner must examine all proposed officers as to their qualifications, experience and character, before issuing his approval, and clearly before issuing a certificate of authority, citing the requirements of N. J. S. A. 17:9A-11(D) (3).

As to the first part of that argument, National Community Bank of Rutherford v. Howell, above, is dispositive. We there observed that

* * * the statute does not necessarily call for a hearing and determination before approval of the charter of the qualifications of all operating officers eveuUinlly selected. The act calls for a hearing in respect, of qualifications of “the proposed officers,” etc. If, for reasons of practicality familiar to the Commissioner as an expert, less than all the eventual operating officers had been selected by applicant by the close of the hearing, we regard it as not contrary to the statute, sensibly construed, to permit the Commissioner to defer Ms investigation and approval in this regard in respect of those not yet selected. However, the act clearly contemplates that a hearing on the qualifications of all eventual officers should be held on notice to all parties in interest and a favorable determination made thereon before the bank is allowed to open for business. We assume this will be done in this case. [106 N. J. Super. at 323]

With regard to the examination and approval by the Commissioner oí all proposed officers before issuing his certificate of authority, that is exactly what the Commissioner directed be done here when he handed down his determination of October 24, 1969.

Binding no merit in any of the points raised by the objecting bank, we affirm.


author: Lewis, J. A. D.

text:
    IN THE MATTER OF THE APPLICATION OF THE SUMMIT AND ELIZABETH TRUST COMPANY FOR A BRANCH BANK TO BE LOCATED AT THE INTERSECTION OF MOUNTAIN AVENUE AND THE RAHWAY VALLEY RAILROAD, SPRINGFIELD TOWNSHIP, UNION COUNTY, NEW JERSEY.
    Superior Court of New Jersey Appellate Division
    Argued June 15, 1970
    Decided July 14, 1970.

      Before Judges Goldmann, Lewis and Matthews.

      Mr. Stuart L. Pachman and Mr. Jerome C. Eisenberg argued the cause for appellant Springfield State Bank (Messrs. Clapp & Eisenberg, attorneys).

      Messrs. Wilentz, Goldman & Spitzer, attorneys for appellant The National State Bank did not argue but filed a brief (Mr. Barry D. Maurer, of counsel).

      Mr. Hugo M. Pfaltz, Jr. argued the cause for respondent Summit and Elizabeth Trust Company (Messrs. Bourne and Noll, attorneys).

      Mr. George F. Kugler, Jr., Attorney General, attorney for the Commissioner of Banking and Insurance of New Jersey, did not argue but filed a statement in lieu of brief (Mr. T. Robert Zochowski, Deputy Attorney General, of counsel).
   The opinion of the court was delivered by

Lewis, J. A. D.

Springfield State Bank (Springfield) appeals from an order of the Commissioner of Banking and Insurance (Commissioner) approving the application of the Summit and Elizabeth Trust Company (Summit) for a branch office in the Township of Springfield (township).

Springfield contends in substance that (1) Summit is prohibited from establishing a branch bank in the township by virtue of the grant of ichome office protection” by N. J. S. A. 17:9A-19(B) (3); (2) in any event Springfield, as a newly chartered bank in the township, is entitled to that protection because it would have been the first of the two to open for business “but for the entanglements of the legal processes”; (3) Commissioner Horace J. Bryant, Jr., about to be replaced by Commissioner Robert L. Clifford on the Governor’s inauguration day (January 20, 1970), was without' authority to grant the Summit application, and (4) the Commissioner’s decision is not supported by the evidence, he abused his administrative discretion and failed to exercise his presumed expertise.

The National State Bank (National State), also an objector to the Summit application, appeals from the same order of the Commissioner, advancing in essence point (4) raised by Springfield. These appeals were consolidated for our review.

This protracted controversy focuses upon the Branch Banking Act, L. 1968, c. 415, § 1 et seq., which was adopted on January 17, 1969 to take effect on July 17, 1969. N. J. S. A. 17:9A-3.1 et seq. That statute divided the State into three banking districts and authorized branch banking within those districts subject to certain requirements. By its terms the act precluded the prospective granting of charters (after July 17, 1969) to “affiliate” or “chain” banks, theretofore permissible entities in the State, see, e. g., In re Kenilworth State Bank, 49 N. J. 330, 339-340 (1967), since N. J. S. A. 17:9A-3.1 provides, “No officer, director or employee of any bank may be, directly or indirectly, an incorporator of another bank.” It is clear, however, that the new enactment granted so-called “home office protection” to pre-existing affiliate banks. It declares in pertinent part that no bank may establish a branch, outside of the municipality in which it maintains its principal office, in any other municipality in which another banking institution “has its principal office.” N. J. S. A. 37:9A-19(B)(3). The crux of the instant controversy is whether Springfield, within the intent and meaning of the act, has home office protection to the exclusion of a Summit branch office.

