Michigan Society of Ophthalmic Dispensers v. State Board of Examiners in Optometry , 58 Mich. App. 209 ( 1975 )

58 Mich. App. 209 (1975) 227 N.W.2d 253

MICHIGAN SOCIETY OF OPHTHALMIC DISPENSERS
v.
STATE BOARD OF EXAMINERS IN OPTOMETRY

Docket No. 17189.

Michigan Court of Appeals.

Decided January 29, 1975.

Bodman, Longley, Bogle, Armstrong & Dahling (by Lloyd C. Fell), for plaintiffs.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Frederick H. Hoffecker, Assistant Attorney General, for defendant.

Before: QUINN, P.J., and BASHARA and R.M. MAHER, JJ.

PER CURIAM.

This action resulted from the institution of criminal proceedings by defendant against Bayne Optical, Inc. for alleged violation of the optometry law, MCLA 338.251 et seq; MSA 14.641 et seq. Plaintiffs then filed this action for a declaratory judgment as to the applicability to them of MCLA 338.258(e); MSA 14.648(e) and 1954 AC, R 388.266.

Bayne Optical, Inc. and members of plaintiff society are opticians. They duplicate and replace broken ophthalmic lenses without a written prescription from a licensed optometrist or physician. The trial court found that replacement and duplication of lenses was not the practice of optometry as defined by the statute and was not regulated by the optometry law. A declaratory judgment entered below holding that plaintiffs were not subject to the optometry law and enjoining defendant from interfering with opticians while engaged in the lawful pursuit of their business. Defendant appeals.

The finding of the trial court that the activities of plaintiffs did not constitute the practice of optometry is not clearly erroneous, GCR 1963, 517.1. That finding is determinative of this appeal.

MCLA 338.251 et seq.; MSA 14.641 et seq. is titled in part "An act to regulate the practice of optometry". It cannot regulate the practice of opticians without violating Const 1963, art 4, § 24, Kindy Opticians, Inc v State Board of Examiners in Optometry, 291 Mich. 152; 289 N.W. 112 (1939).

This conclusion obviates discussion of the other issues raised.

Affirmed but without costs, a public question being involved.