N.H. Bd. of Registration in Optometry v. Scott Jewelry Co.

• Decision Date: 07 November 1939
• Citation: 9 A.2d 513
• Parties: NEW HAMPSHIRE BOARD OF REGISTRATION IN OPTOMETRY et al. v. SCOTT JEWELRY CO. et al.
• Court: New Hampshire Supreme Court

9 A.2d 513

NEW HAMPSHIRE BOARD OF REGISTRATION IN OPTOMETRY et al.

v. SCOTT JEWELRY CO. et al.

Supreme Court of New Hampshire. Hillsborough.

Nov. 7, 1939.

Transferred from Superior Court, Hillsborough County; James, Judge.

Suit by the New Hampshire Board of Registration in Optometry and another against the Scott Jewelry Company, a corporation, and another, to enjoin defendants from the practice of optometry, wherein five individuals licensed to practice optometry intervened as plaintiffs on behalf of themselves and all others similarly situated in New Hampshire. Defendants demurred to the amended bill, and the case was transferred to the Supreme Court without ruling.

Demurrer sustained.

Bill in equity, seeking an injunction restraining the defendants from the practice of optometry. The original plaintiffs were the Board of Registration duly qualified to act under Pub.Laws, c. 207, which regulates the practice of optometry. The defendants demurred. Five individuals licensed to practice under said act, and all resident in Concord, then moved for leave to intervene as plaintiffs, on behalf of themselves and all others similarly, situated in New Hampshire. Leave was given, and the defendants excepted. The defendants demurred to the amended bill.

The defendants are the Scott Jewelry Company, a corporation doing business in Manchester and Ernest G. Boisvert, a duly registered optometrist. The bill alleges: (1) That the defendant corporation sells jewelry, eye glasses, lenses and frames on credit, that it employs the defendant Boisvert by the week, on salary, and that Boisvert's exclusive time and services belong to the said corporation. (2) That the defendant corporation has similarly employed other registered optometrists. (3) That the said corporation holds itself out as possessing the means for the measurement of the powers of vision and the adaptation of lenses for the aid thereof. (4) That the corporation advertises in the telephone directory as follows:

"Boisvert Ernest G. Scott Jewelry Co. — Eyes Examined Glasses on Credit — 50?weekly 978 Elm Manchester-1016"

(5) That this and other advertising deceitfully holds out to the public that Boisvert is practicing on his own account, whereas the nature of his employment necessarily precludes him from occupying that immediate, direct and unbroken relation of trust and confidence that should exist between professional men and their clients.

(6) That customers of the defendant corporation who call for glasses to be fitted are referred to Boisvert, who measures and tests the vision without charge, and causes the lenses to be ground by a qualified optical concern; and when the glasses are ready, the prescription and the glasses are delivered to the defendant corporation, which files the prescription and receives the purchase price direct from the customer or arranges with him the terms of credit, but all moneys are received by the corporation and become its property. (7) That the corporation gives away with all purchases of eyeglasses certain "Profit Sharing Coupons", good towards future purchases of $10 or more in the corporation's store.

(8) That neither the corporation nor any of its officials or employees, Boisvert excepted, is qualified or registered to practice optometry. (9) That Boisvert, though licensed, is a mere servant of an unlicensed corporation which is unlawfully practicing the profession by deceitfully and fraudulently holding itself out as possessing the qualities of an optometrist by employing a paid servant who is qualified, but owes primary allegiance to his employer rather than to persons consulting him, who become the corporation's clients and patients, not his.

(10) That the practice of optometry in New Hampshire is a profession, which the corporation is following without license. (11) That the corporation is advertising the sale of eyeglasses in a manner calculated to mislead and deceive the public, and is practicing optometry unlawfully. (12) That the corporation fixes all prices charged or quoted to customers of defendants.

The intervenors allege that they have rights and interests of a pecuniary nature and that the cause set forth in the original bill will, if continued, "result in irreparable public and private injury, in that it involves the public welfare, health and safety in the matter of the measurement of the powers of vision and the adaptation of lenses for the aid thereof and the protection of the property rights and interests of those lawfully engaged in the calling." They also allege that no other form of action would afford an effectual remedy.

The questions arising upon the demurrer were transferred without ruling by James, J.

Thomas P. Cheney, Atty. Gen., and Frank R. Kenison, Asst. Atty. Gen., for Board of Registration in Optometry.

Thorp & Branch and F. W. Branch, all of Manchester, for individual plaintiffs.

McLane, Davis & Carleton and Perkins Bass, all of Manchester, for defendants.

PAGE, Justice.

