Opinion
No. 38670.
February 9, 1953.
1. Optometry — injunction against unlawful practice of.
Although a licensed physician may practice optometry yet when he becomes a full time salaried employee of one not authorized to practice optometry and all his prescriptions for patients, for which no prescription fees are charged, are filled by the unlicensed employer, both the employer and the physician may be enjoined from such practice at the suit of the State Board of Optometry.
Headnote as approved by Hall, J.
APPEAL from the chancery court of Hinds County; J.C. STENNETT, Special Chancellor.
Barnett, Jones Montgomery, for appellants.
I. In the absence of a statute specifically exempting the practice of optometry, such practice constitutes the practice of medicine. Sec. 8888, Code 1942; Joyner v. State, 181 Miss. 245, 179 So. 573; 41 Am. Jur. 158, Sec. 28; Baker v. State, 91 Tex.Crim. 521, 240 S.W. 924.
II. The Legislature in 1920, when it passed Chap. 217, Laws 1920, regulating the practice of optometry, did not in any way limit or restrict the right of physicians and surgeons to examine eyes and prescribe eyeglasses, but the Legislature expressly provided in the Act that it should have no application to physicians. Secs. 8845, 8846, Code 1942.
III. Dr. Dooley stood no examination for a license to practice optometry and was issued no license to practice optometry. He was at all times and is now engaged in the practice of medicine under a license duly issued to him by the State Board of Health according to law.
IV. The State Board of Optometry is a statutory body and has only such powers as granted by the State, either expressly or by necessary implication. Craig v. Stone, et al., 11 So.2d 433; Miss. Livestock San. Board v. Williams, 133 Miss. 98, 97 So. 523; Gully, Tax Collector v. Stewart, 178 Miss. 758, 174 So. 559; State ex rel. Rice v. Stewart, 184 Miss. 202, 184 So. 44; State v. Rogers, 206 Miss. 643, 39 So.2d 533; Lee County v. James, 178 Miss. 554, 174 So. 76; Planters' Bank v. Yazoo-Coldwater Drainage Dist., 157 Miss. 297, 126 So. 9; Whitworth v. Miss. Highway Comm., 33 So.2d 612; Nicholson v. Board Miss. Levee Com'rs., 33 So.2d 604.
V. The chief and only aim of the Court in construing statutes is to ascertain the legislative intent and give effect thereto. Kennington v. Hemingway, 101 Miss. 259, 57 So. 809; Sartin v. Prentiss County, 156 Miss. 46, 125 So. 563; Holly Springs v. Marshall County, 104 Miss. 752, 61 So. 703; Abbott v. State, 106 Miss. 340, 63 So. 667; Prather v. Googe, 108 Miss. 670, 67 So. 156; Darnell v. Johnston, 109 Miss. 570, 68 So. 780; Roseberry v. Norsworthy, 135 Miss. 845, 100 So. 514; Maris v. Lindsey, 124 Miss. 742, 87 So. 12; Canal Bank Tr. Co. v. Brewer, 147 Miss. 885, 114 So. 127; Rawlings v. Ladner, 174 Miss. 611, 165 So. 427; Alexander v. Graves, 178 Miss. 583, 173 So. 417; Easterling v. Howie, 179 Miss. 680, 176 So. 585; Wilson v. Y. M.V.R. Co., 192 Miss. 424, 6 So.2d 313; Kennington-Saenger Theatres v. State, 196 Miss. 841, 18 So.2d 483; Beard v. Stanley, 205 Miss. 723, 39 So.2d 317.
VI. The Legislature in enacting Chap. 217, Laws 1920 had no intention to confer upon the State Board of Optometry any authority to regulate or control the practice of medicine under licenses duly issued by the State Board of Health. Chap. 431, Laws 1946 (Sec. 8923-51, Pocket Parts Code 1942); Secs. 8835, 8840, 8843, 8846, Code 1942.
