Mack v. Saars

• Decision Date: 26 February 1963
• Citation: 188 A.2d 863,150 Conn. 290
• Court: Connecticut Supreme Court
• Parties: Maurice H. MACK v. Walter F. SAARS et al., Connecticut State Board of Examiners in Optometry. Supreme Court of Errors of Connecticut

Page 863

188 A.2d 863

150 Conn. 290

Maurice H. MACK v. Walter F. SAARS et al., Connecticut State Board of Examiners in Optometry.

Supreme Court of Errors of Connecticut.

Feb. 26, 1963.

Charles R. Covert, Bridgeport, with whom were John M. Chapnick, New Haven, and, on the brief, Bruce E. Dillingham, Bridgeport, for appellant (plaintiff).

Raymond J. Cannon, Asst. Atty. Gen., with whom, on the brief, was Albert L. Coles, Atty. Gen., for appellees (defendants).

Before BALDWIN, C. J., and KING, MURPHY, SHEA and ALCORN, JJ.

BALDWIN, Chief Justice.

The plaintiff, a licensed optometrist, has appealed from a judgment of the Superior Court which sustained an order of the state board of examiners in optometry suspending his license to practice. In chapter 380 of the General Statutes, which regulates the practice of optometry, § 20-138a provides that no person shall practice optometry unless he has a license issued by the board. Under § 20-133(e) of that chapter, the board, after a hearing, may revoke or suspend an optometrist's license for aiding or abetting the practice of optometry by an unlicensed person.

The facts found by the board can be stated in summary as follows: Prior to September 1, 1960, the plaintiff was licensed to practice optometry in this state. He was employed as an optometrist by Michaels, Inc., of Waterbury, a Connecticut corporation hereinafter referred to as Michaels, to render optometrical services in its Bristol store, where it owned and maintained a modern, fully equipped optometrist's office. The plaintiff was paid a fixed salary. He made eye examinations and was the only employee in the store qualified to write and to fill prescriptions for eyeglasses or to fit and adjust them. No claim is made that any other employee of Michaels performed all or any part of these services. Fees for examinations were charged by Michaels, which also furnished the ophthalmic materials used, such as lenses and frames. The plaintiff occasionally filled eyeglass prescriptions written by others. Michaels charged for the services performed by the plaintiff and for the eyeglasses prescribed by him. The sums so collected were credited to the gross income of the store. Persons seeking credit in paying for the optometrical services of the plaintiff and the glasses he prescribed were required to make their credit arrangements with Michaels, and no credit could be given by the plaintiff to anyone who had been disapproved. The optometrical office was located in a room at the rear of the store. Index cards showing the names, addresses and prescriptions of optometrical customers of this office were maintained there. These cards contained information needed to complete future optometrical reexaminations. Michaels claimed that the plaintiff was coowner of these cards in that he could copy them for his own purposes. Michaels sells jewelry, watches and other merchandise, is essentially a retail jewelry store, and is not and cannot be licensed to practice optometry.

The board concluded that the plaintiff was an employee of Michaels, that Michaels was not licensed to practice optometry and could not qualify for a license, and that the plaintiff was 'guilty of abetting Michaels * * * in the practice of optometry, in that * * * [he] has full knowledge that in practicing his profession as an employee of an unlicensed person he is assisting and supporting the practice of optometry by his employer * * *.' The board accordingly ordered the plaintiff's license suspended. The plaintiff petitioned the Superior Court for the restoration of his license. General Statutes § 20-135. He has appealed from the judgment of the court sustaining the board's action.

The conclusion of the board and the court on the facts found by the board imports a construction of chapter 380 to the effect that a corporation or any other unlicensed person cannot, under any circumstances, employ a licensed optometrist for a fixed salary to render optometrical services to persons who thereby become indebted to the employer for those services. A study of this chapter of the General Statutes discloses no specific provision denying to a corporation, a partnership or an individual the right to employ a licensed optometrist. It is true that § 20-127, defining the practice, and § 20-130, prescribing the qualifications and procedure necessary to obtain a license to practice, make it clear that a corporation, as such, cannot qualify for a license. Section 20-133 provides that the license of any licensed optometrist may be revoked, suspended or annulled by the board for '(e) aiding or abetting the practice of optometry by an unlicensed person or a person whose license has been suspended or revoked.' The section also provides that '[n]o person except a licensed optometrist shall operate an optometrical office.' Does the quoted language, read in the light of other provisions of chapter 380, necessarily mean that a licensed optometrist, employed, as was the plaintiff under the circumstances of this case, to operate an optometrical office furnished and equipped by the employer, is necessarily aiding or abetting the practice of optometry by his employer in violation of the statute? The statute is far from clear on this question. The primary and ordinary meaning of 'operate' is 'to perform a work or labor.' Webster, Third New International Dictionary. The import of the decision of the trial court is that the legislature intended a meaning of the word 'operate' which would make the word applicable not only to the individual actually performing the work but also to his employer. Is this the intent of the statute? See Lieberman v. Connecticut State Board of Examiners in Optometry, 130 Conn. 344, 348, 34 A.2d 213. We must look beyond the express language of the legislation to resolve the ambiguity. Wilson v. Miller, 144 Conn. 212, 214, 128 A.2d 894; Landry v. Personnel Appeal Board, 138 Conn. 445, 447, 86 A.2d 70; Hartford v. Suffield, 137 Conn. 341, 343, 77 A.2d 760.

