State v. Knapp

• Decision Date: 31 December 1930
• Docket Number: 30547
• Parties: The State v. J. A. Knapp, Appellant
• Court: Missouri Supreme Court

33 S.W.2d 891

327 Mo. 24

The State v. J. A. Knapp, Appellant

No. 30547

Supreme Court of Missouri

December 31, 1930

Motion for Rehearing Overruled December 31, 1930.

Appeal from Jackson Circuit Court; Hon. A. Stanford Lyon Judge.

Reversed and defendant discharged.

Manard & Schwimmer for appellant.

(1) Sec. 6, Laws 1921, pp. 535-536, excludes and exempts appellant from the operation of the act under which he was convicted. Sec. 5, Sec. 6, Laws 1921. (2) Sec. 5, Sec. 6 and Sec. 15, Laws 1921, pages 535 to 539, are in violation of the Constitution of the United States, more particularly the 14th Amendment thereof and is in violation of Article 2, Sec. 30 of the Constitution of the State of Missouri. Constitution of United States, 14th Amendment; Art. 2, Sec. 2, Constitution of Missouri; A. H. Bruhl v. State of Texas, 13 S.W.2d 91.

Stratton Shartel, Attorney-General, and A. B. Lovan Assistant Attorney-General, for respondent.

(1) The purpose of the Legislature in regulating the practice of optometry was to protect the public from injury because of incompetent practitioners. The law recognizes the fact that a person, who is not a registered optometrist, may do injury to a person by attempting to test his eyes and attempting to furnish the proper glasses. The law, therefore, requires a person who desires to be an optometrist to measure up to a certain standard and to be able to pass certain examinations. (2) The defendant delivered an eye testing device to a prospective buyer of glasses and permitted such buyer to test his own eyes and refrained from giving any directions as to such testing. It cannot be presumed that the buyer knows any more about testing his own eyes than the defendant ought to know. So, by delivering the device to an inexperienced person, he is doing exactly what the law intends to prohibit. "Statutes enacted for the purpose of preserving public health should be liberally construed to carry out such purpose." 29 C. J. 243. (3) Most of the states have laws almost exactly like the Missouri statute with reference to optometry. Such statutes do not violate any provisions of either Constitution. Saunders v. Swann, 292 S.W 458; State ex rel. v. Utah State Board of Examiners, 108 P. 349; Ex parte Rust, 183 P. 551.

Cooley, C. Davis, C., concurs.

OPINION

COOLEY

In the Circuit Court of Jackson County appellant was convicted of practicing optometry without having a certificate of registration as an optometrist. The offense charged is a misdemeanor, and the case comes to this court on defendant's appeal because of a constitutional question in the record, defendant having challenged the constitutionality of the provision of the act upon which the charge against him was based.

Appellant was, at the times involved herein, proprietor of a jewelry repair shop and store in Kansas City, having a permanently established place of business at which he kept for sale eyeglasses, jewelry and other articles of merchandise. He did not have a license or certificate of registration as an optometrist. He had in his store a device called a "Shore Self-Fitting Eye-testing Machine," which consisted of two disks, each about six inches in diameter, supported by a pedestal and having in front of the disks a projecting arm about sixteen inches long which supports at its end a card upon which are letters of varying size. One disk is stationary and has in it two openings or eye-cups through which the customer looks. The other disk, immediately in front of the first holds twelve sets of lenses or eyeglasses and can be rotated so that, successively, each pair of lenses in the disk comes before the eyes of a person looking through the various lenses in disk number one, enabling him to look through the various lenses at the lettering on the card. The spectacles or eyeglassess kept for sale by appellant were in trays and were lettered or marked to correspond with the lenses in disk number two, so that a customer could thus select from the tray a pair of glasses corresponding to those in the disk that suited him, without trying on or handling the glasses kept in the tray. He, in effect, tried on the glasses in the tray by looking through the corresponding lenses in disk number two. It is claimed and appellant's evidence tends to show that the use of the machine conduces to convenience and better sanitation in that it renders unnecessary the handling and actual trying on by each prospective customer of the glasses kept for sale. A customer might, if he preferred, however, select from the tray without using the machine. Appellant would, in some instances at least, perhaps all, call the attention of a customer to the above mentioned device and if necessary instruct him how to use it. He did that in making the sale upon which this prosecution is based. The furnishing of said device for the use of his customers and the use thereof in the manner indicated, in selling eyeglasses or spectacles without license as an optometrist, constitutes the alleged offense of which appellant was found guilty.

Appellant urges two reasons for reversal of the judgment. First, that the legislative act, with violation of which he is charged, by its terms exempts one in his situation from its operation, and, second, that the sections of the act under which the prosecution is brought are unconstitutional.

The statute in question is the legislative act of 1921, entitled "An act to define and regulate the practice of optometry and fixing penalties for the violation thereof." It is found in Laws of 1921, page 532 et seq. It provides for a state board of optometry, the examination, licensing and registration of optometrists, and defines and regulates the practice of optometry. The sections of the statute which we have particularly to consider in this case are Section 5, defining what constitutes the practice of optometry, and Section 6, exempting certain classes of persons from the operation of the act. Those sections are as follows:

Section 5. "Any one of any combination of the following practices constitutes the practice of optometry:

"(a) The examination of the human eye, without the use of drugs medicines or surgery, to ascertain the presence of defects or abnormal conditions which can be corrected by the use of lenses, prisms or ocular exercises.

"(b) The employment of objective or subjective mechanical means to determine the accommodative or refractive states of the human eye or the range or power of vision of the human eye.

"(c) The prescription or adaptation without the use of drugs medicines or surgery, of...