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Klein v. Dept. of Registration





APPEAL from the Superior Court of Cook County; the Hon. JOSEPH A. GRABER, Judge, presiding.


Rehearing denied May 19, 1952.

Appellee, Robert Klein, a duly qualified, registered and practicing optometrist, instituted this action in the superior court of Cook County against the Department of Education and Registration of the State of Illinois and its Director, Noble J. Puffer, the appellants, seeking by such proceeding to enjoin appellants from enforcing certain provisions of the Illinois Optometric Practice Act approved June 15, 1951, (Ill. Rev. Stat. 1951, chap. 91, pars. 105.1 to 105.29 incl.,) which appellee claims are constitutionally insufficient. Appellants filed a motion in the nature of a demurrer to the bill and, upon the pleadings made, the trial court entered a decree granting the injunctive relief prayed and finding the act to be susceptible to the constitutional objections raised. Appellants have perfected a direct appeal to this court and their efforts here are supplemented by a brief filed by the Illinois Optometric Association on leave granted to file as amicus curiae.

The object and purpose of the Illinois Optometric Practice Act of 1951 is stated in section 2 as follows: "The practice of optometry in the State of Illinois is declared to affect the public health, safety and welfare and is subject to regulation and control in the public interest. It is further declared to be a matter of public interest and concern that the practice of optometry, as defined in this Act, merit and receive the confidence of the public and that only qualified persons be permitted to practice optometry in the State of Illinois. This act shall be liberally construed to carry out these objects and purposes." The practice of optometry is defined in the section that follows (sec. 3) in this manner: "The practice of optometry is defined to be the employment of objective or subjective means, or both, for the examination of the human eye and its appendages, without the use of drugs, medicine, or surgery, for the purpose of ascertaining any departure from the normal, measuring its powers of vision, and adapting lenses or prisms, ocular exercises, visual training, or any other method other than the use of drugs, medicine or surgery, for the aid thereof." From the language of section 3, it will be seen the function sought to be regulated is to be distinguished from that of the ophthalmologist, a doctor of medicine who specializes in treating diseases of the eye, in eye surgery and who is permitted to use drugs or medicines in making eye examinations, and from that of the optician who is the skilled craftsman or artisan who grinds and processes lenses.

Both parties are agreed that the practice of optometry is related to the public health and welfare and therefore subject to regulation under the police power of the State. Such a conclusion is amply supported by the decisions of this and other jurisdictions.

An inherent feature of our form of government is that every citizen has the inalienable right to engage in any legitimate trade, occupation, business or profession which he sees fit. His labor is his property and is bulwarked by the full and equal protection of the law afforded by the due process clause of the Federal constitution. It is also embraced within the constitutional provision which guarantees to everyone liberty and the pursuit of happiness. (Allgeyer v. Louisiana, 165 U.S. 578, 41 L.ed. 832.) The right to pursue a trade or calling is, however, subordinate to the right of the State to limit such freedom of action where the public health, safety or welfare may require. (People ex rel. Barrett v. Thillens, 400 Ill. 224; Nebbia v. New York, 291 U.S. 502, 78 L.ed. 940.) In instances where the police power is invoked to regulate and supervise a legitimate occupation, the restraint imposed must be reasonable. The legislative determination that regulations are needful is not conclusive and is always subject to review. In order for such regulations to be lawfully imposed upon the constitutional rights of the individual to pursue his trade, profession or business, the act passed under the guise of a measure to protect the public health, safety and welfare must have a definite relation to the ends sought to be attained. Banghart v. Walsh, 339 Ill. 132; Ritchie v. People, 155 Ill. 98.

