Attorney General ex rel. Michigan Bd. of Optometry v. Peterson

• Citation: 381 Mich. 445,164 N.W.2d 43
• Decision Date: 03 February 1969
• Docket Number: No. 2,2
• Parties: ATTORNEY GENERAL ex rel. MICHIGAN BOARD OF OPTOMETRY, Plaintiff and Appellee, v. Martin C. PETERSON et al., Defendants and Appellants. ATTORNEY GENERAL ex rel. MICHIGAN BOARD OF OPTOMETRY, Plaintiff and Appellee, v. Judson L. SMEELINK et al., Defendants and Appellants.
• Court: Michigan Supreme Court

Page 43

164 N.W.2d 43

381 Mich. 445

ATTORNEY GENERAL ex rel. MICHIGAN BOARD OF OPTOMETRY, Plaintiff and Appellee, v. Martin C. PETERSON et al., Defendants and Appellants.

ATTORNEY GENERAL ex rel. MICHIGAN BOARD OF OPTOMETRY, Plaintiff and Appellee, v. Judson L. SMEELINK et al., Defendants and Appellants.

No. 2.

Supreme Court of Michigan.

Feb. 3, 1969.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Joseph B. Bilitzke, Maurice M. Moule, Asst. Attys. Gen., Lansing, for plaintiff-appellee.

Woodrow A. Yared, Grand Rapids, for Martin C. Peterson and Forrest W. Sattler, defendants-appellants.

Wierenga & Sevensma, Grand Rapids, for Judson L. Smeelink and Elaine D. Smeelink, defendants-appellants.

Before the Entire Bench.

ADAMS, Justice.

On September 28, 1962 the Attorney General filed bills of complaint in these consolidated cases, alleging that defendants, opticians, 'did wrongfully and unlawfully practice the profession of optometry, * * * in that they did diagnose, examine and measure the eyes of certain persons for contact lenses, and did fit, insert and adjust the said contact lenses to the eyes of these said persons, * * *.' The bills were amended to allege the acts constituted a continuing nuisance affecting the public health and welfare for which the criminal remedy provided by the optometry act was inadequate. Permanent injunction issued November 9, 1964. ¹ The Court of Appeals affirmed (4 Mich.App. 612.

The optometry act (P.A.1909, No. 71 as amended) was amended by P.A.1961, No. 113, to include in the definition of the practice of optometry:

'The practice of optometry is hereby defined as being either 1 or any combination or part of the following: * * *

'(d) The examination of the human eye for contact lenses and the fitting or insertion of contact lenses to the eye.' C.L.S.1961, § 338.257 (Stat.Ann.1968 Cum.Supp. § 14.647).

The finding of the trial judge of violations of the act is amply sustained by the record in these cases.

Section 9 of the optometry act prescribes a criminal penalty as follows:

'Any person violating any of the provisions of this act shall be deemed guilty of misdemeanor, and upon conviction thereof shall be punished by a fine of not more than 300 dollars or imprisonment in the county jail, not to exceed 4 months, or by both such fine and imprisonment in the discretion of the court.' C.L.1948, § 338.259 (Stat.Ann.1956 Rev. § 14.649).

Appellants contend:

1. Assuming they are guilty of violating the optometry act, the Attorney General is not entitled to injunctive relief because the statute provides a criminal remedy and does not provide for injunctive relief.

2. The optometry act authorizes an optician to fabricate, insert and fit contact lenses upon the prescription and under the supervision of a doctor of medicine. This second contention will not be discussed because we do not consider it to be before us upon the record in these cases.

I. The Law as to Equitable Relief

(a) Criminal Jurisdiction in Equity.

Under ordinary circumstances, a complete and adequate remedy for the violation of criminal statutes and municipal ordinances is afforded by courts of law through criminal prosecution. In Michigan, except by express statutory authorization, equity has no criminal jurisdiction. The doctrine of 'criminal equity' is not recognized. Persons will not be enjoined solely on the ground that their acts or omissions will constitute violations of law and are punishable as crimes.

Chief Justice Dethmers stated in Village of Port Austin v. Parsons (1957), 349 Mich. 629, p. 630, 85 N.W.2d 120, p. 121:

'It will be noted that the ordinance contains no provision for its enforcement by injunction. It is not claimed that it was adopted under authority of any enabling statute containing such provision. The only legal compulsion to compliance is the penal clause of the ordinance. Plaintiff's bill of complaint pleads the bare conclusion 'that such structure would also be a nuisance.' Defendant's answer denies it. This amounts neither to proper averment by plaintiff of facts showing nuisance nor admission thereof by defendant. The mere fact that the structure, as undertaken to be built by defendant, is prohibited by ordinance does not make it a nuisance. There were no proofs of nuisance, public or private, nor of interference with property rights. Thus, there being neither statutorily conferred jurisdiction nor that which is inherent in the courts to abate a nuisance or enjoin violation of property rights, the court was without jurisdiction in the premises.'