For the purposes of this case it may be conceded that the statute does not authorize the registration of a corporation to practice optometry. Whether or not the facts alleged in the bill constitute the practice is a matter upon which the courts have expressed diverse opinions. Under statutes and upon facts more or less similar, it has been held that the employer is practicing optometry illegally, even though the competent optometrist employed by it is fully free to exercise his own judgment in making examinations and prescribing glasses. Funk Jewelry Company v. State ex rel. La Prade, 46 Ariz. 348, 50 P.2d 945; State v. Kindy Optical Company, 216 Iowa 1157, 248 N.W. 332; State ex rel. Beck v. Goldman Jewelry Company, 142 Kan. 881, 51 P.2d 995, 102 A.L.R. 334; McMurdo v. Getter, Mass., 10 N.E.2d 139; Stern v. Flynn, 154 Misc. 609, 278 N.Y.S. 598; Eisensmith v. Buhl Optical Company, 115 W.Va. 776, 178 S.E. 695.

The opposite result has been reached in a number of cases. State ex rel. Attorney General v. Gus Blass Company, 193 Ark. 1159, 105 S.W.2d 853; Georgia State Board of Examiners in Optometry v. Friedmans' Jewelers, Inc., 183 Ga. 669, 189 S.E. 238; Dvorine v. Castelberg Jewelry Corporation, 170 Md. 661, 185 A. 562; Attorney General v. Kindy Optical Company, 265 Mich. 265, 251 N.W. 343; State ex inf. McKittrick v. Gate City Optical Company, 339 Mo. 427, 97 S.W.2d 89; Jaeckle v. L. Bamberger & Co., 119 N.J.Eq. 126, 181 A. 181; Scadron's Sons, Inc., v. Susskind, 132 Misc. 406, 229 N.Y.S. 209; Silver v. Lansburgh & Bro., D.C., 27 F.Supp. 682. It is unnecessary now to decide the controverted question, since the present case is disposable upon procedural grounds alone.

The court will not interfere by injunction on the motion of a public official to prevent the violation of a criminal statute when the violation does not constitute a public nuisance. Mayor of Manchester v. Smyth, 64 N.H. 380, 10 A. 700. It was conceded by the plaintiffs that the case just cited declares the general rule of equitable jurisdiction and states an exception that has general acceptance. But the plaintiffs argue that another exception has gained acceptance and that public officers may have recourse to courts of equity for the restraint of the illegal practice of licensed callings, even though such illegal practice is punishable as a crime.

The extent to which this exception has been recognized, and the reasons for it, deserve consideration. But first it should be noted that caution must be exercised in the recognition of new exceptions to the general rule of equity jurisdiction. Although it is true that the punishment of contempt may be constitutional, though the conduct punished be criminal (In re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092), caution is suggested by the fact that where the defendant is prosecuted at common law he may commonly claim the right to trial by jury. Mere convenience to the state ought not to be permitted to enlarge the scope of equitable jurisdiction in such situations. In the absence of a statute widening jurisdiction, at least, courts should permit equitable jurisdiction where criminal liability is involved only in accordance with settled principles. With this in mind the cases tending to recognize the new "exception" may be examined.

At the outset we meet a group of cases holding that illegal practice may be enjoined in cases where the statute has specifically authorized such restraint. State v. Fray, 214 Iowa 53, 241 N.W. 663, 81 A.L.R. 286; State v. Howard, 214 Iowa 60, 241 N. W. 682; State v. Kindy Optical Company, 216 Iowa 1157, 248 N.W. 332; In re Maclub of America, Inc., 3 N.E.2d 272, 105 A.L.R. 1360; Board of Medical Examiners of Utah v. Blair, 57 Utah 516, 196 P. 221. These cases give us no help, for our statute contains no such specific exception to the general rule.

There is also the group of cases which calls illegal practice a public nuisance. State ex rel. La Prade v. Smith, 43 Ariz. 131, 29 P.2d 718, 92 A.L.R. 168, but a nuisance only if the unlicensed practitioner is in fact incompetent and the remedy at law inadequate; Ezell v. Ritholz, 188 S.C. 39, 198 S.E. 419; Redmond v. State ex rel. Attorney General, 152 Miss. 54, 118 So. 360, but holding that quo warranto is the proper remedy; State ex rel. State Board of Medical Examiners v. Hartley, 165 Tenn. 278, 54 S.W.2d 960, because the statute specifically declared illegal practice to be a public nuisance. In substance the plaintiffs have disclaimed reliance on these cases. We do not regard illegal practice of optometry as a public nuisance, and that view is supported by authority. Dean v. State, 151 Ga. 371, 106 S.E. 792, 40 A.L.R. 1132; People ex rel. v. Universal Chiropractors' Association, 302 Ill. 228, 134 N.E. 4; State v. Maltby, 108 Neb. 578, 188 N.W. 175.

There is a group of cases which does not recognize any exception to the general equitable rule but yet permits an injunction against illegal practice where the criminal...