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Full Opinion
LEE OPTICAL OF OKLAHOMA, Inc. et al.
v.
WILLIAMSON, Atty.Gen. of Oklahoma et al.
United States District Court, W. D. Oklahoma.
*129 *130 Dick H. Woods and John Phillips (of Stinson, Mag, Thomson, McEvers & Fizzell), Kansas City, Mo., and Duke Duvall *131 (of Dudley, Duvall & Dudley), Oklahoma City, Okl., for plaintiffs.
Fred Hansen and James C. Harkin, Asst. Attys. Gen., State of Oklahoma, Fred Daugherty, LeRoy Powers, Oklahoma City, Okl., and Paul Harkey, Idabel, Okl., for defendants.
Before MURRAH, Circuit Judge, VAUGHT, Chief Judge, and WALLACE, District Judge.
WALLACE, District Judge.
The plaintiffs bring this action under the Federal Declaratory Judgment Act[1] and challenge the constitutionality of certain provisions found in the recent Oklahoma Enactment dealing with the regulation of "visual care".[2] The statute subject to attack is commonly referred to as Enrolled House Bill No. 953 and is entitled:
"An Act relating to visual care: defining terms; prohibiting dishonest and dangerous practices in the sale of optical goods and devices; prohibiting discrimination; making the Act cumulative to other laws; making violation a misdemeanor authorizing injunction against violators."
Plaintiffs, Carp, an individual, and Lee Optical Company, an Oklahoma corporation, are "dispensing opticians";[3] the other plaintiff, Rips, is an ophthalmologist, duly licensed to practice in Oklahoma, who offices in Tulsa, Oklahoma, in space rented from the Zales Jewelry Company. Plaintiffs Carp and Lee Optical direct their constitutional criticisms at parts of sections 2 and 3 of the instant Act;[4] plaintiff, Dr. Rips, *132 questions a portion of section 4.[5]
It is recognized, without citation of authority, that all legislative enactments are accompanied by a presumption of constitutionality; and, that the court must not by decision invalidate an enactment merely because in the court's opinion the legislature acted unwisely. Likewise, where the statute touches upon the public health and welfare, the statute cannot be deemed unconstitutional class legislation, even though a specific class of persons or businesses is singled out, where the legislation in its impact is free of caprice and discrimination and is rationally related to the public good. A court only can annul legislative action where it appears certain that the attempted exercise of police power is arbitrary, unreasonable or discriminatory.[6]
*133 The Attorney General, in urging the validity of the Act in question, emphasizes that the general purpose and intent of the Act, as evidenced by the title's broad scope, is to make certain that the people of Oklahoma receive the best possible visual care;[7] and, argues that to achieve such a goal it is imperative that the entire field of visual care (or responsibility therefor) be under the direct supervision and administration of professional practitioners (either physicians or optometrists) with all non-licensed artisans and commercial interests prohibited from activity except pursuant to professional written prescriptive authority.
Unquestionably, many aspects of the field of visual care are of sufficient public interest to warrant the operation of police power authority, and many regulatory measures directed toward protecting the public in regard to eye care have been judicially sanctioned.[8] However, the manner and extent to which the definable segments which compose the entire field of visual care can be controlled, like all other objects of legislative regulation, is limited by that line wherein to cross-over is to step into the area of arbitrariness, unreasonableness and lack of rationality between the proposed control and the actual welfare of the public. Significantly, the "field of visual care", in its broadest aspect, occupies a rather unique position. The services rendered therein include those exclusively professional, those quasi-professional, those artisan and those strictly mercantile in character; and, each of these services has evolved into separate and distinct class of private endeavor.[9]
Although the artisan, the merchant, as well as the professional may be regulated in any field where the regulated efforts bear directly upon the public *134 health and welfare,[10] none can be restricted where the particular acts regulated do not involve matters of public interest; and, where a general field of endeavor is specifically composed of definable activities, some of which pertain to public health and welfare and others of which do not, the non-related activities cannot be regulated merely because of proximity of position. Control must cease when we pass from matters touching public welfare into matters historically mercantile and not rationally related to the public good; and, even where the public welfare is involved, the effect of the statute must bear a reasonable relation to the purpose to be accomplished[11] and must not discriminate between two similarly circumstanced groups, regulating one group but exempting the other.[12]
Clearly, that phase of visual care which deals with the actual examination of the eyes (whether for pathology or refraction)[13] together with promotional advertising which brings direct mercantile pressure upon the public to submit to examinations and to purchase spectacles, is subject to legislative control.[14] Although the evidence in the instant case indicates that no permanent injury to the eye can result from eyeglasses which concededly are misfitted,[15] the importance of accurate sight and seeing comfort (that is, a freedom from nervousness and other minor irritations which can result from ill-fitted spectacles) brings this segment of visual care squarely within the sphere of police power authority. Unquestionably, the general health and welfare could suffer as a result of promiscuous and indiscriminate *135 fittings of eyeglasses by persons unqualified to examine the eyes, particularly where the examiners were not qualified to recognize, even if not treat, various diseases of the eye; and, in a more limited sense the health and welfare would be adversely affected if en masse the people wore improperly refracted eyeglasses which impaired the over-all seeing ability and comfort of the spectable wearing public.
