Hudkins v. Arkansas State Board of Optometry
| Citation | 187 S.W.2d 538,208 Ark. 577 |
| Decision Date | 23 April 1945 |
| Docket Number | 4-7609 |
| Parties | Hudkins v. Arkansas State Board of Optometry |
| Court | Supreme Court of Arkansas |
Certiorari to Pulaski Chancery Court; Frank H. Dodge Chancellor.
Affirmed.
E Charles Eichenbaum and George W. Shepherd, for appellant.
Leffel Gentry and Sherrill, Cockrill & Wills, for appellee.
The "salaried physician" referred to in Ritholz v. Arkansas State Board of Optometry, 206 Ark. 671, 177 S.W.2d 410, severed his relations with National Optical Stores Company and was succeeded by Dr. Ira N. Hudkins. Jack Rosenthal, who was Little Rock manager for the Company, likewise resigned. His place was filled by Theodore Kays. By certiorari Kays and Hudkins have brought here a record of proceedings had in Pulaski Chancery Court, including a finding that the petitioners were guilty of contempt in that they willfully violated injunctive mandates, validity of which was sustained in the Ritholz case.
It is insisted (1) that because Act 94 [1] makes violation of the proscribed conduct a crime, equity is without jurisdiction to interfere by way of injunction, and (2) since Hudkins and Kays were not named in the original injunction they were not properly before the Court. Third, if these questions be resolved against petitioners, still evidence was insufficient to justify the Chancellor's actions. [Findings are copied in the margin. [2]]
First. -- We agree with petitioners that if the Board be utilizing injunction and fines for contempt as substitutes for penalties where transactions are denounced as crimes, its procedure is improper; but, as was said in the opinion handed down January 24, 1944, the relief sought by those complaining was not to enjoin the commission of a crime, as such. The purpose, primarily, was to prevent illegal practice of optometry. Cessation of the practice -- not punishment for past acts -- was the end.
The Board has nothing to do with prevention of crime; nor is it concerned with punishment. But under § 15 of Act 94 it is authorized to invoke injunctive aid as a means of protection. The emergency clause expresses a finding by the General Assembly that "the public has been injured through the activities of certain persons, firms and corporations not licensed to practice optometry," and the remedies should be made immediately available in the interest of health, etc.
A history of Act 94 is given in Melton v. Carter, 204 Ark. 595, 164 S.W.2d 453. In that opinion, as in the Ritholz case decided in 1944, constitutionality of the legislation was upheld. But it was not intended thereby to say that injunctive jurisdiction may be conferred upon a court of chancery where the only infraction involves criminal conduct, or where civil rights guaranteed the public are not substantially involved. The principle was stated by Mr. Justice Frauenthal in Lyric Theatre v. State, 98 Ark. 437, 136 S.W. 174, 33 L. R. A., N. S., 325. He cited with complete approval the holding in State v. Vaughan, 81 Ark. 117, 98 S.W. 685, 7 L. R. A., N. S., 899, 118 Am. St. Rep. 29, 11 Ann. Cas. 277, where Chief Justice Hill said: ". . . if the public nuisance is one touching civil property rights or privileges of the public, or the public health is affected by a physical nuisance, or if any other ground of equity jurisdiction exists calling for an injunction, a Chancery Court will enjoin, notwithstanding the act enjoined may also be a crime."
As to the subject matter from which the case at bar proceeds, there is, upon the one hand, clear distinction between criminal conduct and punishment, while upon the other hand there is the public's right of protection against continuing practices of unlicensed individuals who persist in an activity legislatively found to be inimical to the common welfare.
Although the statute says, in effect, that where the prohibited practice continues it may be enjoined at the Board's instance, necessarily an implication arises that in appropriate cases it is the Board's prerogative as an implement of the law to fairly present to a court of equity the facts it believes justify action. Then, if in the Court's discretion injunction follows, the right to find that there has been contemptuous disregard for the court's order is a necessary incident to the tribunal's jurisdiction to act in the first instance.
Second. -- It is true Hudkins and Kays were not named in the injunction; but while the case was on appeal these petitioners filed affidavits that if the...
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Wood v. Goodson, 5732
...(1938). We have clearly recognized the necessity for personal service in criminal contempt proceedings. In Hudkins v. Arkansas State Board of Optometry, 208 Ark. 577, 187 S.W.2d 538, the petitioners sought review of their punishment for contempt for wilfully violating previous injunctive or......
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Arkansas State Bd. of Architects v. Clark
...doing so. This, in itself, amounts to an allegation that the appellees were committing a nuisance. In Hudkins v. Arkansas State Board of Optometry, 208 Ark. 577, 187 S.W.2d 538, 540, the court quoted with approval from Chief Justice Hill's opinion in State v. Vaughan, 81 Ark. 117, 98 S.W. 6......
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Ritholz v. Dodge
...present". The latter case was appealed to this court and affirmed on April 23, 1945 in the case of Hudkins v. Arkansas State Board of Optometry, 208 Ark. 577, 187 S.W.2d 538. On April 17, 1946 the Board filed a petition in the same cause praying for the issuance of an order to show cause wh......