allowed to enter a milk plant from which milk, cream or milk products are distributed, sold or held for sale in this state.'
'It seems fitting, therefore, to inform you that this office will be unable to approve your application for a permit and is unwilling to spend further time in the inspection of your premises until reasonable assurance has been furnished by you to show that the premises covered by your application are to be used only in accordance with the requirements of the laws of this State; furthermore, you are advised to immediately discontinue the distribution of milk products in this State, which said products are obtained from or prepared for distribution in any milk plant or creamery which fails to meet the requirements of the statute aforementioned.
'Very truly yours, '(s) J. Lynn Mahaffey, W.S. 'J. Lynn Mahaffey, M.D. ' Director of Health.'
We have heretofore concluded that the defendant, J. Lynn Mahaffey, was under no obligation to act upon the plaintiff's application. The question of his obligation to act upon the application of the Aerated Products Company of Newark, not a party to this suit, is not before the Court.
Consequently, since no action was taken by defendant, J. Lynn Mahaffey, and none threatened, there would appear to be no cause for complaint on the part of the plaintiff whose rights were not violated in any way and therefore no basis for injunctive relief exists.
The motion of the defendants to dismiss as to the defendant, Department of Health of the State of New Jersey, is granted for the reason that the Department of Health is the State and suit was brought without its consent. The State Department of Health is an organ of the executive branch of the government of the State, the authority for which is set forth in the statute of the legislature. State v. Mundet Cork Corporation, 126 NJ.Eq. 100, 8 A.2d 105, affirmed 127 N.J.Eq. 61, 11 A.2d 260. Also see Empire Trust Co. v. Board of Commerce, &c., 124 N.J.L. 406, 11 A.2d 752; Strobel Steel, &c., Co. v. State Highway Comm., 120 N.J.L. 298, 198 A. 774. The functions of this organ are controlled by the members of the State Board of Health, an advisory board, who, incidentally, were not named as defendants in this action, and the Director of the Department, the defendant, J. Lynn Mahaffey.
The State Department of Health as an entity is the State itself. The defendant, J. Lynn Mahaffey, as the Director of the Department of Health, is the individual who exercises the functions of the organ, and as to him the motion to dismiss must be denied for the same reason.
This Court has proper jurisdiction over the defendant, J. Lynn Mahaffey, individually, and, based on the merits, concludes that as to him the evidence set forth does not constitute a cause of action.
In conclusion the relief sought by the plaintiff must be denied for the reason that the statute in question is constitutional and does not impose upon nonresidents requirements which plaintiff ascribes to it and there is no wrongful exercise of authority under the statute which would serve as a basis for injunctive relief.
Defendants also assert a number of other reasons for the objection that the Court lacked jurisdiction. In the light of the disposition of the points above discussed, no further comment is necessary upon the other grounds.
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