Although much of the Act under consideration constitutes a legitimate exercise of the legislative police power, this Court, without impliedly sanctioning all other portions of this Act, is of the opinion that this legislation in impact is unconstitutional at the following three points:
I
Those portions of section 2, which make it unlawful for any person not a licensed optometrist or ophthalmologist, "To fit, adjust, adapt or to in any manner apply lenses, frames, prisms, or any other optical appliances to the face of a person * * *" or "to duplicate or attempt to duplicate or to place or replace into the frames, any lenses or other optical appliances which have been prescribed, fitted or adjusted for visual correction, or which are intended to aid human vision * * *" except upon written prescriptive authority of an Oklahoma licensed ophthalmologist or optometrist.
The unambiguous language of section 2 makes it unlawful, among other things, for either a dispensing or laboratory optician to take old lenses and place them in new frames and then fit the completed spectacles to the face of the eyeglass wearer except upon written prescription from a qualified eye examiner. Obviously, this serves to prohibit the wearers of eyeglasses from exchanging their frames either to obtain more modern designs or because the former frames are broken, without first visiting an ophthalmologist or optometrist; and, which in turn diverts from the optician a very substantial, as well as profitable, part of his business.[16]
The evidence indicates, almost without variance, that written prescriptions issued by the professional examiner contain no directive data in regard to the manner in which the spectacles are to be fitted to the face of the wearer. In addition, the Court is satisfied that the mere fitting of frames to the face, where the old lenses are available, is in reality only an incident to what fundamentally is a merchandising transaction, that is, the sale of a pair of frames; and, in any event, the knowledge necessary to perform these services is strictly artisan in character and can skillfully and accurately be performed without the professional knowledge and training essential to qualify as a licensed optometrist or ophthalmologist.
Although, as emphasized previously, the legislature can regulate the artisan, the merchant, or the professional where the regulated services embrace issues of public health and welfare, the services under consideration bear no real or rational relation to the actual vision of the public. Prospective wearers of eyeglasses are not affected inasmuch as a person seeking this particular service must already possess a pair of eyeglasses; and, present wearers of eyeglasses are not imperiled inasmuch as such wearers have previously submitted to examinations by professional men at the time the original pairs of spectacles were obtained.
It is most important to note that the flexibility of the human eye, with particular emphasis on the service now being *136 discussed, is such as to assure the eyeglass wearing public of good vision even where succeeding frames when fitted to the face are not always fitted in the same manner. Dr. Tullos O. Coston, in testifying in regard to the actual refraction of the eye, accented the liberality which prevails in connection with visual correction:[17]
"* * * What we aim to do in a refraction, I think that sometimes we get mixed up in technical things too much. The aim of proper refraction is first of all to have the best vision that the glasses will give the patient, plus comfort. Now if the glasses are fitted improperly, and a number of times that will be true, because the patient subjectively didn't give you the proper answers, or maybe the doctor was a little careless that morning, but if he gets the glasses and he sees well, and has no discomfort, suppose that a mistake had been made somewhere, it is of no importance. You fit the patient with glasses to make him see the best you can, with comfort. Now technically whether you've got it on this axis or that axis is of absolutely no importance, and you find people wearing the screwiest type of glasses, that when you get through examining them, your reading and your interpretation of what they need is exactly different to what they have worn, but they have been quite comfortable and they have seen well with what they have had.
