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New Jersey Pharmaceutical Association v. Furman

Decided: June 28, 1960.

THE NEW JERSEY PHARMACEUTICAL ASSOCIATION, A CORPORATION OF NEW JERSEY, ET AL., PLAINTIFFS,
v.
DAVID D. FURMAN, ATTORNEY GENERAL OF NEW JERSEY, ET AL., RESPONDENTS. THE NEW JERSEY PHARMACEUTICAL ASSOCIATION, A CORPORATION OF NEW JERSEY, ET AL., PLAINTIFFS-APPELLANTS, V. DAVID D. FURMAN, ATTORNEY GENERAL OF NEW JERSEY, ET AL., DEFENDANTS-RESPONDENTS. THE NEW JERSEY PHARMACEUTICAL ASSOCIATION, A CORPORATION OF NEW JERSEY, ET AL., PLAINTIFFS-APPELLANTS, V. DEPARTMENT OF CIVIL SERVICE OF THE STATE OF NEW JERSEY, ET AL., DEFENDANTS-RESPONDENTS



For affirmance -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Jacobs, J.

Jacobs

The plaintiffs, the New Jersey Pharmaceutical Association and three individual pharmacists, filed a petition for declaratory judgment under R.R. 4:88-10 and two appeals under R.R. 4:88-8, all primarily designed to obtain a judicial declaration of the invalidity of Executive Directive No. 4, issued by Attorney General Furman on October 19, 1959 and reading as follows:

"Effective this date, there is hereby established a Bureau of Inspectors within the Division of Professional Boards to handle all inspectional and law enforcement activities for the Division. All Inspectors or Confidential Agents currently assigned to the Division are hereby transferred into this Bureau under the supervision of a Chief Inspector."

The proceedings were consolidated in the Appellate Division and we thereafter certified them on our own motion. No point has been made as to the procedure and we shall not concern ourselves with it. See Carls v. Civil Service Commission of N.J., 17 N.J. 215, 220 (1955). Nor shall we deal at any length with the contention that the plaintiffs lack standing to maintain their proceedings. The petition

for declaratory judgment alleged that the plaintiff Association is a state-wide organization of registered pharmacists "concerned with and interested in the maintenance and advancement of high professional standards," that one of the individual plaintiffs is president of the Association, that another is a citizen and taxpayer of New Jersey and secretary of the Association, and that another is a citizen and taxpayer of New Jersey and the owner of real property in New Jersey. For present purposes, we may assume that the plaintiffs have sufficient standing within the broad concepts heretofore expressed by our courts. See Kozesnik v. Montgomery Twp., 24 N.J. 154, 177 (1957); Salomon v. Jersey City, 12 N.J. 379, 383 (1953); Koch v. Borough of Seaside Heights, 40 N.J. Super. 86, 93 (App. Div. 1956), affirmed 22 N.J. 218 (1956); Haines v. Burlington County Bridge Commission, 1 N.J. Super. 163, 170 (App. Div. 1949); cf. New Jersey State Bar Ass'n v. Northern New Jersey Mortgage Associates, 22 N.J. 184 (1956); Greenspan v. Division of Alcoholic Beverage Control, 12 N.J. 456 (1953).

In 1959 the Department of Law and Public Safety gave extensive consideration to an integration program which envisioned the establishment of a single Bureau of Inspectors within the Department's Division of Professional Boards and the transfer to that Bureau, under the supervision of a Chief Inspector, of all of the inspectors employed by the various boards within the Division. The Attorney General, as head of the Department of Law and Public Safety, conferred with the other interested governmental agencies, including the Department of Civil Service, the Department of the Treasury and the various boards in the Department's Division of Professional Boards, and submitted for their consideration his proposal for the establishment of a centralized bureau of inspectors. At a meeting with representatives of the various boards, held on August 11, 1959, the Attorney General pointed out that under the existing system one of the professional boards had six inspectors, others had two inspectors,

others had one inspector and some had none; that much of the time of the inspectors was devoted to travelling since their duties encompassed the entire State; that in many instances the limited number of inspectors handling a particular profession "became so well-known throughout the profession as to lose their effectiveness" and that in certain professions the presence of the inspector in a particular area was "made known to all of the licensees in that area by means of a warning system." The Attorney General expressed the view that under a centralized plan of inspectors, a warning system would "no longer be effective in that the same individual would not be handling all violation cases or inspections for a particular profession at all times." He expressed the further view that his proposed plan would increase efficiency, would result in substantial savings, and would "offer tremendous protection to the public as a whole, providing proper policing of all the professions to the extent that assurances would be forthcoming indicating that persons practicing professions are duly licensed, qualified, and entitled to do so."

At the conclusion of the meeting of August 11, 1959, the Attorney General requested the representatives to report to their respective boards and to submit to him any comments, recommendations or opinions concerning his proposed plan. The record before us does not suggest that there was any opposition voiced by any of the boards to the Attorney General's plan; and it affirmatively discloses that the board with which we are particularly concerned in these proceedings, namely the Board of Pharmacy, met on October 15, 1959 and its members "unanimously agreed to support the plan of Attorney General Furman in creating this Bureau of Inspectors." On November 19, 1959 the Department of Civil Service formally approved the abolition of the positions held by the two inspectors employed by the Board of Pharmacy and the transfer of the inspectors to the newly created positions in the Division of Professional Boards and on November 20, 1959 the Department of the Treasury gave

its formal approval. The appeals taken by the plaintiffs under R.R. 4:88-8 were from these actions by the Department of Civil Service and the Department of the Treasury.

The plaintiffs attack the creation of the centralized Bureau of Inspectors and the transfer to it of the various inspectors, particularly the two employed by the Board of Pharmacy, as lacking statutory basis and as violative of R.S. 45:14-5 and Chapter 439 of the Laws of 1948 (N.J.S.A. 52:17 B -1 et seq.). R.S. 45:14-5 simply provides that the Board of Pharmacy "may employ suitable persons as inspectors." It does not obligate the board to employ inspectors and we fail to see how the abolition of the positions held by the board's inspectors and the transfer of the inspectors to the centralized Bureau of Inspectors, all with the board's approval, may be said to run counter to R.S. 45:14-5. In any event, the later and really controlling act is Chapter 439 of the Laws of 1948 which has been dealt with extensively in the briefs of the parties. That act was one of the reorganization acts which implemented the 1947 Constitution. It established in the executive branch of State government a principal department known as the Department of Law and Public Safety and headed by the Attorney General. L. 1948, c. 439, ยงยง 1 and 2; N.J.S.A. 52:17 B -1 and 2. Section 3 of the Act established, within the Department of Law and Public Safety, various divisions including a Division of Professional Boards, and provided that the Attorney General shall have the authority to organize and maintain in his offices "an Administrative Division" and to assign to such Division such secretarial, clerical and other assistants in the Department as his office and the internal operations of ...


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