Bennett v. Indiana State Board of Registration and Examination in Optometry

• Decision Date: 29 April 1937
• Docket Number: 26742.
• Citation: 7 N.E.2d 977,211 Ind. 678
• Parties: BENNETT v. INDIANA STATE BOARD OF REGISTRATION AND EXAMINATION IN OPTOMETRY et al.
• Court: Indiana Supreme Court

7 N.E.2d 977

211 Ind. 678

BENNETT v. INDIANA STATE BOARD OF REGISTRATION AND EXAMINATION IN OPTOMETRY et al.

No. 26742.

Supreme Court of Indiana

April 29, 1937

Appeal from Shelby Circuit Court; Arthur C. Van Duyne, special judge.

Noel Hickam, Boyd & Armstrong, of Indianapolis, for appellant.

Wilbur F. Pell, of Shelbyville, Omer S. Jackson, Atty. Gen., Dailey O'Neal, Dailey & Efroymson, of Indianapolis, and Ralph E. Hanna, Asst. Atty. Gen., for appellees.

TREMAIN Chief Justice.

One Soland began this action by filing his complaint in the superior court of Marion county against the Indiana State Board of Registration and Examination in Optometry, the appellee members thereof, and the Attorney General of Indiana. The complaint sought a declaratory judgment, and an injunction to prevent the enforcement of certain sections of chapter 38 of the Acts of 1935 of the General Assembly of the State of Indiana, alleged to be unconstitutional and invalid. While that complaint was pending, the appellant Bennett filed an intervening petition, after the filing of which the original complaint by Soland was dismissed. For the purposes of this opinion, the intervening petition will be treated as the complaint.

The nature of the action and the issues are stated by the appellant in his brief in the following language:

'It (complaint) alleges that the appellant is and for some time last past, has been engaged in the practice of optometry in the City of Hammond, Indiana, and has been and is now duly licensed so to do under the provisions of the laws of the State of Indiana with reference thereto and is employed to render optometrical services for a firm none of the members of which reside in Indiana or is licensed to practice optometry in Indiana. * * *

'That the employers of appellant and numerous other persons, firms and corporations, are engaged in the sale of eyeglasses spectacles, lenses, frame mountings and other prosthetic materials in addition to employing licensed optometrists for the purpose of rendering optometric services to the public. That there are numerous other persons throughout the State of Indiana employed to render optometrical services who are in the same situation as appellant. That in connection with the sale of said articles, said persons, firms and corporations advertise and claim the right to advertise the sale of said articles and the prices and terms upon which they are to be sold so long as said advertising is not fraudulent or deceptive or has no tendency to deceive the public.

'That said persons, firms and corporations further claim the right to furnish through appellant and other licensed optometrists, optometrical services to the public in connection with their business of selling glasses. That they further contend that the right to sell and advertise their merchandise is a lawful property right and appellant contends that the right to render such services as a licensed optometrist in the employ of said persons, firms or corporations is a lawful property right.

'The petition further alleges that a controversy exists between appellant and appellees with reference to the validity of sections 1(e), 10, 11(e), 11(g), 12(d) and 12(f) of chapter 38 of the Acts of 1935 known as the Optometry Law, it being the claim of appellant that each and all of such sections are invalid for the reason that they are in violation of certain enumerated provisions of the Constitution of the United States and the Constitution of the State of Indiana. The intervening petition prays for a declaratory judgment as to the validity of said provisions, prays that said sections be declared unconstitutional, null and void, and further prays that appellees be perpetually enjoined from attempting to enforce any of said provisions.

'The appellee James H. Hammon filed an intervening petition as an optometrist, asserting the validity of all of said provisions and praying that the appellee Board be mandated to enforce the same.

'Appellant filed an answer to said intervening petition of appellee Hammon, reaffirming the invalidity of said provisions and again asking a declaratory judgment as to the invalidity to said sections of the law and praying an injunction against enforcement thereof. Appellees filed answers in general denial to the intervening petition.

