Silverman v. Board of Registration in Optometry

Decision Date09 April 1962
Citation344 Mass. 129,181 N.E.2d 540
PartiesHoward P. SILVERMAN v. BOARD OF REGISTRATION IN OPTOMETRY.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Daniel O. Mahoney, Boston (Robert J. McGee, Marblehead, with him), for plaintiff.

Herbert E. Tucker, Jr., Asst. Atty. Gen., for Bd. of Registration in Optometry.

James D. St. Clair and Daniel H. Silver, Boston, by leave of court, submitted a brief as amici curiae.

Before SPALDING, WHITTEMORE, CUTTER and KIRK, JJ.

SPALDING, Justice.

The plaintiff seeks in this declaratory proceeding a determination of the validity of a regulation promulgated by the Board of Registration in Optometry. The case is before us on a report, without decision, of a single justice. All of the facts alleged in the plaintiff's bill are admitted by the defendant, and the parties have stipulated that these are 'all the material facts from which the rights of the parties are to be determined.'

The plaintiff is a registered optometrist authorized to practise optometry in this Commonwealth. The defendant is the board created by G.L. c. 13, § 16. On September 1, 1961, the plaintiff entered into a lease with G. E. M. of Boston, Inc. (hereinafter called Gem), under the terms of which he was to occupy a portion of Gem's premises for use as an office for the practice of optometry. The proposed office is on premises where Gem conducts a 'commercial or mercantile establishment.' This establishment is the primary business conducted on the premises. A regulation (No. 17) promulgated by the defendant in 1951 provides, 'No optometrist shall conduct the practice of his profession in or on premises where a commercial or mercantile establishment is the primary business being conducted.' A controversy having arisen between the parties as to the validity of this regulation, the plaintiff brought this bill for declaratory relief. G.L. c. 30A, § 7. G.L. c. 231A.

I.

The plaintiff contends that the rule making power conferred on the board by G.L. c. 112, § 67, does not include the power to prohibit an optometrist from conducting his practice on premises where a commercial or mercantile establishment is the primary business being conducted. Section 67 provides that 'The board shall make rules and regulations governing its procedure, governing registration and applications therefor, and governing the practice of optometry. Said rules and regulations shall be consistent with the provisions of sections sixteen to eighteen, inclusive, of chapter thirteen and sections sixty-six to seventy-three, inclusive, of this chapter' (emphasis supplied). The plaintiff argues that the meaning of the words, 'practice of optometry,' must be found in § 66, wherein it is stated: 'The practice of optometry, as referred to in sections sixty-seven to seventy-three, inclusive, is hereby defined to be the employment of any method or means, other than the use of drugs, for the diagnosis of any optical defect, deficiency or deformity of the human eye, or visual or muscular anomaly of the visual system, or the adaptation or prescribing of lenses, prisms or ocular exercises for the correction, relief or aid of the visual functions.' It is the plaintiff's position that the definition of 'practice of optometry' in § 66 narrows the delegation of rule making power in § 67 to matters concerning the acts performed by optometrists relative to their patients, and concerning persons who are entitled to perform such acts. We do not agree. Sections 66 through 73B of c. 112 are entitled 'Registration of Optometrists.' These statutes are concerned with the registration of optometrists (§§ 68, 69, 70, 71), and certain unlawful practices (§§ 72, 72A, 73A, 73B). By § 67 authority is given to the board to make certain further regulations. It was necessary that the profession of optometry, as distinguished from the roles of the optician and ophthalmologist, be clearly defined so that there would be no doubt as to whom these sections were applicable. This we view to be the sole purpose of § 66. 'Practice of optometry,' as used in § 67, should, we think, be read without being limited by § 66. To restrict the delegation of rule making power in the manner suggested by the plaintiff would mean that the board (aside from regulations governing its procedure, registration, and applications therefor) was limited to making regulations concerning how the optometrist actually diagnoses and corrects his patients' visual faculties. It is hardly likely that the Legislature intended such a result.

It is urged by the plaintiff that the language of G.L. c. 112, § 73B (inserted by St.1938, c. 434, § 3), and its legislative history show that the Legislature reserved to itself the power to regulate geographical location of optometrists' offices by prempting the field. For reasons presently appearing, we are of opinion that the challenged regulation did not exceed the authority granted to the board in § 67. Section 73B reads, in part: 'No person shall practice optometry on premises not separate from premises whereon eyeglasses, lenses, or eyeglass frames are sold by any other person; nor shall any person practice optometry under any lease, contract or other arrangement whereby any person, not duly authorized to practice optometry, shares, directly or indirectly, in any fees received in connection with said practice of optometry.' The latter part of the statute, involving a prohibition of the practice of optometry by a registered optometrist where fees are shared with an unregistered person or corporation, was discussed in Kay Jewelry Co. v. Board of Registration in Optometry, 305 Mass. 581, 27 N.E.2d 1. See McMurdo v. Getter, 298 Mass. 363, 10 N.E.2d 139. The first part of § 73B prohibits direct alliances between optometrists and dispensing opticians. See Rep.A.G., Pub.Doc. No. 12, 1938, pp. 85-86. Section 73B deals with two specific evils. There is nothing in § 73B, or in its legislative history, which is inconsistent with a delegation to the board of the power to further regulate the practice of optometry.