To like effect, see United-Detroit Theaters Corp. v. Colonial Theatrical Enterprise, Inc. (1937), 280 Mich. 425, 273 N.W. 756 and Township of Warren v. Raymond (1939), 291 Mich. 426, 289 N.W. 201. In Glover v. Malloska (1927), 238 Mich. 216, 220, 213 N.W. 107, 108, 52 A.L.R. 77, it was said: 'Of course, equity has no inherent jurisdiction to restrain the commission of criminal acts.'

(b) Equitable Relief as Between Private Persons.

Nevertheless, it is well-settled that equity will intervene by injunction in actions by private persons to present deprivation of personal or property rights through interference, injury, or destruction by unlawful acts or where the acts are of a criminal nature. In such cases, the injunction issues for the purpose of protecting individual rights from damage and it in no way interferes with or undertakes the enforcement of criminal laws. See Glover v. Malloska, supra, and Gilligham v. Ray (1909), 157 Mich. 488, 122 N.W. 111.

In Seifert v. Buhl Optical Co. (1936), 276 Mich. 692, 268 N.W. 784, three individual registered optometrists and the Michigan Society of Optometrists (not a State agency) sued on behalf of themselves and the registered members of their profession. They were held to have sufficient property interest to entitle them to enjoin an optical company from engaging in certain unlawful advertising relating to eye examinations and the cost of glasses. The Court said (p. 700, p. 787 of 268 N.W.):

'Suit may be brought by Parties engaged in a profession or business to enjoin unfair trade and practice which would be injurious to their interests and the fact that such practices are punishable by criminal penalties is immaterial.' (Emphasis added.)

This Court has also approved the use of injunctions to enjoin activities by non-licensed persons amounting to the illegal practice of the law. See Grand Rapids Bar Association v. Denkema (1939), 290 Mich. 56, 287 N.W. 377; Ingham County Bar Association v. Walter Neller Company (1965), 342 Mich. 214, 69 N.W.2d 713, 53 A.L.R.2d 777; State Bar of Michigan v. Kupris (1962), 366 Mich. 688, 116 N.W.2d 341. In these cases, the question of criminal punishment or of the adequacy of a legal remedy was not raised. The opinions center on the question of what does constitute the illegal practice of the law.

In United-Detroit Theaters Corp. v. Colonial Theatrical Enterprise, Inc., supra, this Court denied injunctive relief in the absence of evidence that defendant's lottery scheme affected the plaintiff's business.

In Plassey v. S. Loewenstein & Son (1951), 330 Mich. 525, 48 N.W.2d 126, this Court upheld dismissal of a bill for injunctive relief to restrain the defendant from erecting and operating a slaughterhouse in the vicinity of plaintiffs' apartment buildings on the ground that private persons are not proper plaintiffs in a suit to abate a public nuisance but said (p. 530 p. 128 of 48 N.W.2d):

'* * * it may be noted that if the construction of a building for an avowed purpose would unquestionably result in a nuisance affecting the rights of individuals a case might be presented wherein private individuals whose rights would unquestionably by invaded thereby might have the erection of the building itself enjoined.'

So much for the injunctive claims of private litigants.

(c) Equitable Relief to Public Officials or Agencies.

Is the rule different where the plaintiff is a governmental unit, agency or officer? The Court of Appeals, in affirming the trial court (4 Mich.App. 612, 145 N.W.2d 386), found that equity does have jurisdiction to issue injunctions in such cases, stating (p. 616 p. 388 of 145 N.W.2d):

'In our opinion this case falls in the category of cases set forth in Dearborn National Insurance Company v. Commissioner of Insurance (1950), 329 Mich. 107, where the Court stated on pp. 118, 119; (44 N.W.2d 892):

"We do not agree with appellants that under the circumstances of this case the authority of the commissioner must be found solely in said section, or that equity has no jurisdiction under these circumstances on the ground that said section is a penal statute, enforcement of which must rest solely in an arrest and conviction for a misdemeanor. The existence of a penal provision in a statute or an ordinance does not necessarily have the effect of ousting the chancery court of jurisdiction, where prosecution does not afford an adequate remedy. People ex rel. Secretary of State v. State Ins. Co. (1869), 19 Mich. 392; Board of Health of City of Grand Rapids v. Vink (1915), 184 Mich. 688, (151 N.W. 672); Township of Warren v. Raymond (1939), 291 Mich. 426, (289 N.W. 201). The remedy provided by said section--prosecution of an officer or director for a misdemeanor, does not afford an adequate remedy for the protection of the policyholders or creditors of the appellant insurance companies, or of the public. Equity has jurisdiction, under the circumstances of this case."

People ex rel. Secretary of State v. State Insurance Company (1869), 19 Mich. 392, was an application for writ of mandamus to compel an insurance company to open its books to the State for examination. It was held that the writ was properly granted, since if the secretary of state was left 'to the show process of quo warranto or criminal prosecution, the whole purpose of this Section may be defeated.'

Board of Health of City of Grand Rapids v. Vink (1915), 184...