Opinion
22109.
ARGUED JULY 9, 1963.
DECIDED OCTOBER 10, 1963. REHEARING DENIED NOVEMBER 7, 1963.
Declaratory judgment; practice of optometry. Floyd Superior Court. Before Judge Scoggin.
Heyman, Abram, Young, Hicks Maloof, Joseph Lefkoff, William G. Grant, Edenfield, Heyman Sizemore, for plaintiffs in error.
Eugene Cook, Attorney General, G. Hughel Harrison, William L. Grayson, Assistant Attorneys General, contra.
Rogers, Magruder Hoyt, for party at interest not party to record.
1. The issue in the instant case turns upon whether optometry is a learned profession vitally affecting the public health.
2. Optometry is a learned profession by declaration of the legislature and no ruling of this court, when properly construed, holds to the contrary.
3. Optometry is identified with and vitally concerned with the public health.
4. The grant of authority by the legislature to the State Board of Examiners in Optometry to regulate the practice of optometry does not violate constitutional standards, but is in conformity with prior holdings of this court and the United States Supreme Court.
5. The rules and regulations promulgated by the board are within the framework of the Act creating them and designed to accomplish the purpose of the Act; such rules and regulations have all the force and effect of statutes of the State.
6. The stipulation of facts showed a clear violation on the part of the defendant of the rules and regulations duly adopted by the board.
ARGUED JULY 9, 1963 — DECIDED OCTOBER 10, 1963 — REHEARING DENIED NOVEMBER 7, 1963.
The Georgia State Board of Examiners in Optometry was created by the Act of 1916, and the practice of optometry was defined as it then existed: "Optometry or the practice thereof is the employment of any means, other than the use of drugs, for the measurement of the powers of vision and the adaptation of lenses for the aid of same." Ga. L. 1916, p. 83, embodied in Code § 84-1101. In the year 1956 (Ga. L. 1956, p. 94) the General Assembly further defined optometry in the advanced state the science had then attained and proclaimed it a learned profession. The Act reads: "Optometry is defined as the art and science of visual care and is hereby declared to be a learned profession. The practice of optometry consists of the diagnosis and interpretation of the visual behavior of the human organism by the employment of any means other than the use of drugs, medicine or surgery. The practice of optometry further consists of the correction of visual anomalies through the prescribing, employment and use of lenses, prisms, frames, mountings, contact lenses, orthoptic exercises and/or visual training, light frequencies and any other means or methods for the relief, correction or remedy of any insufficiencies or abnormal conditions of the human visual organism, other than the use of drugs, medicine or surgery."
On November 30, 1962, the Georgia State Board of Optometry instituted the present suit against Pearle Optical of Monroeville, Inc., a Delaware corporation, and James P. Henderson, a licensed optometrist of Floyd County where the suit was brought. The petition as originally drafted alleged that by authority conferred upon it by Code Ch. 84-11 the plaintiff board had adopted rules and regulations designed to control the practice of optometry within the State. On April 10, 1963, the petition was amended to show that since the suit was brought on November 30, 1962, the General Assembly had enacted into law a statute reading: "The Georgia State Board of Examiners in Optometry shall have the authority and power to adopt, establish, enforce and maintain rules and regulations applicable to the practice of Optometry adequate to carry into effect the provisions of this Chapter and to regulate the practice of Optometry as a profession in conformity with and in compliance with accepted professional standards." Ga. L. 1963, p. 214 ( Code Ann. § 84-1110A).
It further set out that, under authority vested in the board by the Act of 1963, on March 27, 1963, that body adopted certain rules which became effective April 1, 1963, those pertinent to the consideration of this case being: "The following acts or any of them on the part of a licensed Optometrist shall constitute highly unprofessional conduct and any violation thereof shall be considered by the Board to be sufficient grounds for the suspension or revocation of a license: (6) Violating or attempting to violate directly or indirectly or assisting or participating in or abetting the violation of or conspiring to violate any provision or term of the laws and/or Rules and Regulations relative to the practice of Optometry, including the Code of Ethics adopted by the Board relative thereto. (10) Practice of Optometry under a false or assumed name or the impersonation of a licensed Optometry of a like or different name. (11) The practice of Optometry under any name other than his or her own proper name and the name used in the practice of Optometry shall be the same name as used in his or her license or certificate issued by the Board. (13) Lending, leasing or renting, or in any other manner or by any other means, placing his certificate or license at the disposal of or in the service of any person, firm, association or corporation not licensed to practice Optometry in this State."
