Sage-Allen Co., Inc. v. Wheeler

Decision Date03 April 1935
Citation119 Conn. 667,179 A. 195
CourtConnecticut Supreme Court
PartiesSAGE-ALLEN CO., Inc., et al. v. WHEELER et al.

Appeal from Superior Court, Hartford County; Edwin C. Dickenson Judge.

Action by the Sage-Allen Company, Inc., and others against Jesse E Wheeler and others, for a declaratory judgment to the effect that certain rules of the defendants, as members of the state board of examiners in optometry, are illegal and void and for an injunction restraining them from enforcing the rules. On trial to the court judgment was rendered granting an injunction, and defendants appeal.

Error judgment set aside, and case remanded.

Court cannot assume that Legislature intended to enact law of doubtful constitutionality.

Ernest L. Averill, Deputy Atty. Gen., Warren B. Burrows, Atty. Gen., and H. Roger Jones, Asst. Atty. Gen., for appellants.

James W. Carpenter, Louis M. Schatz, and Julius G. Day, Jr., all of Hartford, for appellees.

Argued before MALTBIE, C.J., and HAINES, BANKS, AVERY, and JENNINGS, JJ.

MALTBIE, Chief Justice.

The plaintiffs in this action are two corporations operating department stores, another corporation, the Buhl Optical Company, Inc., which conducts an optical department in each of the stores, and two licensed optometrists who, under an agreement with the latter company, manage its business in the stores. The defendants are the members of the Connecticut state board of examiners in optometry. The relief sought is a declaratory judgment as to the validity of a certain regulation adopted by the board and an injunction restraining its enforcement or the revocation or suspension of the licenses of the individual defendants for violation of its terms. The regulation is as follows: " The advertising by any licensed optometrist, or any licensed optometrist who is also engaged in the dispensing of ophthalmic products, etc., of definite fixed prices for service or eye-glasses, spectacles, frames, lenses and accessories is prohibited as immoral, fraudulent, dishonorable and unprofessional conduct. Prices in this section shall be construed to be definite and fixed and coming within the purview of this section even though the words ‘ and up’ or ‘ as low as' or words of similar import, are used in connection therewith; the purpose of this regulation being specifically to eliminate all price advertising. Any registered optometrist, who, through his license, makes possible the establishment or conduct of an optical department by any person or persons not licensed to practice optometry, shall be held responsible for all advertising published under the sponsorship of his license and in each advertisement his name shall appear as sponsor for the department in letters of a size proportionate to the size of the advertisement." The trial court granted the injunction sought and the defendants have appealed.

The finding states that each of the optical departments in the stores is in charge of one of the plaintiff optometrists, who is employed by the Buhl Company and is paid a salary with certain additional percentages of receipts. Each of these individual plaintiffs also practices privately as a licensed optometrist in the quarters occupied by the department and the fees received for such services belong to the optometrist himself. The Buhl Company prepares advertisements of frames and lenses for glasses, which appear from time to time as a part of the advertisements of the department stores. In these the frames and lenses are advertised at fixed prices and the names of the individual plaintiffs appear in connection with the advertisements. The individual plaintiffs, however, make a charge for their services as optometrists in addition to the fixed prices advertised. In addition to prescriptions for lenses made by themselves, they accept prescriptions from other optometrists and ophthalmologists and all prescriptions are forwarded to the home office of the Buhl Company where they are filled. The individual plaintiffs also make adjustments of lenses and frames for persons calling at the departments. The trial court, after the finding was filed, added a further statement that price advertising of optical goods as such by optometrists is not immoral, fraudulent, dishonorable, or unprofessional. This finding is attacked, and while from the evidence the trial court might reasonably have inferred that price advertising of these goods was not immoral, fraudulent, or dishonorable in any ordinary acceptance of those terms, there is no evidence that it was not unprofessional, in the sense that it was frowned upon by the profession as a whole and had a tendency to result in the sale of types of frames and lenses which were not suited to the eyes of particular individuals and which therefore might result in physical and nervous impairment; indeed, there is much evidence in the record to show that such price advertising is unprofessional in that sense. The finding must be corrected by striking out the statement that it is not unprofessional.

