Kindy Opticians, Inc. v. Mich. State Bd. of Examiners in Optometry

• Decision Date: 19 December 1939
• Docket Number: No. 10.,10.
• Citation: 291 Mich. 152,289 N.W. 112
• Parties: KINDY OPTICIANS, Inc., v. MICHIGAN STATE BOARD OF EXAMINERS IN OPTOMETRY et al.
• Court: Michigan Supreme Court

291 Mich. 152

289 N.W. 112

KINDY OPTICIANS, Inc.,

v.MICHIGAN STATE BOARD OF EXAMINERS IN OPTOMETRY et al.

No. 10.

Supreme Court of Michigan.

Dec. 19, 1939.

Action by Kindy Opticians, Inc., against the Michigan State Board of Examiners in Optometry and others, for declaratory judgment concerning constitutionality of statute and for injunction, wherein defendants sought affirmative relief. From a decree for defendants, plaintiff appeals.

Reversed.

Appeal from Circuit Court, Wayne County, in Chancery; Sherman D. Callender, Judge.

Argued before the Entire Bench.

Slyfield, Hartman, Mercer & Reitz, of Detroit, for plaintiff, cross-defendant and appellant.

Clark, Klein, Brucker & Waples, of Detroit, for defendants, cross-plaintiffs and appellees.

CHANDLER, Justice.

Plaintiff, a Minnesota corporation, duty licensed to conduct the business of dispensing optician in this state, filed a bill in equity against the defendants, seeking a declaratory judgment as to the constitutionality of subdivision (i) of Sec. 8 of Act No. 223, Pub.Acts 1937, which amends 2 Comp.Laws, 1929, Sec. 6788 (Stat.Ann. § 14648), contending that said subdivision is unconstitutional because not within the scope of the title of the acts.

The statute in question provides that it shall be unlawful for ‘any person to advertise glasses or lenses, frames or their supporting accessories, with or without frame or mounting at a price, with or without examination of eyes of professional services, or at a price with such phrases as ‘as low as,’ ‘and up,’ ‘lowest prices', or words or phrases of similar import; or to offer any gift, premium, or discount in conjunction with the practice of optometry: Provided, That the exemptions accorded to physicians and surgeons and the other persons from the provisions of this act as set forth in section seven (d) shall not apply to the provisions of section eight of this act’.

Although plaintiff contended that subdivision (i) of Sec. 8 of Act No. 223, Pub.Acts 1937 (Stat.Ann.Supp. § 14.648), was unconstitutional, it abandoned this claim upon appeal, but did insist that said amendment was not within the title of the act, and, therefore, not applicable to plaintiff who was engaged in the business of a dispensing optician and not in the practice of optometry.

The trial judge entered a decree denying plaintiff the relief sought by it, and granted defendants certain affirmative relief, viz., a permanent injunction restraining plaintiff ‘from practicing optometry as defined by Act No. 71, Pub.Acts 1907, as amended’; from ‘adjusting eyeglasses to the individual person by fitting, adapting, adjusting or ‘bending’ frames with or without lenses, and from doing any other act to fit, adapt, adjust or ‘bend’ eyeglasses to the individual person or from so holding itself out to the public, whether such...