Ezell v. Ritholz
| Decision Date | 20 August 1938 |
| Docket Number | 14742. |
| Parties | EZELL et al. v. RITHOLZ et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Richland County; G. Duncan Bellinger, Judge.
Action by W. C. Ezell and others, as members of the South Carolina Board of Examiners in Optometry, and others, on behalf of themselves and all other persons similarly situated in the State of South Carolina, against Benjamin Ritholz and others partners in trade, and doing business in the State of South Carolina as the National Optical Stores Company, and another for an injunction restraining the defendants from illegally practicing optometry. From an order granting a temporary injunction and overruling the defendants' demurrer to the complaint, the defendants appeal.
Order affirmed.
Calhoun Thomas, of Beaufort, and Benet, Shand & McGowan, of Columbia for appellants.
John W. Crews, of Columbia, and John F. Williams, of Aiken, for respondents.
In the year 1917 the General Assembly enacted a law regulating the practice of optometry, and this act with subsequent amendments was incorporated in the Code of 1932, Sections 5232 to 5250, both inclusive. And some further amendments were made in the year 1932. This law provides for the appointment of a Board of Examiners, and it is further required that every person before beginning to practice optometry shall pass an examination before the Board "in theoretic, practical and physiological optics, theoretic and practical optometry and in the anatomy of the eye". Upon the passage of this examination and the payment of the required fees a certificate or license is issued. The statute exempted from examination optometrists who had been in actual practice in this State for more than two years prior to the passage of the act in 1917. In the year 1937 certain sections of the law relating to the practice of optometry were further amended, so as to further define the practice thereof, and to prohibit misleading advertisements in connection therewith. Acts 1937, page 394.
This amendment amplifies Sections 5232 and 5245 of the 1932 Code by defining in detail the practice of optometry and prohibiting misleading advertisements and various practices tending to the injury of the public and the lowering of the standards of the profession or vocation. Section 5248 is also amended, and as so amended prescribes that nothing in the article relating to optometry shall be construed to apply to physicians authorized to practice under the laws of the State, "in the due course of their private professional practice", subject to certain stipulations immaterial here. Nor does this act apply to persons who sell as merchandise from a regular established place of business ready-made eyeglasses or spectacles.
It will thus be seen from this legislation that the General Assembly has recognized the public importance of the practice of optometry, no doubt because it relates to that most delicate organ, the eye, and one of man's best gifts, that of vision. Hence one seeking to engage in this calling must undergo such training and preparation as will enable him to pass the necessary examination and to measure up to the standards required by the law.
This act provides in Section 5246, Code, 1932, that any person violating the provisions of the article in question shall be deemed guilty of a misdemeanor, and on conviction shall be fined not less than $25 nor exceeding $100, or imprisoned not less than 20 days nor more than 30 days; one-fourth of all fines received to be paid to the person or persons furnishing proof necessary to convict, and the remaining three-fourths to go to the common school fund.
The plaintiffs above named, who are the respondents here, consist of the following, to wit: The members of the South Carolina Board of Examiners in Optometry, appointed by virtue of the legislation above mentioned, and whose duty as therein stated is to carry out the purposes and enforce the provisions of the article relating to the practice of optometry; the South Carolina Optometric Association, an eleemosynary corporation, and several persons named who are individual optometrists, duly licensed as such and engaged in the practice of the profession of optometry in certain cities of this State, bringing this action in behalf of themselves and all other persons similarly situated in this State. The defendants above named (except H. S. Adams, who was dismissed from the action), who are the appellants herein, are partners in trade doing business in various cities of this State as National Optical Stores Company.
Very briefly stated the complaint herein alleges that the defendants are not authorized or licensed to practice optometry in this State, but that they are actually unlawfully practicing the same, and are advertising the sale of eyeglasses in a manner calculated to mislead and deceive the public; that they furnish to the general public in their places of business in this State for compensation eye examinations to determine the type of glasses needed by the customer (but all such examinations are alleged to be hurried, inadequate and incomplete, etc.), and that in order to furnish such examinations and the eyeglasses so prescribed they frequently use in the capacity of employees or partners medical doctors who hire out and brokerage their medical skill to their employer, the National Optical Stores Company, and that unskilled and unlicensed assistants are frequently employed who participate in eye examinations. The complaint further alleges that the plaintiffs who are individual optometrists have followed the profession for an extended period of years and have built up optometrical practices which are of great value to them, and that the alleged conduct of the defendants is unlawful and results in irreparable damage to the plaintiffs herein and to all licensed members of their profession as well as being detrimental to the public. The prayer of the complaint is for injunction, no other specific relief being sought; but there is the usual prayer for general relief.
The defendants interposed a demurrer to the complaint which alleges in effect that the complaint shows on its face that the plaintiffs have an adequate remedy at law under the criminal provisions of the statutes, and that the Court of Common Pleas is therefore without jurisdiction; and further, that the complaint does not show that the defendants are actually engaged in the practice of optometry; and further, that the plaintiffs do not have legal capacity to sue since the action is not brought in the name of the State of South Carolina, and is not a criminal but an equitable one. The demurrer also purports to raise a constitutional question, but since there is no exception on this point it need not be considered.
The defendants also gave notice of their objection to the jurisdiction of the Court upon substantially the same grounds as those of the demurrer, and they also answered reserving their rights under the demurrer and other motions.
On November 29, 1937, Hon. G. Duncan Bellinger, Judge of Fifth Circuit, issued a rule to show cause why a temporary injunction should not be issued, and at the hearing of this rule affidavits were submitted on behalf of the plaintiffs, and testimony on behalf of the plaintiffs and of the defendants was taken. But these affidavits and the testimony so taken are not contained in the transcript of record on this appeal. When the rule to show cause was heard Judge Bellinger also heard the demurrer and the objection to the jurisdiction of the Court. On January 8, 1938, he overruled the demurrer and the objection to the jurisdiction of the Court, and filed an order granting the temporary injunction and referring the cause to the Master for Richland County to hear the case on the merits and report the testimony to the Court with his findings on all issues of law and of fact. Judge Bellinger stated in his order that he overruled the demurrer and the objection to the jurisdiction of the Court and that he would thereafter in a separate order give his reasons therefor, but such order is not contained in the transcript of record herein. The following is quoted from the order of Judge Bellinger granting the temporary injunction, because it gives succinctly the factual basis on which he exercised his discretion to grant an injunction pending the hearing on the merits:
"After hearing the testimony of witnesses introduced on behalf of the plaintiffs, together with a number of affidavits and after reading the verified complaint, and hearing the testimony introduced on behalf of the defendants, I find that the plaintiffs in this action have made out a prima facie case entitling them to a temporary injunction in that it was clearly shown from the evidence that the defendants had entered into a scheme to violate the act or acts in question governing the practice of optometry.
The plaintiffs here made a prima facie showing that the defendants are conducting their business in violation of Sections 5232 and 5233 relating to the regulation of the practice of optometry and Section 5245 of the Statutes at Large, page 395, of the Acts of 1937, approved the 1st day of May, 1937, for South Carolina, prohibiting the advertisement of prices of spectacles and the terms or guarantee of purchase thereof.
I find further from the evidence that a prima facie showing has been made that the defendants herein entered into a scheme to violate, and continued to violate, the acts in question and do practice optometry under the rights and privileges conferred upon individual practicing physicians. That the defendants had a working agreement with the practicing physicians whereby the physicians...
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