The practice of fitting glasses to the human eye and treating
ocular inflammation without the use of drugs or surgery is subject
to supervision and regulation under the state police power.
Page 242 U. S. 345
No discrimination violative of the equal protection clause of
the Fourteenth Amendment is deducible from the fact that a state
law (Laws of California, 1913, c. 598) requiring persons treating
inflammation of the eye and fitting glasses without the use of
drugs to be licensed under the name of "optometrists" and
subjecting their practice to regulation excepts persons who employ
drugs in their practice, it appearing that the latter, through
another statute, are subject to similar supervision and regulation
under another name.
233 F. 334 affirmed.
The case is stated in the opinion.
MR. JUSTICE McKENNA delivered the opinion of the Court.
This case was submitted with
Crane v. Johnson, ante,
242 U. S. 339. It
was considered in the district court with that case, three judges
sitting as in that case. It comes here on appeal from an order
denying an interlocutory injunction. The court entertained
jurisdiction upon the authority of
Raich v. Truax, 219 F.
273, 283;
Truax v. Raich, 239 U. S.
33.
The court, in denying the injunction, said
"that the granting of such orders is within the sound discretion
of the court, and, in the exercise of such discretion, based upon
the averments of the bills, we are of opinion that the application
should be denied."
The court did not pass upon the merits, expressing a doubt of
its authority to do so, as the court said it was composed of three
judges, "under statutory requirement."
Appellant -- we shall call her complainant and state
Page 242 U. S. 346
narratively the facts she alleged -- is a regularly graduated
ophthalmologist, which is a school of scientific learning and
practice confined to the treatment of the inflammation of the eye
and its membranes and in fitting glasses to the human eye. She has
practised her profession in the City of Los Angeles for the past
three years, and is dependent upon the proceeds of her labor and
services. She does not employ either medicine, drugs, or surgery,
nor is there anything in her practice hurtful to the individual or
dangerous to society.
In her practice, it is absolutely necessary and indispensable
that she measure the powers and range of human vision without the
use of drugs, and there is no law in the State of California
prescribing an examination for and regulating the practice of
ophthalmology.
At its 40th session, the Legislature of California enacted a
statute by which it provided that it should be unlawful for any
person to engage in the practice of optometry without first having
obtained a certificate of registration from the State Board of
Optometry under an act to regulate that practice, approved March
20, 1903, and the acts amendatory thereof.
The practice of optometry is defined to be the employment of any
means other than the use of drugs for the measurement of the powers
or range of human vision, or the determination of the accommodative
and refractive states of the human eye, or the scope of its
functions in general, or the adaptation of lenses or frames for the
aid thereof.
The board is given the power, among others, to visit schools
where the science of optometry is taught, and accredit such as the
board finds give a sufficient course of study for the preparation
of optometrists; to keep a register of all persons to whom
certificates of registration have been issued and of all itinerant
licenses, and to grant or refuse or revoke such certificates. The
act
Page 242 U. S. 347
prescribes a course of examination, describes the particulars of
the examinations, and provides that every applicant for an
examination, upon passing it, shall be entitled to be registered in
the board's register of optometrists, and a certificate of
registration shall be issued to him.
"At such examinations, the board shall examine applicants in the
anatomy of the eye, in normal and abnormal refractive and
accommodative and muscular conditions and coordination of the eye,
in subjective and objective optometry, including the fitting of
glasses, the principles of lens grinding and frame adjusting, and
in such other subjects as pertain to the science and practice of
optometry, such subjects to be enumerated in publication by the
board. In case of failure, the applicant shall be examined at the
next examination only in the subjects in which he failed. All such
applicants, without discrimination, who shall satisfactorily pass
such examination shall thereupon be registered in the board's
register of optometrists, and a certificate of registration shall
be issued to them, under the seal and signature of the members of
said board upon payment of a fee of five dollars. Such certificate
shall continue in force until the first day of August in the year
next succeeding."
Before engaging in practice, it shall be the duty of each
registered optometrist to notify the board in writing of the place
or places where he is to engage or intends to engage in practice,
and of changes in such places.
There are other provisions intended to fortify those above
mentioned, and violations of the act are made misdemeanors, with
fines and imprisonment, increasing with repetition of the
offense.
It is provided that the act shall not be construed to prevent
duly licensed physicians and surgeons from treating the human eye,
nor to prohibit the sale of complete ready-to-wear eyeglasses as
merchandise from a permanent place of business, in good faith, and
not in evasion of the act, by the person not holding himself out as
competent to examine and prescribe for the human eye.
Page 242 U. S. 348
Registry certificates may be revoked for certain specified
causes.
Complainant charges that the act offends the Fourteenth
Amendment of the Constitution of the United States in that it
deprives her of her property without due process of law and denies
her the equal protection of the laws, and, as specifications of the
last, she instances the exemption from the provisions of the act of
licensed physicians and surgeons; the appropriation to the sole use
of registered optometrists of the right to employ any means other
than the use of drugs in the measurement of the powers or range of
vision; the denial to all other schools of scientific learning and
practice the right to measure the range of human vision other than
by the use of drugs on equal terms with the physician and surgeon,
and contends generally that, her occupation being a lawful one, not
hurtful to the individual or dangerous to the community, the state
has no power to impose discriminatory regulations upon it.
She alleges her competency to practise her profession and apply
its treatment, that appellees are threatening to enforce the law,
and hence prays temporary and permanent injunctions.
These specific objections are brought down to the general
objection that the statute discriminates against those who employ
any other means than the use of drugs, and therefore
"creates a monopoly favored and protected by law in the interest
of practitioners who employ drugs in determining the accommodative
and refractive states of the human eye."
To sustain the statute, appellees adduce the police power of the
state; against the statute, complainant urges the Fourteenth
Amendment and its prohibition of discrimination. The case requires,
under the averments of the bill, adjustment of these
contentions.
It is established that a state may regulate the practice
Page 242 U. S. 349
of medicine, using this word in its most general sense.
Dent
v. West Virginia, 129 U. S. 114;
Hawker v. New York, 170 U. S. 189;
Reetz v. Michigan, 188 U. S. 505;
Watson v. Maryland, 218 U. S. 173;
Collins v. Texas, 223 U. S. 288.
Complainant tries to escape from the rulings of those cases by
asserting a discrimination against her. She is an ophthalmologist,
she avers,
"which is a school of scientific learning and practice confined
to the treatment of the inflammation of the eye and its membranes
and in fitting glasses to the human eye,"
and that she has practised her profession for the past three
years, and does not employ medicine, drugs, or surgery. She,
however, attacks the statute because, to use the language of her
counsel, it
"arbitrarily discriminates against every other school of
scientific knowledge and practice in favor of the school employing
drugs in determining the accommodative and refractive states of the
human eye."
It undoubtedly does, but gives the name of the school that of
"optometry" and its practitioners "optometrists." We cannot suppose
that any injury is done her by the difference in names, and yet she
gives no other tangible ground of complaint. Whether they are
different, and whether the difference is of substantial or
unsubstantial degree she does not inform us. She practises one of
them in preference to the other, and for the practice of that one
the state has declared that its certificate of competency is
necessary. The cases cited above establish that the state has such
power, and it requires no more of complainant than it requires of
any other ophthalmologist, to use her word, or of any other
optometrist, to use the word of the statute.
The district court was therefore right when it decided that, on
the averments of the bill, complainant was not entitled to an
injunction.
Decree affirmed.