Swanz v. Clark

• Citation: 229 P. 1108,71 Mont. 385
• Decision Date: 20 October 1924
• Docket Number: 5534.
• Parties: SWANZ v. CLARK, Sheriff.
• Court: Montana Supreme Court

229 P. 1108

71 Mont. 385

SWANZ v. CLARK, Sheriff.

No. 5534.

Supreme Court of Montana

October 20, 1924

Appeal from District Court, Wheatland County; H. J. Miller, Judge.

Action by Edward A. Swanz against L. W. Clark, as Sheriff of Wheatland County Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions to dismiss complaint.

Emmet O'Sullivan, of Harlowton, for appellant.

Jones & Jones, of Harlowton, for respondent.

HOLLOWAY J.

This action in claim and delivery was instituted to recover possession of an ophthalmometer and stand, a spectacle trial case, a retinoscope, and spectacle frames, which had been seized by the defendant as sheriff of Wheatland county under a writ of attachment. From a judgment entered upon a directed verdict in favor of plaintiff, the defendant appealed. The only question necessary to be determined is whether the instruments in controversy are exempt from seizure under attachment or execution.

While this court is committed to the doctrine that exemption statutes are to be construed liberally (Mennell v Wells, 51 Mont. 141, 149 P. 954), nevertheless, in order to obtain the benefit of such a statute, the claimant must bring himself within the spirit of its provisions, or, in other words, where the exemption is extended to a certain class of persons, as in this state, the claimant must show that he belongs to one of the classes mentioned (25 C.J. 12).

Sections 9427 and 9428, Revised Codes, designate the persons and property protected by the exemption statute; and it is conceded that, if plaintiff is entitled to claim the property in question as exempt, it is in virtue of subdivision 2 of section 9428, which declares that there shall be exempt "2. To a mechanic or artisan: Tools or implements necessary to carry on his trade."

The controversy resolves itself into this: Is one who practices optometry a mechanic or artisan, and is his business a "trade," within the meaning of section 9428 above?

In 1907 our Legislature enacted a statute, now sections 3155-3169 Revised Codes, which, among other things, created a state board of examiners in optometry, provided for examinations by that board, and for the issuance of a license to every one who passed an examination. By section 3155 the practice of optometry is defined as "the employment of subjective and objective mechanical means, without the use of drugs, to determine the accommodative and refractive states of the eye, and the scope of the functions in general." Section 3159 provides that every applicant for examination must satisfy the board "that he has completed the equivalent of at least two years of high school work, and has graduated from a registered school of optometry which has an annual course of study consisting of at least a thousand hours of actual instruction, and that said applicant for examination shall have actually completed at least seven hundred fifty hours of such course."

The examination prescribed by the board includes the following subjects:

"Anatomy, physiology and pathology of the eye; physical optics; practical optometry; neutralization; physiological optics; prescription writing; frame adjusting, and questions on the use of the retinoscope, ophthalmoscope, and ophthalmometer."

The retinoscope is a form of ophthalmoscope for viewing the retina. The ophthalmoscope is an instrument for viewing the interior of the eye, particularly the retina, and the ophthalmometer is an instrument for measuring the size of a reflected image on the convex surface of the cornea and lens of the eye by which...