N.J. State Bd. of Optometrists v. S. S. Kresge Co.
| Decision Date | 09 October 1935 |
| Docket Number | No. 9.,9. |
| Citation | 181 A. 152 |
| Parties | NEW JERSEY STATE BOARD OF OPTOMETRISTS v. S. S. KRESGE CO. |
| Court | New Jersey Supreme Court |
Syllabus by the Court.
If the Supreme Court reverses a judgment brought before it by certiorari, and also decides what final judgment should be rendered in the cause, that court ought itself to enter the judgment upon the record and award execution thereon, without remitting the record to the inferior court whence it came.
Appeal from Supreme Court.
Proceeding by the New Jersey State Board of Optometrists against the S. S. Kresge Company. From a judgment of the Supreme Court (174 A. 353, 113 N. J Law, 287), reversing a judgment of conviction of employing and aiding an unauthorized person to practice optometry and remanding the case for further proceedings, the New Jersey State Board of Optometrists appeals.
Modified.
David T. Wilentz, Atty. Gen., and Robert Peacock, Asst. Atty. Gen., for appellant.
George S. Hobart, of Newark, for respondent.
The facts are fully stated, and the pertinent statutory provisions quoted, in the opinion of the Supreme Court. (N. J. St. Annual 1932, § 127—90.) We concur in the view expressed by that court, that the particular sale involved in the case, and the class of sales to which it belongs, are not within the purview of the statute. The statutory definition or "optometry," quoted in 113 N. J. Law, 287, at page 293, 174 A. 353, expressly rests, not on sale of lenses or similar aids to the eye, but on examination of the human eye itself by objective or subjective means, or both. Nothing savoring of an examination was made in this case; and all assistance, even in choosing a glass, was refused.
We concur in the view that the proviso relating to sale of toy plane glasses, smoked glasses, and the like, is ineffective to bring into the purview of the act the mere sale, without more, of spectacle frames with lenses therein, labeled according to strength. As well might be included reading glasses with handles, opera glasses, and other binoculars, telescopes, microscopes, and the like, all of which are to assist the eye and augment vision.
This result makes it unnecessary to consider the constitutional question discussed in the Supreme Court, although nothing adverse to the views of that court thereon is now intimated.
The Supreme Court reversed the district court judgment and remanded the case to that court for further proceedings. But as the facts were stipulated in ...
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