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Abelson''s Inc. v. New Jersey State Board of Optometrists

Decided: October 16, 1950.

ABELSON'S, INC., MONROE SMALLZMAN AND HAROLD P. SELBERT, PLAINTIFFS-APPELLANTS,
v.
NEW JERSEY STATE BOARD OF OPTOMETRISTS, DEFENDANT-RESPONDENT AND CROSS-APPELLANT, AND MONROE B. ALBERT, ET AL., INTERVENING DEFENDANTS-RESPONDENTS



On appeal and cross-appeal from the Superior Court, Chancery Division, whose opinion is reported in 3 N.J. Super. 332.

For modification -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. Opposed -- None. The opinion of the court was delivered by Heher, J.

Heher

[5 NJ Page 415] The primary question here is the constitutional sufficiency of certain provisions of the act regulating the practice of optometry, as amended by ch. 350 of the Session Laws of 1948. R.S. 45:12-1 et seq.; P.L. 1948, p. 1401. The proceeding was instituted under the Declaratory Judgments Act. R.S. 2:26-66 et seq. The complaint prays that the

amendatory act of 1948, or specific portions thereof, be adjudged unconstitutional and void as unduly restrictive of the right of private property and an arbitrary exercise of the police power; and that enforcement be enjoined forthwith to prevent immediate and irreparable injury.

A motion by the Attorney General to dismiss the bill of complaint as a suit against the State without its consent was denied. Certain provisions of the amendatory statute were declared unconstitutional, and their enforcement enjoined pendente lite. The statute was sustained otherwise. 3 N.J. Super. 332. Judgment to the same effect was entered on final hearing. Plaintiffs appealed to the Appellate Division of the Superior Court from the provisions of the judgment sustaining particular sections of the statute; and the defendant Board appealed from the declaration of constitutional insufficiency as to the remainder, and from the denial of its motion to dismiss the complaint. The appeals were certified here, before hearing, on the motion of the Board.

The Attorney General insists that the proceeding is a suit against the State to which it has not consented, and is therefore not maintainable. The reasoning is that, "as a State agency," the defendant Board "is an alter ego of the State, administering for the State matters with respect to the practice of optometry," and so the action is one against the State within the principle of Strobel Steel Co. v. State Highway Commission, 120 N.J.L. 298 (E. & A. 1938), that a suit against a State agency "is, in fact, a suit against the State, if the judgment obtained will operate to control the action of the State or subject it to liability."

The action here is not in that category. It is a proceeding under the Declaratory Judgments Act to determine the constitutional force of the challenged provisions of the cited statute, and to restrain the threatened enforcement of such of them as may be found deficient. The validity and construction of a statute and rights, status or other legal relations thereunder are proper subjects of inquiry under this statute. R.S. 2:26-69. There is no enlargement of jurisdiction

over subject matter and parties. But there is provision for declaratory relief not obtainable under the preexisting practice and procedure. The remedy is available in certain cases where no other action would lie. All courts of record are given power, within their respective jurisdictions, to declare rights, status and other legal relations, "whether or not further relief is or could be claimed." R.S. 2:26-68. This remedial power is equitable in nature, of a quality and breadth competent "to settle and afford relief from uncertainty and insecurity with respect to rights, status and other legal relations," and thus to advance the administration of justice. R.S. 2:26-67. Vide New Jersey Turnpike Authority v. Parsons, 3 N.J. 235 (1949); Guarantee Trust Company of New York v. Hannay & Company (1915), 2 K.B. 536. The act does not modify the principle of the sovereign's immunity from suit without its consent. Empire Trust Co. v. Board of Commerce and Navigation, 124 N.J.L. 406 (Sup. Ct. 1940); Provident Mutual Life Insurance Co. v. Unemployment Compensation Commission, 126 N.J.L. 348 (E. & A. 1941).

A suit to restrain a state agency of the particular class from executing an unconstitutional statute, to the irreparable injury of the plaintiff's rights, is not one designed to control the action of the State or to subject it to liability within the principle of sovereign immunity from suit. This has been a common exercise of equitable jurisdiction. And under the State Constitution of 1844, acts done by this administrative authority in the enforcement of the challenged provisions of the act would have been reviewable on certiorari as an excess of power. By Article VI, Section V, paragraph 4 of the Constitution of 1947, the jurisdiction to grant relief under the prerogative writs was continued in the Superior Court, invocable as of right by proceedings in lieu thereof as provided by rules of the Supreme Court, except that in criminal cases the review shall be discretionary. Such a review by an action in the nature of certiorari is not a suit against the State; nor is a proceeding in advance of adverse action by

the state agency, either to avoid irreparable injury or to secure an adjudication under the Declaratory Judgments Act of what would not have been a justiciable controversy under the old practice, in that category. A proceeding to restrain the invasion of one's personal or property rights by an officer of the State presuming to act under color of an unconstitutional statute is not a suit against the State; the judgment sought will neither control the action of the State nor subject it to liability. The keeping of such agencies within lawful bounds does not constitute a restraint upon state action.

It is conceded that the practice of optometry is subject to regulation under the police power. The insistence is that the calling is not a "learned profession," but rather a "statutory profession" falling into the category of "occupations and businesses" reasonably regulable only in the particular areas in which the subject matter touches "the health or welfare of the community;" and that certain sections of the amendatory act of 1948 are wholly without relevancy to the public health, but serve the pecuniary interest of the optometrists alone, and ...


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