The opinion
Heheb, J.
(dissenting). I would direct a dismissal of the complaint in this cause, not for want of jurisdiction of the subject matter, as my associates find, but rather for the exhaustion of the administrative remedy afforded by the statute, R. S. 17:12A-100, as amended by L. 1953, c. 17. It is peculiarly a case for the application of the “prior resort” doctrine.
The act vests jurisdiction of the subject matter in the Commissioner; but I do not hold the view that the statute “is self-sufficient unto itself to a degree where it supplants and by inference repeals the common law relating to such associations.” We are concerned here only with the particular power invoked; and I am aware of no conflict with the common law in the administrative jurisdiction to determine whether the information at issue “is or is not sought in good faith, and whether or not it will be for the best *522 interests, not only of the applicant but of the association and its members, that the application be granted. * * the terms of the statute itself.
This jurisdiction is made “exclusive; but the action of the Commissioner shall be subject to review in the Superior Court, in a proceeding in lieu of prerogative writ.” Is it the judicial province to accept the provision of the act for “exclusive” administrative jurisdiction, but to reject the accompanying provision for judicial review by the ordained mode?
Granting that the Legislature may provide for a primary and “exclusive” administrative jurisdiction, it could not deny judicial review and, mindful of the limitation, it also provided for such judicial reexamination by the historic prerogative writ, a substantive jurisdiction made exclusive in the Superior Court by the 1947 Constitution, Artivle YI, Section Y, paragraph 4, and there made a writ of right except in criminal cases. The “in lieu” jurisdiction thus conferred comprehends “review, hearing and relief * * *, on terms and in the manner provided by rules of the Supreme Court, as of right” in civil cases. The legislatively-granted “exclusive” administrative jurisdiction was expressly conditioned upon a “review” by the “in lieu” process thus vested in the Superior Court alone, a substantive judicial function under the Constitution itself immune to legislative impairment or judicial annulment. See Swede v. City of Clifton, 22 N. J. 303 (1956).
Only the Legislature may confer jurisdiction, subject to constitutional limitations. See 1947 Constitution, Article YI, Section Y, paragraphs 1, 2. It is to be observed that the “in lieu” jurisdiction is covered by paragraph 4 of this section dealing with “Appeals.”
It is not necessary to determine whether the legislative design was to bar judicial review until after agency action. It suffices to say that the particular inquiry is at the outset one for the informed and experienced judgment of the Commissioner, and so it is a ease for the enforcement of the “prior resort” rule.
*523 The Commissioner refused to entertain jurisdiction, as nonexistent, and his collateral expression on the merits cannot be deemed conclusive. The cause should be remanded for a full hearing of the issue and the making of specific findings essential to judicial review of the Commissioner’s ultimate action, assessed by the standard of action laid down in the statute itself. It goes without saying that the identity of the shareholders of such associations cannot be concealed by the management under any and all circumstances. The Commissioner’s exercise of discretion must be ruled by the statutory considerations; arbitrary discretion is inadmissible. Good faith, the use to be made of the information, and the interests of the association and its members are of primary concern.
For affirmance — Chief Justice Vanderbilt, and Justices Wacheneeld, Burling and Jacobs — 4.
For reversal — -Justice Heher — 1.