State ex rel. Standard Optical Co. v. Superior Court for Chelan County, 28835.

• Decision Date: 29 March 1943
• Docket Number: 28835.
• Citation: 17 Wn.2d 323,135 P.2d 839
• Court: Washington Supreme Court
• Parties: STATE ex rel. STANDARD OPTICAL CO. v. SUPERIOR COURT FOR CHELAN COUNTY et al.

135 P.2d 839

17 Wn.2d 323

STATE ex rel. STANDARD OPTICAL CO. v. SUPERIOR COURT FOR CHELAN COUNTY et al.

No. 28835.

Supreme Court of Washington, En Banc.

March 29, 1943

Certiorari proceeding by the State, on the relation of Standard Optical Company, as relator, against the Superior Court for Chelan County, Honorable Fred Kemp, Judge, to review a judgment finding relator guilty of practicing optometry within the state and doing acts amounting to a forfeiture of its rights and privileges as a corporation within the state, and enjoining relator from displaying certain signs and circulating described advertisements, and from employing a registered optometrist to examine and test eyes or to adapt lenses to the human eye.

Judgment affirmed.

MALLERY J., dissenting.

Crollard & O'Connor, of Wenatchee, for relator.

Richard G. Jeffers, Pros. Atty., of Wenatchee, for respondent.

Saul D Herman, of Seattle, and Lionel E. Wolff, of Spokane, amici curiae.

BEALS Justice.

This is a proceeding in the nature of quo warranto, instituted by the State of Washington, on the relation of Richard G. Jeffers prosecuting attorney for Chelan county, against Standard Optical Company, a domestic corporation, defendant, the plaintiff asking an order of ouster against the defendant corporation, upon the ground that it had exceeded its corporate powers and violated the law. In the information which was filed, defendant was charged with unlawfully practicing optometry in the state of Washington, in violation of Rem.Rev.Stat. § 10147. By its answer, defendant denied that it was practicing optometry, or that it had in any way exceeded its charter rights.

The trial of the action resulted in findings of fact stating that the defendant had done certain acts in connection with its optical business, from which the court concluded that it had, by practicing optometry, exercised powers not conferred upon it by law, and should be enjoined from performing those acts in the future. The court then entered judgment, finding defendant guilty of practicing optometry within the state of Washington, 'and doing acts which amount to a forfeiture of its rights and privileges as a corporation within the state of Washington.' The judgment then enjoined the defendant from displaying certain signs, and from circulating advertisements specifically described in the judgment, and enjoined the defendant from employing a registered optometrist to examine and test eyes or adapt lenses to the human eye, and from committing certain other acts which the court declared unlawful. The court then expressly retained jurisdiction of the cause for the purpose of ordering a complete ouster of the defendant and the forfeiture of its charter in case the defendant should, in the future, violate any portion of the judgment.

The defendant, being of the opinion that there was available to it no plain, speedy and adequate remedy at law by way of appeal, applied to this court for a writ of certiorari for the purpose of bringing the judgment Before this court for review. A writ of certiorari having been issued, a full return was made, and the matter submitted to this court for final determination.

In this opinion we shall refer to the optical company as appellant, and to the state as respondent.

The information which initiated this proceeding alleged that appellant had practiced optometry, because of its employment of licensed optometrists to examine and test the eyes of customers at its place of business in the city of Wenatchee, also by advertising that optometric services were available at the store which it maintained. This store is in sole charge of a licensed optometrist who examines and tests the eyes of customers, determines whether glasses are needed, and in proper cases on request prescribes and sells glasses. Appellant exercises no control over the professional judgment of the optometrist, and he exercises his professional discretion in advising that glasses are or are not needed. The company makes one charge, which covers both the examination and the glasses. The company selects the optometrist, who is compensated for all services which he renders by an agreed salary plus a commission based upon the gross receipts. The optometrist in charge of the Wenatchee store at the time of the institution of this proceeding owned two of the two hundred fifty shares of the corporation's capital stock.