SPKiTsr&EXELffis Position

In December 3967 Springfield (an affiliate bank with interlocking directors in common with The First State Bank of Union) applied to the Commissioner for charter approval of a home office' bank in the township. Statutory hearings were held on February 1, May 2 and July 23, 1968. National State was the only objector that participated in the proceedings. The Commissioner was aware of the imminence of probable' adoption of a Branch Banking Act, which was a foreshadowed event, as indicated by letter from Summit to the Commissioner requesting that consideration of the Springfield application be deferred awaiting anticipated legislation amending the Banking Act. This request was rejected by the Commissioner, who expressed the view that a refusal to consider pending applications would be unfair.

On February 20, 1969 the Commissioner approved a charter grant to Springfield conditioned only upon the bank’s engaging an acceptable executive officer prior to the issuance of a certificate of authority to commence business and that the bank become a member of the Federal Deposit Insurance Corporation. In reaching his decision the Commissioner found that the trade area was in excess of 24,000 and that the proposed bank office on heavily trafficked Route 22 would “serve the public interest” and afford “reasonable promise of successful operation.”

Summit, National State and Union Center National Bank (Union Center) appealed, and a stay of the operation of the Commissioner’s decision was obtained from this court. Subsequently, National State and Union Center, both national banks, were granted branch bank approval by the Comptroller of Currency. Springfield then sought to vacate the stay, which was denied. Summit not only opposed the motion, but affirmatively and successfully moved for a continuance of the stay pending the appeal.

In short, Springfield was involuntarily and effectively precluded from completing the procedures which were necessary before obtaining a certificate of authority to conduct business. At this juncture we note that under N. J. S. A. 17:9A-17 a bank charter may be forfeited by the Commissioner upon failure to obtain a certificate of authority within six months from the date of the Commissioner’s approval of its certificate of incorporation or upon failure to commence business within six months after the issuance of such certificate of authority. These periods are subject to extension by the Commissioner for periods not to exceed a total of 12 months.

Argument on those appeals was heard before this court on October 14, 1969 and, within a week thereafter, we affirmed the grant of the charter to Springfield, In re Springfield State Bank, 107 N. J. Super. 230 (App. Div. 1969), making this observation.

* * * the six-month delay in the effective date of the legislation could have had no other purpose than to permit the Commissioner to dispose of matters then pending, on the merits and in light of then existing law. (at 234)

The Supreme Court denied certification on January 13, 1970. In re Springfield State Bank, 55 N. J. 312 (1970). Accord, In re Peoples Bank of Montvale, 111 N. J. Super. 141 (App. Div. July 14, 1970).

Summit’s Position

On May 5, 1969, after the adoption of the Branch Banking Act and while the charter grant to Springfield was under appellate review, Summit formally applied to the Commissioner for the approval of a branch bank in the township. Hearings on its application were conducted on November 14 and December 4, 1969, during which objections were made by Springfield, National State and Union Center. The hearing examiner’s report was filed January 8, 1970. He recommended approval of the application, for in his view the requirements of N. J. S. A. 17:9A-20(2) and (3) were met, i. e,., the interest of the public would bo served to advantage, and the local conditions afforded reasonable promise of successful operation. Ten days were allowed to the objectors to file exceptions. Springfield and National State filed written objections with the Commissioner on January 19, 1970; Union Center mailed objections on that date, but they were not received within the specified time.

On the morning of January 20, 1970, inauguration day, Commissioner Bryant, whose term of office was about to expire, was reluctant to act on the Summit matter. Counsel for Summit personally visited and requested Commissioner-designate Clifford to advise Bryant that he had no objection to his acting on the application on his last day in office. This Clifford did by telephone, and Bryant thereupon signed an order in Summit’s favor. The operative effect of this aggregation of maneuvering was that both the principal office of Springfield and a branch of Summit were approved by the Commissioner. Springfield pursued the instant appeal on January 20.

The Commissioner’s Action

Preliminarily, we dispose of the argument that Commissioner Bryant was without authority to act on January 20. The Commissioner is required to serve “at the pleasure of the Governor during the Governor’s term of office and until the appointment and qualification of the commissioner’s successor.” N. J. S. A. 17:1—2. Since Commissioner Clifford took the oath of office on January 21 and then again on January 23, it is manifest that Commissioner Bryant had authority to act on January 20. Cf. Skladzien v. Board of Education of Bayonne, 12 N. J. Misc. 602, 605, 173 A. 600, 603 (Sup. Ct. 1934), aff’d o. b. 115 N. J. L. 203 (E. & A. 1935).

The decision of the outgoing Commissioner was brief; he stated that he had reviewed the entire record, adopted the report and recommendations of the hearing examiner and approved the Summit application.