At the outset, we are met with the claim of the defendants that the plaintiffs have not established a case which upon the facts would entitle them to relief by injunction. There is no finding that the plaintiffs would, if the regulation were enforced, suffer irreparable injury, and while we are asked to add a statement that they would suffer such injury, the evidence goes no farther than to afford some support for such a finding if an interpretation is given to the regulation which, as we shall point out, is erroneous. We do not discuss this claim further because the action must be remanded upon another ground.

The defendants also claim that the individual plaintiffs have adequate remedy at law and hence are not entitled to injunctive relief. The only penalty which could be invoked, should they act in breach of the regulation, is the revocation of their license by the board; from such action, they are given by the statute a right of appeal to the superior court; and upon that appeal every question now raised as to the validity of the regulation could no doubt be put in issue. That remedy is available, however, only after the license has been revoked, and if these plaintiffs could show that the board of examiners in optometry were threatening to take such action against them under an illegal regulation and that to revoke their licenses would cause them serious damage for which they have no adequate redress at law, it may be that they would be entitled to an injunction against any proceedings to enforce it. See Lazarevich v. Stoeckel, 117 Conn. 260, 262, 167 A. 823. Moreover, the complaint sought relief by way of a declaratory judgment as to the validity of the regulation, and if the plaintiffs should not prove their right to an injunction to restrain its enforcement, the allegations of the complaint and the facts found both afford a rather typical case for such relief. Certainly these plaintiffs may justly claim that the court should declare whether or not the regulation is valid that they may, without actually violating it, be authoritatively apprised of their rights. Sigal v. Wise, 114 Conn. 297, 301, 158 A. 891. In view of the fact that the case must be remanded in any event, we need go no farther at present than to point out that the plaintiffs may be able upon further proceedings to establish a right to the relief asked in one form or another.

For upward of twenty years, the state has regulated the practice of optometry and the provisions of the statutes now in force are found in chapter 161, §§ 2844 to 2852, of the General Statutes, as amended by sections 792b to 796b of the Cumulative Supplement 1933. Briefly summarized, the provisions of these statutes are as follows: The practice of optometry is defined as " the employment of any means other than drugs for the measurement of the power of vision and the adaptation of lenses for the aid thereof." Gen St. § 2844. An examining board is established with power to make such rules and regulations " not inconsistent with law" (Gen. St. Supp. 1933, § 792b) as may be necessary to govern the practice of optometry as a profession, to revoke, suspend, and refuse to reissue certificates of registration for cause, and to provide in its rules and by-laws for hearing with reference to all matters relating to the granting, revocation, or refusal to reissue certificates or licenses; and it is stipulated that all the rules and regulations made or promulgated by the board must be " in keeping with the provisions of this chapter." Any applicant for a license must have graduated from an approved high school or had an equivalent education and from an approved school of optometry and must pass an examination in theoretic, practical, and physiological optics, theoretic and practical optometry, and the anatomy and physiology of the eye. The board may revoke the license of any optometrist for certain specified causes, among them, the peddling or soliciting of orders for optical goods from door to door or establishing a temporary office, " immoral, fraudulent, dishonorable or unprofessional conduct" or " illegal or incompetent or habitually negligent or unprofessional conduct in the practice of his profession." Gen. St. Supp. 1933, § 793b. The section of the statutes from which these quotations are made also provides that the violation of any of the provisions of the chapter by an unlicensed employee in the employ of an optometrist with the knowledge of his employer shall be deemed to be a violation thereof by his employer, and continued violation shall be deemed prima facie knowledge on the part of the employer. This section of the statute ends with the following sentence: " Nothing herein contained shall prohibit the operation in a...

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    ...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 ca......
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