State, ex rel. Attorney General v. Gus Blass Co.

• Decision Date: 10 May 1937
• Docket Number: 4-4643
• Citation: 105 S.W.2d 853,193 Ark. 1159
• Parties: STATE, EX REL. ATTORNEY GENERAL, v. GUS BLASS COMPANY
• Court: Arkansas Supreme Court

105 S.W.2d 853

193 Ark. 1159

STATE, EX REL. ATTORNEY GENERAL, v. GUS BLASS COMPANY

4-4643

Supreme Court of Arkansas

May 10, 1937

Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann Judge; affirmed.

Affirmed.

J. A Tellier, for appellant.

Pat Mehaffy and Charles Jacobson, for appellees.

Robert Rosenberg, amicus curiae.

BUTLER J. SMITH, J., dissents.

OPINION

BUTLER, J.

Appellant brought this action against appellees in the Pulaski circuit court in accordance with the provisions of § 10325 of Crawford & Moses' Digest. The purpose of the suit was to obtain an order restraining the defendant, Gus Blass Company, a corporation, from engaging in the practice of the profession of optometry and from advertising and holding itself out to the public as being engaged in this profession. The further purpose of the suit was to annul the charter issued by the Secretary of State to the defendant, Vision, Incorporated, which purports to authorize it as a corporation to engage in the practice of the profession of optometry in Arkansas.

Appellant contended that the practice of optometry in Arkansas is a learned profession requiring technical learning and skill; that under the statutes regulating the practice of optometry corporations are incapable of engaging in the practice of the profession and are without power or right to engage therein; that despite the limitations imposed upon it by law and the provisions of its charter, defendant Gus Blass Company is engaged in the practice of the profession of optometry and is advertising in the newspapers and holding itself out to the public as being engaged in the profession; that the defendant, Vision, Incorporated, in procuring its charter from the state of Arkansas through the Secretary of State, has attempted to acquire powers in contravention of law and beyond the power of the Secretary of State to grant in that its charter purports to authorize and empower it to practice and engage in the practice of optometry in Arkansas through the employment of a licensed and registered optometrist; that its charter in this respect is null and void and should be annulled and vacated and it should be ousted from the state of Arkansas.

The defendants defended on the ground that the court was without jurisdiction of the subject-matter of plaintiff's suit; that the complaint did not state facts sufficient to constitute a cause of action; that act No. 27 of the Acts of 1935, relating to the profession of optometry, does not prohibit a corporation from employing licensed optometrists, but if this act should be so construed, it is unconstitutional as being in contravention of the due process clauses of the state and federal constitutions, to-wit, art. 2, § 8, of the Constitution of the state of Arkansas, and the Fourteenth Amendment to the Constitution of the United States; that act No. 27 of the Acts of 1935 and act No. 123 of the Acts of 1915, governing the practice of optometry, are void as being in contravention of art. 12, § 6, of the Constitution of Arkansas, and are also void because they deny equal protection under the laws, and are in contravention of § 3, art. 2, of the Constitution of the state of Arkansas. The further defense was tendered that The Gus Blass Company had no interest in, or control over, the department of optometry in its store except as the lessor of B. Gainsburg and the optometrist in charge of said department was not the employee of The Blass Company, but of Gainsburg.

Defendant, Vision, Incorporated, filed no answer, but it was announced for it that it had merely obtained its charter and had never engaged in the practice of optometry in the state of Arkansas and had done no act in furtherance of the powers contained in its charter.

The case was submitted to the court sitting as a jury, which, after having heard the evidence, made certain findings of fact and declarations of law, refusing others requested by the appellant, and held as a matter of fact that the defendant, Gus Blass Company, was not practicing optometry, and, without making any formal finding as to Vision, Incorporated, found for the defendant, Gus Blass Company.

It is the appellant's position that under the facts and the law The Gus Blass Company is practicing the profession of optometry in excess of its charter powers and should, therefore, be restrained from continuing to do so; that Vision, Incorporated, is organized for the purpose of practicing optometry; that its charter should be vacated and the corporation ousted from the practice of optometry in the state of Arkansas either directly or indirectly.

The first question raised in the court below involved the authority of the state to bring suit, but that point has been waived on appeal so it passes out of this case and for that reason we refrain from discussing that question.

