1. Provisions of an Oklahoma statute making it unlawful for any
person not a licensed optometrist or ophthalmologist to fit lenses
to a face or to duplicate or replace into frames lenses or other
optical appliances except upon written prescriptive authority of an
Oklahoma licensed ophthalmologist or optometrist, are not invalid
under the Due Process Clause of the Fourteenth Amendment.
Roschen v. Ward, 279 U. S. 337. Pp.
348 U. S.
484-488.
2. To subject opticians to this regulatory system while
exempting all sellers of ready-to-wear glasses does not violate the
Equal Protection Clause of the Fourteenth Amendment. Pp.
348 U. S.
488-489.
3. A provision making it unlawful to solicit the sale of frames,
mountings or any other optical appliances does not violate the Due
Process Clause of the Fourteenth Amendment. Pp.
348 U. S.
489-490.
4. A provision forbidding any retail merchandiser to rent space,
sub-lease departments, or otherwise permit any person "purporting
to do eye examination or visual care" to occupy space in a retail
store does not violate the Due Process Clause of the Fourteenth
Amendment. Pp.
348 U. S.
490-491.
5. A provision making it unlawful to solicit the sale of
spectacles, eyeglasses, lenses and prisms by the use of advertising
media is constitutional. P.
348 U. S.
491.
120 F.
Supp. 128, affirmed in part and reversed in part.
Page 348 U. S. 484
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This suit was instituted in the District Court to have an
Oklahoma law, 59 Okl.Stat.Ann. §§ 941-947, Okl.Laws 1953,
c. 13, §§ 1-8, declared unconstitutional and to enjoin
state officials from enforcing it, 28 U.S.C. §§ 2201,
2202, 2281, for the reason that it allegedly violated various
provisions of the Federal Constitution. The matter was heard by a
District Court of three judges,
Page 348 U. S. 485
as required by 28 U.S.C. § 2281. That court held certain
provisions of the law unconstitutional.
120 F.
Supp. 128. The case is here by appeal, 28 U.S.C. §
1253.
The District Court held unconstitutional portions of three
sections of the Act. First, it held invalid under the Due Process
Clause of the Fourteenth Amendment the portions of § 2 which
make it unlawful for any person not a licensed optometrist or
ophthalmologist to fit lenses to a face or to duplicate or replace
into frames lenses or other optical appliances, except upon written
prescriptive authority of an Oklahoma licensed ophthalmologist or
optometrist. [
Footnote 1]
Page 348 U. S. 486
An ophthalmologist is a duly licensed physician who specializes
in the care of the eyes. An optometrist examines eyes for
refractive error, recognizes (but does not treat) diseases of the
eye, and fills prescriptions for eyeglasses. The optician is an
artisan qualified to grind lenses, fill prescriptions, and fit
frames.
The effect of § 2 is to forbid the optician from fitting or
duplicating lenses without a prescription from an ophthalmologist
or optometrist. In practical effect, it means that no optician can
fit old glasses into new frames or supply a lens, whether it be a
new lens or one to duplicate a lost or broken lens, without a
prescription. The District Court conceded that it was in the
competence of the police power of a State to regulate the
examination of the eyes. But it rebelled at the notion that a State
could require a prescription from an optometrist or ophthalmologist
"to take old lenses and place them in new frames and then fit the
completed spectacles to the face of the eyeglass wearer." 120
F.Supp. at page 135. It held that such a requirement was not
"reasonably and rationally related to the health and welfare of the
people."
Id. at 136. The court found that, through
mechanical devices and ordinary skills, the optician could take a
broken lens or a fragment thereof, measure its power, and reduce it
to prescriptive terms. The court held that,
"Although, on this precise issue of duplication, the legislature
in the instant regulation was dealing with a matter of public
interest, the particular means chosen are neither reasonably
necessary nor reasonably related to the end sought to be
achieved."
Id. at 137. It was, accordingly, the opinion of the
court that this provision of the law violated the Due Process
Clause by arbitrarily interfering with the optician's right to do
business.
We think the due process question is answered in principle by
Roschen v. Ward, 279 U. S. 337,
which upheld a
Page 348 U. S. 487
New York statute making it unlawful to sell eyeglasses at retail
in any store unless a duly licensed physician or optometrist were
in charge and in personal attendance. The Court said,
". . . wherever the requirements of the act stop, there can be
no doubt that the presence and superintendence of the specialist
tend to diminish an evil."
Id., at
279 U. S.
339.