Although the hearing officer found from the testimony and exhibits that Summit’s proofs sufficiently complied with N. J. S. A. 17:9A-20, he demonstrated only casual concern with respect to the application of the provisions of the recent Branch Banking Act, in particular N. J. S. A. 17:9A-19(B)(3), other than to recognize that that section prohibits the establishment of a branch office in a municipality wherein a “banking institution has its principal office.” He concluded :

* * * Whether home-office protection attaches upon charter approval or upon the actual opening for business of a bank is a legal question difficult to answer and of potentially far-reaching consequences. The Department’s position is in accord with Suburban Trust Company v. The National Bank of Westfield, 222 F. Supp. 269 (D. N. J. 1963). Thus, the approval of the charter of the Springfield State Bank did not and does not bar this application. * * *

It is axiomatic that due regard must be given to the expertise of the administrative agency regarding the economic feasibility of a proposed bank. In re Kenilworth State Bank, supra, 49 N. J., at 334; In re State Bank of Plainfield, 61 N. J. Super. 150, 158 (App. Div. 1960). In general, the Commissioner’s determination should not be upset in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence, or that it violated a legislative policy expressed or implied in the governing statute. In re Howard Savings Institution of Newark, 32 N. J. 29, 52 (1960); cf. Campbell v. Dept. of Civil Service, 39 N. J. 556, 562 (1963); Gloucester County v. Public Employment Relations Comm., 107 N. J. Super. 150, 156 (App. Div 1969), aff’d 55 N. J. 333 (1970).

Onr prime concern is with the latter criterion. The gist of Springfield’s argument is that “home office protection” as contemplated by N. J. S. A. 17:9A—19(B)(3) attached upon the filing of its certificate of incorporation with the Commissioner in December 1967, or, in the alternative, on February 20, 1969, the date the Commissioner approved its charter. Hence, it is contended that the subsequent approval, on January 20, 1970, of Summit’s application íot a branch bank in the same municipality contravenes the intent of the Legislature. Summit, on the other hand, asserts that no legislative policy was violated by the Commissioner. It maintains that the statutory grant of “home office protection” only arises when a bank has a functioning office — which Springfield did not have on January 20.

The Home Office Pbotection Issue

Stated simply, we arc confronted with the question of when home office protection becomes effective, i. at the time of the hanks’ incorporation, the day of its charter approval, when it obtains a certificate of authority to do business, or when it actually becomes an operating bank.

The Commissioner, as previously noted, relied upon Suburban Trust Company v. National Bank of Westfield, supra. We find that case plainly distinguishable. There, the litigation was between a state-chartered bank and a federally-chartered Lank to ascertain which of them was entitled to maintain a branch in the Borough of Mountainside. National Bank of Westfield applied to the Comptroller of Currency for branch office approval and, while its application was pending, Suburban Trust Company sought branch approval from the State Commissioner of Banking and Insurance. Pursuant to the then applicable N. J. S. A. 17:9A—19, only one of the proposed branch banks could be permitted to locate in that municipality. Suburban, on October 3, 1961, obtained from the Commissioner a certificate of authority to do business, which, because of zoning problems was extended. Meanwhile, the national bank obtained its certificate of authority from the Comptroller on October 15, 1962 and opened a branch office the following day. The federal court held that the National Bank of Westfield was entitled to the branch locatibn. Judge Wortendyke, in speaking for the court,' declared:

* * * that a bank “has” a branch in a municipality, for the purpose of determining the right of another bank to open a branch there, only when it has a branch in operation and not when it merely has the approval of the appropriate governmental authority to open a branch. [222 F. Supp., at 275]

In that case “home office protection” was not an issue, but rather “branch protection.”

As stated in In re Kenilworth State Bank, supra, 49 N. J. at 336, a branch bank is not a separate corporation or legal entity but “is an office or agency operated by the legal entity' which operates the main bank. It has no separate board of directors or capital structure, its deposits are pooled with those of the main bank, and its loan limits are based on the main bank’s capital structure.” There is also a significant procedural distinction between a charter application and a branch office application. The agency inquiry as to the latter is less stringent and, indeed, a formal hearing is not a prerequisite. See First Nat. Bank of Whippany v. Trust Co. of Morris County, 76 N. J. Super. 1, 7-8 (App. Div. 1962). The Commissioner may act upon plenary and completely informative data supplied to him by the applicant and any objecting banks. Id. at 10. The crucial findings to be made are whether the interests of the public will be served and whether conditions in that locality afford reasonable promise of successful operation. N. J. S. A. 17:9A-20.

In contrast, the issuance of a bank charter must be preceded by application, hearing, notice, publication and findings, as set forth in N. J. S. A. 17:9A-9, 10, 11. In addition to requisite findings as to public interest and probable success, there must be adequate findings as to such elements as capital structure, stock subscriptions, name, location, deposit liabilities, directorship and management. See In re Kenilworth State Bank, supra, 49 N. J. at 336-337; Camden Trust Company v. Gidney, 112 U. S. App. D. C. 197, 301 F. 2d 521, 524 (1962), cert. den. 369 U. S. 886, 82 S. Ct. 1158, 8 L. Ed. 2d 287 (1962).