In the present case it is appellee's contention that the present act is an extreme regulation which exceeds the limits permissible under a proper exercise of the police power and that certain of the regulations of which he complains have no definite relation to the ends sought to be attained. Appellants, for their part, insist that the regulations complained of have a definite relation to the public health and welfare and that they constitute a valid exercise of the police power. In further seeking to justify or condemn the act, a controversy between the parties has arisen in the briefs filed in this court as to whether the statute and judicial precedent have raised optometry to the plane of a learned profession, which were traditionally law, medicine and theology, thus subjecting it to a higher ethical code and a more rigid exercise of the police power. (See: People ex rel. Illinois State Bar Assn. v. Peoples Stock Yards Bank, 344 Ill. 462; People v. United Medical Service, Inc., 362 Ill. 442; Dr. Allison, Dentist, Inc. v. Allison, 360 Ill. 638.) We do not find that such an issue is raised by the pleadings in this case, or that a determination of the question is necessary in resolving the issues that are presented. In the light of the appellee's agreement to the legislature's statement of public policy that "the practice of optometry in the State of Illinois is declared to affect the public health, safety and welfare," our inquiry into the validity of the sections complained of may be limited, for the most part, to a determination of whether they have a definite relation to the ends sought to be attained.

Section II of the Illinois Optometric Practice Act makes the following provision: "Every holder of a certificate of registration under this Act shall display such certificate in a conspicuous place in the office or offices wherein such holder practices optometry, but not in such manner that such certificate may be seen from outside such office or offices; and every such holder shall, whenever requested, exhibit such certificate to any representative of the Department, and shall notify the Department of the address or addresses and of every change thereof, where such holder shall practice optometry.

"Every registered optometrist shall keep a record of examinations made and prescriptions issued, which record shall include the names of persons examined and for whom prescriptions were prepared, and shall be signed by the registered optometrist and retained by him in the office in which such professional service was rendered. Such records shall be preserved by the registered optometrist for a period of three years from the date on which such professional service was rendered."

Appellee contends that the foregoing provision is discriminatory, arbitrary and unreasonable, has no relation to public health, safety and welfare, and that it deprives him of his property in derogation of the rights guaranteed him by the due process clauses of the State and Federal constitutions. Further, he asserts that the section is a violation of section 22 of article IV of the Illinois constitution which prohibits special legislation.

Specifically, appellee complains of the section insofar as it requires him to keep records of his examinations and prescriptions for three years, and of the language which states that his certificate of registration may not be displayed in such a manner as to be seen from outside his office. It is our belief that the legislative enactment requiring the preservation of records for a period of three years, has a definite relation to the public health and welfare and constitutes a valid exercise of the police power.

It is common knowledge that the eye continues to vary from normal even when spectacles are worn and that in some instances the spectacles may have the corrective effect of causing the eye to return to normal. In either case, periodic examinations result and reference to previous treatment and prescription would insure more comprehensive and intelligent treatment. Appellee recognizes the need for preserving the record of prescriptions but asserts that the burden should be borne by the optician. The legislature has determined the need for such records and we cannot say that it is unreasonable to place the duty at the source of such records, viz., in the offices of the optometrists. That similar demands with regard to keeping of records have not been made by statute upon those who practice medicine and dentistry can be of no aid to appellee, for a law is not local or special in a constitutional sense if it operates in the same manner on all persons in like circumstances. (Lasdon v. Hallihan, 377 Ill. 187; Springfield Gas and Electric Co. v. City of Springfield, 292 Ill. 236.) Those practicing medicine and dentistry do not come within the same circumstances as optometrists. The act here clearly defines the practice of optometry and operates equally and uniformly upon all brought within that relation and circumstance.

Nor we do believe that the provision relating to the display of the certificate of registration is unreasonable or arbitrary. A consideration of the entire regulation, and not solely of the isolated phrase seized upon by appellee, clearly discloses the legislative purpose is to require the proper display of the certificate so that the public may be adequately informed and the registrants properly policed, while at the same time prohibiting the use of the certificate for advertising purposes or as an instrument of creating business rivalries which would operate to the detriment of the public. There is no argument but what the practice of optometry has an effect on the public health and welfare sufficient to justify that practitioners be licensed, and from such fact we believe it is reasonable for the legislature to prescribe the use of the license which they have suffered a registrant to receive. A complementary provision with regard to the display of the certificate of registration appears in section 13(n) of the act and will be discussed in our consideration of the objections to that provision.

Sections 13(k), 13(l), 13(m), and 13(n) of the Illinois Optometric Practice Act of 1951, which refer to the grounds for the suspension, revocation, or refusal to issue or renew ...

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