N.J. State Bd. of Optometrists v. S. S. Kresge Co.

• Citation: 174 A. 353
• Decision Date: 17 August 1934
• Docket Number: No. 205.,205.
• Parties: NEW JERSEY STATE BOARD OF OPTOMETRISTS v. S. S. KRESGE CO.
• Court: United States State Supreme Court (New Jersey)

174 A. 353

NEW JERSEY STATE BOARD OF OPTOMETRISTS

v. S. S. KRESGE CO.

No. 205.

Supreme Court of New Jersey.

Aug. 17, 1934.

Proceeding by the New Jersey State Board of Optometrists against the S. S. Kresge Company. To review a judgment of conviction of employing and aiding an unauthorized person to practice optometry, the defendant prosecutes certiorari.

Reversed and remanded.

Argued January term, 1934, before BROGAN, C. J., and TRENCHARD and HEHER, JJ.

George S. Hobart and John J. Gaffey, both of Newark, for prosecutor.

William A. Stevens, Atty. Gen., and Robert Peacock, Asst. Atty. Gen., for defendant.

HEHER, Justice.

Prosecutor invokes the jurisdiction of this court to review, by certiorari, a judgment of conviction entered in the First district court of the city of Jersey City, upon a complaint charging that, in the month of October, 1932, at a retail store maintained by it in the city of Jersey City, in violation of the provisions of an act to regulate the practice of optometry (P. L. 1914, p. 448), as amended by chapter 59 of the Laws of 1919 (P. L. 1919, p. 105) and chapter 75 of the Laws of 1932 (P. L. 1932, p. 124), Comp. St. Supp. 1924, § 127— 90 et seq., Comp. St. Supp. 1930, § 127—114 et seq., N. J. St Annual 1932, § 127—90 et seq., it employed, gave aid, and assisted one Carlock, an employee who was not possessed of the requisite authority, "to practice optometry within the meaning of section one of said act, * * * contrary to and in violation of section twenty-one of said act. * * *" The statutory penalty for the first offense was assessed.

The facts are stipulated. Prosecutor is a foreign corporation engaged in the retail general merchandising business. Carlock was in charge of the notion counter in its Jersey City store. Among the goods displayed for sale on this counter were spectacles which retailed at 25 cents each. Concededly, these spectacles were designed to serve as an aid to human vision. They consisted of celluloid frames of uniform size, with a pair of lenses. There was an assortment of spectacles, and the lenses varied in power or focus. There was attached to each a paper tag or paster containing numbers indicating the focal distance of the lens; the distance being measured both by inches and by diopters. The transactions which furnished the basis for the complaint consisted of sales of spectacles by Carlock, who was not authorized to practice optometry in this state, to agents of the defendant board. It is conceded that, in accordance with instructions given by prosecutor to its various store managers, no advice, aid, or assistance, in the selection of the spectacles so sold, was given to the purchasers by Carlock, or any other person in the employ of prosecutor. In response to the purchaser's inquiry as to whether "all the glasses were the same," Carlock replied, "No; they are all different and go by numbers;" and when the purchaser asked Carlock to indicate "what number she thought she (purchaser) needed for general use around the house," Carlock replied, "You will have to try on the glasses yourself, because I cannot help you; I can only sell the glasses to you." It is stipulated that, in respect of these transactions, prosecutor "did not employ any means for the measurement of the powers of vision, or the adaptation of lenses or prisms for the aid thereof; did not use testing appliances for the purpose of the measurement of the powers of vision; did not diagnose any ocular deficiency or deformity, visual or muscular anomaly of the eyes of said customers, or either of them; did not prescribe lenses, prisms or ocular exercise for the correction or relief thereof; and did not hold themselves out as qualified to practice optometry, or in any way advertise themselves as an optometrist." Respondent maintains, however, that prosecutor's agents employed "means for measurement of the powers of vision and adapted lenses or prisms for the aid thereof in that they sold the glasses, which were of different strength and different numbers, to fit the eyes of persons making the purchases," and thus practiced optometry within the statutory definition.

Prosecutor insists that these transactions did not constitute the unlawful practice of optometry, within the intendment of the statute, and that, therefore, the judgment is without factual support; that if a contrary construction be adopted, the legislation "amounts to an interference with defendant's right, of property, and to the taking of defendant's property without due process, in violation of both the State and Federal Constitutions"; and that, in any event, "the statute on its face violates the State and Federal Constitutions," in that (a) the standard of conduct prescribed therein is so indefinite as to amount to a delegation of legislative power; (b) the penalties imposed are unreasonable and excessive; and (c) it unduly interferes with prosecutor's right "to acquire, possess and protect property, and deprives" it "of its property without due process."

