Ritholz v. INDIANA STATE BOARD OF REGISTRATION, ETC., 605.

• Decision Date: 22 November 1937
• Docket Number: No. 605.,605.
• Citation: 45 F.Supp. 423
• Parties: RITHOLZ et al. v. INDIANA STATE BOARD OF REGISTRATION AND EXAMINATION IN OPTOMETRY et al.
• Court: U.S. District Court — Northern District of Indiana

45 F.Supp. 423

RITHOLZ et al. v. INDIANA STATE BOARD OF REGISTRATION AND EXAMINATION IN OPTOMETRY et al.

No. 605.

District Court, N. D. Indiana, Hammond Division.

November 22, 1937.^*

COPYRIGHT MATERIAL OMITTED

Watson, King & Brode, of Washington, D. C., and Melvin H. Specter, of East Chicago, Ind., for plaintiffs.

Omer Stokes Jackson, Atty. Gen., of Indianapolis, Ind., Ralph E. Hanna, Deputy Atty. Gen., of Indianapolis, Ind., and Wilbur F. Pell, of Shelbyville, Ind., for defendants.

Before SPARKS, Circuit Judge, and BALTZELL and SLICK, District Judges.

PER CURIAM.

In conformity with Equity Rule 70½, 28 U.S.C.A. § 723 Appendix, the court, having heard the parties and their counsel, makes the following findings of fact, the same being the facts alleged in the amended bill of complaint which are well pleaded and which are admitted by the defendants' motion to dismiss:

1. Complainants are residents of the State of Illinois, doing business as partners under the trade name of National Optical Stores Company, with branch stores in the State of Indiana, located at the following places, to-wit: Hammond, Gary, South Bend, Indianapolis and Evansville, and the defendants herein, John P. Davey, Walter Kocher, Don Harpham, Orris Booth and J. R. Victor are the duly appointed, qualified and acting members of the Indiana State Board of Registration and Examination in Optometry and that the defendants, Philip Lutz, Jr., and Paul V. McNutt, were at the time of the filing of the bill of complaint, respectively, the Attorney General of the State of Indiana and the Governor of the State of Indiana, duly qualified and acting as such; and that all of said defendants are residents of the State of Indiana;

2. Complainants are engaged in the retail sale of eyeglasses, lenses, frames and other ophthalmic products upon prescription of duly licensed optometrists and physicians in the several states of the United States and in the following cities in the State of Indiana, to-wit: Indianapolis, Evansville, South Bend, Gary and Hammond;

That the complainants have their main office and factory building located in the City of Chicago, Illinois, where eyeglasses, lenses and frames are manufactured from raw materials; that they have in their employ over 300 persons; that on the 13th day of November, 1936, the date on which the original Bill of Complaint was filed in this cause, the complainants employed licensed optometrists to refract the eyes of persons desiring glasses, but because of certain threats and intimidation on the part of the defendants, said complainants now have placed in their stores for the convenience of the public, duly licensed physicians, licensed in Indiana, who make examinations and collect their own fees; that after an examination of the customer is made by the aforesaid physician a prescription is written by said physician and said prescription is referred to an employee of the complainants, if the customer so desires, and said employee proceeds to show the customer the various types of glasses from which said customer selects the type of glasses desired; that the customer then orders from the complainants the type of glass desired, and is informed by said employee of the complainants that the glasses will be made up and shipped from the Chicago factory; that the prescription and order blank, setting out in detail the type of glasses desired, is forwarded from the local store to the main office and factory of the complainants, situated in the City of Chicago, Illinois, wherein the glasses are ground to comply with the prescription, lenses made and properly assembled and returned to the local store earmarked for delivery to the customer 3. That the optical departments of the complainants are in full charge of the licensed optometrist or physician in each store or branch; that said duly licensed optometrist or physician is furnished with all the necessary equipment for the practice of his calling; that said licensed optometrist or physician examines the eyes of all patients and issues prescriptions for those patients whose vision is found to be defective, and that the patients are under no obligation to purchase glasses from complainants or to have the prescriptions so prepared by said licensed optometrist or physician filled by complainants; that said licensed optometrist or physician has full and exclusive control, without direction from complainants or any of their officers or employees, in the examination of eyes, use of instruments, technique or judgment, without any advice or direction from said complainants; that said complainants do not direct said optometrist or physician in the way he conducts eye examinations, nor in the kinds of prescriptions given, all such matters being left entirely in the judgment of said optometrist or physician; that none of the officers, managers, or other persons connected with the complainants undertake to perform any of the work in the optical testing rooms of complainants' branches, nor do they undertake to examine eyes or give prescriptions, nor do they undertake to assist therein, nor do they themselves examine eyes or give prescriptions or advice to patients;