Significantly, in the Suburban Trust Company ease the two branch hank approvals were not obtained from the same licensing authority but, rather, from respective agencies representing the federal and state governments. Compare Suburban with National Bank of Detroit v. Wayne Oakland Bank, 252 F. 2d 537 (6 Cir. 1958), cert. den. 358 U. S. 830, 79 S. Cl. 50, 3 L. Ed. 2d 69 (1958); Bank of Sussex County v. Saxon, 251 F. Supp. 132 (D. N. J. 1966).

Moreover, in the construction and application of our statutes we are not bound by a decision of the federal district court. Cf. State v. Broxton, 49 N. J. 373, 387 (1967); State v. Coleman, 46 N. J. 16, 36 (1965), cert. denied 383 U. S. 950, 86 S. Ct. 1210, 16 L. Ed. 2d 212 (1966).

Our statutory scheme recognizes the provisional existence of a bank, as a corporate entity, upon filing a certificate of incorporation; it is at once subject to the provisions of the Banking Act. N. J. S. A. 17:9A-13 and 13. Springfield’s certificate states that its principal office “is to be located at 330-330 Route 33 Westbound, also described as follows: Being Lot 6, Block 144 and Lot 9, Block 144 on Tax Map of the Township of Springfield.” The mere filing of the certificate, however, would not afford “home office protection” since no officially acknowledgeable status is attained until the required subsequent statutory proceedings have ripened into the actual granting of a charter.

The Commissioner, who issued a charter to Springfield shortly after the adoption of the 1969 Branch Banking Act, is chargeable with knowledge of the legislative policies therein expressed regarding “home office protection” and the specified statutory time periods within which a charter recipient must obtain a certificate of authority and commence operating as a functioning institution. In light of such circumstances, and the' appeals and stays initiated or participated in by Summit, there appears to be nothing in the record, factual or legal, to justify the Commissioner’s interim consideration of Summit’s application, filed May 5, 1969, the approval of which might have the effect of undercutting or circumventing protected rights under a charter he previously granted. There was no apparent public need for accelerated action. While absolute public necessity for further banking facilities is not essential, see In re Howard Savings Institution of Newark, 32 N. J. 29, 49 (1960), the Commissioner should always he mindful of the fact that banking is a business peculiarly affected with a vital public interest. To that end, the granting of hank privileges should be tempered with the realization that neither under-banking nor over-hanking will serve the public interest, and that in some circumstances discretionary restraint might well dictate adherence to an observance in Ecclesiastes 9:11 that “the race is not to the swift, nor the battle to the strong.”

Springfield was not free to proceed with the obtaining of a certificate of authority, for which purpose, under N. J. S. A. 17:9A-17, it would have six months, until the appeal and stay processes involving its charter approval had been terminated in its favor. The argument runs, and there is nothing in the record to suggest a contrary conclusion, that but for “the entanglements of the legal process” it was in a position to qualify for the necessary certificate of authority and to actually open its hank by July 1969. It was while Springfield was under legal restraints that Summit applied for branch approval, which the Commissioner granted within seven days after the Supreme Court denied certification in the Springfield case, supra (55 N. J. 312 (1970)), giving finality to the Springfield charter approval.

Admittedly, the corporate existence of Springfield was a defeasible one, since the Commissioner could, in appropriate circumstances, refuse to issue a certificate of authority or could cancel charter approval. N. J. S. A. 17:9A-14, 17:9A-17. Until such official revocation or disapproval occurs, “home office protection” should attach to the charter grant. Compare In re State Bank of Plainfield, supra, 61 N. J. Super, at 160. And see First National Bank in Billings v. First Bank Stock Corp., 306 F. 2d 937, 940 (9 Cir. 1962), where the court, contrary to the rationale of Suburban, supra, held that, notwithstanding a 4j^-year delay from the time of charter approval until bank opening, the bank’s rights were established and flowed from the date of its charter authorization.

In the factual complex of this case, it would be inequitable to deny to Springfield the benefits of the Branch Banking Act while it was subject to the statutory concomitant burdens and could not obtain a certificate of authority and open for business because of the stays obtained by the objectors of its charter. See Burke v. Hoffman, 28 N. J. 467, 474-475 (1958). “Priority in time gives the better equity.” 2 Pomeroy, Equity Jurisprudence (5th ed. 1941), § 414, at 162.

We have considered Summit’s numerous contentions addressed to the intent of the Legislature and find them interestingly argumentative, but unpersuasive. To adopt the interpretation it ascribed to our statutes would permit the undermining of the legislative grant of “home office protection” by evasion and legal maneuvering. This should not be judicially condoned.

