Tennessee Bd. of Dispensing Opticians v. Eyear Corp.

• Decision Date: 09 March 1966
• Parties: , 218 Tenn. 60 TENNESSEE BOARD OF DISPENSING OPTICIANS v. EYEAR CORPORATION et al.
• Court: Tennessee Supreme Court

Page 734

400 S.W.2d 734

22 McCanless 60, 218 Tenn. 60

TENNESSEE BOARD OF DISPENSING OPTICIANS v. EYEAR CORPORATION et al.

Supreme Court of Tennessee.

March 9, 1966.

Ray Siener, Chattanooga, Brown, Siener & Walker, Chattanooga, of counsel, for appellant Eyear Corp.

George F. McCanless, Atty. Gen., Thomas E. Fox, Asst. Atty. Gen., Gullett, Steele & Sanford and W. Harold Bigham, Nashville, for appellee.

BURNETT, Chief Justice.

The original bill in this cause was filed by the Tennessee Board of Dispensing Opticians against the Eyear Corporation, a Tennessee corporation with its principal office and place of business in Chattanooga, Tennessee. The purpose of this bill was to enjoin the Eyear Corporation from committing certain acts without being licensed by the Tennessee Board of Dispensing Opticians, and for the commission of certain acts prohibited by the Act creating this Board without being licensed by said Board.

The Board is composed of five individuals appointed by the Governor of the State of Tennessee, all of whom are named in the original bill. The bill alleges that said Board is charged with the duty and responsibility of examining and licensing dispensing opticians in Tennessee; that it has the duty under the Act creating said Board to promulgate rules and regulations governing the examination of applicants desiring to be licensed as dispensing opticians, establishing a code of ethics and standards of practice for dispensing opticians in this State, and generally to police and regulate the business of dispensing opticians. The bill likewise alleges the Board had authority under the Act to obtain injunctions to prohibit and restrain violations of the provisions of the Act.

The Act creating the Board was passed by the General Assembly in 1955 and is Chapter 98 of the Public Acts of that year. This Act has now been codified as § 63--1401, et seq., T.C.A. Supplement.

The bill charges that the Eyear Corporation through an employee accepts prescriptions of optometrists and ophthalmologists for corrective eye glasses, sends the prescription to out of state optical houses, along with frames which the Eyear Corporation previously sold to the customer, where the lens are ground and prepared and installed in the frames. The frames with the lens installed are then returned to the Eyear Corporation and dispensed to the patient or customer. This practice is alleged to be a violation of the Act in question, which prohibits any person from practicing as a dispensing optician without having been duly licensed to practice this profession. The bill also alleges that if the Eyear Corporation had been properly licensed under this Act it was committing violations of the Act as set forth in the bill. The bill cites and files as exhibits thereto many examples of expensive advertising by the Eyear Corporation which it is alleged are violations of the Act. The bill makes specific and particular complaint of certain newspaper advertisements in which the Eyear Corporation stated that, 'Any doctor's RX honored'. It is likewise alleged in the bill that the Eyear Corporation is holding itself out as having the capability to filling doctor's prescriptions for glasses or optical lenses and that this constitutes practice of opticianry within the meaning of the Act.

The bill was answered admitting certain allegations but denying that these practices violated the Act. The Eyear Corporation likewise filed a motion to dismiss as well as a demurrer, both of which were overruled by the Chancellor. On the hearing of the cause the court below granted the motion to strike a number of the portions of the Eyear Corporation's answer upon the basis that the portions sought to be stricken were utterly irrelevant and immaterial to any issues to be decided in the case.

The Board cited and read to the Chancellor certain admissions contained in the sworn answer of the Eyear Corporation and it was upon these admissions, along with a stipulation, that the Chancellor decided the lawsuit. These admissions contained in the answer were:

'The defendant, Eyear Corporation, admits that it is a Tennessee corporation having its principal place of business at 400 Central Avenue, Chattanooga, Hamilton County, Tennessee, that it is a retail resident merchant in a permanently located place of business selling merchandise and therefore has no need of a dispensing optician's license. * * *

'the defendant, Eyear Corporation, admits that it advertises that any doctors RX is honored. * * * The defendant, Eyear Corporation, further admits that some of its customers bring their RX with them and after they select frames from displays, the frames and RX are sent to highly reputable competent and recognized out of state optical house or laboratory for preparation, * * *.'

