Conford, Collester and Kolovsky. The opinion of the court was delivered by Kolovsky, J.A.D.
Respondent Board was created and established by L. 1952, c. 336 (now N.J.S.A. 52:17B-41.1 et seq.):
An Act providing for the regulation of the practice of ophthalmic dispensing; authorizing the issuance of certificates to registered qualified ophthalmic dispensers and ophthalmic technicians; creating an examining board to determine their respective qualifications and conferring powers and duties thereupon; * * *.
Specifically exempted from the provisions of the act are physicians and optometrists duly licensed to practice medicine and optometry in this State.
In this proceeding under R.R. 4:88-10 petitioner contends that the Board's Rule 28, originally adopted in 1955, is on its face invalid and inconsistent with the provisions of the governing statute. The challenged rule provides:
On and after February 16, 1955, no persons licensed to practice as an Ophthalmic Dispenser may practice as such other than under their own name. The use of trade names or corporate names by an Ophthalmic Dispenser is hereby specifically prohibited. This regulation will have no effect on those Ophthalmic Dispensers using a trade name or a corporate name prior to February 16, 1955.
The rule, if valid, is an insurmountable bar to petitioner's proposal to "operate," through employed licensed ophthalmic dispensers, "optical dispensing departments * * * [in several Sears Roebuck & Co. stores in this State] under the name 'Sears Optical' or the 'Optical Department at Sears.'"
What petitioner refers to as "optical dispensing" is what the statute designates as "ophthalmic dispensing," defined in N.J.S.A. 52:17B-41.5:
A person practices ophthalmic dispensing within the meaning of the provisions of this act * * * who prepares and dispenses lenses, spectacles, eyeglasses or appurtenances thereto to the intended wearers thereof on written prescriptions from physicians or optometrists duly licensed to practice their profession and in accordance with such prescriptions, interprets, measures, adapts, fits and adjusts such lenses, spectacles, eyeglasses or appurtenances thereto to the human face for the aid or correction of visual or ocular anomalies of the human eyes.
At the outset it is to be noted that the only issue before us is whether the rule is invalid insofar as it applies to or affects the action which petitioner desires to take. Cf. State v. Wheeler Auto Driving School, Inc. , 17 N.J. Super. 488 (App. Div. 1952). We are not concerned with the validity of the rule in its other aspects -- for example, whether it
may validly apply to a corporation formed by one or more licensed ophthalmic dispensers under the authority of the Professional Service Corporation Act, ...