The amended petition further asserted that Pearle Optical and the licensed optometrist Henderson unlawfully and in violation of the above quoted rules and regulations entered into and were operating under a contract by the terms of which the corporation employed the optometrist to practice optometry in conjunction with and as a part of the operation of an optical business in which it was engaged in the City of Rome.
The prayers of the amended petition, beside the usual one for process, were: that the court adjudicate, determine and declare the rights of petitioner to regulate and control the practice of optometry; that the court adjudicate, determine and declare the rights of defendants to engage in the practice of optometry; that the court enter such order, judgment or decree as it deems necessary to carry into effect and give force to its adjudication, determination and declaration of the rights of the parties; and for such other relief as the court deems meet and proper.
The defensive pleadings of the defendants presented the issues: (1) whether optometry is in the legal acceptation of the phrase a learned profession and the related constitutional question whether the Act of 1956 so classifying the profession of optometry is violative of Art. I, Sec. I, Par. XXIII of the State Constitution ( Code Ann. § 2-123); (2) whether the practice of optometry so affects the public health as to be subject to control under the police powers of the State; (3) whether the rules and regulations prescribed by the plaintiff board were within the power conferred upon that body to control the practice of optometry within the State; (4) whether the conduct of the defendants violated the aforementioned rules and regulations in the manner alleged in the petition.
The parties agreed to try the case before the trial judge upon a stipulated statement of facts. The stipulation reads:
"1. Defendant Henderson is employed by defendant Pearle Optical of Monroeville, Inc., and is compensated for his services at the rate of $500.00 per month, plus 6% of gross deposits, less returns, with no deductions for expenses, and a guarantee of $10,000.00 per year.
"2. The quality of optometric service given by Henderson is equal in quality to that given by any licensed optometrist in Georgia who is not employed by a corporation. The quality of optometric service given by a licensed optometrist is not affected by his employment by a corporation.
"3. The corporation exerts no control nor supervision of Henderson in his performance of optometric examinations, and it does not affect or seek to affect the exercise of his judgment or skill in performing an examination, the giving or not giving a prescription, or the nature or type of prescription given; nor in anywise does Henderson's employment by the corporation alter or affect the means, manner or methods which he utilizes in rendering his optometric services.
"4. The equality of equipment provided by the corporation for Henderson's use and the physical facilities made available to him are at least equal to that and those used by any licensed optometrist in the State of Georgia.
"5. The plaintiff and the members thereof have no knowledge of any person examined by Henderson and sold glasses by Pearle who has received inferior or inadequate examination or glasses; nor does the plaintiff or the members thereof know any injury done to any person resulting from Henderson's employment by Pearle beyond the general contention that his employment violates paragraphs (6), (10), (11) and (13) of Section F of the Rules and Regulations adopted by plaintiff and the contention that his employment constitutes the corporate practice of optometry which plaintiff contends is unlawful.
"6. The charges made for examination by Henderson and glasses sold by Pearle are never higher, and generally lower, than those made by licensed optometrists for similar services and glasses...
"7. Defendant corporation has a sign in front of its place of business in Rome, Georgia, that bears the words "Eyes Examined" and "Glasses Fitted," and a card in the window to inform the public that a licensed optometrist is on duty.
"8. Newspaper advertisements ... are used by the defendant corporation frequently.
"9. All of the stock of defendant corporation is owned by Stanley Pearle, Mrs. Stanley Pearle and Manuel Hoppenstein, all residents of Dallas County, Texas...
"10. There has been no substantial change in the actual procedure utilized by licensed optometrists in the practice of optometry in Georgia other than the normal scientific developments and improvements in procedures, methods and equipment, since February 13, 1956, nor since December 15, 1936.
"11. It is further stipulated that the actual manner of business operation is as follows: defendant, Pearle Optical of Monroeville, Inc., owns and operates a retail optical business at 215 Broad Street, Rome, Georgia; defendant, James P. Henderson, is a duly licensed optometrist authorized to practice in Georgia; Pearle employs Henderson at its place of business and pays him compensation as set forth hereinbefore; Henderson personally and exclusively examines the eyes of all persons who come to Pearle for glasses, and where indicated, he prepares a prescription for such person; such person is under no obligation to have the prescription filled by Pearle, but it usually is.
"If such person has the prescription filled by Pearle, he is charged a single total price for examination and glasses; if such person does not have Pearle fill the prescription, he is charged an examination fee which is collected by Pearle. Pearle also fills prescriptions prepared by other optometrists.
"Pearle furnishes all supplies and equipment necessary and Henderson is authorized to order such supplies and equipment as he deems necessary. No control or direction is exercised over Henderson by Pearle, as hereinbefore set forth.