"Now you have two choices. You can let them wear what they have, or you can give them a new pair of glasses, and very often we let them wear what they have had, if financial matters enter into it. You can't say that the eye is like a piston in a cylinder, you don't have to fit it to that tolerance." (Emphases supplied.)
If such be true in regard to the actual examination of the eyes for refraction, even more so such must be true in regard to the mere placing of original lenses in new frames and placing the frames to the face of the wearer. The legislature cannot control these specific functions, and in effect deprive opticians of their right to freely pursue a lawful calling, under the guise that such control is reasonably and rationally related to the health and welfare of the people.
The effect of section 2 which prohibits the duplication of existing lenses (that is, the preparation of a completely new set of spectacles) without a written prescription is also unconstitutional.
The evidence establishes beyond controversy that a skilled artisan (such as an optician) can accurately ascertain the power of a lense, or fragment thereof, without the aid of a written prescription, and can thus duplicate or reproduce the original pair of spectacles without adversely affecting the visual ability of the eyeglass wearing public. This process requires no unusual professional judgment, peculiar to the licensed professions of ophthalmology and optometry but is strictly artisan in character. The power of the originally prescribed lense, or fragment thereof, can be learned by the use of a mechanical device known as the lensometer; this device (whether being operated by a professional or layman) scientifically measures the power of the existing lense and reduces it to prescriptive terms.[18]
Obviously, the accuracy of the lensometer operation is only commensurate to the care and skill exercised by the operator; and, logically, the vision of eyeglass wearers could be impaired somewhat by a careless commercial usage of *137 this machine resulting in the mass production of lenses which were not accurate duplications of the original prescriptions.
Although on this precise issue of duplication, the legislature in the instant regulation was dealing with a matter of public interest, the particular means chosen are neither reasonably necessary nor reasonably related to the end sought to be achieved. As observed in the classic case of Lawton v. Steele [152 U.S. 133, 14 S.Ct. 501]:[19]
"* * * To justify the state in thus interposing its authority in behalf of the public, it must appear First, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. (Emphasis supplied.)
It is absolutely unnecessary to delegate to professional men the control of and responsibility for the just-mentioned artisan tasks, where the opticians, as a group possess adequate skill to fully protect the vision of the public in accurately duplicating existing lenses. The operation of the lensometer does not rise to the need or dignity of exclusive professional supervision. A qualified witness demonstrated and testified that any reasonably intelligent person can be taught to operate the lensometer and become qualified to accurately learn the power of existing lenses, or fragments thereof, within several hours. As further demonstrated by the evidence, the opticians, as a class, have for a number of years used the lensometer in their trade and the optometrists and ophthalmologist use this same device when wishing to check the power of lenses; and, although only a minority of licensed ophthalmologists require a patient to return to the examiner's office to check the accuracy with which the original prescription has been filled, even in such instances the lensometer is not operated by the physician but by a clerk in the office.
The legislature has been guilty of undue oppression in failing to set up qualifying standards for the opticians, if such standards be necessary for the public protection, and at the same time arbitrarily legislating many of the skilled artisans out of a long recognized trade, by delegating the sole control of their skills and business to a professional group,[20] when the public can be completely protected without taking from the optician this valuable property right.[21]
*138 Also, on this specific point under consideration, the legislature did not act in accordance with the requirement pronounced by Mr. Justice Sutherland in Liggett Company v. Baldridge [278 U.S. 105, 49 S.Ct. 59]:[22]
"The act is sought to be sustained specifically upon the ground that it is reasonably calculated to promote the public health; and the determination we are called upon to make is whether the act has a real and substantial relation to that end or is a clear and arbitrary invasion of appellant's property rights guaranteed by the Constitution."
The means chosen by the legislature does not bear "a real and substantial relation" to the end sought, that is, better vision, inasmuch as although admittedly the professional eye examiners are specially trained in regard to eye examination, they possess no knowledge or skill superior to a qualified practicing optician insofar as the artisan tasks in view are concerned, and in fact the two professional groups, as a class, are not as well qualified as opticians as a class to either supervise or perform the services here regulated.
In addition, and of even more significance, is the fact that section 3 exempts from regulation all sellers of ready-to-wear glasses,[23] even though such sellers, from the viewpoint of public health and welfare, lie within the identical class and circumstance occupied by "fitters and sellers of frames" and "duplicators of lenses and entire spectacles."
