Howard Co. Jewelers v. N.J. State Bd. of Optometrists

• Decision Date: 14 January 1943
• Docket Number: 149/289.
• Citation: 29 A.2d 742,133 N.J.Eq. 4
• Parties: HOWARD CO. JEWELERS et al. v. NEW JERSEY STATE BOARD OF OPTOMETRISTS.
• Court: New Jersey Court of Chancery

29 A.2d 742

133 N.J.Eq. 4

HOWARD CO. JEWELERS et al.

v. NEW JERSEY STATE BOARD OF OPTOMETRISTS.

149/289.

Court of Chancery of New Jersey.

Jan. 14, 1943.

Syllabus by the Court.

An injunction may always go to restrain an illegal and excessive use of authority.

Suit between Howard Company Jewelers and another and the New Jersey State Board of Optometrists, wherein complainants sought to enjoin the board from enforcing a ruling made by the board which was allegedly in excess of board's authority. On order to show cause.

Preliminary injunction granted.

Bilder, Bilder & Kaufman and Samuel Kaufman, all of Newark, for complainants.

David T. Wilentz, Atty. Gen. and William K. Miller, of Perth Amboy, for defendant.

STEIN, Vice Chancellor.

Complainants, Howard Co. Jewelers, and A. R. Goldblatt and Co. sell commodities at retail, including eye glasses. They employ licensed optometrists and display signs at their place of business in the form of eye glasses.

The defendant, New Jersey State Board of Optometrists, was created by R.S. 45:12-1 et seq., N.J.S.A. 45:12-1 et seq. The power which that Board may exercise with respect to the subject matter of this complaint must be found, if it exists, in the statute.

On May 19, 1942 the defendant Board adopted the following rule: "7. That on any building wherein a licensed optometrist practices the profession of optometry, there can be displayed no sign pertaining to the art and practice of optometry other than a sign whose dimension shall not exceed six inches by twenty-four inches containing the optometrist's name and the word 'Optometrist' in letters not to exceed two inches in height. On the door or window the same size letters may be used together with 'Eyes examined' or 'Hours for the examination of the eyes' or 'Examination by appointment' and then his office hours underneath. It is strictly prohibited to have an eye glass sign, painted or Neon, either in the form of eyes, oxford or structure resembling eyes or eye glass frames."

R.S. 45:12-1 et seq., N.J.S.A. 45:12-1 et seq., after providing for the creation of the Board, empowers the Board to grant license to practice optometry if the examination of any applicant is satisfactory to the majority of the Board. Such licenses are automatically renewed upon payment annually of a license fee of $5. R.S. 45 :12-9, N.J.S. A. 45:12-9. The Board also has power to revoke such certificates for failure to pay the annual fee or for "unprofessional conduct" upon notice and hearing. R.S. 45:12-11, N.J.S.A. 45:12-11, empowers the Board to revoke a certificate or to suspend the right to practice thereunder of a person convicted of violation of this chapter or of any criminal offense or who is found by the Board to be grossly incompetent, afflicted with contagious disease, an habitual drunkard or guilty of unprofessional conduct. "Unprofessional conduct" is by the statute defined: "a. Any conduct of a character likely to...