"Pearle employs other persons at its place of business to work under Henderson's supervision in filling prescriptions, assisting customers in the selection of frames, and fitting the completed lenses and frames. Henderson is responsible for seeing that the lenses sold meet accurately the prescription given.
"Pearle sets, fixes, determines and collects the examination fees and Henderson has no voice in determining the amount charged by Pearle for examination fees, services or glasses.
"A copy of a predetermined price list that is posted in each store is attached hereto and incorporated herein by reference. Henderson has authority to waive examination fee in cases he determines no fee to be charged.
"12. It is the general practice of optometrists licensed in Georgia to maintain an inventory of lenses and frames, or to maintain business contact with optical laboratories to supply such lenses and frames so that the optometrist can sell lenses and frames to fill the prescription prepared by them. Almost all licensed optometrists in Georgia also sell lenses and frames."
The charter of the defendant corporation is attached to the plaintiff's petition as an exhibit, while a certain advertisement is attached as an exhibit to the stipulation of fact agreed upon by the parties. The charter contained an express provision that the corporation was not to engage in the practice of optometry. The advertisement was entitled "Pearle Pledges: Professional Eye Care At Reasonable Prices — Always," is signed Pearle Optical and contains the pertinent statements: (1) "May we thank all of our patients in Georgia ..." (2) "We are especially gratified that so many of our patients are being referred to us by other Pearle Optical patients ..." (3) "First Quality Single Vision Eyeglasses — As Low As $14.50 — Kryptok Bifocal Glasses $17.50 Including Examination and Fitting." (4) "Precision Fitted Contact Lenses — $75.00 — Including Examination and Fitting. There is no finer contact lens made no matter how much you pay even $150 — $175 — $200." (5) "Registered Optometrist In Charge Satisfaction Guaranteed." (6) "Experience — The Doctors of Optometry at Pearle Optical are backed by many years of experience in their profession ... your guarantee of First Quality Eyeglasses."
The judge of the superior court entered a decree that: the court has jurisdiction over the defendants; the demurrers and renewed demurrers of the defendants are overruled as to each and every ground; the issues are justiciable and a declaratory judgment is necessary to guide the parties in future actions; under the laws of this State, optometry is declared to be a learned profession, and the board is authorized to adopt and enforce reasonable rules and regulations applicable to the practice of optometry adequate to carry into effect the Georgia laws on optometry and to regulate the practice of optometry; the Acts of 1956 and 1963 are valid exercises of the State's police powers and are not invalid for any reason alleged; the attacked rules and regulations are not invalid for any reason alleged and are within the scope of authority of the board; the defendants are declared to be in violation of the before-mentioned rules and regulations which have the force and effect of law; the corporate defendant is violating the law and public policy by practicing optometry as a corporation; accordingly, the corporate defendant shall not engaged in the practice of optometry within this State, neither directly, indirectly nor otherwise through or by any of its officers, agents, servants and/or employees, and the individual defendant, as a practicing optometrist, shall conform to and comply with the reasonable rules and regulations adopted and promulgated by the Board of Examiners governing the practice of optometry pursuant to the laws of Georgia.
The defendants excepted and the case is here for review.
1. The issue as to whether the General Assembly was authorized in the exercise of the State's police power to create the Georgia State Board of Examiners in Optometry and clothe that body with power to control the practice of optometry within the State and to formulate rules and regulations designed to effectuate this aim depends upon whether optometry is a learned profession vitally affecting the public health. Atlantic Coast Line R. Co. v. City of Goldsboro, 232 U.S. 548, 558 ( 34 S.C. 364, 58 LE 721); McNaughton v. Johnson, 242 U.S. 344 ( 37 S.C. 178, 61 LE 352); Holcomb v. Johnston, 213 Ga. 249, 252 ( 98 S.E.2d 561); Hortman v. Yarbrough, 214 Ga. 693 ( 107 S.E.2d 202).
2. Optometry is a learned profession because a valid statute of the State declares it to be. We reject the contention of the defendants that the declaration is a mere effort on the part of the General Assembly to establish a fact by legislative fiat. It is the province of the law making body to adjudge the sufficiency of the factual foundation necessary to support the statute it enacted into law. Bachlott v. Buie, 158 Ga. 705, 711 ( 124 S.E. 339); Holcombe v. Ga. Milk Confederation, 188 Ga. 358 (5), 369 ( 3 S.E.2d 705).