Appellant advertised its business through newspapers and by signs on the store. Over the entrance and on the store window were the words 'Standard Optical Company,' also the legends 'Glasses on Easy Payments,' and 'Eyes Examined, Lenses Duplicated.' After the filing of the information, the name and professional designation of the optometrist in charge was added to the sign on the window. The newspaper advertisements carried the name of the corporation in large type, and most of them contained the words, 'See the registered optometrist here for a complete eye examination now! You will be frankly told if glasses are not needed.' These advertisements also carried the name of the registered optometrist in charge of the store. The advertising matter was prepared by an agent of the company in Salt Lake City, Utah, where the company maintains a similar store.

The question presented in this litigation is whether a corporation has the right to engage in the practice of optometry, and if not, whether the course of business followed by appellant in maintaining a store under its own name, in charge of a licensed optometrist in its employ, coupled with the advertising of the services of this optometrist, constitute the practice of optometry by appellant.

Laws of 1919, chapter 144, Rem.Rev.Stat. § 10147 et seq., known as 'The Optometry Law,' defines the practice of optometry, provides for the regulation thereof, creates a board of examiners, and provides penalties for violations of the act.

Rem.Rev.Stat. §§ 10147, 10148, read as follows:

'§ 10147. Any person shall be deemed to be practicing optometry within the meaning of this act, who shall in any manner, except as provided in section 10159, 1st, display any sign, circular, advertisement or device purporting or offering to in any manner examine eyes, test eyes, fit glasses, adjust frames or setting himself or herself forth as an optometrist, optician, specialist, optical specialist, eyesight specialist or refractionist, with intent to induce people to patronize himself, herself, or any other person; 2d, who shall make in any manner a test or examination of the eye or eyes of another, to ascertain the refractive, muscular or pathological condition thereof; 3d, who shall in any manner adapt lenses to the human eye for any purpose either directly or indirectly.

'§ 10148. It shall be unlawful for any person to practice optometry in the state of Washington without first obtaining a certificate of registration or other permit from the board of examiners, and filing the same for record with the clerk of each and every county in which he may desire to practice.'

By § 10152, paragraph (5), it is made unlawful 'To practice optometry under a false or assumed name, or as a representative or agent of any person, firm or corporation with which the accused has no connection.'

Section 10150 states the qualifications of persons eligible to be examined for registration as optometrists.

It is apparent from the sections of the statute above referred to, that a corporation cannot, under the statute, be licensed to practice optometry. The legislative intent to place optometry in the same general category as the professions of law, medicine and dentistry clearly appears. Beyond question, the practice of optometry affects the public health and welfare.

The supreme court of Massachusetts, in the case of McMurdo v. Getter, 298 Mass. 363, 10 N.E.2d 139, following many cases cited in the opinion, held that optometry is a profession, rather than a trade. With this holding we are in entire accord.

The rule that neither a corporation nor any unlicensed person or entity may engage, through licensed employees, in the practice of the learned professions, is stated in 13 Am.Jur., title 'Corporations,' p. 838, § 837, as follows:

'While a corporation is in some sense a person and for many purposes is so considered, yet, as regards the learned professions which can only be practiced by persons who have received a license to do so after an examination as to their knowledge of the subject, it is recognized that a corporation cannot be licensed to practice such a profession. For example, there is no judicial dissent from the proposition that a corporation cannot lawfully engage in the practice of law.

'A corporation cannot be licensed to carry on the practice of medicine. Nor, as a general rule, can it engage in the practice of medicine, surgery, or dentistry through licensed employees. It is generally held that in the absence of express statutory authority, a corporation may not engage in the practice of optometry either directly or indirectly through the employment of duly registered optometrists.'

In 41 Am.Jur., title 'Physicians and Surgeons,' p. 149, § 20, is found the following: 'And it is the majority rule that a corporation cannot engage in the practice of medicine and that neither a corporation nor any other unlicensed person or entity may engage, through licensed employees, in the practice of medicine or surgery, dentistry, or any of the limited healing arts, although, as appears later, some of the courts qualify or disregard the rule in favor of the practice of optometry. A statute permitting corporations for profit to be organized for any lawful purpose does not authorize the organization of corporations to engage in the practice of medicine where ...