Lieberman v. Conn. State Bd. Of Exam'rs In Optomertry.

• Decision Date: 07 July 1943
• Citation: 34 A.2d 213,130 Conn. 344
• Court: Connecticut Supreme Court
• Parties: LIEBERMAN v. CONNECTICUT STATE BOARD OF EXAMINERS IN OPTOMERTRY.

130 Conn. 344

34 A.2d 213

LIEBERMAN

v.CONNECTICUT STATE BOARD OF EXAMINERS IN OPTOMERTRY.

Supreme Court of Errors of Connecticut.

July 7, 1943.

Appeal from Superior Court, Hartford County; Wynne, Judge.

Action by Samuel M. Lieberman against the Connecticut State Board of Examiners in Optometry by petition in the nature of an appeal from action of defendant board in revoking the plaintiff's license to practice optometry. Judgment for plaintiff restoring his license, and defendant appeals.

Error and case remanded with directions. Appellee's motion for reargument denied.

Thomas J. Conroy, Asst. Atty. Gen. (Francis A. Pallotti, Atty. Gen., on the brief), for appellant (defendant).

Jacob Schwolsky, of Hartford, for appellee (plaintiff).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

MALTBIE, Chief Justice.

The plaintiff, licensed to practice optometry under the provisions of Chapter 161 of the General Statutes, brought this petition to the Superior Court under § 1157c of the Cumulative Supplement of 1935 to secure the restoration of his license, which had been revoked by the board of examiners in optometry, and, from a judgment granting him relief, the board has appealed. At the time the board acted, the statutes authorized it, after notice and hearing, to revoke the license of any optometrist on the ground that he was guilty of ‘unprofessional conduct’ or of ‘aiding or abetting the practice of optometry by an unlicensed person’, General Statutes, Cum.Supp.1935, § 1155c; and they also provided that ‘The license of any optometrist who shall employ solicitors * * * in connection with the conduct of the profession of optometry shall be revoked.’ General Statutes, § 2849. After a hearing, the board, on December 17, 1940, made a finding of facts and revoked the license upon all three of these grounds. We find it necessary to consider only the first. In Sage-Allen Co., Inc., v. Wheeler, 119 Conn. 667, 679, 179 A. 195, 200, 98 A.L.R. 897, we construed the provision in § 793b of the Supplement of 1933, still retained in § 1018e of the Cumulative Supplement of 1939, which authorized the board of examiners in optometry to revoke a license for ‘immoral * * * dishonorable or unprofessional conduct,’ in this way: ‘The words must have been used in the light of the fundamental purpose of the statutes to regulate the profession in the public interest and they can only be construed as intending to include conduct within their fair purport which either shows that the person guilty of it is intellectually or morally incompetent to practice the profession or has committed an act or acts of a nature likely to jeopardize the interest of the public.’ The question before us is whether the plaintiff could, upon the facts before the board, reasonably be held guilty of conduct ‘of a nature likely to jeopardize the interest of the public.’

A copy of the entire proceedings before the board, including all the evidence, was appended to the answer. There is no dispute as to the situation under which the plaintiff was practicing. He entered into an oral agreement, terminable at will, with a corporation known as B. Spector & Bro. which sold, among other things, optical goods. Under the agreement he occupied two rooms in its store, of which he had charge. He was to examine persons seeking optometrical service. If any person for whom he prescribed bought glasses in the store, he made no charge for his services; if they did not intend to buy the glasses there, he made a charge and the money received was paid to the corporation; but this rarely occurred. He was paid a salary by the corporation and also received commissions on optical goods sold by it on his prescription, the commissions amounting to somewhat more than a third of his entire compensation. The company extensively advertised that optometrical services could be had in its store, and we shall later in the opinion discuss this matter.

Optometry was first regulated in this state in 1913. Public Acts, 1913, Chap. 236. Since that time higher requirements for securing a license have from time to time been established and the practice of optometry has been increasingly subjected to regulation. Thus, in the act of 1913, one could qualify to take the examination for a license if he had a premliminary education equivalent to at least two years in high school and had studied at least two years in the office of a registered optometrist, whereas now it is required that he shall have graduated from a high school after a four years' course and from a school of optometry approved by the board of examiners and maintaining a course of study of not less than four years. General Statutes, Cum.Sup.1939, § 1017e. The 1913 act seems to have sedulously avoided the use of the word ‘profession’ as applied to the calling, and in § 10 an optometrist was entirely forbidden to use the title ‘doctor’ or any synonym; but now the board is given power to make rules to govern ‘the practice of optometry as a profession’; and an optometrist may use the title ‘doctor’ if he appends words indicating that he is an optometrist. General Statutes, Cum.Sup.1935, §§ 1154c and 1158c. In other respects there has been in the statutes a growing recognition of the importance of regulating optometry, and a calling which was originally regarded as a trade has increasingly taken on the aspects of a learned profession. No doubt this is due to a greater realization by the legislature and the public of the fact which we stated in the Sage-Allen case, where we said (page 677 of 119 Conn., page 199 of 179 A., 98 A.L.R. 897): ‘It is a matter of common knowledge that where a person suffers from defective vision the use of eyeglasses not correctly adapted to remedy the defect may seriously aggravate it and, because of the resultant eye strain, may bring about nervous and even physical disorders, with accompanying discomfort and loss of efficiency.’ To this statement we add that a properly qualified optometrist should be able often to discover diseased conditions of the eye which require treatment by an oculist, and should, when they are discovered, refer his patient to a doctor qualified to deal with them.

When we decided the Sage-Allen case, the concluding sentence of § 793b, which was then in effect and specified various grounds upon which the licenses of an optometrist might be revoked, was as follows: ‘Nothing herein contained shall prohibit the operation in a department store of an optical department under the supervision of a duly licensed optometrist.’ By an amendment to the section enacted in 1939, for this sentence the following was substituted: ‘No person except a licensed optometrist shall operate an optometrical office. Nothing herein contained shall be construed as prohibiting the conducting of clinics or visual surveys when they are conducted without profit.’ General Statutes, Cum.Sup.1939, § 1018e. It is not easy to determine the purpose designed to be accomplished by this amendment, but we need not consider that question in its broad aspects. The sentence in the 1933 act, as we said in the Sage-Allen case, page 675 of 119 Conn., 179 A. 195, 98 A.L.R. 897, made it possible for a department store to conduct an optical department and employ a licensed optometrist in connection with it. It did not, in its terms or by necessary implication, authorize a department store to establish in connection with its business an office designed solely to render optometrical service and held out to the public as a place to which they might resort for such service, regardless of the relationship between a licensed optometrist in charge of such an office and the management of the store. In the Sage-Allen case, page 677 of 119 Conn., 179 A. 195, 98 A.L.R. 897, we pointed out that there is a distinction, as...