Reversed and remanded.
Mr. CHIEF JUSTICE DAILY delivered the opinion of the court:
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
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
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,
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
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
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 a certificate of registration, are as follows:
"(k) Displaying the name and title of the registrant or other information in lettering larger than four inches in height at street level, or larger than seven inches in height in offices above street level, or illuminating such name, title or other information by colored or neon lights at any time, or displaying any eyeglass or eye sign, whether painted, neon, decalcomanic or otherwise, either in the form of eyes or structure resembling eyes, eyeglass frames, eyeglasses or spectacles, which display or illumination takes place after the expiration of one year from the effective date of this Act;
"(l) Placement of the name and title of a registered optometrist in any city, commercial, telephone or other public directory, or directory in public or office buildings, by display or type that is substantially dissimilar in size, shape, or color to that used for other practitioners of the healing arts in the same directory;
"(m) Displaying by any registered optometrist, of any spectacles, eye-glasses, eyeglass or spectacle frames or mountings, goggles, lenses, prisms, spectacle or eye-glass cases, ophthalmic material of any kind, optometric instruments, or optical tools or machinery, or any merchandise, material, or advertising of a commercial nature in office
"(n) Displaying the license, diploma or certificate in such manner that it is visible from the street;"
The decree of the trial court contains a finding that these sections are special legislation and that they violate due process of law.
While at first blush it would seem that sections 13(k), (l) and (m) appear to be an arbitrary interference with the right of one to practice optometry, such thoughts are dispelled when the relative aspects of public health and welfare are considered. As pointed out in Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 79 L.ed 1086, the legislature is not dealing with traders in commodities but with the vital interest of public health and the treatment of bodily ills. The public is concerned not only with the maintenance of standards which will insure competency in the individual practitioner, but protection against those "who would prey upon a public peculiarly susceptible to imposition through alluring promises of physical relief." In addition, the community is concerned in providing safeguards not only against deception, but against practices which tend to demoralize the business or profession by forcing its members into unseeming rivalry, which would tend to enlarge the opportunity of the least scrupulous. Advertising by large display, glaring and lighted signs or by depicting a part of the human body, and other forms of advertising, have been held to produce such undesired results and accompanying detriment to the public welfare. (Winberry v. Hallihan, 361 Ill. 121.) In the case last cited and in the Semler case, it was held that the legislature was entitled to consider the general effects of the practices it described, and, if the effects were injurious in facilitating unwarranted and misleading claims, to counteract them by general rule even though in particular instances there might
Specific objection is made by appellee to the language of section 13(l) which allows a certificate of registration to be revoked for using directory advertising "that is substantially dissimilar in size, shape or color to that used for the other practicitioners of the healing arts in the same directory." Although appellee seeks to argue that the section is vague, indefinite and uncertain to a degree that deprives him of knowledge of what the law requires, his argument becomes unrealistic when it is seen that his complaint alleges that he and his counsel have determined that his present method of directory advertising is of a type forbidden by the Optometric Practice Act. When the general considerations which have fostered the rule that uniform and subdued methods of advertising are desirable in trades and professions which deal with public health and the treatment of bodily ills are viewed in face of appellee's pleading which admits that the duty placed upon him is neither vague nor uncertain, we must conclude that the regulation tends reasonably to serve a legitimate interest of the public.
Appellee next complains of section 13(n) which prohibits the display of a license, diploma or certificate in such a manner that it is visible from the street. The clear intent of the legislature is that such documents may not be used for advertising purposes. From what has been said before about the undesirability of advertising which would tend to produce unseeming rivalries and demoralization within the profession, we think the relation to the public health and welfare is apparent. The fact that a
Appellee next complains of section 13(r) of the act which he contends is vague and uncertain and violative of his right of due process of law. The section provides that a certificate may be revoked for: "The performance of optometric service in conjunction with a scheme or plan with another person, firm or corporation known to be advertising in a manner contrary to the provisions of this Act or otherwise violating the laws of the State of Illinois concerning the practice of optometry." Appellee's attack on this provision is based largely on the argument that some of the language therein renders it vague and uncertain. It is suggested that the phrase "performance of optometric service" is nowhere defined, thus leaving its meaning for registrants to ascertain at their peril. We think the only definition which can obtain, or to which the phrase can relate, is the practice of optometry as it is defined in section 3 of the act. Complaint is also made that the words "known to be advertising" make it indefinite and uncertain as to who shall have such knowledge. Every presumption is in favor of the validity of statutes which promote the public health and welfare, and constructions which would render a statute obnoxious to the constitution is to be avoided if possible. (People ex rel. Soble v. Gill, 358 Ill. 261; Chicago, Burlington and Quincy Railroad Co. v. Commerce Com. ex rel. Brotherhood of Railroad Trainmen, 364 Ill. 213.) All doubts or uncertainties arising from language of an act must be resolved in favor of validity. (First Nat. Bank v. Wedron Silica Co. 351 Ill. 560.)
The next section assailed by appellee is section 24, which the trial court found to be violative of section 13 of article IV of the Illinois constitution on the grounds that it amends the Injunction Act, (Ill. Rev. Stat. 1951, chap. 69,) and that no statement of such amendment appears in the title of the Illinois Optometric Practice Act. Briefly, section 24 provides that violations of the act by any persons
Lastly, appellee complains of section 9, which makes provision for an examination to be given by the Department of Registration and Education to applicants for the certificate of a registered optometrist. Appellee insists, and the trial court held, that the section unlawfully delegates legislative power to the Department in violation of article Ill of the Illinois constitution. As appellee is already a certificate holder and is not required to take the examination required by the act, it is obvious that he cannot be directly affected by the provision attacked. Under the
For the reasons given, we are of the opinion that the Illinois Optometric Practice Act of 1951, is not subject to those constitutional objections urged by appellee which we have been at liberty to consider. In accordance with our views, the decree of the superior court of Cook County is reversed, and the cause remanded with directions that the permanent injunction issued against appellants be dissolved.
Reversed and remanded, with directions.