And were the rules not adhered to, the contention would still be without merit. This is apparent because the Act of 1956 does not merely denominate optometry a learned profession but recites facts amply supporting that conclusion. The Act described the involved processes employed by the practitioners of the profession in diagnosing and treating abnormalities of the human eye, in such terms as to leave no room for doubt that the practice of optometry requires much learning. The Act of 1953 (Ga. L. 1953, pp. 114, 116) prescribes as the educational standards for admission to the practice of optometry: "possessed of a high school education ... or the equivalent thereof ... have completed not less than two years of preoptometry college work in a college of arts and sciences approved by the board, or the equivalent thereof ... and hold a certificate of graduation from an accredited college or university teaching optometry acceptable to the board requiring a course of study therein of at least three school years." From the description of the practice contained in the law relating thereto it is also evident that there is the close and confidential relationship between the practitioner and patient that separates the learned "professions of the law" from other pursuits or professions that may require great learning or scholarship, but are not classified as learned professions. "The relation between the optometrist and his patient is personal and confidential and subject to reasonable legislative regulation in the common interest." Abelson's v. N. J. State Bd. of Optometrist, 5 N.J. 412, 425 ( 75 A.2d 867, 22 ALR2d 929).
The defendants insist that the Act of 1956 ( Code Ann. § 84-1101) insofar as it provides — "Optometry is defined as the art and science of visual care and is hereby declared to be a learned profession" — is violative of Art. I, Sec. I, Par. XXIII of the Georgia Constitution reading: "The legislative, judicial and executive powers shall forever remain separate and distinct, and no person discharging the duties of one, shall, at the same time, exercise the functions of either of the others, except as herein provided." In this connection, the defendants insist the holding of Ga. State Board of Examiners in Optometry v. Friedman's Jewelers, 183 Ga. 669 ( 189 S.E. 238), written in 1936, that optometry was not a learned profession, was an adjudication of that matter binding on the legislature and precluding it from ever declaring the contrary.
The very provision of the Constitution the defendants allege was violated is designed to preserve inviolate the separation of the legislative and the judicial branches of the government, and to assure to each independence in the sphere of its own functions. It is the prerogative of the judiciary to determine what the law is, and the responsibility of the legislature to declare what the law shall be. McLeod v. Burroughs, 9 Ga. 213, 216.
From the foregoing discussion it becomes apparent that the pronouncements of Ga. State Board c. v. Friedman's Jewelers, 183 Ga. 669, supra, written in the year 1936, that optometry was not a learned profession, was not, as the defendants insist, a legal barrier to the legislative statement to the contrary in the year 1956. Moreover, the Friedman case is not opposed in principle to the Act of 1956. The opinion in that case merely construed the Act of 1916, and its conclusion as to the classification of optometry is based upon three considerations: (1) that the Act of 1916 defined optometry in terms that clearly indicated it was a mere manual pursuit; (2) that the same Act required only two years of high school as the academic education for a license to practice optometry; (3) that neither the Act of 1916 nor any other law of the State had by the year 1936 declared optometry to be a learned profession. So it is apparent that optometry as defined by the Act of 1916 discussed in the Friedman case and optometry as reflected by the provisions of the Act of 1956 were quite different in every aspect that tended to reflect the profession as manual or learned.
3. The profession of optometry is, according to the definition of the science contained in the Act of 1956, the leading legal encyclopedias and the weight of authority in other jurisdictions, identified with and vitally concerns the welfare of the people. "By its very nature, the practice of optometry is subject to regulation for the protection of the public against ignorance and incapacity and deception and fraud, equally with the practice of ophthalmology and the other `learned profession,' a category originally confined to theology, law and medicine, but long since broadened in keeping with the diffusion of scientific learning and the need of specialized knowledge in the functioning of our ever-expanding and complex society." Abelson's v. N. J. State Bd. of Optometrists, 5 N.J. 412, 419, supra. In State v. Standard Optical Co., 182 Or. 452 ( 188 P.2d 309), is the holding: "It would seem that the public has as much need to be protected from quacks and charlatans in optometry as in dentistry or any other sub-division of medicine... One who consults an optometrist for ocular examination is entitled to the same undivided loyalty that he should receive from a physician. The fact that the optometrist is the employee of an optical concern whose main interest is the sale of optical goods tends to be a distracting influence which may adversely affect his loyalty to the interests of his patient."
In Holcomb v. Johnston, 213 Ga. 249, 252, supra, this court held: "There can be no doubt that the practice of dentistry is affected with the public interest, and to insure protection of the public health and welfare the profession of dentistry is a logical subject for regulation by the legislature." As supporting authority the Holcomb case cites 11 Am. Jur. 1052, § 289, which contains the text: "In order to safeguard the public, the state may therefore make proper regulations concerning the practice of medicine and surgery, dentistry, optometry, chiropody, chiropractic, and nursing; it may also regulate the practice of law." See also State v. Nat. Optical Stores, 189 Tenn. 433 ( 225 S.W.2d 263); McMurdo v. Getter, 298 Mass. 363 ( 10 N.E.2d 139).