VII. Dr. Dooley was and is practicing medicine under a license duly and legally issued to him by the State Board of Health. As such, he was not required to submit to any examination of his qualifications to practice optometry, nor was he required by law to have a license from the State Board of Optometry before he could practice as a physician under the license duly issued to him by the State Board of Health and in the course of such practice examine and treat eyes and prescribe eyeglasses.
VIII. Sec. 8923-51 authorizes the State Board of Optometry to maintain injunction suits only in those cases where the defendant is practicing a profession that the complainant Board is authorized to license after examination and where the defendant is practicing that profession without a license. The Act does not authorize the State Board of Optometry to maintain an injunction suit in any case where the profession being practiced is not one coming under its powers of regulation nor required by law to be licensed by said Board. Dr. Dooley was and is practicing as a physician under a license duly issued to him by the State Board of Health, was not required to stand an examination upon his qualifications before the State Board of Optometry, nor was he required to obtain a license from said Board before examining and treating eyes and prescribing eyeglasses, and the optometry laws of the State of Mississippi have no application to Dr. Dooley, and the State Board of Optometry has no authority to maintain this suit.
IX. The right to practice as a physician is a property right protected by Sec. 14, State Constitution, and by Article 14, Amendments to Constitution of the United States. Dr. Dooley may not be deprived of this right without due process of law and the protection of due process of law extends to cases where the forms of law have not been observed and extends to every governmental proceeding which may interfere with personal or property rights of the individual where such interference has not been duly authorized by statute in the exercise of the police power of the State. 16 C.J.S. 1421, Sec. 669; People v. Love, 298 Ill. 304, 131 N.E. 809, 16 A.L.R. 703.
Due Process. Art. 14, Sec. 1, Amendments. U.S. Const., Sinquefield v. Valentine, 159 Miss. 144, 132 So. 81, 76 A.L.R. 238; Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042, 29 A.L.R. 1446; 16 C.J.S. 1141, Sec. 567; Brown v. Board of Levee Com'rs., 50 Miss. 468 ; 12 C.J. 1195, Sec. 961; Home Telephone, etc. Co. v. Los Angeles, 33 S.Ct. 312, 227 U.S. 278, 57 L.Ed. 510; Liggett Co. v. Baldridge, 49 S.Ct. 57, 279 U.S. 105.
Richard A. Billups, Jr., for appellee.
I. The decision and finding of the chancellor that Busch Jewelry Company and Dr. F.M. Dooley are practicing optometry, based on conflicting evidence, is binding on appeal, in the absence of a finding that he was manifestly wrong. Stroud v. Loper, 190 Miss. 168, 198 So. 46; Hamrick v. Cook, 40 So.2d 267; Jenkins v. Thweatt, 42 So.2d 95; Martin v. Hartley, 42 So.2d 875; Bounds v. Brown, 201 Miss. 564, 29 So.2d 657.
II. A corporation, unlicensed partnership or individual cannot practice the professions of medicine, law, dentistry and optometry by the employment of licensed practitioners. Ritholz, et al. v. Commonwealth of Virginia, et al., 35 S.E.2d 210; Sears, Roebuck Co. v. State Board of Optometry, 57 So.2d 726; State ex rel. Loser, Attorney General v. National Optical Stores Co., 225 S.W.2d 263; Ritholz, et al. v. Arkansas State Board of Optometry, 177 S.W.2d 410; State ex rel. Sisemore v. Standard Optical Co. of Oregon, 188 P.2d 309; Kindall, et al. v. Beiling, 175 S.W.2d 489; State ex rel. Standard Optical Co. v. Superior Court for Chelam County, et al., 135 P.2d 839; Neill, et al. v. Gimbel Bros., Inc., 199 A. 178; Funk Jewelry Co. v. State, ex rel. La Prade, Atty. Gen. Supreme Court of Ariz., 50 P.2d 945.