The rule is clear that where the police power is ushered into play it must be exercised in an undiscriminating manner in relation to all persons falling within the same class or circumstance. This principle was enunciated in Royster Guano Company v. Com. of Virginia wherein the Court said:[24]
"It is unnecessary to say that the `equal protection of the laws' required by the Fourteenth Amendment does not prevent the states from resorting to classification for the purposes of legislation. Numerous and familiar decisions of this court establish that they have a wide range of discretion in that regard. But the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike. * * *" (Emphasis supplied.)
In the instant legislation not only is the "relation to the object of the legislation" questionable (as previously discussed) but "all persons similarly circumstanced" *139 pointedly have not been treated alike. Persons who sell frames (incidentally adapting and fitting the completed spectacles to the face), persons who duplicate original eyeglasses and market the duplicated spectacles, and persons who sell ready-to-wear glasses are identically situated; that is, all are sellers of merchandise which is not immediately connected with or supervised by a professional eye examiner. Yet the public health and welfare is touched in the same manner and degree by each of these groups inasmuch as the possible result is exactly the same; people may wear spectacles which are not best suited for their eyes.
The legislature must not blow both hot and cold! If it be desirable for the public protection that opticians sell merchandise and service only upon written prescriptive authority, the legislature cannot at the same time permit the unsupervised sale of ready-to-wear (convex spherical lenses) eyeglasses. The mere fact the public selects at will from the counter serves as no basis for distinction; if such constitutes a distinction then the public should have the equal right to purchase new frames or duplicate prescription eyeglasses at will.
In reality, the unrestricted sale of ready-to-wear eyeglasses doubtless is more perilous than the practices prohibited by section 2. It is certain that the customer purchasing new frames, or duplicate lenses and frames, has at some time been to a qualified eye examiner, one qualified not only to refract the eyes but qualified also to recognize diseases of the eye; whereas, the purchaser of ready-to-wear eyeglasses has not even been provided with the safeguard of an initial examination.
An example of unlawful discrimination between business groups similarly situated but wherein the legislature artificially attempted to place the businesses in two different classes is found in the case of People v. Weiner, wherein the court in dealing with a statute which forbade the use of secondhand material in the making of mattresses (for sanitary reasons) but placed no such restriction in regard to the making of pillows, held that the attempted classification was arbitrary and unreasonable and in doing so said:[25]
"Counsel * * * argue that there is a discrimination between the manufacturers and dealers in pillows and manufacturers and dealers in mattresses, comforters, and quilts, especially after they have been used, as there is no provision made as to pillows; that, so far as this act is concerned, material made secondhand in the same way as the material in mattresses may again be made into pillows and sold without any regulation whatever. Under the decisions of this state this is class legislation. (Citing authorities.) The provisions of sections 1 and 2 of the act are arbitrary and unreasonable, and must be held unconstitutional and void."
Inasmuch as there is no real difference between ready-to-wear spectacles and prescription eyeglasses, insofar as the public's need for properly fitted eyeglasses is concerned, to regulate prescription eyeglasses, as done in section 2, and yet express the exempt ready-to-wear eyeglasses constitutes an unreasonable and discriminatory classification in contravention to the equal protection clause of the Fourteenth Amendment.
II
That portion of section 3 which makes it unlawful "to solicit the sale of * * * frames, mountings * * * or any other optical appliances".
As mentioned previously, the legislature has the authority to regulate and control "bait advertising", that is, advertising which not only tends to persuade the public to submit to eye examinations but also tends to result in the purchase of completed pairs of spectacles.[26]*140 Clearly it is against the best interest of the public to have the number of eyeglasses worn determined by mercantile practices rather than the actual visual need of the people. Where advertising, which when uncontrolled, encourages such a condition the right of the legislature to supervise this segment of the field of visual care is identical with the legislature's right to supervise the fields of medicine and dentistry.[27]
Thus, any statute which regulates advertising in regard to eye examinations (that is, for eye diseases and for refraction, by one qualified to recognize, if not treat, diseases of the eye) or other advertising which promotes the sale of complete eyeglasses (particularly the original pair)[28] upon mere merchandising principles rather than in regard to the actual visual need, can be deemed rationally related to the public health and welfare. However, where a statute, such as the provision under consideration, intrudes into a mercantile field only casually related to the visual care of the public and restricts an activity which in no way can detrimentally affect the people, *141 such an intrusion is unconstitutional.[29]
Naturally, where a commodity being sold is so closely associated with the administration of medical treatment to a patient that the commodity itself becomes a mere incident to and actually a part of the medical treatment being rendered, becoming part and parcel of the professional judgment being exercised on behalf of the patient, then the commodity is subject to complete control and regulation; as observed by Mr. Chief Justice Hughes in Semler v. Oregon State Board of Dental Examiners[30] such a condition exists in dentistry:
"We do not doubt the authority of the state to estimate the baleful effects of such methods and to put a stop to them. The legislature was not dealing with traders in commodities, but with the vital interest of public health, and with a profession treating bodily ills and demanding different standards of conduct from those which are traditional in the competition of market place."
