Abelson's Inc. v. N.J. State Bd. Of Optometrists

• Citation: 65 A.2d 644
• Decision Date: 11 April 1949
• Docket Number: No. C-232-48.,C-232-48.
• Parties: ABELSON'S, Inc., et al. v. NEW JERSEY STATE BOARD OF OPTOMETRISTS et al.
• Court: New Jersey Superior Court

65 A.2d 644

ABELSON'S, Inc., et al.

v.NEW JERSEY STATE BOARD OF OPTOMETRISTS et al.

No. C-232-48.

Superior Court of New Jersey, Chancery Division.

April 11, 1949.

Syllabus by the Court.

1. The complaint in this cause is filed under the declaratory judgment act to determine the constitutionality of Chapter 350, P.L. 1948 which amended certain sections of the act concerning Optometry R.S. 45:12-1 et seq., N.J.S.A., and complaint also seeks injunction against the enforcement of certain sections of the act.

2. The State is not suable in its own courts without its consent if the judgment obtained will operate to control the action of the State or subject it to liability.

3. The instant suit is one to restrain the New Jersey Board of Optometrists from enforcing the provisions of a legislative enactment which the plaintiffs condemn as an unlawful interference with the right of property constitutionally guaranteed to them and is not a suit against the State, but a suit against individuals charged with the enforcement of the enactment. The Attorney General's motion to dismiss the complaint is denied.

4. Optometry involves the study of the structure, functions, deficiencies and corrections of man's most priceless possession-that of sight-and its recognition and declaration by the Legislature as a ‘profession’ is well within the proper sphere of the State's police power.

5. While the State's power to regulate those professions which touch or concern the health or welfare of its citizens is clear and long established, that power is nonetheless subordinate to the rule of reason. It must not be exercised capriciously, arbitrarily or oppressively. The employment of the power must always be reasonably related to legitimate ends sought to be attained.

6. Subdivision O of R.S. 45:12-11, N.J.S.A., of the Act sets up no standard of conduct. It is vague and uncertain. The phrase ‘of a character likely to deceive or defraud the public’ is nowhere defined in the statute. The phrase establishes no norm by which the best disposed practitioner could avoid the pitfalls of possible violation and prosecution. The subdivision is invalid.

7. Legislature has power to require optometrists to be registered with the Board of Optometrists and to require the registration of branch offices as provided in R.S. 45:12-9 as amended, N.J.S.A. 45:12-9, but its restriction on the number of such branch offices is not a reasonable regulation and is invalid.

8. Subdivisions j and k of the Act forbidding the display of spectacles, eye-glasses and kindred articles in office windows or reception rooms or in display cases outside of the offices; or display of licensee's license or diploma, where visible from the street held not to be necessary for the protection of the public health, safety, morals or general welfare and as not bearing any real or substantial relation thereto and therefore is invalid.

Action by Abelson's, Inc., and Monroe Smallzman against New Jersey State Board of Optometrists and others for a declaratory judgment that act concerning optometry is unconstitutional and for an injunction against the enforcement of certain parts of the act. On order to show cause why the defendants should not be restrained pendente lite, and on motion of the Attorney General to strike out the complaint.

Order in accordance with opinion.

Crummy & Consodine and William Consodine, all of Newark, for plaintiffs.

Walter D. Van Riper, Atty. Gen., and William K. Miller, of Newark, for State Board of Optometry.

Elias A. Kanter, of Newark, for 287 intervening defendants.

STEIN, Judge.

The complaint in this cause is filed under the declaratory judgment act to determine the constitutionality of Chapter 350 of the Laws of 1948 which amended certain sections of the act concerning Optometry R.S. 45:12-1 et seq., N.J.S.A., which complaint also seeks the injunctive remedy against the enforcement of certain sections of the act.

The immediate contest before the Court is provoked by the court's order to show cause why the New Jersey State Board of Optometrists should not pendente lite be restrained from enforcing the provisions of the act, as amended. The Attorney General of the State, appearing for the defendant Board, moves to strike the complaint. The grounds advanced by the Attorney General for striking the complaint are (a) that the suit is one against the State of New Jersey, to the institution or maintenance of which suit the State has not consented; (b) that the action is in violation of the Rules of Civil Practice 3:81-1 to 3:81-14; (c) that the statute complained of is constitutional; (d) that the complaint sets forth no cause of action; and (e) the availability of an adequate legal remedy.

