Kay Jewelry Co. v. Board of Registration in Optometry
| Decision Date | 23 April 1940 |
| Citation | 305 Mass. 581,27 N.E.2d 1 |
| Parties | KAY JEWELRY COMPANY v. BOARD OF REGISTRATION IN OPTOMETRY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
October 3, 1939.
Present: FIELD, C.
J., LUMMUS, QUA DOLAN, & COX, JJ.
Optometry. General Court.
Constitutional Law Police power, General Court. Words, "Reconsideration.
Section 1, art. 2 of the Constitution whereby it failed to pass a bill over a veto of the Governor, and a vote thereafter by the required two thirds is effectual to pass it over the veto. A vote in a branch of the General Court in which a bill, vetoed by the
Governor, had originated, was effectual to pass the bill over the veto under c. 1, Section 1, art. 2, of the Constitution where it was by two thirds of the members present constituting a quorum although not of two thirds of the entire membership. COX, J., dissenting.
BILL IN EQUITY, filed in the Supreme Judicial Court for the county of Suffolk on September 19, 1938.
The suit was reserved by Qua, J., on the bill and answer for determination by the full court.
J. B. Ely, (R.
Ely & S. Markell with him,) for the plaintiff.
E. O. Proctor, Assistant Attorney General, for the defendant. G. B. Lourie, by leave of court, submitted a brief as amicus curiae.
This is a bill in equity of the class illustrated by Shuman v Gilbert, 229 Mass. 225 , and Slome v. Chief of Police of Fitchburg, 304 Mass. 187, brought by a dealer in eyeglasses, lenses and eyeglass frames, to restrain the enforcement against it of St. 1938, c. 434, on the ground that the statute is invalid and that its enforcement would destroy the plaintiff's good will and established business.
The plaintiff for more than eight years has maintained an optical department for the sale of eyeglasses, lenses and eyeglass frames, and has employed to operate it registered optometrists, who have examined eyes and prescribed eyeglasses, lenses and frames, all in conformity with the law existing before the statute of 1938. G.L. (Ter. Ed.) c. 112, Section 73, as amended by St. 1934, c. 339, Section 2. McMurdo v. Getter, 298 Mass. 363 , 369, 370. It has filled prescriptions for eyeglasses and lenses from its own optometrists, other optometrists, and physicians. There is no legal requirement that an optical prescription be filled by an optometrist or other licensed person; in most instances a lens manufacturer grinds the lenses in accordance with the prescription. The plaintiff is in competition with many registered optometrists who on their own account do what the plaintiff has done in its optical department. Notwithstanding possible objections to the practice, optometrists generally make no distinct charge for professional service, but, like the plaintiff, charge only for the merchandise sold.
The statute in question renders impossible the continuance of the plaintiff's optical department as it has been conducted. The statute of 1938 struck out the provision of the earlier law permitting "the employment by any person of a registered optometrist to be in charge of, or practice optometry in, an optical department conducted by such person." It provided further (G.L. [Ter. Ed.] c. 112, Section 73B, inserted by St. 1938, c. 434, Section 3), as follows: "No person shall practice optometry on premises not separate from premises whereon eyeglasses, lenses, or eyeglass frames are sold by any other person; nor shall any person practice optometry under any lease, contract or other arrangement whereby any person, not duly authorized to practice optometry, shares, directly or indirectly, in any fees received in connection with said practice of optometry. . . ." We need not consider the constitutionality of the prohibition of the practice of optometry upon premises where eyeglasses, lenses or frames are sold, because the bill discloses no intention or desire on the part of the plaintiff to permit the independent practice of optometry by anyone on its premises. Unless it may employ the optometrist, or share in his fees, apparently the plaintiff is not interested in his presence.