However, this Court discerns utterly no analogy between the danger inherent in uncontrolled dental advertising, and advertising by dispensing opticians, or others, of various styles of frames, mountings and other modern and improved optical appliances, where such advertising omits the promotion and display of lenses or complete eyeglasses and makes no reference to eye examinations. Publicity limited strictly to frames can be deemed nothing more than straight merchandising inasmuch as it has no real relation to the vision of the public and should only be subject to those limitations recognized generally in regard to ethical mercantile advertising.
Inasmuch as a large majority of the eyeglass wearing public have more than one set of eyeglasses they are, from time to time in the market for new frames, not only to replace broken ones but to *142 acquire those more modern in appearance as the frame has become an integral part of the present-day cosmetology. Advertising directed exclusively at this feature of eye wear can have no deleterious effect on the public, inasmuch as it has no influence on the prospective wearer of eyeglasses, and to the present wearer (a person already examined by a licensed professional) is but a mere piece of merchandise.
The dispensing optician, a merchant in this particular, cannot arbitrarily be divested of a substantial portion of his business upon the pretext that such a deprivation is rationally related to the public health.
III
That portion of section 4 which provides that: "No person, firm, or corporation engaged in the business of retailing merchandise to the general public shall rent space, sub-lease departments, or otherwise permit any person purporting to do eye examination or visual care to occupy space in such retail store".
Unquestionably the legislature has the authority to prohibit corporations from practicing Ophthalmology and Optometry in Oklahoma; and, insofar as section 4 moves inferentially toward such a goal, the legislature has acted within its authority.[31] As stated in Sears Roebuck & Company v. State Board of Optometry.[32]
"In a clear and comprehensive opinion the chancellor examined the statutes, and said in part as follows: `The weight of modern authority is against such arrangements as we have here (i. e. corporate practice in the field of optometry), and the question presented is whether the optometrist is working for the defendant companies, as an employee, or for himself as a licensed and independent practitioner.
"`It is only in the latter capacity that his status could be legal and his license authoritative in professional relation and service to the public.'" (Emphasis supplied.)
And as recognized in Neill v. Gimbel Bros., Inc.:[33]
"* * * We cannot pronounce arbitrary or irrational the placing of optometry on a professional basis. This conclusion finds support in other jurisdictions. (Citing cases.)
* * * * *
"* * * The Legislature has the right to forbid such practice as contrary to public policy, which is properly concerned with the maintenance of high professional standards. One who practices a profession is apt to have less regard for professional ethics and to be less amenable to regulations for their enforcement when he has no contractual obligations to the client, does not fix or receive the fees, and is under the control of an employer whose commercial interest is in the volume of sales of merchandise effected by the prescriptions of the employee-practitioner." (Emphasis supplied.)
However, to forbid the renting or subleasing of quarters from retail merchants in order to enforce the legislative prohibition against corporate practice constitutes an arbitrary interference with the right of contract.
Concededly, as some of the cases illustrate, corporate practice has taken place where corporations sublease space to professional eye examiners. However, the correlation between the evil sought to be prevented and the one circumstance singled out and prohibited is not sufficient to authorize such a police power regulation. As mentioned in Treigle v. Acme Homestead Association:[34]
*143 "* * * Though the obligations of contracts must yield to a proper exercise of the police power, and vested rights cannot inhibit the proper exertion of the power, it must be exercised for an end which is in fact public and the means adopted must be reasonably adapted to the accomplishment of that end and must not be arbitrary or oppressive."