It is fundamental that statutory constructions “calling for unreasonable results will be avoided where reasonble results consistent with the indicated purpose of the act as a whole are equally possible.” Elizabeth Federal Savings & Loan Ass’n v. Howell, 24 N. J. 488, 508 (1957); see State v. Provenzano, 34 N. J. 318, 322 (1961); In re Princeton Bank and Trust Co., 87 N. J. Super. 247, 261-262 (App. Div.), certif. den. First National Bank of Princeton v. Princeton Bank and Trust Company, 45 N. J. 32 (1965); 2 Sutherland, Statutory Construction (3d ed. 1943), § 4704, at 338. As stated in Schierstead v. Brigantine, 29 N. J. 220, 230 (1959), “statutes are to be read sensibly rather than literally and the controlling legislative intent is to be presumed as ‘consonant to reason and good discretion.’ ”

We hold under the circumstances of this ease, particularly where the same administrative agency is involved in granting both applications, that Springfield acquired “home office protection” within the meaning of the 1969 Branch Banking Act, and that such protection prevailed throughout the proceedings that culminated in the Summit branch office approval. This determination is predicated on the inveterate principle that statutes must be construed so that their meaning will “justly turn on the breadth of the objectives of the legislation and the common-sense of the situation.” Jersey City Chapter Property Owner’s Protective Ass’n v. Jersey City Council, 55 N. J. 86, 100 (1969).

We note parenthetically that the interpretation here expressed was earlier espoused by Summit in its brief filed in connection with its appeal in opposition to the charter grant to Springfield. There, arguing unsuccessfully that the better interests of the municipality would best be served by permitting more branch offices, Summit urged that “by granting this charter [to Springfield], the Commissioner in effect created home office protection in Springfield, New Jersey and thereby foreclosed that municipality from consideration for additional branch offices.”

The Commissioner’s decision and order presently under review is in conflict with the intendment of our statutes and, accordingly, the order should not stand.

Having thus concluded, we find it unnecessary to reach the remaining issues raised by appellants; we pass them, but in so doing observe that they are not entirely without substance.

Reversed.

      in this case authority to open a branch bank in the City of Troy. Michigan, was granted by the state banking commissioner to Wayne Oakland Bank. Subsequently, The National Bank of Detroit applied to the Comptroller of Currency for permission to open a branch bank in that municipality. Michigan law prohibited a branch in the municipality in which another branch had already been established. The officers and attorneys for the Detroit bank prevailed upon the Comptroller not to inform the state commissioner of their pending ap plication, fearing the state bank would immediately open its branch once such intelligence was gained. The state bank did open its branch, albeit, after the Comptroller had authorized (but not certified) the national bank to open its branch. Implicit, in this decision by the Sixth Circuit is a “dim view” of the subterfuge resorted to by the national bank and the Comptroller in an attempt to have the national bank win the race for the establishment of a branch in Troy.

      The court held that a state bank had standing to seek a trial de novo of the propriety of the action taken by the Comptroller of Currency in issuing n certificate to authorize a national bank to open a branch in the township The certificate was granted while the slate bank was in the process of complying with the state commissioner's requirements for approval of a branch in the township under state statute permitting only one branch bank in the municipality. A plenary trial was granted for determination of the ultimate question of whether, in light of all the facts found, the Comptroller’s action was warranted because the state hank had a right to insist that no branch be established through procedures or upon grounds not acceptable under the statutory scheme. (At 143)

      Springfield Township is 5.20 square miles in area. According to the New Jersey Department of Conservation and Economic Development, the population of the township was 16,430 in 1968, with limited growth expected in the next few years. As noted in an economic feasibility study on Springfield, prepared in support of its charter application and before the hearing examiner in the instant case, there are 57 banking offices within a five-mile radius of Springfield’s location. In November 19C9, when the first hearing was held on Summit’s application, there were three branch banks and two savings and loan institutions in the township, together with the newly chartered home office bank of Springfield which had not yet opened.


author: Sullivan, P. J. A. D.

text:
    IN THE MATTER OF THE PETITION OF JOSEPH F. JOB TO BE A CANDIDATE IN THE GENERAL ELECTION FOR THE OFFICE OF UNITED STATES SENATOR.
    Superior Court of New Jersey Appellate Division
    Argued July 7, 1970
    Decided July 16, 1970.

      Before Judges Sullivan, Collester and Kolovsky.

      Mr. Frank Paglianiti argued the cause for appellant (Mr. Charles Daly, attorney).

      Mr. Louis Ruprecht argued the cause for objeetors-respondents Thomas Marshall and Ruth Payne (Messrs. McGlynn, McGlynn, Ruprecht and Graham, attorneys).

      Mr. George F. Kugler, Jr., Attorney General, filed a Statement in Lieu of Brief for respondent Secretary of State (Mr. Stephen Skillman, Assistant Attorney General, and Mr. Kenneth M. Olex, Deputy Attorney General, of counsel, and Mr. Dennis J. Quinn, Deputy Attorney General, appearing at oral argument).
   The opinion of the court was delivered by

Sullivan, P. J. A. D.

