Ketring v. Sturges
| Decision Date | 11 November 1963 |
| Docket Number | No. 1,No. 49924,49924,1 |
| Citation | 372 S.W.2d 104 |
| Parties | Collman H. KETRING, Hugh Williamson and Mo-Ark Optical Company, a Corporation, Plaintiffs-Appellants, v. Robert STURGES, Ernest J. Tietjen, Jr., Russell C. Powell, John E. Scott and Angelo P. George, as Members of and Constituting and Acting as the Missouri State Board of Optometry, Defendants-Respondents |
| Court | Missouri Supreme Court |
E. L. McClintock, Jr., Flat River, for appellants.
Thomas F. Eagleton, Atty. Gen., John H. Denman, Asst. Atty. Gen., Jefferson City, for respondents.
Albert E. Schoenbeck, St. Louis, for amicus curiae.
WELBORN, Commissioner.
This is an action for declaratory judgment respecting the validity of certain provisions of statutes regulating the practice of optometry in Missouri, 1 and rules promulgated by the Missouri State Board of Optometry.
Appellant Collman H. Ketring is a licensed and registered optometrist under the Missouri law. He is also the president and a stockholder of the Mo-Ark Optical Company, a Missouri corporation. Appellant Hugh Williamson, an optician, who is neither a licensed optometrist nor a licensed physician or surgeon, is an employee of Mo-Ark.
On March 20, 1962, a letter signed by Doctor Ketring as president of Mo-Ark, was circulated to Mo-Ark's customers who included, but were not limited to, optometrists and physicians and surgeons. In the letter, Mo-Ark announced its intention to enter the contact lens field. The letter requested customers to send Mo-Ark their refraction findings. Mo-Ark then would supply the lenses and, according to the letter, have Williamson insert the lenses in the patient's eyes and fit them to the patient's particular needs. The letter further stated that Williamson would make all modifications and adjustments in the lenses. It also stated that it would be helpful if measurements of the radius and proportions of the patient's cornea were sent with refraction findings, but, if the customer preferred, Williamson could make such measurements for the patient.
On March 23, 1962, Mo-Ark published an advertisement in the Poplar Bluff Daily American Republic, as follows:
'MO--ARK OPTICAL COMPANY
403 South Broadway, Poplar Bluff
Offers You:
Complete visual care by a state
registered optometrist.
Frames and lenses of the finest quality
Single vision lenses $15.00
Eyeglass repairs at lowest prices.
Reasonable terms.
MO--ARK OPTICAL COMPANY
DR. C. H. KETRING, O. D.
President
Phone SU 5-6611'
In the advertisement, the words 'Mo-Ark Optical Company' in the first line were in print approximately twice the size of that in which Ketring's name appeared.
On March 30, 1962, the Missouri State Board of Optometry addressed a letter, signed by its president, respondent Robert G. Sturges, to Doctor Ketring. In its letter, the board expressed the position that Williamson, not being a registered optometrist or registered apprentice, was not, unless he was a physician or surgeon, permitted to examine and measure eyes or to fit, modify, adjust or insert contact lenses in Missouri. The letter called attention to board rules 8, 13 and 14, as follows:
'14. It shall be deemed 'dishonorable conduct in optometric practice' for an optometrist to enter into an agreement or arrangement whereby he permits, allows or causes a person, who is not a registered optometrist or a licensed physician or surgeon, to do any one or any combination of the following acts upon a patient or member of the public:
(1) examine the eye to ascertain the presence of defects or abnormal conditions of the eye;
(2) take an impression mold of the eyeball;
(3) determine the corrective qualities to be incorporated in a contact lens; or
(4) adjust or fit a contact lens to the eye.'
The letter also called attention to Section 336.190(3), making the following act a misdemeanor:
'(3) Permitting any person in one's employ, supervision or control to practice optometry, unless that person has a certificate of registration as a registered optometrist.'
The letter also, with reference to the newspaper advertisement, called attention to board rule 12, as follows:
The board also referred to Section 336.110, subd. 1 (6) and (7), which authorized the board to suspend or revoke the certificate of registration of an optometrist for:
'(6) Advertising, practicing or attempting to practice under a name other than one's own;
'(7) Advertising, directly or indirectly, prices or terms for optometric services.'
The letter concluded with this paragraph:
'You are therefore notified that if you and the Mo-Ark Optical Company put into operation said plan to enter the contact lens field in the manner outlined in your said circular letter, or if you and said corporation again publish an advertisement substantially in the form of the one enclosed herewith, or if said Company does engage in 'procuring' business for a registered optometrist, this Board shall take, and cause to be taken, all appropriate legal actions against the Mo-Ark Optical Company, you and any other optometrist involved.'
On April 5, 1962, this action was instituted by appellants against the respondents, the individuals comprising the Missouri State Board of Optometry. Appellants sought a declaratory judgment that Sections 336.150 and 336.160 are unconstitutional because of their unlawful delegation of legislative power. They asked the court to declare rules 8, 12, 13 and 14 of the board invalid as beyond the scope of Chapter 336 and inconsistent therewith. In the alternative, they asked the court to declare that such rules and Sections 336.190 and 336.110 subd. 1(6), (7) and (8), are not applicable to and prohibitive of the proposed operation of the appellants.
The respondents, in their answer, asserted the validity of the statute and rules and their application to appellants' proposed operation. In addition, respondents asked the court for a declaration to the effect that anyone taking an impression of an eyeball for a contact lens, measuring the eye for a contact lens, determining the corrective qualities to be incorporated in such lens, inserting such lens in the eye, or adjusting or fitting the lens, must be a registered optometrist or a physician or surgeon licensed to practice in this State.
The case was tried on an agreed statement of facts, which, in addition to the foregoing matters, contained the following:
'It in not intended that any of the plaintiffs will fabricate the contact lenses to be furnished to the public. Before contact lenses may be fabricated by others, however, the size, shape and curvatures of the cornea of each eye of the patient must be measured by someone and such measurements given to the fabricator. Such measurements involve judgments on the part of the person making them inasmuch as mechanical tests for size and shape are not conclusive and inasmuch as in certain instances the curvatures of the lenses may vary from the curvatures of the cornea. It is intended that the plaintiff Hugh Williamson will make such measurements.
The circuit court entered a judgment holding Sections 336.150 and 336.160 constitutional and valid, holding rules 8, 12, 13 and 14 of the board constitutional and valid, and finding that such rules and Sections 336.110 and 336.190 are applicable to certain specitied intended acts of respondent Ketring. The court also found that Sections 336.180 and 336.190 are applicable to and prohibitive of certain of the intended acts of Williamson and Mo-Ark. The court also entered the declaration prayed for by respondents regarding contact lenses.
After appellants' motion for rehearing was overruled, they appealed to this court.
By reason of the attack on the constitutionality of Sections 336.150 and 336.160, we have jurisdiction of this appeal.
Section 336.150 sets out the general powers of the board of optometry. The portion which appellants attack is that which confers upon the board authority 'to do all other things necessary to carry out the provisions of this chapter.' This grant of authority is attacked as vague and...
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