Opinion
6 Div. 885.
April 6, 1972. Rehearing Denied April 27, 1972.
Appeal from the Circuit Court, Jefferson County, in Equity, William C. Barber, J.
Sirote, Permutt, Friend Friedman and William G. West, Jr., Birmingham, for appellants.
In the absence of a state statute expressly to the contrary, optometry as defined in Section 190 of Title 46, Code of Alabama 1940, is merely a "profession" in the broadest sense and not a "learned profession." Mack v. Saars, 188 A.2d 863, 150 Conn. 290; Silver v. Lansburgh Bro., 111 F.2d 518 (C.A. of D.C.-1940); State ex rel. Attorney General v. Gus Blass Co., 193 Ark. 1159, 105 S.W.2d 853; Golding v. Schubach Optical Co., 70 P.2d 871, 93 Utah 32; Dvorine v. Castelberg Jewelry Corp., 170 Md. 661, 185 A. 562; Georgia State Bd. of Examiners in Optometry v. Friedmans' Jewelers, 183 Ga. 669, 189 S.E. 238; Webster's Third New Int'l Dictionary Definition of Optometry: An occupation consisting of the examination of the eye for defects and faults of refraction and the prescription of corrective lenses and exercises but not including the use of drugs or surgery. In the absence of a specific Alabama statute directly prohibiting a corporation from practicing optometry, a corporation in Alabama may employ a duly licensed optometrist to to perform optometrical services for the corporation's patrons as optometry is a "profession", but not a "learned profession". Code of Alabama, Title 46, §§ 190, 208; Mack v. Saars, Supra; Silver v. Lansburgh Bro., Supra; State v. Gus Blass Co., Supra; L. Klein v. Rosen, 327 Ill. 375, 64 N.E.2d 225; Golding v. Schubach Optical Co., Supra; State ex rel. McKittrick v. Gate City Optical Co., 339 Mo. 427, 97 S.W.2d 89; Jaeckle v. Bell, Bamberger Co., 119 N.J. Eq. 126, 181 A. 181. Statutes regulating the practice of optometry are in derogation of a common-law right and must be strictly construed, and the mere repeal of statutes regulating the practice of optometry where a corporation is involved (Act No. 218 of the 1965 Regular Session of the Alabama Legislature) does not in and of itself prohibit a corporation from employing a duly licensed optometrist for the mutual benefit of the corporation and the optometrist. Mack v. Saars, Supra; State v. Gus Blass Co., Supra; Golding v. Schubach Optical Co., Supra; 50 Am.Jur., Statutes, § 525, p. 532. A corporation which employs optometrists has a property right in the maintenance of its business of which it could not be deprived by legislature or regulation having no adequate connection with the preservation of public health, safety and welfare. Sterling Optical Co. v. University of State of New York, 55 Misc.2d 852, 287 N.Y.S.2d 827; People v. Sterling Optical Co., 26 Misc.2d 412, 209 N.Y.S.2d 953; Liggett Company v. Baldridge, 278 U.S. 105, 49 S.Ct. 57, 73 L.Ed. 204.
Lee Bains, Bessemer, Richard A. Billups, Jr., Jackson, Miss., for appellee.
It is unlawful for a corporation to make any arrangement with an optometrist or physician whereby the corporation can refer their customers to such optometrist or physician for an eye examination and/or the optometrist or physician refer their patients to House of $8.50 Eyeglasses, Inc., for the specific purpose of promoting the sale of House of $8.50 Eyeglasses, Inc., eyeglasses, regardless of where such optometrist or physician is located, in the absence of express statutory authority to do so. Sears Roebuck Co. v. State Bd. of Optometry, 213 Miss. 710, 57 So.2d 726; Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563; State v. Zale Jewelry Co. of Wichita, 179 Kan. 628, 298 P.2d 283. It is a violation of the optometry laws of the State of Alabama for House of $8.50 Eyeglasses, Inc., to have or allow optometrists or physicians on its premises to examine eyes of its customers, either as employees or lessees, under the conditions in this case, because they are controlled in the exercise of their professional judgment by House of $8.50 Eyeglasses, Inc. McMurdo v. Getter, 298 Mass. 363, 10 N.E.2d 139; Busch Jewelry Co. v. State Bd. of Optometry, 216 Miss. 475, 62 So.2d 770, Id. 346 U.S. 83, 74 S.Ct. 34, 98 L.Ed. 354 (1953); Ritholz v. Arkansas State Board of Optometry, 206 Ark. 671, 177 S.W.2d 410. House of $8.50 Eyeglasses, Inc., is engaged in the unlawful practice of optometry by reason of the fact that an optometrist or physician was an employee or leases space from it and practices in its store since the repeal of Section 210 of the Optometry Law because it unlawfully aids and assists House of $8.50 Eyeglasses in its sale of eyeglasses. Rowe v. Standard Drug Co., 132 Ohio St. 629, 9 N.E. 609. A corporation which employs optometrists or physicians to examine eyes of its customers to enable the corporation to sell eyeglasses does not have a property right in the maintenance of its business to do so because the examination of eyes for the purpose of obtaining a prescription for lenses, if needed, is connected with and related to the preservation of the public health, safety and welfare and can be regulated by the Alabama Legislature. Weill v. State ex rel. Gaillard, et al., 250 Ala. 328, 34 So.2d 132.
This appeal is from a decree in a declaratory judgment proceeding in which a construction of the law relating to the practice of optometry was requested and an injunction against the House of $8.50 Eyeglasses, Inc. and its employed optometrists was sought.
The trial court enjoined each of the named optometrists from the unlawful practice of optometry, and enjoined the House of $8.50 Eyeglasses, Inc. from employing by any means or arrangements registered optometrists or physicians, surgeons, or oculists to examine the eyes of its customers and to prescribe eyeglasses therefor anywhere in the State of Alabama. The court also entered a declaration that the House of $8.50 Eyeglasses, Inc., in its employment of registered optometrists, physicians, surgeons or oculists to examine the eyes of its customers and to prescribe eyeglasses for them is an unauthorized and unlawful practice of the profession of optometry as defined in the laws and statutes of the State of Alabama.
The main questions raised on this appeal were answered and settled in our case of Lee Optical Company of Alabama, Inc. v. State Board of Optometry, 261 So.2d 17, decided March 30, 1972. Any collateral questions argued in the instant case such as whether the demurrer to the bill was properly overruled, are not necessary to be decided now.
On the authority of the holdings in the Lee Optical Company case, supra, the decree in the instant cause is reversed and a decree is here rendered in favor of the respondents.
Reversed and rendered.
HEFLIN, C. J., and LAWSON, HARWOOD and MADDOX, JJ., concur.