Joseph F. Job appeals from a decision which declared void a petition filed in the office of the Secretary of State directly nominating Job as candidate for the office of United States Senator in the November 3, 1970 general election. For reasons hereinafter stated, we find the petition to be valid and direct the Secretary of State to accept it for filing and cause the name of Joseph F. Job to be placed on the ballot for the November 3, 1970 election.

Under N. J. S. A. 19 :13-5 a petition directly nominating a candidate to the office of United States Senator must contain at least 800 signatures of legally qualified voters. The petition in question contains some 1474 signatures and consists of several sets of signature sheets bound together. Each set of signature sheets is verified by five witnesses. However, since the separate sets were obtained at various times and places, there are different witnesses for each set of signature' sheets, i. e., the same five witnesses have not certified as to all 1474 signatures. This method of verificar tion is one of the points of contention herein.

Eormal objection to the Job petition was made by two objectors and, on their application, the Superior Court ordered the Secretary of State to hold a plenary hearing as to the validity of such petition. At the hearing the objectors produced evidence to support their contention of “numerous instances of individuals signing their own name and the names of other persons in the same household.” Objectors also contended that the petition was invalid since admittedly all of the 1474 signatures on the petition were not witnessed and certified by the same five persons.

At the conclusion of the hearing the hearing officer declared the Job petition to be void on the authority of McCaskey v. Kirchoff, 56 N. J. Super. 178 (App. Div. 1959). Although he made no specific findings, apparently (1) he found some of the signatures on the petition were illegal and concluded that this voided the entire petition, and (2) he also determined that all of the signatures on the petition had to be witnessed and certified by the same five persons.

We conclude that the aforesaid ruling is erroneous as to both points and is based on a mistaken application of our previous holding in McCaskey.

The irregularities shown as to a handful (approximately 12) of the 1474 signatures on the Job petition were insufficient to show any pattern of fraud and invalidate the entire petition. Certainly there was no evidence that the candidate himself knew of, or was a party to, any of these irregularities. The McCaskey decision was bottomed on the undisputed fact that the candidates had directly participated in the obtaining of false signatures and then certified as to their being genuine. Under those circumstances we held in McCaskey that the fraud and wrongdoing went to the heart of the petition and rendered the entire petition invalid.

We also conclude that the hearing officer’s apparent interpretation of N. J. S. A. 19:13-7, that all of the 1474 signatures on tile separate sets of signature sheets had to be witnessed and certified by the same five persons, was erroneous. The statute provides that “Before any petition shall be filed * * * at least five of the voters signing the same shall make oath * * * that the affiants saw all the signatures made thereto * * However this requirement must be read in the light of the immediately preceding section of the statute, N. J. S. A. 19:13—6, that “all the names need not be signed to one petition.” Obviously, the statute contemplates that separate sets of signature sheets may be used in the making of a nominating petition. On this basis, all that the statute requires is that each set of signature sheets be witnessed and certified by five persons. The construction urged by objectors, and apparently adopted by the hearing officer, would make it almost impossible to circulate a statewide nominating petition. Indeed, the printed form of nominating petition furnished by the Secretary of State’s office cautions that “THIS SET OE SIGNATURES IS ONLY PART OE A PETITION,” and adds “The five witnesses taking the affidavit below must be the persons who obtained the names on this set of signatures or several sets of signatures. They must take the affidavit as witnesses for each set they solicit.” This administrative interpretation fully conforms with our reading of the statute. McCaskey is not to the contrary. In that case the same five persons had certified to the witnessing of all of the 88 signatures on the nominating petition. However, it was manifest from the record that all five affiants did not actually witness all of the signatures — “It would appear that the signatures were gotten by the five affiants working individually or in pairs,” 56 N. J. Super, at 182 — and this was held to be a clear violation of the statute.

The decision herein is reversed. The Secretary of State is directed to accept the petition in question as valid and cause the name of Joseph E. Job to be placed on the ballot as a candidate for the office of United States Senator in the November 3, 1970 election.


author: Labrecque, J. A. D.

text:
    THE BOROUGH OF WOOD-RIDGE, BERGEN COUNTY, PETITIONER-APPELLANT, v. BERGEN COUNTY BOARD OF TAXATION AND DIVISION OF TAX APPEALS, IN THE DEPARTMENT OF THE TREASURY, STATE OF NEW JERSEY, RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued June 15, 1970
    Decided July 17, 1970.

      Before Judges Kilkenny, Labrecque and Leonard.

      Messrs. Saul A. Wolfe and George D. Malhiot argued the cause for appellant (Messrs. Malhiot & Genton, attorneys; Messrs. Gary N. Skoloff and Wolfe on the brief).

      Mr. Herbert K. Glickman, Deputy Attorney General, argued the cause for respondents {Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel).
   The opinion of the court was delivered by

Labrecque, J. A. D.