III. Any state board which grants licenses "to practice any profession" is authorized under Chap. 431, Laws 1946, Supp. Sec. 8923-51, Code 1942 to obtain an injunction in chancery against any person practicing such profession without a license. Sears Roebuck Co. v. State Board of Optometry, supra; State Board of Optometry v. Gilmore, et al., (Fla.), 3 So.2d 708; Ezell v. Ritholz, 188 S.C. 39, 198 S.E. 419.
IV. The statutes here involved do not violate Sec. 14 of the State Constitution and Art. 14 of the Amendments to the Constitution of the United States. Sears Roebuck Company v. State Board of Optometry, supra; Klein v. Department of Registration, et al., 105 N.E.2d 758.
Appellee brought suit to enjoin Busch Jewelry Company and Dr. F.M. Dooley from unlawfully engaging in the practice of optometry. This appeal is from a decree granting the relief prayed for and the sole question presented is whether appellee has authority to bring such a suit in view of the fact that Dr. Dooley is a licensed medical doctor and not an optometrist.
Chapter 431, Laws of 1946, (Section 8923-51, Supplement to Code of 1942) provides that "An action for any injunction may be brought and maintained in the name of any state board authorized to hold examinations and grant license to practice any profession to enjoin and prohibit any person from the practice of any profession required to be licensed by said board, when such person is practicing said profession and has not been granted a license therefor."
Our statutes defining the practice of optometry, regulating the same, and providing for examinations for license to practice that profession are found as Sections 8832-8846, Code of 1942. Section 8846 provides that "The provisions of this chapter shall not apply to physicians or surgeons practicing under authority of licenses issued under the laws of this state for the practice of medicine or surgery." Appellants contend that since Dr. Dooley is a licensed physician the State Board of Optometry has no authority to bring or maintain this suit, and that such authority is vested solely in the State Board of Health.
The record shows that Busch Jewelry Company is a corporation operating several stores in Mississippi as well as numerous stores in other states. Its home office is in Birmingham, Alabama, where lenses for its optical department are ground and finished and from which point they are mailed to its local stores for delivery to customers. Dr. Dooley is 84 years of age and began the practice of medicine in 1890. After following his profession at numerous places in Mississippi and Louisiana he retired from the practice in 1936 or 1937 and later took up the fitting and prescribing of glasses for the correction of defects in vision. He is regularly employed by the company at a salary of $400.00 per month and devotes his entire time to the business of that company in the examination of eyes and prescribing spectacles; this is done in an office furnished to him free of rent by the company in its store at Jackson and with the use of equipment furnished him by the company. He charges no fee for examinations and his prescriptions are filled by the company. He admits that he is practicing optometry but says that he considers his work as coming under his license as a physician. The company paid privilege licenses for him both as an optometrist and as a physician.
In the case of Sears, Roebuck Co., et al. v. State Board of Optometry, 213 Miss. 710, 57 So.2d 726, we held that our statutes governing the practice of optometry have the effect of prohibiting a corporation from practicing optometry through a licensed employee and that the exemptions of the statute do not exempt corporations which undertake to perform optometrical work through a licensed employee. It is undisputed that Busch Jewelry Company is engaged in optometrical work and we think it makes no difference whether that work is done by a licensed optometrist or a licensed physician. In either event the State Board of Optometry has the right under Section 8923-51 to bring and maintain an action to enjoin the company from engaging in the practice of optometry. Numerous decisions from other courts so hold and we shall mention a few of them.
In Ritholz, et al. v. Arkansas State Board of Optometry, 206 Ark. 671, 177 S.W.2d 410, it was held that an injunction was properly granted against National Optical Stores Company, then a partnership, prohibiting it from engaging in the practice of optometry notwithstanding the fact that the examinations made and the prescriptions issued for glasses for the correction of defects in vision were by a duly licensed physician who was employed by the company on a salary basis.