We find no merit in the plaintiff's contention that the power exercised by the board in regulation No. 17 is an exclusively legislative power which cannot constitutionally be delegated. See Ritholz v. Indiana State Bd. of Registration & Examination in Optometry, 45 F.Supp. 423, 435 (D.C.Ind.); Bennett v. Indiana State Bd. of Registration & Examination in Optometry, 211 Ind. 678, 687, 7 N.E.2d 977; Abelson's, Inc. v. New Jersey State Bd. of Optometrists, 5 N.J. 412, 423-424, 75 A.2d 867, 22 A.L.R.2d 929.

II.

The constitutionality of the regulation in question is challenged here on the ground that it is not within the police power of the Commonwealth to so limit the plaintiff's right to engage in his lawful occupation. 1 That the practice of optometry may be regulated by requiring examination and registration is not open to dispute. Commonwealth v. Houtenbrink, 235 Mass. 320, 126 N.E. 669; Commonwealth v. S. S. Kresge Co., 267 Mass. 145, 166 N.E. 558; McMurdo v. Getter, 298 Mass. 363, 10 N.E.2d 139. And the legislature may regulate advertising in commection with the sale of eyeglasses, lenses, or frames. Commonwealth v. Ferris, 305 Mass. 233, 25 N.E.2d 378. We have held that a prohibition of the practice of optometry by a registered optometrist where fees are shared with a person not authorized to practise optometry is constitutional. Kay Jewelry Co. v. Board of Registration in Optometry, 305 Mass. 581, 27 N.E.2d 1. Extensive regulation of the practice of optometry has been upheld against constitutional attack in other jurisdictions. Statutes and regulations restricting advertising by optometrists have been held to be valid. Klein v. Department of Registration & Educ., 412 Ill. 75, 81-85, 105 N.E.2d 758. See Abelson's Inc. v. New Jersey State Bd. of Optometrists, 5 N.J. 412, 420-421, 75 A.2d 867. Similar restrictions concerning advertising in other professions have been upheld. Commonwealth v. Brown, 302 Mass. 523, 20 N.E.2d 478 (dentist). Matter of Cohen, 261 Mass. 484, 159 N.E. 495, 55 A.L.R. 1309 (attorney). Semler v. Oregon State Bd. of Dental Exam'rs., 294 U.S. 608, 55 S.Ct. 570, 79 L.Ed. 1086 (dentist). In the case last cited it was said at page 612, 55 S.Ct. at page 572: '[T]he community is concerned in providing safeguards not only against deception, but against practices which would tend to demoralize the profession by forcing its members into an unseemly rivalry which would enlarge the opportunities of the least scrupulous.' A provision barring the issuance of more than two branch office registration certificates to one licensee was held constitutional in Abelson's, Inc. v. New Jersey State Bd. of Optometrists, 5 N.J. 412, 421-422, 75 A.2d 867. See generally...

To continue reading

Request your trial
8 cases
  • Massachusetts Commission Against Discrimination v. Colangelo
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 16, 1962
    ...app. dism. 308 U.S. 504, 60 S.Ct. 96, 84 L.Ed. 432. Kaplan v. Bowker, 333 Mass. 455, 459-461, 131 N.E.2d 372. Silverman v. Board of Registration in Optometry, Mass., 181 N.E.2d 540. 4 Yazoo & Miss. Valley R. R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 33 S.Ct. 40, 57 L.Ed. 193. Gorieb v. F......
  • Milligan v. Board of Registration in Pharmacy
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • February 8, 1965
    ...346 Mass. 575, 576-577, 195 N.E.2d 80. See McMurdo v. Getter, 298 Mass. 363, 365-370, 10 N.E.2d 139; Silverman v. Board of Registration in Optometry, 344 Mass. 129, 133-135, 181 N.E.2d 540. Thus, the Legislature may regulate pharmacists and drug stores in a manner reasonably designed and ap......
  • Texas State Bd. of Examiners in Optometry v. Carp
    • United States
    • Texas Supreme Court
    • February 8, 1967
    ...133 So.2d 374 (1963); State Board of Dental Examiners v. Bohl, 162 Kan. 156, 174 P.2d 998 (1946); Silverman v. Board of Registration in Optometry, 344 Mass. 129, 181 N.E.2d 540 (1962); Toole v. Michigan State Board of Dentistry, 306 Mich. 527, 11 N.W.2d 229 (1943); State Board of Optometry ......
  • Massengale v. BOARD OF EXAMINERS IN OPTOMETRY
    • United States
    • Oklahoma Supreme Court
    • July 3, 2001
    ...similar contractual relationships: Lenscrafters, Inc. v. Sundquist, 33 S.W.3d 772 (Tenn.2000); Silverman v. Board of Registration in Optometry, 344 Mass. 129, 181 N.E.2d 540 (1962); California Ass'n of Dispensing Opticians, 143 Cal.App.3d 419, 191 Cal.Rptr. 762 (1983).]. We note that both t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT