Williams v. Mack
| Decision Date | 01 April 1938 |
| Docket Number | 31,539 |
| Citation | 278 N.W. 585,202 Minn. 402 |
| Parties | L. L. WILLIAMS v. CHARLES G. MACK AND OTHERS |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county to enjoin defendants constituting the Minnesota State Board of Optometry, from proceeding with the hearing of charges for the revocation of plaintiff's license to practice as an optometrist. Plaintiff's motion for judgment on the pleadings as prayed for in his complaint was granted, Gustavus Loevinger Judge, and defendants appealed from the judgment. Affirmed.
Optometry -- regulation and license of practice.
1. On this appeal it is not necessary to decide whether an optometrist should be classified as a member of a learned profession or not, for, however designated, his optometric work is within the domain of the police power of the state and subject to legislative regulations in the interest of public health.
Constitution -- determination of constitutionality of statute.
2. This court does not pass on the constitutionality of a statute not challenged upon that ground.
Optometry -- regulation and license of practice.
3. Since a provision, in 3 Mason Minn. St. 1936 Supp. § 5789, impliedly authorizes any unlicensed party to sell at retail eyeglasses, provided such sale is under the supervision, direction, and authority of a duly licensed optometrist personally in attendance, it must be considered lawful for a licensed optometrist to enter such employment; and the State Board of Optometry may not adopt a rule making the acceptance of such employment unprofessional conduct for which the optometrist's license may be revoked.
Optometry -- revocation of license.
4. If the employer in any respect violates the optometry statutes the board should proceed against the offending employer.
William S. Ervin, Attorney General, Roy C. Frank, Assistant Attorney General, and Peter E. Kamuchey, Special Assistant Attorney General, for appellants.
Bradford, Cummins & Cummins and L. E. Brophy, for respondent.
Defendants appeal from the judgment rendered upon the pleadings.
Plaintiff is a duly licensed optometrist in this state and sued to enjoin defendants, constituting the Minnesota State Board of Optometry, from proceeding under the complaint filed with the board against plaintiff to revoke his license because of alleged unprofessional conduct. Plaintiff's amended complaint alleges the official character of defendants, which the answer admits. Likewise, it is averred and admitted that plaintiff is a duly licensed optometrist of this state, under L. 1929, c. 420; that under that law the board has adopted that rules which are made part of the complaint; that there has been filed with the board by one Kollofski the written complaint, a true copy of which is made a part of the amended complaint herein, charging plaintiff with violation of said rules; and that the board has cited plaintiff to show cause why his license should not be revoked upon such charges. On plaintiff's motion judgment was entered on the pleadings enjoinint the board from conducting a hearing on the charges as set forth in the Kollofski complaint. From this judgment the board appeals.
Under the assignments of error counsel for appellant presents three propositions for decision, viz.: (a) Is optometry a profession? (b) Is L. 1929, c. 420, constitutional? (c) Is the Kollofski complaint upon which the board proposes to revoke plaintiff's license sufficient?
There is no occasion to decide whether or not optometry is a profession, a trade, a vocation, or an art; for, by whatever name called, the work of an optometrist is sufficiently related to or connected with public health -- eyesight -- to come within the domain of the police power of the state. The statute (3 Mason Minn. St. 1936 Supp. § 5789, L. 1929, c. 420, § 3) sufficiently defines an optometrist and his work.
Plaintiff does not assail the constitutionality of L. 1929, c. 420, nor any provision of the optometry statutes, and perhaps is not in position to so do, since he is seeking to protect the license granted in virtue of such statutes. Cofman v. Ousterhouse, 40 N.D. 390, 168 N.W. 826, 18 A.L.R. 219. This court will assume a law to be valid which is not assailed as unconstitutional by any party to the litigation.
We think the decision of this appeal must turn upon the sufficiency of the Kollofski complaint. Do the accusations therein made against plaintiff, if proved, furnish the board grounds for revoking his license? The substance of the accusations is that he has accepted employment as an optometrist, at a stated salary, with Goodman Brothers Jewelry Company, an entity incapable of being licensed as an optometrist, and thereby aids and abets it in practicing illegally. We have in mind that a complaint filed with an administrative board is not to be tested by the rules applied to pleadings in judicial proceedings, and that procedural matters before such a board are within such board's control. But it is quite apparent that the board deems that it is authorized to revoke plaintiff's license if his employer is found guilty of violating the optometry statutes. L. 1929, c. 420, § 2 (§ 5786 of the code) reads:
"Said board of optometry shall have the power to make any rules and regulations and to do any and all things, not inconsistent with law, which it may deem necessary or expedient for the effective enforcement of this act or for the full and efficient performance of its duties thereunder."
The board duly adopted and promulgated ten rules in 1936 in virtue of the section quoted. The rules which the Kollofski complaint charges plaintiff's employer to have violated are rules 1 and 8. Rule 1 forbids "bait" advertising, and rule 8 requires all optometry advertisements and signs to follow the name of the optometrist with the word "Optometrist," or with the initials "O.D.," or "D.O.," or "D.O.S." We shall assume, for the purposes of this decision, that these two rules are valid. However, plaintiff is not accused of any violation of these rules. But by virtue of rule 6 he is to be held responsible for his employer's violation thereof. Rule 6 reads:
"Licensed optometrists employed by any person, firm or corporation for a salary or commission or both for the purpose of supervising and personally attending the sale of glasses as merchandise under the provisions of the Optometry Law of the State of Minnesota are presumed to at all times have full knowledge of and consent to every advertisement or announcement of their employer involving the sale of glasses or leading the public into the belief that such person, firm, or corporation is authorized to render optometrical services and such optometrists will be held responsible for all such advertisements on the grounds and for the reason that such advertisements constitute unprofessional conduct on the part of such optometrist."
We think the board in rule 6 exceeded the power granted it by § 5786. This provision in § 5789 plainly makes it impliedly lawful for a licensed optometrist to work for one engaged in the business of selling eyeglasses at retail:
"And it shall be unlawful for any person, not licensed as an optometrist hereunder, to sell or dispose of, at retail, any spectacles, eye glasses or lenses for the correction of vision in any established place of business or elsewhere in this state except under the supervision, direction and authority of a duly licensed optometrist holding a certificate under this Chapter, who shall be in charge of and in personal attendance at the booth, counter or place where such articles are sold or disposed of."
This provision certainly implies that it is lawful for a vendor of eyeglasses at retail to employ a licensed optometrist to supervise and conduct such sales. Rule 6 itself recognizes that it is lawful for a licensed optometrist to accept employment of another in the business of retailing eyeglasses. The employment being lawful under the optometry law as it now stands, it seems to us that it is contrary to the letter and spirit of the law to make the employe responsible for the employer's violation of the law and to impute knowledge of such violations to the employe. If the employer violates the optometry act in any manner he may be enjoined or prosecuted. To violate any provision of the law is a gross misdemeanor. 1 Mason Minn. St. 1927, § 5794. There is no right or justice in punishing the servant for the misdeeds of the master. We have not overlooked that the Kollofski complaint charges that plaintiff aided and abetted his employer in the violation of rules 1 and 8, but it is clearly evident from the whole complaint that this is a conclusion drawn from the fact that he did not quit the employment when informed of the employer's transgressions. The learned trial court stated:
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