4. Having determined that optometry is within the contemplation of the law a learned profession affected with the public interest, hence subject to the police power of the State, the rules regarding the modus operandi for exercising control of the profession are aptly stated in Bohannon v. Duncan, 185 Ga. 840, 842 (3) ( 196 S.E. 897): "The legislative department of the State, wherein the Constitution has lodged all legislative authority, will not be permitted to relieve itself by the delegation thereof. It can not confer on any person or body the power to determine what the law shall be. But this constitutional inhibition does not prevent the grant of legislative authority to some administrative board or other tribunal to adopt rules, bylaws, or ordinances for its government, or to carry out a particular purpose. Thus, while it is necessary that a law, when it comes from the lawmaking power shall be complete, still there are many matters as to methods or details which the legislature may refer to some designated ministerial officer or board. Cooley's Const. Lim. 114. The constitutional prohibition, therefore, does not deny to the law making body `the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply.' Schechter v. U.S., 295 U.S. 495 ( 55 S.C. 837, 79 LE 1570, 97 ALR 947, 957); Panama Ref. Co. v. Ryan, 293 U.S. 388 ( 79 L Ed 223); Aultman v. Hodge, 150 Ga. 370, 372 ( 104 S.E. 1); Maner v. Dykes, 55 Ga. App. 436, 438 ( 190 S.E. 189), and cit." See also Cooper v. Rollins, 152 Ga. 588 (2) ( 110 S.E. 726, 20 ALR 1150); Lamons v. Yarbrough, 206 Ga. 50, 57 ( 55 S.E.2d 551); Gartrell v. McGahee, 216 Ga. 125, 128 (1) ( 114 S.E.2d 871).
The plaintiff board was set up by the legislature and empowered to adopt rules and regulations for control of the profession in conformity with the cases above cited.
5. The rules and regulations adopted by the plaintiff board effective on April 1, 1963, were reasonable, salutary and well designed to achieve the orderly, ethical and proper control of the profession of optometry. They meet the requirements of Glustrom v. State, 206 Ga. 734, 736 ( 58 S.E.2d 534), Hutchins v. Williams, 212 Ga. 754 ( 95 S.E.2d 674), and Gartrell v. McGahee, 216 Ga. 125, supra, that rules promulgated by administrative boards be within the framework of the Act creating them and designed to accomplish the purpose of the Act. The rules inhibiting employment of a licensed optometrist by an unlicensed person or corporation is in keeping with the public policy of the State. Boykin v. Hopkins, 174 Ga. 511 ( 162 S.E. 796).
Similar rules are in many jurisdictions recognized as wholesome. In State v. Nat. Optical Stores, 189 Tenn. 433, supra, citing State v. Retail Creditmen's Assn., 163 Tenn. 450, 466 ( 43 S.W.2d 918), it is stated: "The rule is uniform that a corporation cannot practice one of the learned professions. 19 CJS, Corporations, 956, and obviously this implies that the corporation cannot employ a licensed practitioner, since a corporation acts only through agents . . . to practice for it."
When prescribed by proper action of the board the rules and regulations did not infringe upon any legal right of the defendant, and had all the force and effect of statutes of the State. Union Dry Goods Co. v. Georgia P. S. Corp., 248 U.S. 372, 375 ( 39 S.C. 117, 63 LE 309); Knight v. Wingate, 205 Ga. 133, 137 ( 52 S.E.2d 604); Atkins v. Manning, 206 Ga. 219, 221 ( 56 S.E.2d 260); Sheffield v. State School Bldg. Authority, 208 Ga. 575, 582 (3) ( 68 S.E.2d 590). To disobey them was to violate the law.
6. The stipulation of fact which served as evidence in the case showed a most flagrant violation of the rules by the defendants in that Pearle and Henderson were conjunctively practicing optometry as an integral part of the corporation's optical business. Pearle advertised that a licensed optometrist was on duty at all times in its optical establishment, guaranteed proficient professional services in connection with the sale of its optical merchandise, and referred to those who patronized its establishment not as customers or patrons but as "our patients." Pearle collected the entire proceeds realized from the operation of the business and merely paid Henderson a salary. The observation of the Friedman case, supra, that where a corporation merely employed an optometrist to examine eyes, but made no charge for the service, the corporation was not practicing the profession, is not in conflict with what is held here.
Judgment affirmed. All the Justices concur.