Courts, in construing statutes, consider their legislative history, their language, their purpose, and the circumstances surrounding their enactment. Delinks v. McGowan, 148 Conn. 614, 618, 173 A.2d 488; Cassidy v. Tait, 140 Conn. 156, 160, 98 A.2d 808. Chapter 380 of the General Statutes is in derogation of a common-law right and is penall in nature. See § 20-138a. Therefore, the principle of strict construction applies. Connecticut Chiropody Society, Inc. v. Murray, 146 Conn. 613, 617, 153 A.2d 412; Hart v. Board of Examiners of Embalmers, 129 Conn. 128, 132, 26 A.2d 780; State v. Parker, 112 Conn. 39, 46, 151 A. 325; State v. Levy, 103 Conn. 138, 141, 130 A. 96; McPheeters v. Board of Medical Examiners, 103 Cal.App. 297, 299, 284 P. 938.

The legislative history of § 20-133, ¹ which gives to the board the power to revoke or suspend licenses and contains subsection (e), invoked by the board as the basis for its action in suspending the plaintiff's license, is illuminating. The genesis of the section is found in the original legislation concerning the practice of optometry, enacted in 1913. Public Acts 1913, c. 236, § 6; Rev.1918, § 2941. Since 1921, certain commercial and fraudulent practices have been expressly made grounds for revocation. Public Acts 1921, c. 276, § 5; Rev.1930, § 2849; Rev.1949, § 4493. In 1933, the General Assembly spelled out six additional grounds for revocation or suspension and included what is presently subsection (e). Cum.Sup.1933, § 793b; Cum.Sup.1935, § 1155c. As a last-minute amendment, the legislature, in 1933, appended to the section the following: 'Nothing herein contained shall prohibit the operation in a department store of an optical department under the supervision of a duly licensed optometrist.' See Conn.S.Jour., 1933 Sess., pp. 1927-28; Conn.H.Jour., 1933 Sess., p. 2074.

In Sage-Allen Co. v. Wheeler, 119 Conn. 667, 179 A. 195, 98 A.L.R. 897, following the amendment in 1933, this court had before it the construction of the optometry chapter. In that case the plaintiffs were two department stores, an optical company which conducted an optical department in each of the stores and two licensed optometrists who, under an agreement with the optical company, managed its business in the stores. Those plaintiffs challenged a regulation of the state board of examiners in optometry forbidding the advertising by any licensed optometrist of a fixed price for services or for optical goods as immoral, fraudulent, dishonorable and unprofessional conduct. The regulation provided further that any registered optometrist who, through his license, made possible the establishment or conduct of an optical department by any person not licensed should be held responsible for all advertising published under the sponsorship of his license and that his name should appear in each advertisement as the sponsor of the department. The case was remanded for a development of the facts upon which the validity of the regulation depended. In construing the 1933 last-minute amendment quoted above, we held (p. 675, 179 A. p. 198, 98 A.L.R. 897) that under its terms a department store may 'conduct an optical department where the services of an optometrist are not employed or it may employ a licensed optometrist in connection with such a department.' We said: 'To construe the provision as requiring [a department] store to employ an optometrist as a condition of carrying on an optical business would be to discriminate between it and other stores or individuals engaged in the same business, which the Legislature never could have intended.' In short, if the provision were so construed, it would constitute an unconstitutional discrimination.

In 1939, the General Assembly repealed the provision considered in the Sage-Allen case and substituted different language. Cum.Sup.1939, § 1018e; Rev.1949, § 4494; General Statutes § 20-133. The bill from which the 1939 legislation emanated, as reported by the...