4. That the Seventy-Ninth General Assembly of the State of Indiana in the year 1935 passed an Act known and designated as Chapter 38 of the Acts of the General Assembly of Indiana of 1935, which said Act, at the time of the filing of the amended bill of complaint herein, was in full force and effect, and is in the words and figures following, to-wit:

"Chapter 38.

"(S. 43. Approved February 14, 1935.)

"An Act to amend sections 2, 6 and 11 and the title and to repeal section 5 of and to create and add certain supplemental sections to an act entitled `An act to define and regulate the practice of optometry, providing for the issuance of certificates to practice, providing for a state board of registration and examination, and defining their duties, providing for the collection and disposition of fees and dues, defining certain misdemeanors and providing penalties therefor,' approved March 9, 1907; and to amend section 4 of an act entitled `An act to amend sections one, four, ten, fifteen, seventeen and nineteen of an act entitled "An act to define and regulate the practice of optometry, providing for the issuance of certificates to practice, providing for the state board of registration and examination, and defining their duties, providing for the collection and disposition of fees and dues, defining certain misdemeanors and providing penalties therefor," approved March 9, 1907,' approved March 15, 1913; and to amend sections 2, 3, 4 and 5 of an act entitled `An act to amend section 3 of an act entitled "An act to define and regulate the practice of optometry, providing for the issuance of certificates to practice, providing for a state board of registration and examination, and defining their duties, providing for the collection and disposition of fees and dues, defining certain misdemeanors and providing penalties therefor," approved March 9, 1907, and to amend sections 2, 3, 5 and 6 of an act entitled "An act to amend sections one, four, ten, fifteen, seventeen, and nineteen of an act entitled `An act to define and regulate the practice of optometry, providing for the issuance of certificates to practice, providing for the state board of registration and examination, and defining their duties, providing for the collection and disposition of fees and dues, defining certain misdemeanors and providing penalties therefor,' approved March 9, 1907," approved March 15, 1913,' law without the governor's signature, 1919; and to amend sections 1, 2 and 3 of an act entitled `An act to amend section 1 of an act entitled "An act to amend section 3 of an act entitled `An act to define and regulate the practice of optometry, providing for the issuance of certificates to practice, providing for a state board of registration and examination, and defining their duties, providing for the collection and disposition of fees and dues, defining certain misdemeanors and providing penalties therefor,' approved March 9, 1907, and to amend sections 2, 3, 5 and 6 of an act entitled `An act to amend sections one, four, ten, fifteen, seventeen, and nineteen of an act entitled "An act to define and regulate the practice of optometry, providing for the issuance of certificates to practice, providing for the state board of registration and examination, and defining their duties, providing for the collection and disposition of fees and dues, defining certain misdemeanors and providing penalties therefor," approved March 9, 1907,' approved March 15, 1913," law without signature of governor (1919), and to amend section 1 of an act entitled "An act to amend section 16 of an act entitled `An act to define and regulate the practice of optometry, providing for the issuance of certificates to practice, providing for a state board of registration and examination, and defining their duties, providing for the collection and disposition of fees and dues, defining certain misdemeanors and providing penalties therefor,' approved March 9, 1907," approved March 12, 1925, and to amend section 18 of an act entitled "An act to define and regulate the practice of optometry, providing for the issuance of certificates to practice, providing for a state board of registration and examination, and defining their duties, providing for the collection and disposition of fees and dues, defining certain misdemeanors and providing penalties therefor," approved March 9, 1907, and to amend section 7 of an act entitled "An act to amend sections one, four, ten, fifteen, seventeen and nineteen of an act entitled `An act to define and regulate the practice of optometry, providing for the issuance of certificates of practice, providing for the state board of registration and examination, and defining their duties, providing for the collection and disposition of fees and dues,...