After these admissions were specifically relied upon by the Board the defendant moved to dismiss the cause for failure of proof. This motion was overruled by the court and the court concluded 'that the Dispensing Opticians Act, T.C.A. § 63--1401, et seq., is constitutional and that the admissions of the defendant, Eyear Corporation, contained in its sworn answer, towit, that 'it advertises that any doctor's Rx is honored' and 'that some of its customers bring their Rx with them and after they select frames from displays the frames and Rx are sent to highly reputable, competent and recognized out of state optical houses and laboratories for preparation' amount to a confession or admission that the defendant, eyear Corporation, is and has been violating the Dispensing Opticians Act, T.C.A. § 63--1401, et seq., in that it has prepared, adapted and dispensed lenses, spectacles, eyeglasses, and optical devices to the intended user thereof on the written prescription of a physician or optometrist without obtaining a license as required by said Act, * * *' The Chancellor then granted the injunction and this appeal followed.

The assignments of error are: (1) The court erred in overruling the defendant's motion to dismiss at the end of complainant's proof for its failure to make out a prima facie case. (2) The court erred in holding that Chapter 98 of the Public Acts of the Tennessee General Assembly of 1955 is a valid constitutional amendment. (3) The court erred in striking portions of the defendant's answer concerning the legality of the composition of the Board and that there are three corporations known as the Tennessee Association of Dispensing Opticians, and by striking out that portion of the defendant's answer setting out that the complainant would have the court interpret the Dispensing Optician's Act in derogation to the trade practice rules of the Federal Trade Commission.

The principal argument on behalf of the Eyear Corporation is that it is required that it adapt and dispense lenses before there is any violation of the Act. In other words, § 2 of the Act, now codified as § 63--1402, provides in part in the definition of practice that, 'The practice of dispensing opticians is defined as the preparation, adaptation and dispensing of lenses, spectacles, eye glasses, and optical devices to the intended user thereof on the written prescription of a physician or optometrist, duly licensed to practice his profession.' It is argued that when the Eyear Corporation takes the doctor's prescription for these glasses and sends them to an out of state corporation to be ground and fitted there is no showing that these glasses were then dispensed by the Eyear Corporation to the person who brought them the prescription; and that before there could be a violation of this definition of the Act it is necessary that the person or corporation violating the Act commit all three of these functions, that is, 'preparation, adaptation and dispensing'.

As a basis for this argument there is attached to the answer of the Eyear Corporation a letter from the Assistant Attorney General written to a member of the Board in 1963 wherein in answer to certain questions of the Board to the Attorney General, it is said that it is necessary to have these three things present before there can be a violation of the Act. It is not shown that there was any reliance by the Eyear Corporation upon this in its action, and that it followed this letter of the Assistant Attorney General. The letter insofar as it can be construed suggested that these three things are required as a prerequisite in finding a violation of the Dispensing Act. It does not now reflect the opinion of the Attorney General. In this letter it is readily seen that it is based upon certain hypothetical questions posed, and it is not the same by a long shot to the facts as presented in this case. There are no facts shown herein that the Eyear Corporation was warranted in relying upon this letter. This argument is based upon the theory that the State is estopped now from taking a different position from that assumed in the letter of the Assistant Attorney General. The doctrine of estoppel cannot be invoked against the State. Murfreesboro Bank & Trust Co. v. Evans, 193 Tenn. 34, 241 S.W.2d 862. It is denied that this interpretation given in this letter is now the Attorney General's interpretation, nor has it been the consistent interpretation of the statute by the State. Where a consistent interpretation has been given such should be given persuasive weight by this Court, but where it is not given for a long period of time and relief upon this Court is not bound by the opinion of the Attorney General therein. See authorities in Murfreesboro Bank & Trust Co. v. Evans, supra.

The contention of the Board is that the word 'and' should be interpreted 'or' where it is obvious that the Legislature in enacting the statute had this in mind, and it is clearly shown that this was their intent. A number of cases are cited in briefs so holding, such as Interstate Life & Accident Ins. Co. v. Gann, 196 Tenn. 422, 268 S.W.2d 336, 44 A.L.R.2d 1230, and others. A very able...