'The cause was submitted for trial by the court without the intervention of a jury on the issues so joined. And on April 25, 1936, judgment was rendered against appellant upholding the validity of the various provisions of said Act and denying the injunction asked for. Judgment was also rendered in favor of the appellee James H. Hammon on his intervening petition upholding the validity of said portions of the act and mandating the appellee Board members and the appellee Attorney General of Indiana to carry out the provisions of said Act. Appellant duly filed his motion for a new trial on May 8, 1936, within the time allowed by law.'

Chapter 38 of the Acts of 1935 repealed certain statutes regulating the practice of optometry and is in itself a new and complete act upon that subject. It provides for a State Board of Optometry to be appointed by the Governor, the licensing of those engaged in that business or profession, the promulgation of rules and regulations by the board, renewal and revocation of licenses, hearings to be had upon charges filed against a licensed optometrist; and defines certain acts as constituting unprofessional conduct, the practice of which would subject the licensee to a revocation of his license.

Upon propositions and authorities, the sections of the statute attacked by the appellant as being unconstitutional are sections 1(e), 11(e), 11(g), and 12(f), and read as follows:

Section 1(e) (pertaining to the power of the board): 'To determine what acts on the part of any person licensed under this act, shall constitute unprofessional conduct as defined by this law.'

The following sections define unprofessional conduct:

Section 11(c): 'For any person to publish, directly or indirectly, or to circulate any fraudulent, false or misleading statements as to the skill or method of practice of any person or of any optometrist, or to advertise in any manner that will tend to deceive, mislead or defraud the public; or to claim professional superiority, or to advertise directly or indirectly, free optometrical services or examinations, as an inducement to the public to procure optometrical services; or to advertise directly or indirectly any amount as a fee for the professional services or to advertise any definite amount and/or terms for prosthetic devices, material or materials constituting all or part thereof which may be furnished and supplied to the publich.'

Section 11(g): 'The direct or indirect acceptance of employment to practice optometry from any person other than one who possesses a valid unrevoked certificate of registration as an optometrist in and for the State of Indiana and who has an actual legal residence within the state.'

Section 12(f): 'For any person or persons to publish or circulate, or print or cause to be printed, by any means whatsoever, any advertisement which quotes prices on glasses, lenses or frames or quotes a discount to be offered to the public for the professional services and/or the prosthetic devices, eyeglasses, lenses or frames, to be furnished to the public, or which quotes 'moderate prices,' 'low prices,' 'lowest prices,' 'guaranteed glasses,' 'satisfaction guaranteed,' or words of similar import, or, which advertises any eyeglasses, spectacles, lenses, frames, mountings, or other accessories or prosthetic devices without specifying the kind, type and quality of the same; or which includes in said advertisement the words 'eye examination free,' 'consultation free,' 'free eyesight test,' 'free sight test,' 'examination without the use of harmful drops or drugs,' or any other words equivalent thereto.'

The appellant asserts that each of said sections of the statute is violative of the Fourteenth Amendment of the Constitution of the United States by reason of the fact that the appellant is denied the equal protection of the law, and that his property is taken without due process of law.

As to section 1(e), in addition to the alleged violation of the Fourteenth Amendment of the Federal Constitution, it is charged that it unlawfully delegates power to the appellee board in violation of article 4, § 1, and article 1, § 23, of the Constitution of the state of Indiana.

The questions presented by appellant are so closely related that they may be considered together. Appellant first attacks section 11(g). His position is that since he is prohibited from accepting employment from any person other than one who resides within the state and holds a valid, unrevoked certificate of registration as an optometrist, he is deprived of a property right guaranteed by the Constitution. He contends that even if his employer is a nonresident and not licensed in this state, nevertheless, he, as a regularly and duly licensed optometrist, cannot be deprived of the right to follow his profession within the state; that such right is a property right; that the fact that his employer is a nonresident bears no relation to the protection of the public health or the general welfare and safety of the citizens of the state; that optometry is not a learned profession in the category with law and medicine, but is an occupation requiring mechanical skill and technique.

The authority of the Legislature to regulate the practice of medicine and surgery in this state has been upheld by the court many times. In Eastman v. State (1887) 109 Ind. 278, 10 N.E. 97, 58 Am.Rep. 400, the appellant challenged the right of the Legislature to enact a law...