The complaint in this cause is filed under the Declaratory Judgment Act to determine the constitutionality of Chapter 350 of the Laws of 1948 which amended certain sections of the act concerning optometry, R.S. 45:12-1 et seq. , which complaint also seeks the injunctive remedy against the enforcement of certain sections of the act.
The immediate contest before the court is provoked by the court's order to show cause why the New Jersey State Board of Optometrists should not pendente lite be restrained from enforcing the provisions of the act, as amended. The Attorney General of the State, appearing for the defendant Board, moves to strike the complaint. The grounds advanced by the Attorney General for striking the complaint are (a) that the suit is one against the State of New Jersey, to the institution or maintenance of which suit the State has not consented; (b) that the action is in violation of the Rules of Civil Practice 3:81-1 to 3:81-14; (c) that the statute complained of is constitutional; (d) that the complaint sets forth no cause of action; and (e) the availability of an adequate legal remedy.
It is the Attorney General's contention that since the New Jersey State Board of Optometrists is an agency of the State, this suit in effect is one against the State. Concededly the State is not suable in its own courts without its consent if the judgment obtained will operate to control the action of the State or subject it to liability. Strobel Steel Construction Co. v. State Highway Commissioner , 120 N.J.L. 298, 198 A. 774. But this suit stands the stated test and is therefore not such action as is embraced within the rule. It is a suit to restrain the New Jersey Board of Optometrists from enforcing the provisions of a legislative enactment which the plaintiffs condemn as an unlawful interference with the
rights of property constitutionally guaranteed to them. Such suits, however, are not considered suits against the State but suits against individuals charged with the enforcement of the enactment. Smyth v. Ames , 169 U.S. 466, 42 L. Ed. 819; Ex parte Young , 209 U.S. 123, 52 L. Ed. 714.
In Greene v. Louisville & I.R. Co. , 244 U.S. 499, 61 L. Ed. 1280, which was a suit brought by the Board of Valuation and Assessment for the State of Kentucky against the Louisville Railway Company, one of the motions to dismiss in that case was based on the ground that the suit was essentially against the State of Kentucky and was not, therefore, maintainable. Mr. Justice Pitney delivering the opinion for the United States Supreme Court said:
"A fundamental contention of appellants is that the present actions, brought to restrain them in respect of the performance of duties they are exercising under the authority of the state of Kentucky, are in effect suits against the state. Questions of this sort have arisen many times in this court, but the matter was set at rest in Ex parte Young , 209 U.S. 123, 150, 155, 52 L. Ed. 714, * * * where it was held that a suit to restrain a state officer from executing an unconstitutional statute, in violation of plaintiff's rights and to his irreparable damage, is not a suit against the state, and that 'individuals who, as officers of the state, are clothed with some duty in regard to the enforcement of the laws of the state, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, * * * may be enjoined by a Federal court of equity from such action.'"
Suits like the one presented before the court have been maintained in our equity courts. Equitable Beneficial Ass'n v. Withers , 122 N.J. Eq. 134, 192 A. 511; Howard Company Jewelers v. New Jersey State Board of Optometrists , 133 N.J. Eq. 4, 29 A.2d 742; New Jersey Used Car Trade Ass'n v. Magee , 1 N.J. Super. 371, 61 A.2d 751.
Rule 3:81-8 provides that review of the final decision or action of any state administrative agency shall be by appeal to the Appellate Division. Rule 3:81-10 provides that review of the validity of any administrative rule promulgated by and state administrative agency shall be by petition for a declaratory judgment addressed to the Appellate Division. Neither of these rules apply in the instant controversy. The complaint does not seek a review of any final decision or action
of the Board or of the validity of any of its rules. It seeks a declaratory judgment as to the constitutionality of the statute and an injunction against its enforcement.
Plaintiffs do not challenge the rightful power of the State to regulate the practice of optometry, nor can they reasonably raise that question now. The point is settled by N.J. State Board of Optometrists v. S.S. Kresge Co. , 113 N.J.L. 287, 174 A. 353, where it was said:
"* * * The right to practice medicine, and kindred professions for the treatment of human ailments, is subject to the paramount power of the state to impose such regulations, within constitutional limits, as may be required to protect the people against ignorance and incapacity, as well as deception and fraud. The state, in the exercise of the police power, has the undoubted right to regulate the practice of such professions for the protection of the lives and health of the people. It may prescribe that only persons possessing the requisite qualifications of learning and skill shall practice these professions. But the laws adopted must be reasonable and appropriate to that end. Dent v. West Virginia , 129 U.S. 114, 9 Sup. Ct. 231, 32 L. Ed. 623; Lambert v. Yellowley , 272 U.S. 581, 47 Sup. Ct. 210, 71 L. Ed. 422; Graves v. Minnesota , 272 U.S. 425, 47 Sup. Ct. 122, 71 L. Ed. 331."
While the State's power to regulate those professions which touch or concern the health or welfare of its citizens is clear and long established, that power is nonetheless subordinate to the rule of reason. It must not be exercised capriciously, arbitrarily or oppressively. The employment of the power must always be reasonably related to legitimate ends ...