In Ritholz, et al. v. Commonwealth of Virginia, 184 Va. 339, 35 S.E.2d 210, it was likewise held that the same company, operating as a partnership, was engaged in the practice of optometry from which it was enjoined even though the examinations were made and prescriptions issued by licensed physicians in its employment. That case cites with approval the Arkansas case above mentioned as well as cases from Wisconsin, Washington and Massachusetts which hold to the same effect.
In State, ex rel. Loser, Attorney General v. National Optical Stores (a corporation), 189 Tenn. 433, 225 S.W.2d 263, it was held that the device whereby the company uses the services of medical doctors in the examination of eyes and the writing of prescriptions was simply an effort to evade the law governing the practice of optometry, and an injunction to prevent such practice was upheld. The above mentioned cases are cited in the opinion as well as numerous others, including Ezell v. Ritholz, 188 S.C. 39, 198 S.E. 419, which is to the same effect.
In State Board of Optometry v. Gilmore, et al., 147 Fla. 776, 3 So.2d 708, the Supreme Court of Florida had before it the identical question which is here presented. The Florida Act regulating the practice of optometry is similar to our statutes (Chapter 19031, Vol. 1, General Laws of Florida 1939). It provides that "the terms and provisions of this Act shall not apply to duly licensed physicians and surgeons now or hereafter." The facts as stated in the opinion in that case were: "Gilmore operates a jewelry store and in connection with it an optical department where Bertrem, a licensed physician, is employed. The latter engaged in no other work than the practice of optometry for Gilmore who pays him a 'straight salary'." Under these facts the Court said: "If one practices optometry on his own account and responsibility he is by schooling presumed properly equipped and there is no need to examine into his fitness, the diagnoses and prescriptions for correction and relief of the human eye being an incident to and included in his medical education. But when a physician steps out of character and becomes the employee of a person himself not entitled to engage in the profession of optometry a direct violation of section eleven results.
"The provision of the act of which appellee Gilmore has run afoul denounces the employment upon a salary basis of 'any person licensed to practice optometry'. Here qualifications are not the criterion but the act condemned by the legislature is the hiring by one unlearned in the profession of another who is permitted by his knowledge to engage in it. . . .
"We do not find a purpose common to the inhibition against employment of a licensed optometrist and the exemption of physicians from the terms of the act. The former relates to and illegalizes the hiring by laymen of optometrists, however qualified; the latter exempts physicians, as such, from further examination to establish their skill as optometrists."
Now it is true that section eleven of the Florida Act specifically prohibits an unlicensed person or corporation from employing a licensed person to carry on the business while our legislative acts do not specifically so prohibit, but our decision in the Sears, Roebuck case, supra, does condemn that practice and declare it unlawful and subject to prohibition by injunction. The Florida court enjoined the physician from engaging in the practice of optometry under such an arrangement as that shown in the case at bar for the reason that he has stepped out of his character as a physician when he becomes the employee of one not licensed to practice optometry and thereby lends his license as a physician to the unlawful practice of optometry. Our statute does not authorize a physician to unlawfully engage in the practice of optometry but merely permits him to lawfully engage in that profession on the faith of his license as a physician without requiring him to take a further examination as to his qualifications as an optometrist. When he abandons the practice of medicine and unlawfully engages in the practice of optometry by becoming an employee of one not authorized to practice that profession we think both the employer and the employee are subject to injunction at the instance of the State Board of Optometry and that the physician in such case cannot hide behind his license to practice medicine. The chancellor was justified in finding from the evidence, as he did, that Dr. Dooley is not practicing medicine but is only a "front" for Busch Jewelry Company in unlawfully practicing optometry. By the decree appealed from Dr. Dooley was not enjoined from practicing medicine but only from unlawfully practicing optometry. He is still permitted to practice medicine or optometry on his own account in a lawful manner. The decree of the lower court is therefore affirmed.
Affirmed.
McGehee, C.J., and Lee, Arrington and Ethridge, JJ., concur.