The Oklahoma law may exact a needless, wasteful requirement in
many cases. But it is for the legislature, not the courts, to
balance the advantages and disadvantages of the new requirement. It
appears that, in many cases, the optician can easily supply the new
frames or new lenses without reference to the old written
prescription. It also appears that many written prescriptions
contain no directive data in regard to fitting spectacles to the
face. But in some cases the directions contained in the
prescription are essential if the glasses are to be fitted so as to
correct the particular defects of vision or alleviate the eye
condition. The legislature might have concluded that the frequency
of occasions when a prescription is necessary was sufficient to
justify this regulation of the fitting of eyeglasses. Likewise,
when it is necessary to duplicate a lens, a written prescription
may or may not be necessary. But the legislature might have
concluded that one was needed often enough to require one in every
case. Or the legislature may have concluded that eye examinations
were so critical, not only for correction of vision but also for
detection of latent ailments or diseases, that every change in
frames and every duplication of a lens should be accompanied by a
prescription from a medical expert. To be sure, the present law
does not require a new examination of the eyes every time the
frames are changed or the lenses duplicated. For if the old
prescription is on file with the optician, he can go ahead and make
the new fitting or duplicate the lenses. But the law need not be in
every respect logically consistent with its aims
Page 348 U. S. 488
to be constitutional. It is enough that there is an evil at hand
for correction, and that it might be thought that the particular
legislative measure was a rational way to correct it.
The day is gone when this Court uses the Due Process Clause of
the Fourteenth Amendment to strike down state laws, regulatory of
business and industrial conditions because they may be unwise,
improvident, or out of harmony with a particular school of thought.
See Nebbia v. People of State of New York, 291 U.
S. 502;
West Coast Hotel Co. v. Parrish,
300 U. S. 379;
Olsen v. State of Nebraska ex rel. Western Reference & Bond
Ass'n, 313 U. S. 236;
Lincoln Union v. Northwestern Iron & Metal Co.,
335 U. S. 525;
Daniel v. Family Sec. Life Ins. Co., 336 U.
S. 220;
Day-Brite Lighting, Inc., v. State of
Missouri, 342 U. S. 421. We
emphasize again what Chief Justice Waite said in
Munn v. State
of Illinois, 94 U. S. 113, "For
protection against abuses by legislatures, the people must resort
to the polls, not to the courts."
Secondly, the District Court held that it violated the Equal
Protection Clause of the Fourteenth Amendment to subject opticians
to this regulatory system and to exempt, as § 3 of the Act
[
Footnote 2] does, all sellers
of ready-to-wear glasses.
Page 348 U. S. 489
The problem of legislative classification is a perennial one,
admitting of no doctrinaire definition. Evils in the same field may
be of different dimensions and proportions, requiring different
remedies. Or so the legislature may think.
Tigner v. State of
Texas, 310 U. S. 141. Or
the reform may take one step at a time, addressing itself to the
phase of the problem which seems most acute to the legislative
mind.
Semler v. Oregon State Board of Dental Examiners,
294 U. S. 608. The
legislature may select one phase of one field and apply a remedy
there, neglecting the others.
A.F. of L. v. American Sash
Co., 335 U. S. 538. The
prohibition of the Equal Protection Clause goes no further than the
invidious discrimination. We cannot say that that point has been
reached here. For all this record shows, the ready-to-wear branch
of this business may not loom large in Oklahoma or may present
problems of regulation distinct from the other branch.
Third, the District Court held unconstitutional, as violative of
the Due Process Clause of the Fourteenth Amendment, that portion of
§ 3 which makes it unlawful "to solicit the sale of . . .
frames, mountings . . . or any other optical appliances." [
Footnote 3] The court conceded that
state regulation of advertising relating to eye examinations was a
matter "rationally related to the public health and welfare," 120
F. Supp. at 140, and therefore subject to regulation within the
principles of
Semler v. Oregon State Board of Dental Examiners,
supra. But regulation of the advertising of eyeglass frames
was said to intrude "into a mercantile field only casually related
to the visual care of the public"
Page 348 U. S. 490
and restrict "an activity which in no way can detrimentally
affect the people." 120 F. Supp. at 140-141. [
Footnote 4]
An eyeglass frame, considered in isolation, is only a piece of
merchandise. But an eyeglass frame is not used in isolation, as
Judge Murrah said in dissent below; it is used with lenses; and
lenses, pertaining as they do to the human eye, enter the field of
health. Therefore, the legislature might conclude that to regulate
one effectively it would have to regulate the other. Or it might
conclude that both the sellers of frames and the sellers of lenses
were in a business where advertising should be limited, or even
abolished, in the public interest.
Semler v. Oregon State Board
of Dental Examiners, supra. The advertiser of frames may be
using his ads to bring in customers who will buy lenses. If the
advertisement of lenses is to be abolished or controlled, the
advertising of frames must come under the same restraints -- or so
the legislature might think. We see no constitutional reason why a
State may not treat all who deal with the human eye as members of a
profession was should use no merchandising methods for obtaining
customers.