And as observed in State of Indiana ex rel. Anderson v. Brand:[35]
"Our decisions recognize that every contract is made subject to the implied condition that its fulfillment may be frustrated by a proper exercise of the police power but we have repeatedly said that, in order to have this effect, the exercise of the power must be for an end which is in fact public and the means adopted must be reasonably adapted to that end * *."
We believe the means chosen in this particular instance is "arbitrary and oppressive" and not reasonably adapted to the accomplishment of the end sought, that is, the abolition of corporate practice in the professions of ophthalmology and optometry. As evidenced in the Sears Roebuck & Company case, supra, even though a leasing arrangement can be used to attempt to evade a corporate practice prohibition, nonetheless, the fact of statutory violation can be established by competent proof of the kind and character used to prove any other statutory breach.
Whether a professional man indulges in corporate practice, in violation of a statutory prohibition, is a matter of his individual integrity rather than his geographic location.
The instant prohibition is just as unreasonable as if the legislature, in order to aid in the enforcement of certain criminal statutes, banned the use of automobiles by the general public because law violators use automobiles in their illicit operations.
Conclusion.
It is the opinion of this Court that the plaintiffs are entitled to a permanent injunction restraining and enjoining the defendants Mac Q. Williamson, Granville Scanland, Robert L. Wheeler, and all remaining County Attorneys in the State of Oklahoma from enforcing or attempting to enforce against the plaintiffs[36] the provisions of sections 2, 3 and 4 which have been designated as unconstitutional in this written opinion.[37]
*144 Counsel should submit a journal entry to conform with this opinion within 15 days.
VAUGHT, Chief Judge, concurring.
MURRAH, Circuit Judge (dissenting in part).
With reluctance and some misgivings, I concur in that part of the judgment of the court declaring unconstitutional the legislative prohibitions against fitting, adjusting, adapting or applying lenses, frames, prisms or other optical appliances to the face of a person, or duplicating or replacing the same without prescriptive authority of a licensed ophthalmologist or optometrist.
The obvious result of this legislation is to appropriate a property right of one class to follow a legitimate calling or occupation and to give it to another class not shown to be more competent in the public interest. Indeed, the evidence shows that it would be inimical to the public interest to require the wearer of *145 eye glasses to return to the ophthalmologist in order to obtain a prescription for the replacement or duplication of an eye glass, or to place the burden upon the ophthalmologist of merchandising frames and mountings and other appliances, or placing that purely commercial monopoly in the optometrist. There is no rational basis for depriving the optician of the right to perform this purely mechanical and commercial service to the public.
I cannot agree, however, that the legislature of the state may not constitutionally prohibit any person, firm, company, corporation or partnership from soliciting the sale of frames, mountings, prisms, or any other instrument deemed essential and used in the field of visual care by enumerated methods of advertising when it does so for the declared purpose of vouchsafing the "best possible visual care" to the public.
The effect of the order of the court is to make it unlawful to advertise the sale of spectacles, eye glasses or lenses but to allow any person, firm, company, corporation or partnership to solicit the sale of the empty frames, mountings, prisms and other appliances or devices. By this method one so engaged may circumvent the very evil to which the legislation is aimed, namely, prohibiting dishonest and dangerous practices in the sale of optical goods and devices.
There can be no doubt of the power of the legislature to regulate advertising practices of retail dealers of eye glasses. See State v. Rones, 223 La. 839, 67 So.2d 99, and cases cited at page 105. There may be good reasons for requiring the prohibition of advertising the sale of merchandise, the actual sale of which is not prohibited. Commonwealth v. Ferris, 305 Mass. 233, 25 N.E.2d 378. It is true that all of the statutes which have been upheld as a valid regulation or restriction on the advertising of the sale of eye glasses have been judicially construed to apply to the furnishing of optometrical services or actual visual care, and not the mere sale of frames, mountings or fittings as merchandise. But I entertain no doubt of the power of the legislature to regulate the advertising of the empty frames, mountings and prisms and other optical devices if the object of such legislation is the prevention of fraud or mistake or to protect the public against deceptive practices in the broad field of visual care. The power of the state to regulate or restrict advertising of a commercial business affected with a public interest has been upheld in a great variety of cases, including the sale of eye glasses. See Commonwealth v. Ferris, supra, 25 N.E.2d at page 380; Commonwealth v. Nutting, 175 Mass. 154, 55 N.E. 895, affirmed 183 U.S. 553, 22 S.Ct. 238, 46 L.Ed. 324; Ritholz v. Commonwealth, 184 Va. 339, 35 S.E.2d 210.
