State ex rel. Bd. of Examiners in Optometry v. Lawton

• Decision Date: 11 June 1974
• Docket Number: No. 45380,45380
• Citation: 523 P.2d 1064,1974 OK 69
• Parties: The STATE of Oklahoma ex rel. the BOARD OF EXAMINERS IN OPTOMETRY, a board composed of Dr. Kenneth Mathis, President, et al., Appellants, v. John G. LAWTON, Appellee.
• Court: Oklahoma Supreme Court

Page 1064

523 P.2d 1064

The STATE of Oklahoma ex rel. the BOARD OF EXAMINERS IN OPTOMETRY, a board composed of Dr. Kenneth Mathis President, et al., Appellants, v. John G. LAWTON, Appellee.

No. 45380.

Supreme Court of Oklahoma June 11, 1974.

James L. Barrett, Oklahoma City, John C. Monk, Arlington, Va., Donald E. Marrs, Frankfort, Ky., Dallas C. Barnett and Jerry Mash, Oklahoma City by James L. Barrett, Bill D. McCarthy, Legal Intern, Oklahoma City, Larry Derryberry, Atty. Gen., by Larry French, Asst. Atty. Gen., for appellants.

Miskovsky, Sullivan & Miskovsky by Robert B. Smith, Oklahoma City, for appellee.

HODGES, Justice.

An action for declaratory judgment and injunction was filed by John G. Lawton, O. D. (Lawton), alleging that the appellants (Board) were about to take action against him for the obvious violation of 59 O.S.1971, § 594.

In 1971, the legislature passed a bill which pertained to the practice of optometry in the State of Oklahoma. Section two of the bill was codified as 59 O.S.1971, § 594. It provides:

'No optometrist, licensed under Chapter 13 of Title 59 of the Oklahoma Statutes, shall practice his profession adjacent to or in such geographical proximity to a retail optical outlet, optical store, optical dispensary or any establishment where optical goods and materials are purveyed to the public so as to induce patronage for himself thereby.'

Title 59 O.S.1971 § 597 is penal in nature. It provides:

'Violation of the provisions of this act shall be a misdemeanor. If violation hereof is by a licensed optometrist the same shall constitute grounds for revocation of such license whether or not he may be also charged with a misdemeanor. The Board of Examiners in Optometry shall determine existence of a violation of this act by an optometrist and shall proceed with revocation under powers granted to said Board and in accordance with procedure prescribed in Section 585 of Title 59 of the Oklahoma Statutes. Said Board may make rules necessary for the enforcement of this act so long as such rules are not inconsistent with the provision of this or any other law of this state.'

Lawton is a licensed optometrist. In October, 1965, he entered into a lease with a shopping center for the occupancy of an office in a commercial building in Oklahoma City for the practice of his profession. The term of the lease was for five years, with option to renew. In October, 1970, Lawton exercised his option and renewed the lease for an additional term of three years, expiring in October, 1973.

In October, 1965, Lee Optical Company (Lee), a retail optical outlet entered into a lease in the same building. Lee leased space on the opposite side of the hall from Lawton. Lee and Lawton each began their respective occupancies at about the same time, i.e. the completing of the building in which the leased premises are located.

On appeal, it is asserted by the Board, that the trial court erred in tis conclusion that an actual, justiciable controversy existed between Lawton and the Board and that an action for declaratory judgment was improper. They allege that the controversy is hypothetical.

The Oklahoma Declaratory Judgment Act, 12 O.S.1971 § 1651 provides:

'District and Superior Courts may, in cases of actual controversy, determine rights, status, or other legal relations, including but not limited to a determination of the construction or validity of any deed, contract, trust, or other instrument or agreement or of any statute, municipal ordinance, or other governmental regulation, whether or not other relief is or could be claimed, except that no such declaration shall be made concerning liability or nonliability for damages on account of alleged tortious injuries to persons or to property either before or after judgment or for compensation alleged to be due under workmen's compensation laws for injuries to persons or concerning obligations alleged to arise under policies of insurance covering liability or indemnity against liability for such injuries. The determination may be made either before or after there has been a breach of any legal duty or obligation, and it may be either affirmative or negative in form and effect; provided however, that a court may refuse to make such determination where the judgment, if rendered, would not terminate the controversy, or some part thereof, giving rise to the proceeding.'

The declaratory judgments act must be liberally construed to obtain its objective, which is to expedite and simplify the ascertainment of uncertain rights. Ohio Casualty Ins. v. Marr, (C.A.10th Cir. 1938) 98 F.2d 973, affirming D.C., 21 F.Supp. 217 cert. denied, 305 U.S. 652, 59 S.Ct. 245, 83 L.Ed. 442. Our statutes, 12 O.S.1971 § 2 and 25 O.S.1971 § 29 provide that all general statutes shall be liberally construed to promote their object.

The legislature intended for factual situations such as this to come within the confines of the statute. It is apparent from a reading of the statute that a prospective litigant need not hazard the breach of a particular statute as a condition precedent to the bringing of an action under the terms of the declaratory judgment statute. The statute provides the determination may be made either before or after there has been a breach of any legal duty or obligation. The fact that Lawton could be subjected to criminal prosecution and lose his license if he were found to be in violation of the statute certainly renders it a matter of justiciable controversy. The practice and business affairs of Lawton should not be inhibited or held in suspense while he waits to see if the Board construes his office location as a violation of the statute, and if so, whether it will decide to act against him.

We agree with the Colorado court which, after citing numerous authorities from various jurisdictions, in Colorado State Board of Optometric Examiners v. Dixon, 165 Colo. 488, 440 P.2d 287, 290 (1968), held that an action for declaratory judgment is an appropriate action to be brought by a person adversely affected by a statute such as the one in question. The court held that risk of violation of the statute is not required to obtain a declaration of its validity, and that one adversely affected by a law which he contends is...