It was next contended that the act of the Legislature prohibiting the practice of optometry by any but licensed optometrists is unconstitutional, if the act is to be construed as contended for by the appellant. That question is presented and argued at some length in the respective briefs of counsel for the litigants and in the brief of the amicus curiae, but this question we pass as our decision may be placed on other grounds.

The two questions most seriously presented are based on (1) the trial court's following declaration of law: "Obviously the practice of optometry is personal, a corporation as such can neither stand the examination nor show qualifications to obtain a license to practice optometry. Therefore this court holds that a corporation cannot practice optometry in this state even though it may employ a licensed optometrist"; (2) that under the evidence The Gus Blass Company is not engaged in the practice of optometry within the meaning of the statute governing that subject.

In developing the contention on the first question, appellant takes the position that optometry is a learned profession, and, as such, the calling itself is protected within the meaning of the statute as well as the public good conserved. In support of this view and the further contention that corporations may not, as such, or acting through an agent, practice optometry appellant cites the following cases: State ex rel. Beck, Atty. Gen. v. Goldman Jewelry Co., 142 Kan. 881, 51 P.2d 995, 102 A. L. R. 334; State v. Kindy Optical Co., 216 Iowa 1157, 248 N.W. 332; Eisensmith v. Buhl Optical Co., 115 W.Va. 776, 178 S.E. 695; Funk Jewelry Co. v. State ex rel. La Prade, Atty. Gen., 46 Ariz. 348, 50 P.2d 945; State ex rel. Harris et al. v. Myers, Sec. of State, 128 Ohio St. 366, 191 N.E. 99; Stern v. Flynn, Sec. of State, 154 Misc. 609, 278 N.Y.S. 598; State ex rel. Bricker, Atty. Gen. v. Buhl Optical Co., 131 Ohio St. 217, 2 N.E.2d 601.

We find it inexpedient to review these decisions at length with reference to the nature of the so-called "profession" of optometry, but the general deduction may be drawn from these cases where it was either expressly or impliedly held that optometry was a learned profession, that view was reached because of the public policy of the states from which these decisions come which is to be gathered from the language of their particular optometry statutes. This, in the opinion of the courts, placed that profession on the plane of professional ethics and scientific learning as in the generally accepted learned professions. For instance, under the West Virginia statute, optometry is recognized as a profession and forbids one practicing it "to advertise, practice, or attempt to practice under a name other than his own." Eisensmith v. Buhl Optical Co., supra. The Iowa statutes classify optometry as a learned profession, placing it in the same class with medicine, surgery and dentistry. State v. Kindy Optical Co., supra.

The weight of authority seems to be opposed to the doctrine of the cases, supra, and is to the effect that optometry is only a "profession" within the broader definition of that word, meaning "a vocation," which requires some degree of skill and learning. In Saunders v. Swann, 155 Tenn. 310, 292 S.W. 458, optometry was classed as an occupation or vocation calling for a degree of mechanical skill and experience, and, in the case of State ex rel. v. Buhl Optical Co., supra, a case relied upon by the appellant, the Supreme Court of Ohio, in commenting upon the former case decided by that court holding that optometry is a profession, said that what was stated relating to the status of optometry was not meant to hold that it was a learned profession, but instead that "it was a limited statutory profession."

This was the effect of the decision of the Supreme Court of Pennsylvania in Harris v. State Board, 287 Pa. 531, 135 A. 237, and of the Supreme Court of New Jersey in New Jersey State Board v. Kresge Company, 113 N.J.L. 287, 174 A. 353. See, also, to the same effect the following cases: People v. Griffith, 280 Ill. 18, 117 N.E. 195; Jaeckle v. Bamberger, 119 N.J.Eq. 126, 181 A. 181; Dickson v. Flynn, 246 A.D. 341, 286 N.Y.S. 225; Dvorine v. Castelberg Jewelry Corp., 170 Md. 661, 185 A. 562; Vorheis v. Kindy Optical Company, 265 Mich. 265, 251 N.W. 343; State v. Gate City Optical Co., and Sears, Roebuck & Company, 97 S.W.2d 89; Georgia State Board v. Friedmans', Jewelers, Inc., 189 S.E. 238.

Those engaged in the practice of optometry are generally, by the statutes of various states including our own, restricted to an analysis and determination of any optical defect by mechanical means and by a system of trial and error. They may not use any drugs, medicine or surgery. It is the opinion of authorities of the highest rank that the various instruments used by optometrists are of but little aid in determining the character...