State ex Inf. McKittrick v. Gate City Optical, 34009.

• Decision Date: 02 October 1936
• Docket Number: No. 34009.,34009.
• Citation: 97 S.W.2d 89
• Court: Missouri Supreme Court
• Parties: STATE OF MISSOURI upon the information of Roy McKITTRICK, Attorney General, Informant, v. GATE CITY OPTICAL COMPANY, a Corporation, and SEARS, ROEBUCK & COMPANY, a Corporation.

97 S.W.2d 89 STATE OF MISSOURI upon the information of Roy McKITTRICK, Attorney General, Informant,
v.
GATE CITY OPTICAL COMPANY, a Corporation, and SEARS, ROEBUCK & COMPANY, a Corporation. No. 34009. Supreme Court of Missouri. Court en Banc, October 2, 1936.^*

Quo Warranto.

WRIT OF OUSTER DENIED.

Roy McKittrick, Attorney General, and James L. HornBostel, Assistant Attorney General, for informant.

(1) The practice of optometry is confined to persons especially qualified and trained and cannot be considered as a trade or business; it is, or at least approaches to, an exact science and should be held by this court to be a profession the same as law, medicine, dentistry, etc. Chap. 101, R.S. 1929; Laws 1931, p. 282; Secs. 13497, 13501, R.S. 1929; Swanz v. Clark, 229 Pac. 1108; State of Iowa v. Kindy Optical Co., 248 N.W. 332; Stern v. Flynn, 278 N.Y. Supp. 598; State v. Etzenhouser, 16 S.W. (2d) 659. (2) Corporations may not be licensed to practice optometry, neither may corporations practice optometry. Sec. 13503, R.S. 1929; 14a C.J., p. 296, sec. 2145; Sec. 7, Art. XII, Mo. Const.; Lewis Pub. Co. v. Rural Pub. Co., 181 S.W. 103; 14a C.J., pp. 347, 349, secs. 2209, 2211; 3 Thompson on Corporations, sec. 2188, p. 843; Depew v. Wichita Assn. of Credit Men, 49 Pac. (2d) 1041, 142 Kan. 403. (3) Corporations may not hire registered optometrists to practice optometry for and on their behalf. Sec. 13509, R.S. 1929; State of Iowa v. Kindy Optical Co., 248 N.W. 332; Eisensmith v. Buhl Optical Co., 178 S.E. 695; Winslow v. Board of Dental Examiners, 115 Kan. 450. (4) Respondent Gate City Optical Company is practicing optometry. State v. Kindy Optical Co., 248 N.W. 332; Eisensmith v. Buhl Optical Co., 178 S.E. 697; State Board of Dental Examiners v. Savelle, 8 Pac. (2d) 697; State ex inf. Miller v. St. Louis Union Trust Co., 74 S.W. (2d) 355. (5) Respondent Sears, Roebuck & Company is likewise practicing optometry. State v. Kindy Optical Co., 248 N.W. 335. (6) The exceptions found in Chapter 101, Revised Statutes 1929, do not give respondents the right to practice optometry. Secs. 13507, 13511, R.S. 1929; Eisensmith v. Buhl Optical Co., 178 S.E. 696; Sec. 13509, R.S. 1929; New Jersey State Board of Optometrists v. Kresge Co., 174 Atl. 357.

Anderson, Gilbert, Wolfort, Allen & Bierman for Sears, Roebuck & Company.