Plainly a prohibition of the practice of optometry by a registered optometrist as the servant of an unregistered person or corporation conducting an optical department or business is constitutional. That was settled by McMurdo v. Getter, 298 Mass. 363 . The statutory abolition of the anomalous exception in the earlier statute, effected by St. 1938, c. 434, Section 2, raises no constitutional question not settled by the case just cited. To the extent that the Legislature sees fit, it may apply purely professional standards to optometrists. It could find that the sharing of fees with an unregistered person is open to much the same objections that were held in that case to justify a statutory prohibition of the employment of a registered optometrist as a servant by an unregistered person or corporation. So far as the plaintiff is concerned, we find no constitutional objection to the provisions of the statute. If, as is alleged, the expense to the public would be increased by making it impossible for the plaintiff to conduct its business as heretofore, that is a consideration for the Legislature and not for this court. Our views upon this subject have found acceptance elsewhere. Neill v. Gimbel Brothers, Inc. 330 Penn. St. 213. Ezell v. Ritholz, 188 S.C. 39. Babcock v. Nudelman, 367 Ill. 626. See also Williams v. Mack, 202 Minn. 402.
The remaining questions concern the validity of the enactment of the statute.
The bill which, the defendants contend, became St. 1938, c. 434, was returned by the Governor to the House of Representatives, the branch in which it originated, with his objections thereto in writing, and upon "reconsideration" the question on passing the bill, notwithstanding his objections, was determined by yeas and nays, as required by c. 1, Section 1, art. 2, of the Constitution of the Commonwealth. One hundred eighteen members voted yea, to pass the bill, and ninety-six voted nay. But on reconsideration of that vote, one hundred forty members voted yea, to pass the bill, and sixty-seven voted nay. The bill was declared passed, notwithstanding the objections of the Governor, and was sent to the Senate, where upon similar "reconsideration" it was passed by a vote admittedly of more than "two thirds of the members present," and was accordingly declared to "have the force of a law." The question is, whether "two thirds of the said . . . house of representatives" did "agree to pass" the bill, notwithstanding the objections of the Governor, within the meaning of the article of the Constitution cited.
The House of Representatives normally consists of two hundred forty members. Art. 21 art. 71 of the Amendments to the Constitution. At the time in question there were four vacancies, and consequently only two hundred thirty-six members. A majority of the members constitute a quorum. Art. 33 of the Amendments to the Constitution. At the time of the last vote in the House of Representatives, two hundred eight members were present, one member in addition to those voting being recorded as "present." The vote of one hundred forty members in favor of passing the bill, notwithstanding the objections of the Governor, was therefore the vote of more than two thirds of the members present, but fell short of the vote of two thirds of the whole membership.
We assume without deciding, as did the court in Missouri Pacific Railway v. Kansas, 248 U.S. 276, 279, that the interpretation of the Constitution so far as it relates to the necessary steps in the enactment of a law may become a justiciable question, and that the decision of legislative or executive officers is not conclusive. See Tuttle v. Boston, 215 Mass. 57; Prescott v. Secretary of the Commonwealth, 299 Mass. 191 , 195.
Two questions are argued: First, whether after taking a vote upon which the bill clearly failed to obtain the favorable action of two thirds of the members present, the House of Representatives could lawfully reconsider the matter and take another vote upon which the favorable action of two thirds of the members present was obtained; and, secondly, whether the vote of two thirds of the members present, but not of two thirds of the entire membership, was sufficient under c. 1, Section 1, art. 2, of the Constitution. [*]
1, Section 1, art 2) speaks of the action of either branch upon a bill that has been returned by the Governor together with his objections thereto in writing as a "reconsideration" of the bill. It is argued that a reconsideration of the action taken upon that "reconsideration" is impliedly forbidden. That view finds support in congressional precedents. But in our opinion the word "reconsideration" in the Constitution does not contain any implication that the reconsideration required is to result in a single vote which exhausts the power of the legislative body. It signifies rather that the bill is to be again before the legislative body for further consideration. Except for the provision that the vote shall be by yeas and nays, with the votes...
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