Fourth, the District Court held unconstitutional, as violative
of the Due Process Clause of the Fourteenth Amendment, the
provision of § 4 of the Oklahoma Act which reads as
follows:
"No person, firm, or corporation engaged in the business of
retailing merchandise to the general public
Page 348 U. S. 491
shall rent space, sublease departments, or otherwise permit any
person purporting to do eye examination or visual care to occupy
space in such retail store."
It seems to us that this regulation is on the same
constitutional footing as the denial to corporations of the right
to practice dentistry.
Semler v. Oregon State Board of Dental
Examiners, supra, at
294 U. S. 611.
It is an attempt to free the profession to as great an extent as
possible from all taints of commercialism. It certainly might be
easy for an optometrist with space in a retail store to be merely a
front for the retail establishment. In any case, the opportunity
for that nexus may be too great for safety if the eye doctor is
allowed inside the retail store. Moreover, it may be deemed
important to effective regulation that the eye doctor be restricted
to geographical locations that reduce the temptations of
commercialism. Geographical location may be an important
consideration in a legislative program which aims to raise the
treatment of the human eye to a strictly professional level. We
cannot say that the regulation has no rational relation to that
objective and therefore is beyond constitutional bounds.
What we have said is sufficient to dispose of the appeal in No.
185 from the conclusion of the District Court that that portion of
§ 3 which makes it unlawful to solicit the sale of spectacles,
eyeglasses, lenses, and prisms by the use of advertising media is
constitutional.
The other contentions urged by appellants in No. 185 are without
merit.
Affirmed in part and reversed in part.
MR. JUSTICE HARLAN took no part in the consideration or decision
of this case.
[
Footnote 1]
Section 2 reads as follows:
"It shall be unlawful for any person, firm, corporation,
company, or partnership not licensed under the provisions of
Chapter 11 or Chapter 13 of Title 59, Oklahoma Statutes 1951, to
fit, adjust, adapt, or to in any manner apply lenses, frames,
prisms, or any other optical appliances to the face of a person, or
to duplicate or attempt to duplicate, or to place or replace into
the frames, any lenses or other optical appliances which have been
prescribed, fitted, or adjusted for visual correction, or which are
intended to aid human vision or to give any treatment or training
designed to aid human vision, or to represent or hold himself out
to the public as being qualified to do any of the acts listed in
this Section, except that persons licensed under the provisions of
Chapters 11 or 13 of Title 59, Oklahoma Statutes 1951 may in a
written prescription, or its duplicate, authorize any optical
supplier to interpret such prescription, and who in accordance
therewith may measure, adapt, fit, prepare, dispense, or adjust
such lenses, spectacles, eye glasses, prisms, tinted lenses, frames
or appurtenances thereto, to the human face for the aid or
correction of visual or ocular anomalies of the human eye; and may
continue to do the said acts on the aforesaid written prescription,
or its duplicate, provided however, that the physician or
optometrist writing such prescription shall remain responsible for
the full effect of the appliances so furnished by such other
person. Provided that this Section shall not prevent a qualified
person from making repairs to eye glasses."
Chapter 11, Title 59, Okl.Stat. 1951, provides for the licensing
of ophthalmologists and other doctors. Chapter 13 provides for the
certification of optometrists.
[
Footnote 2]
Section 3 reads as follows:
"It shall be unlawful for any person, firm, company, corporation
or partnership to solicit the sale of spectacles, eye glasses,
lenses, frames, mountings, prisms or any other optical appliances
or devices, eye examinations or visual services, by radio, window
display, television, telephone directory display advertisement, or
by any other means of advertisement; or to use any other method or
means of baiting, persuading, or enticing the public into buying
spectacles, eye glasses, lenses, frames, mountings, prisms, or
other optical appliances for visual correction. Provided, however,
that the provisions of this Act shall not render any newspaper or
other advertising media liable for publishing any advertising
furnished them by a vendor of said commodity or material; nor shall
anything in this Act prevent ethical education publicity or
advertising by legally qualified health groups that does not
violate presently existing laws of Oklahoma, nor prevent the proper
use of ethical, professional notices. Nothing in this Act shall
prohibit the sale of ready-to-wear glasses equipped with
convex-spherical lenses, nor sunglasses equipped with plano lenses,
nor industrial glasses and goggles with plano lenses used for
industrial eye protection when sold as merchandise at any
established places of business and where the selection of the
glasses is at the discretion of the purchaser."
[
Footnote 3]
See note 2
supra.
[
Footnote 4]
The court also said:
"Advertising directed exclusively at this feature of eye wear
can have no deleterious effect on the public, inasmuch as it has no
influence on the prospective wearer of eyeglasses, and to the
present wearer (a person already examined by a licensed
professional) is but a mere piece of merchandise."
"The dispensing optician, a merchant in this particular, cannot
arbitrarily be divested of a substantial portion of his business
upon the pretext that such a deprivation is rationally related to
the public health."
120 F. Supp. at 142.