The Borough of Wood-Ridge (borough) appeals from a judgment of the Division of Tax Appeals (Division) affirming the 1969 equalization table adopted by the Bergen County Board of Taxation (county board).

Prior to the preparation of the 1969 equalization table Wood-Ridge had undergone a revaluation program. In arriving at its ratio for the year 1969 the county board utilized the “page 8 formula” suggested by the Director of the Division of Taxation (Director) for use in the case of revalued districts. See In re Millburn, 110 N. J. Super. 330 (App. Div. 1970). In the computation of the average assessment ratio for a revalued district under that formula, the true value of real property for the revalued district, as set forth in the Director’s table of equalized valuations for school aid for the prior year, is used. (Here it was based upon the aggregate assessed ratables as of January 1, 1968.) To this is added the value of additional and new ratables, such as new construction and improvements, and property transferred from exempt to taxable. After deducting the value of ratables lost by fire, demolition, and transfers from taxable to exempt, the remaining total, designated as “net true value at beginning of the new year,” is then divided into the aggregate of the assessments produced by the revaluation. The resulting figure is utilized as the ratio of that district’s assessments as compared to the true value of its ratables (the ratio).

In preparing the 1969 equalization table in January 1969 the county board assigned to Wood-Ridge a preliminary ratio of 98.03%. On February 18 this was revised to 89.13% Following a hearing the county board promulgated the 1969 table, in which its ratio was fixed at 89.12%. On appeal to the Division the table was affirmed.

The main thrust of the borough’s argument is directed to the refusal of the county board, in arriving at its “net true value,” to give recognition to the fact that in 1969 it had suffered a loss in ratables, in the case of one taxpayer alone, of $5,562,800. The loss in question resulted from judgments reducing the assessed valuations for 1966, 1967 and 1968 on property of the Curtiss-Wright Corporation, the borough’s largest taxpayer, from $27,652,300 to $22,000,000 on appeals which had sought a reduction to $12,957,700. The appeals were settled in the Division for 1966 and 1967 and in the county board for 1968. Additional appeals for 1965 were withdrawn. Prior to settlement Curtiss-Wright had been withholding $4-5,000 per quarter of its billed taxes for the years 1966, 1967 and 1968 pending the outcome of its appeals. The values for 1966, 1967 and 1968 were substantially similar. It was undisputed that Curtiss-Wright’s total ratables in Wood-Kidge represented more than 40% of the borough’s tax roll. The failure to allow credit for the reductions allegedly brought about a difference of 7% in its ratio.

At the conclusion of the hearing in the Division the judge expressed himself as inclined to agree with the borough, but reserved decision. In his opinion filed some two months later he concluded that “The municipality has failed to overcome the presumption that the County Board’s Equalization Table was correct,” thus affirming the county board’s ratio.

The Borough argues that the county Board failed to follow the statutory mandate to use its best judgment and information, and its overall obligation to treat it with fairness and equality in determining its assessment ratio. Despondent urges that the use of the page 8 formula was proper as having been approved in our prior decision in In re Millburn, supra.

While the county equalization table prepared pursuant to N. J. S. A. 54:3-17 somewhat resembles the table of equalized valuations which the Director is required to promulgate on or before October 1 of each year for purposes of state school aid, N. J. S. A. 54:1-35.1, the county equalization table is for the purpose of apportioning the cost of county government among the various taxing districts, while the state school aid table is utilized in the distribution of school aid to the various school districts throughout the State entitled to share therein. Thus, any increase in the ratio of the taxing district results in a reduction in the amount that district must contribute to the cost of county government, and the difference must be made up by the remaining districts. In the case of state school aid, on the contrary, a reduction or increase in the amount payable to the school district does not affect the amount payable to other districts. In practice, many county boards follow the Director’s table as accurately reflecting the equalization ratios for the following year. See Passaic v. Passaic County Bd. of Taxation, 18 N. J. 371 (1955). The practice is not universal, however. See Woodbridge v. Middlesex County Bd. of Taxation, 96 N. J. Super. 532 (App. Div. 1967).

The purpose of the equalization process is to minimize as far as possible the unfair distribution of the county tax burden which is one result of varying assessment ratios among the municipalities in the county. No specific method of achieving that objective has been prescribed by the Legislature, its sole direction being that the board is to apply “its best knowledge and information” to the task. In consequence it has been held that a county board may in a proper case adopt the ratios promulgated by the Director’s table' of equalized valuations, or may arrive at its own ratios using a method varying somewhat from that used by the Director. Woodbridge v. Middlesex County Bd. of Taxation, supra. In the case of revalued districts, use of the Director’s page 8 formula has been approved. In re Millburn, supra.

