Summary
In Crescent Bottling Works v. Board of Pharmacy, 121 N.J. Eq. 237 (E. A. 1937), the court held that a product known as "Duke's Magnesia Sitro-Tartrate" was not a proprietary medicine within the exception of the language of the then section 9 of the Pharmacy Act.
Summary of this case from Proprietary Assn. v. Bd. of Pharmacy of N.JOpinion
Submitted October 30th, 1936.
Decided January 22d 1937.
1. Evidence examined, and held to sustain finding of fact in the court of chancery.
2. Whether the state board of pharmacy may be restrained by injunction in the performance of what it deems its official duty, quaere.
On appeal from a decree in the court of chancery advised by Vice-Chancellor Berry dissolving a preliminary injunction and dismissing the bill.
Messrs. Frazer, Stoffer Jacobs, for the appellant. Mr. David T. Wilentz, attorney-general, and Mr. Robert Peacock, assistant attorney-general, for the respondent.
The bill claimed that a medicinal preparation manufactured and distributed by complainant and called "Duke's Magnesia Citro-Tartrate" was a proprietary medicine within the excepting language of section 9 of the "Pharmacy act" ( Comp. Stat. pp. 3943, 3946) and so not within the prohibitory language of section 2 of that act; and prayed that the board of pharmacy, its agents, etc., be restrained "from interfering with the business of complainant in the sale of said Duke's Magnesia Citro-Tartrate, and from stating or representing to any customers or prospective customers of complainant, or to the wholesale or retail grocery trade that the sale or resale of said Duke's Magnesia Citro-Tartrate is in any way contrary to law, or that the sale at retail thereof involves any breach of law or that any dealers are properly subject to prosecution by virtue of any such resale."
The vice-chancellor on final hearing held that the product in question was merely common citrate of magnesia, a recognized drug preparation, "slightly adulterated and of slightly less potent character," and hence within the prohibitions of section 2. Accordingly he vacated the preliminary injunction and dismissed the bill.
We think that on the evidence the above finding of fact is manifestly right; and accordingly the decree will be affirmed.
The question whether the court of chancery had jurisdiction to entertain the bill and award an injunction in a case of this character, was not raised below, and we express no opinion thereon at this time.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, CASE, BODINE, HEHER, PERSKIE, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, COLE, JJ. 13.
For reversal — None.