It is the Attorney General's contention that since the New Jersey State Board of Optometrists is an agency of the State, this suit in effect is one against the State. Concedely the State is not suable in its own courts without its consent if the judgment obtained will operate to control the action of the State or subject it to liability. Strobel Steel Construction Co. v. State Highway Commissioner, 120 N.J.L. 298, 198 A. 774. But this suit stands the stated test and is therefore not such action as is embraced within the rule. It is a suit to restrain the New Jersey Board of Optometrists from enforcing the provisions of a legislative enactment which the plaintiffs condemn as an unlawful interference with the rights of property constitutionally guaranteed to them. Such suits, however, are not considered suits against the State but suits against individuals charged with the enforcement of the enactment. Smyth v. Ames, 169 U.S. 466, 18 S.Ct. 418, 42 L.Ed. 819; Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, 13 L.R.A., N.S., 932, 14 Ann.Cas. 764.

In Greene v. Louisville & I.R. Co., 244 U.S. 499, 37 S.Ct. 673, 676, 61 L.Ed. 1280, Ann.Cas.1917E, 88, which was a suit brought by the Board of Valuation and Assessment for the State of Kentucky against the Louisville Railway Company, one of the motions to dismiss in that case was based on the ground that the suit was essentially against the State of Kentucky and was not, therefore, maintainable. Mr. Justice Pitney delivering the opinion for the United States Supreme Court said: ‘A fundamental contention of appellants is that the present actions, brought to restrain them in respect of the performance of duties they are exercising under the authority of the state of Kentucky, are in effect suits against the state. Questions of this sort have arisen many times in this court, but the matter was set at rest in Ex parte Young, 209 U.S. 123, 150, 155, 28 S.Ct. 441, 52 L.Ed. 714, 725, 727, 13 L.R.A., N.S., 932, 14 Ann.Cas. 764, where it was held that a suit to restrain a state officer from executing an unconstitutional statute, in violation of plaintiff's rights and to his irreparable damage, is not a suit against the state, and that ‘individuals who, as officers of the state, are clothed with some duty in regard to the enforcement of the laws of the state, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, * * * may be enjoined by a Federal court of equity from such action.‘‘

Suits like the one presented before the court have been maintained in our equity courts. Equitable Beneficial Ass'n v. Withers, 122 N.J.Eq. 134, 192 A. 511; Howard Company Jewelers v. New Jersey State Board of Optometrists, 133 N.J.Eq. 4, 29 A.2d 742; New Jersey Used Car Trade Association v. Magee, N.J.Super.Ch., 61 A.2d 751.

Rule 3:81-8 provides that review of the final decision or action of any State Administrative Agency shall be by appeal to the Appellate Division. Rule 3:81-10 provides that review of the validity of any administrative rule promulgated by any State Administrative Agency shall be by petition for a declaratory judgment addressed to the Appellate Division. Neither of these rules apply in the instant controversy. The complaint does not seek a review of any final decision or action of the Board or of the validity of any of its rules. It seeks a declaratory judgmet as to the constitutionality of the statute and an injunction against its enforcement.

Plaintiffs do not challenge the rightful power of the State to regulate the practice of optometry, nor can they reasonably raise that question now. The point is settled by New Jersey State Board Optometrists v. S. S. Kresge Co., 113 N.J.L. 287, 174 A. 353, 355, where it was said: ‘* * * The right to practice medicine, and kindred professions for the treatment of human ailments, is subject to the paramount power of the state to impose such regulations, within constitutional limits, as may be required to protect the people against ignorance and incapacity, as well as deception and fraud. The state, in the exercise of the police power, has the undoubted right to regulate the practice of such professions for the protection of the lives and health of the people. It may prescribe that only persons possessing the requisite qualifications of learning and skill shall practice these professions. But the laws adopted must be reasonable and appropriate to that end. Dent v. West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623; Lambert v. Yellowley, 272 U.S. 581, 47 S.Ct. 210, 71 L.Ed. 422, 49 A.L.R. 575; Graves v. Minnesota, 272 U.S. 425, 47 S.Ct. 122, 71 L.Ed. 331.’

While the State's power to regulate those professions which touch or concern the health or welfare of its citizens is clear and long established, that power is nonetheless subordinate to the rule of reason. It must not be exercised capriciously, arbitrarily or oppressively. The employment of the power must always be reasonably related to legitimate ends sought to be attained. In Regal Oil Co. v. State, 123 N.J.L. 456, 10 A.2d 495, 497, it was held: ‘* * * While it is true that a state may, in the exercise of its police power, pass l...