However, the approval accorded the use of the Director’s table of equalized valuations does not extend to all situations. As was said by Justice Francis in Kearny v. Div. of Tax Appeals, 35 N. J. 299, 304 (1961), referring to the use of the Director’s table, “[S]uch a course would not be warranted in the face of adequate evidence offered by a complaining municipality to demonstrate that the ratio ascribed to it is incorrect or plainly unjust.”

In Kingsley v. Div. of Tax Appeals, 40 N. J. 338 (1963), involving appeals from both the Director’s table and the county equalization table, Justice Francis again wrote:

Equity and justice to a particular municipality and its taxpayers may require occasionally a somewhat more specific study of a particular sale or sales by both Director and County Tax Board. * * * Strict adherence to a general rule, which superficially may appear to warrant assigning such sale or sales ro a general category of transactions listed as unusable by the Director, may do a serious injustice both in distribution of school aid and in allocation of the municipality’s share of the county tax burden [at 345]

In that ease the exclusion of three sales had had a serious and inequitable impact on the tax assessment structure of the municipality. The same cautionary rule was applied to the ascertainment of the “common level” in an individual appeal in In re Appeals of Kents 2124 Atlantic Ave., Inc., 34 N. J. 21, 30 (1961). See also Passaic v. Passaic County Board of Taxation, 27 N. J. 467, 472 (1958). In In re Appeal of Clifton, 85 N. J. Super. 437 (App. Div. 1964) certif. den. 44 N. J. 410 (1965), we held:

The very nature of the formula used in reaching a ratio of assessed to true value would seem to call for an adjustment and correction when specific facts are revealed to a county board, which facts, when given proper effect, demonstrate that the share of county tax burden imposed upon a municipality * * * is dramatically or substantially ecseessive. [85 N. J. Super. at 445; emphasis added]

In that case the county board declined to follow the method utilized by the Director, but instead used its own method to determine the ratio produced by the sale of one of the city’s largest ratables.

The rationale which underlies the foregoing cases is equally applicable to the use of the page 8 formula in arriving at equalization ratios for taxing districts which have undergone revaluation programs. Eairness and equality are essential ingredients of the equalization process. Id. at 446. To the accomplishment of that end it is the board’s duty “to seek all enlightenment that will help it so far as possible to avoid errors in its ultimate determination of assessment ratios.” Kearny v. Div. of Tax Appeals, supra, 35 N. J. at 311. When a taxing district presents evidence which, when given its proper effect, demonstrates that its share of the county tax burden has been made dramatically or substantially excessive, In re Appeal of Clifton, supra, the duty devolves upon tire county board to make a more detailed and specific study of such evidence and factually determine the merits of the contention made by the district.

Here it is clear that the facts before the county board called for such a study. Initially, we are confronted with the incongruity of a ratio after revaluation (presumably made at full value by a valuation expert found to be qualified) being reduced from 100% to 89% in the first year it takes effect. At that rate the need for another revaluation was already in the offing! The seeming injustice thus demonstrated was compounded by the admitted fact that, by judgments on appeals involving one taxpayer alone, the aggregate, assessments for the prior year had been reduced by $5,652,30o. The fact that the reductions involved consent judgments did not preclude their consideration and use by the county board. In re Appeal of Clifton, supra, 85 N. J. Super, at 445. At the very least the board was on notice that reductions similar to those granted by it for 1968 had ¡been approved by the Division for 1966 and 1967, under a rule which required verification by qualified experts as to the valuations involved. N. J. S. A. 54:2-42. In re Millburn, supra, afforded no justification for the board’s failure to pass upon the borough’s claim. Here it was dealing with a contention which allegedly would have increased the Borough’s ratio from 89% to 96%, whereas in Millburn the difference was that between 104.24% and 105.20%, less than 1%. Here, too, the erosion in valuations was precipitate, as contrasted with the expected year-to-year reductions resulting from appeals.

When the foregoing facts were made manifest at the trial, it became the obligation of the Division to undertake, subject to the provisions of N. J. S. A. 54:2-37, the duty imposed upon the county board in the first place. Passaic v. Passaic County Bd. of Taxation, supra, 18 N. J. at 393; New Brunswick v. Middlesex County Equal. Table, 25 N. J. Misc. 353, 53 A. 2d 641 (Div. Tax App. 1947). Its omission to dispose of the contentions raised by the appeal, and thereafter to promulgate a new table based upon its findings and conclusions, mandates a remand to the end that it may do so. It is in a better position than are we to determine whether the stipulated reductions in assessments represented decreases in value or corrections of overassessments, or resulted from a mere desire to retain an industry. See Berkeley Heights Tp. v. Div., etc., Dept of Treasury, etc., 68 N. J. Super. 364, 371 (App. Div. 1961).

The judgment of the Division of Tax Appeals is accordingly reversed and the matter remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.

      Applying the ratio of 72.35% applicable to the prior year’s valueations to the aggregate assessments cancelled would produce an aggregate valuation loss of $7,812,439.