Considered in isolation, an eye glass frame or mounting is no more than a mere piece of merchandise. But considered in the context of the total field of visual care, it takes on a significant relationship to the visual needs of the public and ceases to be a mere piece of merchandise to be dealt with in the market place on an arm's length basis. As the dispenser of the completed eye glass the optician is a trained technician the "right arm" of the ophthalmologist. As such he may be held to a standard more strict than the morals of the market place. Certainly the well-defined and legitimate functions he performs, both as a trained technician and a merchandiser, in the field of visual care are affected with a public interest, and the public may not be left to deal with him at arm's length. And it is the same with the merchant optometrist. Certainly in the eyes of the public the optometrist is not seen in his dual capacity of a merchandiser as to whom he is required to deal at arm's length, and a professional in whom he can place his trust and confidence.
The challenged act is a legislative scheme to effect one declared public policy and each of its parts ought to be considered in pari materia in determining whether or not the legislature has acted *146 beyond the scope of its broad and comprehensive police powers. Section 4 is pertinent, therefore, to the inquiry whether a valid constitutional basis can be found for prohibiting the advertisement of the merchandise not of itself related to visual care. Section 4 prohibits rebates, kick-backs, and solicitation by those selling optical goods, appliances or materials. And it forbids corporate practice. All of these we leave as proper subjects of police power. But the judgment of the court strikes down that part of the section which prohibits any retail establishment from renting space in its establishment to any person doing eye examinations or visual care. This prohibition in the statute is said not to bear any reasonable relationship to the admitted power of preventing corporate practice, or for that matter any other practice deemed not in the public interest.
I agree that on its face it seems unreasonable and irrational to deny to the professional man quarters in a retail establishment. But to me the undisputed facts in this case point up the very evil to which the legislation is aimed.
Ellis Carp is the owner or is interested in eighteen optical establishments in Texas. All of them are dispensing opticians. He is also interested in a supply house in Dallas where lenses are ground on orders from the dispensing opticians. In Texas, Mr. Carp employs persons on salary to refract the eyes of those who are induced to come to his optical establishments. By this method the dispensing optician solicits the business, refers the customers to the salaried employee who does the refracting and prescribes for the visual correction. The prescription is returned to the optician for filling, fitting and adjusting. So, the optical company operating under a trade name actually performs the optical services constituting the very corporate practice which Oklahoma legislation condemns and prohibits.
In Oklahoma, Mr. Carp owns and operates the Douglas Optical Company in Tulsa in space rented from the Zale Jewelry Company. The Douglas Optical Company is a dispensing optical company which advertises by all of the media condemned in the challenged legislation. Soon after the Douglas Optical Company commenced business, Dr. Rips, a licensed ophthalmologist, and formerly in the employ of Carp in Dallas, came to Tulsa; conveniently rented space in the Zale Jewelry Company and set himself up in practice. Admittedly all of the members of the public seeking visual care, who are induced to come to Douglas by its advertisements, are referred to Dr. Rips, and while no one is compelled to take Dr. Rip's prescription to Douglas, "most of them go there because they generally come from there."
Mr. Carp is also the president of a corporation known as the Lee Optical Company with ground floor offices in the American National Building in Oklahoma City. It employs advertising media condemned and prohibited in the legislation. Soon after the Lee Optical Company opened for business in Oklahoma City, Dr. Conti formerly employed by Carp in Texas to refract eyes, came to Oklahoma City and established himself in offices on the third floor of the American National Building. All of the members of the public who are induced to come to the Lee Optical Company for visual care are referred to Dr. Conti whose prescriptions usually find their way back to Lee Optical Company for filling.
While neither Conti nor Rips is employed by Lee Optical Company or Douglas Optical Company, and neither of them rebates for the referrals, the reciprocal arrangements enable them to completely commercialize the whole field of visual care, which we agree is affected with a public interest and subject to legislative control.
