Palmer v. Smith
| Decision Date | 15 December 1948 |
| Docket Number | No. 450.,450. |
| Citation | 229 N.C. 612,51 S.E.2d. 8 |
| Court | North Carolina Supreme Court |
| Parties | PALMER et al. v. SMITH. |
Appeal from Superior Court, Wake County; W. C. Harris, Judge.
Action by James A. Palmer and others, comprising the North Carolina State Board of Examiners in Optometry, against H. M. Smith to enjoin him from the illegal practice of optometry. From a judgment enjoining defendant from taking measurements of the powers of vision and prescribing spectacles, but not from selling or duplicating lenses or frames of spectacles without a written prescription from licensed optometrist, plaintiffs appeal.
Affirmed.
This is a civil action instituted in the Superior Court of Wake County, for the purpose of enjoining the defendant from the illegal practice of optometry in violation of the provisions of Chapter 90 of the General Statutes of North Carolina, relating to the practice of optometry.
The defendant was enjoined 17 October, 1947, until the further order of the Court from engaging in the practice of optometry within the State of North Carolina, by employing any means for the measurement of the powers of vision and the adaptation of lenses for the aid thereof, and from duplicating or attempting to duplicate any lense for ophthalmic use without a written prescription from a person authorized under the laws of North Carolina to practice optometry or medicine.
When this cause came on for hearing, trial by jury was expressly waived by all parties, and it was agreed that the trial judge should hear the evidence, find the facts, draw his conclusions of law and enter judgment accordingly.
The Court found as a fact that this action was instituted by plaintiffs under and by virtue of the provisions of Chapter 90 of the General Statutes of North Carolina, and that the defendant has heretofore endeavored to take the measurements of the powers of vision of certain individuals and has given directions and advice as to the fitness of spectacles, eyeglasses or lenses for the correction of vision of such individuals.
The Court further found as a fact that the defendant has engaged in selling, furnishing, replacing or duplicating, or attempting to sell, replace or duplicate lenses, frames and/or mountings without a written prescription from a person authorized under the laws of the State of North Carolina to practice optometry or medicine, and that the defendant has not been issued a license to practice optometry in the State of North Carolina.
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Upon these facts, the Court being of the opinion that the defendant, in endeavoring to take the measurements of the powers of vision and prescribe spectacles, glasses or lenses for certain individuals has engaged in the practice of optometry as defined in Section 90-114 of the General Statutes of North Carolina and should be restrained from such practices in the future; and being of the further opinion that that portion of Section 90-115 of the General Statutes of North Carolina, which reads: "Within the meaning of this article, a person shall be deemed as practicing optometry who does, or attempts to, sell, furnish, replace, or duplicate, a lense, frame, or mounting, or furnishes any kind of material or apparatus for ophthalmic use, without a written prescription from a person authorized under the laws of the State of North Carolina to practice optometry, or from a person authorized under the laws of North Carolina to practice medicine", is unconstitutional as being in contravention of the Fourteenth Amendment, Section 1, of the Constitution of the United States, and as being in contravention of Article I, Sections 1, 17 and 31 of the Constitution of the State of North Carolina, and is, therefore, invalid and unenforceable; and entered judgment accordingly. The plaintiffs appeal and assign error.
Arch T. Allen and Drury B. Thompson, both of Raleigh, and Oscar G. Barker, of Durham, for plaintiffs.
Robert H. Dye, of Fayetteville, and Bailey & Holding, of Raleigh, for defendant.
The sole question for determination on this appeal, is whether or not an optical mechanic is practicing optometry when he replaces or duplicates an ophthalmic lense, or replaces or duplicates the frame or mounting for such lense. No other mechanical work of the optician is prohibited by this Section (G.S. § 90-115), for the Statute expressly provides: "The provisions of this section shall not prohibit persons or corporations from selling completely assembled spectacles, without ad vice or aid as to the selection thereof, as merchandise from permanently located or established places of business, nor shall it prohibit persons or corporations from making mechanical repairs to frames for spectacles; nor shall it prohibit any person, firm, or corporation engaged in grinding lenses and filling prescriptions from replacing or duplicating lenses on original prescriptions issued by a duly licensed optometrist, and oculist."
The defendant does not challenge the power of the Legislature to regulate the practice of optometry as defined in Section 90-114 of the General Statutes of North Carolina, and therefore, he did not appeal from the judgment below, which restrained him from such practice.
It will be noted the State of North Carolina exercises no legislative or regulatory control over opticians, other than to require the payment of an annual privilege tax. The plaintiffs insist, however, that the duplication of an ophthalmic lense or the duplication or replacement of a frame or mounting for such lenses, constitutes the practice of optometry, and is not a mere mechanical operation or process which an optician has the right to perform.
G.S. § 90-114 defines the practice of optometry as "the employment of any means, other than the use of drugs, medicines, or surgery, for the measurement of the powers of vision and the adaptation of lenses for the aid thereof". This definition is in substantial accord with those given in other jurisdictions. Vol. 30, Words...
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