Babcock v. Nudelman
| Decision Date | 22 December 1937 |
| Docket Number | No. 24363.,24363. |
| Citation | 367 Ill. 626,12 N.E.2d 635 |
| Parties | BABCOCK et al. v. NUDELMAN, Director of Finance, et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Suit by Floyd D. Babcock and others against Sam L. Nudelman, Director of Finance, and others. From a decree for defendants, plaintiffs appeal.
Reversed and remanded, with directions.
George E. Drach and Lowell D. Ryan, both of Springfield, for appellants.
Otto Kerner, Atty. Gen. (Montgomery S. Winning, of Springfield, of counsel), for appellees.
Plaintiffs (appellants here) filed their complaint in the circuit court of Sangamon county praying for an injunction to restrain the Director of Finance and the Attorney General of the state from enforcing rule 32 of the Department of Finance, under which the state sought to levy and collect the retailers' occupation tax from them, the plaintiffs, and others similarly situated, who were engaged in the practice of optometry. This rule was promulgated by the department in accordance with the provisions of the Retailers' Occupation Tax Act entitled, ‘An Act in relation to a tax upon persons engaged in the business of selling tangible personal property to purchasers for use or consumption.’ Laws 1933, p. 924, as amended, Ill.Rev.Stat.1937, p. 2722, c. 120, § 440 et seq. Plaintiffs take the position that they are licensed under ‘An Act in relation to the regulation of the practice of optometry,’ Laws 1919, p. 646, as amended, Ill.Rev.Stat.1937, p. 2020, c. 91, § 90 et seq., and are, therefore, not engaged in the business of selling tangible personal property within the meaning of the provisions of the Retailers' Occupation Tax Act. A motion of defendants to dismiss the complaint was allowed, plaintiffs elected to abide by their pleading, and a decree was entered dismissing their complaint for the want of equity. We are asked to review the decree.
Optometry is defined by Webster's New International Dictionary, 2d Ed. unabridged, as: The practice of optometry is defined by section 2 of the act in force in Illinois, already referred to, Ill.Rev.Stat.1937, c. 91, § 91, as including: ‘(a) The examination of the human eye, without the use of drugs, medicines or surgery, to ascertain the presence of defects or abnormal conditions which can be corrected by the use of lenses, prisms, or ocular exercises; (b) The employment of objective or subjective mechanical means to determine the accommodative or refractive states of the human eye or the range or power of vision of the human eye; (c) The prescription or adoption without the use of drugs, medicines or surgery, of lenses, prisms, or ocular exercises to correct defects or abnormal conditions of the human eye or to adjust the human eye to the conditions of a special occupation.’ Section 3, Ill.Rev.Stat.1937, c. 91, § 92, exempts the following persons, firms, and corporations from the operation of the act: ‘(a) Persons authorized under the laws of this State to practice medicine and surgery; (b) Persons, firms and corporations who sell eye glasses or spectacles in a store, shop, or other permanently established place of business on prescription from persons authorized under the laws of this State to practice either optometry or medicine and surgery; (c) Persons, firms and corporations who manufacture or deal in eye glasses or spectacles in a store, shop or other permanently established place of business and who neither practice, nor attempt to practice optometry.’
From a review of these provisions it appears that the Legislature has attempted to set off and provide for a calling or profession distinct in itself, and to separate it from the purely mercantile or retail agencies engaged in the business of selling eyeglasses or spectacles in a permanently located place of wholesale or retailbusiness. Section 3-a of the act, Ill.Rev.Stat.1937, c. 91, § 92a, further provides that the Department of Registration and Education shall, among other things, conduct (1) examinations to ascertain the qualifications and fitness of applicants for certificates of registration as registered optometrists, and (5) hearings on proceedings to revoke or refuse renewals of such licenses or certificates...
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Murphy v. E. R. Squibb & Sons, Inc.
...and skill. That is the essence of the relationship between him and his patient." (Id. 227 A.2d at p. 543.) (Accord: Babcock v. Nudelman (1937) 367 Ill. 626, 12 N.E.2d 635 [holding optometrists and oculists who examined eyes and sold eyeglasses, exempt from a tax imposed on retailers of tang......
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Carmichael v. Reitz
...the relationship between him and his patient.' (Italics in original; 94 N.J.Super. at p. 235, 227 A.2d at p. 543.) In Babcock v. Nudelman (1937) 367 Ill. 626, 629--630, 12 N.Ed.2d 635, 637, the Supreme Court of Illinois ruled that optometrists and occulists were not subject to the retailers......
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Samper v. Indiana Dept. of State Revenue
...an article theretofore manufactured, and hence no sales tax was collectible on the income from such activity. In Babcock v. Nudelman, 1937, 367 Ill. 626, 12 N.E.2d 635, 636, the Supreme Court of Illinois was required to construe a rule of the Department adopted under the Retailers' Occupati......
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Modern Dairy Co. v. Department of Revenue
...are not subject to the tax because the subsequent transfer by them is incidental to the furnishing to services. Bacock v. Nudelman, 367 Ill. 626, 12 N.E.2d 635; Huston Bros. Co. v. McKibbin, 386 Ill. 479, 54 N.E.2d 564. Additional doubt of the efficacy of the application of this strict and ......