Under the order of the court, Douglas may continue to occupy space in Zale's Jewelry Company in Tulsa. Dr. Rips may continue to occupy space under the same roof. The Douglas Optical Company *147 may continue to advertise frames and mountings and other optical devices by radio, television, classified ads, and by any other commercial means. It will continue to attract the unsuspecting public, who not knowing the difference between an optician, ophthalmologist, or optometrist, will undoubtedly find their way to Dr. Rips, who having prescribed will see that they are returned to Douglas in order to complete the cycle.
The loophole which this judgment leaves in the legislative scheme is wide and in my judgment glaring. It is an unwarranted interference with the police power of the state over a subject with which the state is fully competent to deal. To borrow the language of Mr. Justice Holmes: "We must be cautious about pressing the broad words of the 14th Amendment to a drily logical extreme. Many laws which it would be vain to ask the court to overthrow could be shown, easily enough, to transgress a scholastic interpretation of one or another of the great guaranties in the Bill of Rights. They more or less limit the liberty of the individual, or they diminish property to a certain extent. We have few scientifically certain criteria of legislation, and as it often is difficult to mark the line where what is called the police power of the states is limited by the Constitution of the United States, judges should be slow to read into the latter a nolumus mutare as against the lawmaking power." Noble State Bank v. Haskell, 219 U.S. 104, 110, 31 S.Ct. 186, 187, 55 L.Ed. 112.
In cases of this kind we ought to keep in mind the extremely limited restrictions that the due process clause of the Fourteenth Amendment places upon the states; and that federal courts should negatively inject themselves into the policy making powers of the states only in the presence of a palpable abuse of the due process clause of the constitution.
Sections 3 and 4 have uniform application and incidence to all affected thereby. There is no question of equal protection of laws involved. Only the question of due process under the Fourteenth Amendment is involved, and the basis of our jurisdiction is injunctive relief against the enforcement of a state statute with criminal sanctions. Before we rush in to strike down a part of the act, we ought to consider that due process in the state court is afforded to any person who would challenge any provision of the act by exposing himself to the criminal penalties involved. There is no more firmly established or salutary rule than the admonition against striking down the criminal laws of a state by federal injunctive process. Federal injunctive interference with the criminal laws of a state is justified only in exceptional circumstances and with a showing of great and immediate irreparable damage. Otherwise the accused should first set up a defense in the state court where his constitutional rights may be amply protected. See Watson v. Buck, 313 U.S. 387, 400, 61 S.Ct. 962, 85 L.Ed. 1416; Reed v. Lehman, 2 Cir., 91 F.2d 919; Starnes v. City of Milledgeville, D.C., 56 F.Supp. 956.
I would certainly stay the federal hand in respect to the enforcement of Sections 3 and 4 of the act. As to Section 2, while I have some misgivings about injunctive relief, I am clear on the issue of constitutionality.
NOTES
[1] 28 U.S.C.A. §§ 2201, 2202. In addition, plaintiffs request an injunction against enforcement of this State statute; this necessitates the three-judge court provided for in § 2281.
[2] 59 Okla.St.Ann. §§ 941-947.
[3] The dispensing optician is both a craftsman and a merchant. He maintains a complete stock of frames from which the customers may make selections; these frames vary in size, shape, color and adornment. In order to fit the frames (and completed eye-glasses) to the customer's face he must have some artisan skill related to the science of optics and must have some knowledge of optical terms. As observed by A. D. Hill, a member of the National Guild of Prescription Opticians, and a Master in Ophthalmic Optics, a dispensing optician, in response to a question on just what his duties included: "A I receive ophthalmic prescriptions from the ophthalmologists, and in very rare instances optometrists; do the technical work which involves measuring the distance between the pupils, commonly known as P.D., aiding in the selection of a frame, and of course in many cases it is a matter of styling with women, and some men are a little bit particular about what type of frame they wear; so actually it's a combination of technical work plus merchandising." (Tr. 77)
In addition to the dispensing optician the field of visual care has three other definable divisions. (1) The ophthalmologist, a duly licensed medical doctor who specializes in the care of the eyes; (2) The optometrist, a quasi-professional who is trained to examine the eyes for refractive error, and at the same time recognize but not treat diseases of the eye, and who acts also as craftsman and merchant in filling prescriptions for eyeglasses; (3) The optician (or optical supplier) who is a skilled artisan qualified to actually grind lenses and perform other tasks which the dispensing op