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Board of Pharmacy v. Sherman

Decided: April 27, 1962.

BOARD OF PHARMACY OF THE STATE OF NEW JERSEY, PLAINTIFF,
v.
ELI SHERMAN, T/A GIBBY'S STORES, DEFENDANT



Brown, R.c., J.c.c.

Brown

[74 NJSuper Page 417] This is a suit to recover the penalty prescribed in N.J.S.A. 45:14-37. The plaintiff alleges that the defendant violated N.J.S.A. 45:14-6 in that on July 10, 1959 the defendant, at 41 Clementon Road, Berlin, Camden County, New Jersey, did retail and

dispense unto a representative of the plaintiff, certain drugs, namely citrate of magnesia and spirits of ammonia, while he was not under the supervision of a registered pharmacist, as required by said section.

The parties have entered into a stipulation as follows:

"1. Defendant's employee, who is neither a registered pharmacist nor a registered assistant of the State of New Jersey within the meaning of N.J.S.A. 45:14-6, sold to certain individuals one bottle of citrate of magnesia and spirits of ammonia.

2. Both citrate of magnesia and spirits of ammonia are either drugs or medicines.

3. When taken in proper dosage, both citrate of magnesia and spirits of ammonia are non-poisonous.

4. The sole issue to be decided in this matter is whether either or both citrate of magnesia and spirits of ammonia are 'patent or proprietary' medicines within the meaning of N.J.S.A. 45:14-29."

R.S. 45:14-29 provides as follows:

"Except as otherwise provided as to barbital or any other hypnotic or somnifacient drugs, nothing in this chapter shall be construed to apply to or in any manner interfere with the strictly professional pursuits of any physician, the making and vending of nonpoisonous patent or proprietary medicines, the sale of simple nonpoisonous domestic remedies by retail dealers in rural districts, nor the ownership of any pharmacy or store, in whole or in part, by a person not a registered pharmacist, if such pharmacy or store is at all times in charge of a registered pharmacist. Any person holding any certificate of registration granted under any former act, with the renewal certificate thereof, shall be considered a registered pharmacist within the meaning of this chapter."

As was agreed upon in the stipulation, the sole issue is one of construction of the statute.

The terminology "patent and proprietary medicines" is an antiquated terminology. It has been the subject of diverse opinions and the courts of many states have been forced, in the absence of suitable definitions, to give judicial rather than legislative meaning to these words.

The Supreme Court of New Jersey, in the case of The Proprietary Association v. Board of Pharmacy , 16 N.J. 62 (1954), very ...


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