Board of Pharmacy v. Anderson

190 A.2d 664, 40 N.J. 40, 1963 N.J. LEXIS 159

Opinions

The opinion of the court was delivered

Per Curiam.

Defendant appeals from a judgment imposing a statutory penalty for a sale of a medicine in violation of N. J. 8. A. 45:LL-6. We certified his appeal before argument in the Appellate Division.

Defendant is not a pharmacist. The ultimate issue is whether citrate of magnesia, bottles of which defendant retailed in his food market, is a “patent or proprietary” medicine within the meaning of N. J. S. A. 45:14-29, which excludes the sale of such medicines from the regulatory provisions of the statute. In The Proprietary Ass’n v. Bd. of Pharmacy, 16 N. J. 62 (1954), we declined to declare the meaning of the quoted term. We discussed the difficulty of discovering the legislative will and concluded (at p. 72):

“* * * Vital social issues are involved upon which the Legislature ought have full opportunity to express itself in the form of modern legislation which fixes the current policy of the State and embodies suitable definitions and enumerations. Pending such legislation the courts will, as heretofore, be obliged to deal, in particular eases involving individual items, with the antiquated statutory terminology which has been carried forth largely without change of dress. This may entail the danger that, notwithstanding sympathetic recognition of the doctrine of separation of powers, judicial rather than legislative judgment as to the controlling social interests will dominate; but on this score the Legislature eoncededly has the counter-balancing and readily available remedy.”

As yet, tbe Legislature has not spoken.

We think we should go no further than to say we are not persuaded the statute was intended to regulate the sale of the commodity here involved, and hence the judgment is reversed.