The opinion
BASTIAN, Circuit Judge
(dissenting).
Congress, in 12 U.S.C.A. § 36 (c)(2), provided:
“(c) A national banking association may, with the approval of the Comptroller of the Currency, establish and operate new branches : * * * (2) at any point within the State in which said association is situated, if such establishment and operation are at the time authorized to State banks by the statute law of the State in question by language specifically granting such authority affirmatively and not merely by implication or recognition, and subject to the restrictions as to location imposed by the law of the State on State banks.”
Under the banking laws of the State of New Jersey, a new branch bank may not be located in Delaware Township because there is a pre-existing banking office in that municipality. This is by virtue of the Banking Act of 1948 of the State of New Jersey (N.J.S.A. 17:9A-19), which provides in part as follows:
“B. No bank or savings bank shall establish or maintain a branch office which is located outside the municipality in which it maintains its principal office; except that a bank or savings bank may establish and maintain a branch office or offices anywhere in the same county as that in which it maintains its principal office.”
I think appellant is correct in its argument that:
“Tile facts plainly show that the transaction here involved, in form an application for a ‘new’ bank charter, is, in substance a subterfuge to obtain a forbidden branch facility. These facts, fully known to the Comptroller, imposed a statutory duty on him to reject the application. This duty would follow the application of the familiar general principle that form will be disregarded whenever necessary to prevent evasion of the clear purpose of a statute. But the duty is made clear beyond question here by consideration of those statutory provisions from which alone the Comptroller derives his authority, the consistent interpretation of those provisions, and the strong and affirmative Congressional policy as to the nature of the Comptroller’s authority.
“A. The 1933 branch bank legislation was preceded by over a quarter of a century of concern by the Comptroller of the Currency as to his lack *526 of authority to authorize branching by national banks and his repeated recommendations to Congress that he be given such authority. The Congressional history of the 1933 legislation makes plain that the Comptroller was only empowered to authorize national banks to establish branches on the basis of precise competitive equality with state banks. Accordingly, national banks could establish outside branches only in states where such branches were ‘ * * * authorized to State banks by the statute law of the State in question by language specifically granting such authority affirmatively and not merely by implication or recognition * * The debates which led to this strictly circumscribed branching authority are outspoken in their condemnation of the use of chain or ‘affiliate’ banks as devices for evading branch banking restrictions or prohibitions.
“Thus, the only power added to the Comptroller’s original authority to charter bona fide unit independent banks was the authority to permit branching as permitted by the statute law of the state in question, on a basis of precise equality with state banking systems.”
While my colleagues take exception to appellant’s use of the word “subterfuge,” I think that one of the definitions quoted by them, namely “an evasion,” covers the action of appellee like a glove.
The State of New Jersey, which has filed an amicus brief, contends, correctly I think, that “if an application for a new State banking charter were made under the same circumstances, it would be regarded in its substantive character as a branch application and rejected under the statute governing branch applications”; and that “[o]n the facts present in this case, the Delaware National Bank of Delaware Township should be held to be tantamount to a branch office of the Haddonfield National Bank, thereby bringing it within the scope and prohibition of 12 U.S.C.[A. §] 36 (C[c]> and Section 19 of the New Jersey Banking Act of 1948 (N.J.S.A. 17:9A-19).”
If substance rather than form is to prevail, the judgment of the District Court should be reversed.