For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Haneman, J.
Plaintiff challenges the validity of an administrative rule promulgated by defendant. The Appellate Division sustained the validity of the rule, 107 N.J. Super. 278 (1969). This Court granted plaintiff's petition for certification, 55 N.J. 449 (1970).
Plaintiff, an Ohio corporation, is engaged in the manufacture and sale of eyeglasses, lenses, frames and related appurtenances. It conducts its business in 27 states and the District of Columbia at approximately 300 locations, 175 of which are in Sears, Roebuck & Co. (Sears) stores. Plaintiff intends to operate in Sears stores in New Jersey. The conduct of that business, as hereafter appears, is contingent upon its ability to employ a licensed Ophthalmic Dispenser (Dispenser).
The "sale, dispensing and supplying of all ophthalmic appliances, eyeglasses, or ophthalmic lenses to the ultimate wearer or consumer" is governed by N.J.S.A. 52:17B-41.1 et seq. The statute creates a State Board (Board) of Examiners of Ophthalmic Dispensers and Ophthalmic Technicians (Technicians). The Board, at its creation, was to be comprised of four Dispensers and one Optometrist. The original Optometrist, after his term expired, was to be replaced by a fifth Dispenser. The Board is now composed of five Dispensers. Sales may be made only by Dispensers licensed and regulated by the Board. The Board is authorized to adopt rules "necessary to give full force and effect"
to the provisions of the act and to regulate the practice of Ophthalmic Dispensers and Technicians. N.J.S.A. 52:17B-41.13.
Dispensers are defined by N.J.S.A. 52:17B-41.5 as:
A person practices ophthalmic dispensing within the meaning of the provisions of this act relating to ophthalmic dispensing 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.
Technicians are defined by N.J.S.A. 52:17B-41.5 as:
One having a knowledge of optics and skilled in the technique of producing and reproducing ophthalmic lenses and kindred products, and mounting same to supporting materials.
On February 16, 1955 the Board adopted a rule which prevented Dispensers and Technicians from practicing in other than their own names. On November 20, 1963, the Board adopted a substitutionary rule in the identical language of the original rule, except that it eliminated the prohibition as to Technicians. No reason is articulated by the Board for the initial inclusion and subsequent exclusion of Technicians. The substitutionary rule, designated Rule 28, which is here involved, reads as follows:
Rule 28. 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 Board did not hold any hearings in the course of adopting the said rule. The Board's ...