While a determination of the constitutional questions raised may, perhaps, be unnecessary, in view of our conclusion that the statute is inapplicable to the situation here presented, we are of opinion that the public interest requires that this fundamental challenge should not be passed sub silentio, and we therefore proceed to consider it.

It is said that the statute, if construed to bar "the right to sell" spectacles under the circumstances here shown, would be an unreasonable exercise of the police power. We are unable to subscribe to this view. The right to practice medicine, and kindred professions for the treatment of human ailments, is subject to the paramount power of the state to impose such regulations, within constitutional limits, as may be required to protect the people against ignorance and incapacity, as well as deception and fraud. The state, in the exercise of the police power, has the undoubted right to regulate the practice of such professions for the protection of the lives and health of the people. It may prescribe that only persons possessing the requisite qualifications of learning and skill shall practice these professions. But the laws adopted must be reasonable and appropriate to that end. Dent v. West Virginia, 129 U. S. 114, 9 S. Ct. 231, 32 L. Ed. 623; Lambert v. Yellowley, 272 U. S. 581, 47 S. Ct. 210, 71 L. Ed. 422, 49 A. L. R. 575; Graves v. Minnesota, 272 U. S. 425, 47 S. Ct. 122, 71 L. Ed. 331.

And a statute prohibiting the sale at retail, in any store or established place of business, of "any spectacles, eyeglasses, or lenses for the correction of vision, unless a duly licensed physician or duly qualified optometrist * * * be in charge of and personal attendance at the booth, counter or place, where such articles are sold in such store or established place of business," is a valid exercise of the police power. Roschen v. Ward, 279 U. S. 337, 49 S. Ct. 336, 73 L. Ed. 722. A state may, in the exercise of its police power, confine to registered optometrists, who have demonstrated their qualifications by passing the examination prescribed by the statute, the right to employ means other than drugs to measure the range of human vision, and the accommodative and refractive states of the human eye. McNaughton v. Johnson, 242 U. S. 344, 37 S. Ct. 178, 61 L. Ed. 352, Ann. Cas. 1917B, 801. See, also, Commonwealth v. Houtenbrink, 235 Mass. 320, 126 N. E. 669; Commonwealth v. S. S. Kresge Co., 267 Mass. 145, 166 N. E. 558; Harris v. State Board of Optometrical Examiners, 287 Pa. 531, 135 A. 237. That the practice of optometry bears a reasonable relation to the public health and welfare cannot be doubted. There is a known relation between many ailments and impaired eyesight. They disappear when the defects of vision are corrected by suitable glasses. "To properly diagnose and prescribe for the particular defect from which the patient is suffering requires a knowledge of the anatomy of the eye as well as the subject of physical optics, being that branch of the general subject of physics which deals with the action or effect of lenses on light, and how light is directed, reflected, and refracted." Price v. State, 168 Wis. 603, 171 N. W. 77, 79. Considerations of public policy require that oculists and ophthalmologists, who practice what has been termed "a learned profession," and optometrists, who pursue what has been described as "an occupation or vocation calling for a degree of mechanical skill and experience" (Saunders v. Swann, 155 Tenn. 310, 292 S. W. 458), shall demonstrate the skill and experience requisite for practice in their respective fields.

And the claim that the act unlawfully delegates legislative power is likewise without substance. We find no delegation of this exclusive legislative function. The statute is complete in itself, and there is no attempt to vest in the defendant board authority that is essentially legislative. It meets, in every respect, the test of validity laid down by Chief Justice Gummere: "The Legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend." W. J. & S. R. R. Co. v. Board of Public Utility Com'rs, 87 N. J. Law, 170, 94 A. 57, 60. The prescribed "standard of conduct" is not, as contended, vague and indefinite. The acts constituting the "practice of optometry" are clearly and definitely stated. The term "optometry" has a technical significance, and there is, as we shall see, little or no departure from the technical meaning in the statutory definition. Those to be guided by this legislation are not left in doubt as to what constitutes the unlawful practice of optometry.

Nor are the penalties provided unreasonable. The act prescribes a penalty of $200 for the first offense, and $500 for each subsequent offense. This was clearly not an abuse of the power vested in ...