Womble v. Georgia State Bd. of Examiners in Optometry, 23063
| Decision Date | 07 October 1965 |
| Docket Number | No. 23063,23063 |
| Citation | 221 Ga. 457,145 S.E.2d 485 |
| Parties | Allen B. WOMBLE v. GEORGIA STATE BOARD OR EXAMINERS IN OPTOMETRY. |
| Court | Georgia Supreme Court |
Syllabus by the Court
The petition fails to allege sufficient facts to set forth a cause of action for declaratory judgment or for injunction.
The Georgia State Board of Examiners in Optometry (hereinafter referred to as the Board) brought this action for declaratory judgment and injunction in Glynn Superior Court against Allen B. Womble. The petition alleged: that the defendant is carrying on the practice of optometry under the name 'Pearle Optical' in violation of Rule F(11) of the Board; that the defendant, in carrying out the practice of optometry, displays to the public a large sign saying 'Glasses as Low as $14.50' and 'Contact Lenses $75.00' in violation of Rule F(14) of the Board; that the defendant is a duly licensed optometrists and by violating Rules F(11) and F(14) also violates Rule I; that there is an actual and justiciable controversy between the Board and the defendant in that the right of the defendant to engage in the practice of optometry and the right of the Board to regulate and control such practice are in conflict; that the direction of the court as to adjudication and determination of the rights of the parties is necessary to relieve the parties from the risks of taking any future undirected action incident thereto; that an adjudication and determination of the parties' rights is necessary to determine the authority of the Board to regulate the practice of optometry to protect citizens of this State in utilizing the services of licensed optometrists.
The prayers were: that the court enter a declaratory judgment declaring the defendant to be engaged in the practice of optometry in violation of the rules of the Board; that an order be entered enjoining the defendant from engaging in the practice of optometry in violation of the rules.
The defendant filed demurrers to the petition on the grounds: that no cause of action was set forth; that the plaintiff had an adequate remedy at law; that the exclusive remedy for the alleged wrongs is vested in the plaintiff Board; that rules of the Board are unconstitutional for various reasons stated; that the petition seeks equitable relief but fails to set forth the verification by members of the Board.
The cause proceeded to interlocutory hearing at which evidence was adduced by both sides. The trial judge then issued an order which overruled the defendant's demurrers and further held: that the rules of the Board were valid and enforceable; that the defendant was practicing optometry in violation of those rules; that the defendant was temporarily enjoined from continuing the practice of optometry under the name 'Pearle Optical' and from advertising any rates, definite amounts or terms for optometric materials and services.
The defendant excepts and assigns error to the overruling of his demurrers, to the declaratory judgment entered by the trial judge and to the grant of the temporary injunction.
Edenfield, Heyman & Sizemore, Newell Edenfield, Joseph Lefkoff, Atlanta, Bennet, Gilbert, Gilbert & Whittle, L. J. Bennet, Brunswick, for plaintiff in error.
Eugene Cook, Atty. Gen., Arthur K. Bolton, Atty. Gen., Paul Hanes, Asst. Atty. Gen., Atlanta, William B. Gunter, Deputy Asst. Atty. Gen., Gainesville, for defendant in error.
Charles D. Wheeler, Decatur, for party at...
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