(1) Sears, Roebuck & Company have not violated any portion of the Optometry Act of Missouri. Their license agreement requires the licensee at all times to obey the laws of the State of Missouri, and the compensation to Sears, Roebuck & Company is based on sales only. The act does not prohibit employment of a registered optometrist and does not provide that the hiring of a registered optometrist to examine customers' eyes is practicing optometry. Secs. 13501, 13497, R.S. 1929. The only prohibitions on employment are that an optometrist may not be employed unless registered and that an apprentice may not be employed unless registered and then only by a registered optometrist. Secs. 13497, 13501, 13511, R.S. 1929. The act does not prohibit the filling, by an employer, of a prescription made by a registered optometrist who is an employee. The only restriction is that the glasses must be sold on prescription of a registered optometrist. Sec. 13502, R.S. 1929. In the absence of a regulatory inhibition, a corporation has the same right to conduct its business as an individual. King v. Phoenix Ins. Co., 195 Mo. 304; State ex rel. v. St. Louis Union Trust, 74 S.W. (2d) 358. Where a registered expert is hired to render services to others, for the rendering of which the employer is not registered, such expert is not an agent of the employer in rendering the services, and the employer is not liable for his acts, but only if careless in his selection of the expert. Gross v. Robinson, 203 Mo. App. 118; Haggarty v. St. Louis Ry., 100 Mo. App. 424; Youngstown Park Co. v. Kessler, 95 N.E. 509; Allegar v. American Car Co., 206 Fed. 437; Pilger v. City of Paris, etc., Co., 86 Cal. App. 277. The act specifically recognizes the right of a registered optometrist to accept employment and does not provide that such employer must be a registered optometrist. Secs. 13507, 13511, R.S. 1929. And these portions of the act cannot be excluded; the courts are uniform in holding that all portions of an act must be considered and given effect, and one cannot, merely to carry his point, cull out parts of a law and treat them as surplusage. State ex rel. v. Offutt, 26 S.W. (2d) 830; Castilo v. State Highway Comm., 279 S.W. 677; Palmer v. Omer, 295 S.W. 123; Powers v. K.C. Pub. Serv. Co., 328 Mo. 770. The hiring of an expert is not the practice of his profession. Voorhies v. Kindy Optical Co., 251 N.W. 343; State ex rel. v. Lewin, 128 Mo. App. 149; State Electro-Medical Institute v. State, 103 N.W. 1078. And the regulation of any calling cannot be used as an excuse to endeavor to regulate the business of selling merchandise. Bruhl v. State, 13 S.W. (2d) 93. And the Optometry Act does not so endeavor, as its title is limited to the practice of optometry. "An act to define and regulate the practice of optometry and fixing penalties for the violation thereof." Laws 1921, p. 532. (2) If the Missouri Optometry Act were construed as informant contends it should be, this respondent would be deprived of its property, i.e., its right to sell merchandise in accordance with the terms of its charter, without due process of law, and the obligations of its contract would be impaired, and equal protection of the law would be denied, and the act would be void under the provisions of both the Federal and State Constitutions. Fourteenth Amend. of U.S. Const.; Sec. 10, Art. I, U.S. Const.; Secs. 15, 30, Art. II, Mo. Const.; Liggett Co. v. Baldridge, 278 U.S. 105; Bruhl v. State, 13 S.W. (2d) 93.

Julius C. Shapiro for Gate City Optical Company.

(1) The question whether the sale in a store, and permanently established place of business of optical goods, on prescriptions issued by optometrists, authorized by law to do so, and whether respondent's manner of conducting business constitutes the practice of optometry, must be confined to the definition, "Practice of Optometry," the exemptions accorded, and the language used, by the Legislature, as found in Chapter 101, Revised Statutes 1929. (a) By the use of the words, and direct reference to "corporations," "stores," "established place of business," "on prescription," "employment," "practice of optometry," "in one's employ, supervision, or control," the legislative intent was expressed, and having spoken and accorded certain authorizations, exemptions, and exceptions to the operation of the general section "defining what constitutes the practice of optometry," such provisions must be given full force and effect, and the matters here in issue cannot be decided upon any general theory of the common law; and the usual principles of agency, and the rule of respondeat superior, does not apply. Secs. 13501, 13502, 13507, 13511, R.S. 1929; Lewis' Sutherland Statutory Const. (2 Ed.), sec. 350; State v. Etzenhouser, 223 Mo. App. 581, 16 S.W. (2d) 656; Price v. State, 168 Wis. 609, 171 N.W. 77; Clark v. Railroad Co., 219 Mo. 534, 118 S.W. 44; Castillo v. Highway Comm., 312 Mo. 244, 279 S.W. 677; First Natl. Bank of Kansas v. White, 220 Mo. 717, 120 S.W. 36; Voorhies v. Faust, 220 Mich. 155, 189 N.W. 1006; 59 C.J., sec. 617, p. 1040; 25 R.C.L., sec. 229; Ex parte Welborn, 237 Mo. 297, 141 S.W. 31; State ex rel. Publishing Co. v. Hackmann, 314 Mo. 33, 282 S.W. 1007; 59 C.J., sec. 582, p. 984; Keane v. Strodtman, 18 S.W. (2d) 898; State ex rel. Barlow v. Holtcamp, 322 Mo. 258, 14 S.W. (2d) 650; State v. Knapp, 327 Mo. 24, 33 S.W. (2d) 891; State ex inf. Sager v. Lewin, 128 Mo. App. 149, 106 S.W. 581; Jaeckle v. L. Bamberger & Co., 181 Atl. 182; Voorhies v. Kindy Optical Co., 251 N.W. 343; Renwick v. Phillips, 268 Pac. 368; Thompson Optical Institute v. Thompson, 237 Pac. 969; Scadrons' Sons, Inc., v. Suskind, 229 N.Y. Supp. 209; Sconyers v. State, 6 Ga. App. 804, 65 S.E. 814; State Electro-Medical Institute v. State, 74 Neb. 40, 103 N.W. 1078; State Electro-Medical Institute v. Platner, 103 N.W. 1079; State v. Brown, 37 Wash. 97, 79...