For the prosecutor, Winne & Banta (Horace F. Banta, of counsel).
For the defendant, Walter D. Van Riper, Attorney-General (William K. Miller, Assistant Deputy Attorney-General, of counsel).
Before Justices Parker, Donges and Oliphant.
The opinion of the court was delivered by
OLIPHANT, J. This is a certiorari to review the action of the State Board of Pharmacy in denying an application for a pharmacy and drug store permit.
Prosecutor is the owner and operator of a large department store in Hackensack and has, since 1935, held what is known and referred to as a limited pharmacy permit under which it could and did sell patented medicines and drugs in their original packages, some of which contained poison, but under which it could not compound prescriptions. This pharmacy
has at all times been managed and supervised by a duly licensed pharmacist.
On November 7th, 1945, prosecutor filed an application with the State Board of Pharmacy for an unrestricted or unlimited pharmacy permit. On December 19th, 1945, the application was denied, such refusal being predicated on the basis that "Packard-Bamberger & Co., Inc., is not deemed qualified to conduct a pharmacy or drug store in this state, and because the establishment for which the permit is sought is, in the opinion of the Board, not a pharmacy or drug store within the meaning of the Pharmacy Act, and the corporation is unable to satisfy the requirements of sections 45:14-10, 45:14-30, 45:14-32 and 45:14-33 of the Revised Statutes which regulate the operation of entire establishments as pharmacies and drug stores."
The evidence before us discloses that prosecutor has held a limited pharmaceutical permit for eleven years. During that time, on four different occasions, it committed violations of the Pharmacy Act but it is noted that after each violation its license was renewed for the succeeding year by the Board, and particularly should it be emphasized that the registered pharmacist in charge of the drug department of prosecutor during the times when these violations occurred has been granted an unrestricted permit to open and conduct a pharmacy of his own within a few blocks of the store of Packard Bamberger & Co., Inc. Upon opening his drug store he advertised that he was formerly managing director of the drug department of prosecutor. Certainly if an owner be deemed not a proper person to conduct a drug store because of violations of the Pharmacy Act the pharmacist in charge of the department at the time of those violations is not qualified to be granted a permit of his own. The statute R.S. 45:14-6 makes both the pharmacist and the owner equally liable as principals for any violation. This ground for denial of the permit appears to us, under the circumstances, flimsy, arbitrary and tenuous.
We recognize that the sale and preparation of drugs, medicines, poisons, narcotics and doctors' prescriptions involve dangers to public health ...