For the prosecutor, George S. Hobart and John J. Gaffey.
For the defendant, William A. Stevens, attorney-general, and Robert Peacock, assistant attorney-general.
Before Brogan, Chief Justice, and Justices Trenchard and Heher.
The opinion of the court was delivered by
HEHER, J. Prosecutor invokes the jurisdiction of this court to review, by certiorari, a judgment of conviction entered in the First District Court of the city of Jersey City, upon a complaint charging that, in the month of October, 1932, at a retail store maintained by it in the city of Jersey City, in violation of the provisions of an act to regulate the practice of optometry (Pamph. L. 1914, p. 448), as amended by chapter 59 of the laws of 1919 (Pamph. L. 1919, p. 105) and chapter 75 of the laws of 1932 (Pamph. L. 1932, p. 124), it employed, gave aid and assisted one Carlock, an employe who was not possessed of the requisite authority, "to
practice optometry within the meaning of section one of said act, * * * contrary to and in violation of section twenty-one of said act * * *." The statutory penalty for the first offense was assessed.
The facts are stipulated. Prosecutor is a foreign corporation engaged in the retail general merchandising business. Carlock was in charge of the notion counter in its Jersey City store. Among the goods displayed for sale on this counter were spectacles which retailed at twenty-five cents each. Concededly, these spectacles were designed to serve as an aid to human vision. They consisted of celluloid frames of uniform size, with a pair of lenses. There was an assortment of spectacles, and the lenses varied in power or focus. There was attached to each a paper tag or paster containing numbers indicating the focal distance of the lens, the distance being measured both by inches and by diopters. The transactions which furnished the basis for the complaint consisted of sales of spectacles by Carlock, who was not authorized to practice optometry in this state, to agents of the defendant board. It is conceded that, in accordance with instructions given by prosecutor to its various store managers, no advice, aid or assistance, in the selection of the spectacles so sold, was given to the purchasers by Carlock, or any other person in the employ of prosecutor. In response to the purchaser's inquiry as to whether "all the glasses were the same," Carlock replied, "No, they are all different and go by numbers;" and when the purchaser asked Carlock to indicate "what number she thought she [purchaser] needed for general use around the house," Carlock replied: "You will have to try on the glasses yourself, because I cannot help you; I can only sell the glasses to you." It is stipulated that, in respect of these transactions, prosecutor, "did not employ any means for the measurement of the powers of vision, or the adaptation of lenses or prisms for the aid thereof; did not use testing appliances for the purpose of the measurement of the powers of vision; did not diagnose any ocular deficiency or deformity, visual or muscular anomaly of the eyes of said customers, or either of them; did not prescribe lenses, prisms or ocular exercise for the correction
or relief thereof; and did not hold themselves out as qualified to practice optometry, or in any way advertise themselves as an optometrist." Respondent maintains, however, that prosecutor's agents employed "means for measurement of the powers of vision and adapted lenses or prisms for the aid thereof in that they sold the glasses, which were of different strength and different numbers, to fit the eyes of persons making the purchases," and thus practiced optometry within the statutory definition.
Prosecutor insists that these transactions did not constitute the unlawful practice of optometry, within the intendment of the statute, and that, therefore, the judgment is without factual support; that if a contrary construction be adopted, the legislation "amounts to an interference with defendant's right of property, and to the taking of defendant's property without due process, in violation of both the state and federal constitutions;" and that, in any event, "the statute on its face violates the state and federal constitutions," in that (a) the standard of conduct prescribed therein is so indefinite as to amount to a delegation of legislative power; (b) the penalties imposed are unreasonable and excessive, and (c) it unduly interferes with prosecutor's right "to acquire, possess and protect property, and deprives" it "of its property without due process."
While a determination of the constitutional questions raised may, perhaps, be unnecessary, in view of our conclusion that the statute is inapplicable to the situation here presented, we are of opinion that the public interest requires that this fundamental challenge ...