Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Kilkenny, J.A.D.
James Kamienski, a mortician, petitions pursuant to R.R. 4:88-10 for a declaratory judgment that Rule 81 promulgated by the State Board of Mortuary Science is invalid. He contends, (1) Rule 81 contravenes N.J.S.A. 45:7-55, and (2) this rule is unconstitutional because it is arbitrary, capricious and has no reasonable relation to the public health. Petitioner also seeks injunctive relief against the Board's enforcing its decision that he may not continue his funeral business at 515 21st Avenue, Paterson, New Jersey, after January 1, 1962. We have stayed enforcement of that decision pending the determination of this appeal.
Rule 81 provides as follows:
"Only one establishment permit shall be issued to any establishment where mortuary science is practiced, whether it be individual, partnership or corporation or any other entity. The issuance of more than one establishment permit for the same establishment where mortuary science is practiced is hereby prohibited."
The facts are not in dispute. Petitioner is duly licensed by the State to practice the business of mortuary science. Prior to 1960 he and Michael Della-Torre, also a licensed mortician, were partners in a mortuary business known as the Della-Torre-Kamienski Funeral Home at 515 21st Avenue, Paterson, N.J. Since the dissolution of that partnership in 1960, Kamienski and Della-Torre have conducted individual mortuary practices at that address, both using the facilities of the mortuary. Those facilities include separate chapels off both sides of the hallway on the first floor of the building, and a casket display room and an embalming room in the basement.
Kamienski and Della-Torre are co-owners of the aforesaid mortuary. It is their intent that Kamienski will sell his interest in the mortuary to Della-Torre and relocate his mortuary business at another Paterson site. Though Kamienski individually operates other funeral homes at 1 Essex Street, Passaic, N.J., and 106 Locust Avenue, Wallington, N.J., he
desires a Paterson location for the convenience of residents of that city who might engage his services. He has been trying to obtain a new, separate mortuary location in Paterson, but has not thus far succeeded. Until he can find a new location in Paterson, Kamienski wants to use, in common with Della-Torre, the mortuary at 515 21st Avenue, paying Della-Torre, who would become sole owner thereof, a rental for such usage. Della-Torre would conduct his own separate practice at the same mortuary.
The plan described above was made known to the Board and was disapproved. Petitioner was directed to relocate on or before January 1, 1962, "thus avoiding a dual operation at 515 - 21st Ave., Paterson, N.J." While not expressed in its notification to petitioner as the reason for its decision, it is now conceded that the Board's action is based solely on Rule 81 above set forth.
We consider first petitioner's contention that Rule 81 is contrary to N.J.S.A. 45:7-55 and, for that reason, invalid. That section of the statute provides:
"Every individual, partnership, or corporation which operates or maintains within this State a mortuary or which in the usual and regular course of his or its practice makes use of a mortuary owned, operated, or maintained by another shall annually apply to the board for a certificate of registration for each mortuary operated, maintained, or used by the applicant. * * * No mortuary shall be operated, maintained, or used at any location by any person, firm or corporation at any location not specified in a certificate of registration issued under this section."
It seems clear to us that Rule 81 does contravene N.J.S.A. 45:7-55 and is for that reason invalid. The Board interprets its rule to mean that two funeral directors, with separate businesses, may not use the same mortuary. Yet, the statute contemplates that a mortuary may be owned and operated by one person or firm and also used by another person or firm, and that each shall require a certificate of registration. ...