Labash v. Board of Embalmers & Funeral Directors

• Decision Date: 21 March 1951
• Docket Number: No. A--803,A--803
• Citation: 79 A.2d 693,12 N.J.Super. 334
• Parties: LABASH v. BOARD OF EMBALMERS & FUNERAL DIRECTORS.
• Court: New Jersey Superior Court — Appellate Division

Page 334

12 N.J.Super. 334

79 A.2d 693

LABASH v. BOARD OF EMBALMERS & FUNERAL DIRECTORS.

No. A--803.

Superior Court of New Jersey Appellate Division.

Argued Feb. 26, 1951.

Decided March 21, 1951.

Jack Rinzler, Passaic, argued the cause for plaintiff-appellant (Feder & Rinzler, Passaic, attorneys).

Joseph Lanigan, Deputy Attorney General, argued the cause for defendant-respondent (Theodore D. Parsons, Attorney General, attorney).

Before Judges McGEEHAN, JAYNE and WM. J. BRENNAN, Jr.

PER CURIAM.

The plaintiff appeals from a determination of the Board of Embalmers and Funeral Directors of the State of New Jersey (hereinafter referred to as the 'Board') made on July 11, 1950, denying his application for a transfer of a permit to operate a branch establishment.

For over 20 years the plaintiff has been licensed by the board as a funeral director and embalmer, and has been engaged in the business of funeral director and embalmer with a main establishment in Passaic, New Jersey. On April 19, 1938, the board issued a permit to the plaintiff to establish a branch establishment, and the plaintiff conducted a branch establishment in Woodbridge, New Jersey, until 1939 and thereafter in Passaic, New Jersey, until September, 1949. In the early part of 1949 he applied to the board for a transfer of his permit to operate a branch establishment, so as to be permitted to operate such branch establishment at Rockaway, New Jersey, about eight miles distant from his main establishment in Passaic. The board held a hearing on the application on June 16, 1949. Rule 27 of the board, in effect at the time, provided: 'No branch establishment will be permitted within the State of New Jersey, unless there is a licensed resident manager in charge thereof. * * *' On October 31, 1949, the board denied the application on the ground that the plaintiff intended to conduct the branch establishment 'without engaging a resident licensed embalmer and funeral director' in violation of Rule 27.

On appeal to this court, we held that Rule 27, insofar as it requires the licensed manager of a branch to be 'resident,' is void and we remanded the matter to the board for reconsideration, in the light of our holding. Labash v. Board of Embalmers & Funeral Directors, 8 N.J.Super. 260, 74 A.2d 316 (App.Div. 1950). The appeal was decided June 31, 1950, and on June 30, 1950, the board adopted Rule 36, which the respondent concedes is, in effect, an amendment of Rule 27 and which, among other changes, strikes out the 'resident' requirement contained in Rule 27. Rule 36 provides: 'No branch establishment shall be permitted within the State of New Jersey, unless there be a licensed Branch manager in charge thereof. Such licensee shall personally supervise all work emanating therefrom And he shall not be the licensed manager of any other main or branch establishment and his name as such branch manager shall be at all times conspicuously displayed. * * *' (Italics ours to indicate new matter.) On July 11, 1950, the board reconsidered the plaintiff's application. The plaintiff again sought a permit for a branch establishment at Rockaway, with the right to conduct both his main establishment and the branch establishment under his supervision. The board again denied the plaintiff's application on the ground that he had not satisfied the board that such branch establishment would be conducted by a licensed branch manager who would not be a licensed branch manager of any other main or branch establishment, as required by Rule 36.

Plaintiff argues that Rule 36 is unreasonable, capricious and arbitrary and therefore invalid insofar as it requires that each branch establishment must be conducted under the charge of a licensed branch manager who 'shall not be a licensed...