CAPITOL OPTICAL CO. v. STATE BD. OF OPT

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Docket Number

No. 38794.

Judges

HALL, J.

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CAPITOL OPTICAL Co., et al. v. STATE BOARD OF OPTOMETRY.

Barnett, Jones Montgomery, Jackson, for appellants.

I. The Court erred in holding that the State Board of Optometry had the right to bring and maintain suit.

A. Dr. Savell was engaged in the practice of medicine. Baker v. State, 91 Tex. Cr. 521, 240 S.W. 924; Redmond v. State, 152 Miss. 54, 118 So. 360; State v. Rolph, 140 Minn. 190, 167 N.W. 533; Secs. 8832, 8845-46, Code 1942; 41 Am. Jur., Sec. 28 p. 158; 70 C.J.S., Sec. 10(b) p. 834.

B. The Capitol Optical Company was engaged in the lawful business of optician.

C. The State Board of Optometry is a statutory body and has only such powers as granted by statute, either expressly or by necessary implication, and has no power to maintain a suit for injunction against Dr. Savell, lawfully practicing as a physician or against Capitol Optical Company lawfully engaged in the business of optician. Craig v. Stone, 194 Miss. 767, 11 So.2d 433; Gully, Tax Coll. v. Stewart, 178 Miss. 758, 174 So. 559; Miss. Livestock San. Bd. v. Williams, 133 Miss. 98, 97 So. 523; State ex rel. Rice v. Stewart, 184 Miss. 202, 184 So. 44; State v. Rogers, 206 Miss. 643, 39 So.2d 533.

D. The State Board of Optometry had no interest or ownership of the cause of action it sought to assert in this case and hence had no power to invoke the jurisdiction of the Court, and the lower court erred in holding that it had such power and the abortive decree is a nullity. Sec. 8923-51, Code 1942.

E. The State Board of Optometry had no authority to maintain this suit, its bill of complaint did not invoke the jurisdiction of the Court, the Court was without proper jurisdiction and its purported decree is void and the lower court erred in not so holding. Amer. Book Co. v. Vandiver, 181 Miss. 518, 178 So. 598; Baldwin v. Powell, 294 N.Y. 130, 61 N.E.2d 412; Gusman v. Marrero, 180 U.S. 81, 45 L.Ed. 436, 21 S.Ct. 293; Haynes v. Ezell, 25 Miss. 242; In re Bonner, 151 U.S. 242, 38 L.Ed. 149, 15 S.Ct. 323; Pease Dwyer Co. v. Somers Planting Co., 130 Miss. 147, 93 So. 673; A.L.I., Restatement of the Law (Judgments), Sec. 9a p. 51.

II. The Court erroneously determined that it had jurisdiction and its judgment deprives appellants of their property without due process of law.

A. The right to lawfully practice one's chosen profession is a property right protected by Article 14 of the amendments to the Constitution of the United States. Brown v. Board of Levee Comrs., 50 Miss. 468; Sinquefield v. Valentine, 159 Miss. 144, 132 So. 81, 76 A.L.R. 238; 16 C.J.S., Sec. 567 p. 1141.

B. The Court by its unconstitutional action has deprived Dr. Savell of his property right to practice his profession without due process of law. Ex parte Converse, 137 U.S. 624, 11 S.Ct. 191; Home Tel. Co. v. Los Angeles, 227 U.S. 278, 57 L.Ed. 510, 33 S.Ct. 312; 12 C.J., Sec. 961 p. 1195.

Richard A. Billups, Jr., Jackson, for appellee.

I. The decision and finding of the Chancellor that Tony Sward, R.M. Gardiner and John Mayfield, d/b/a Capitol Optical Company, and Dr. J.J. Savell are practicing optometry, based on conflicting evidence, is binding on appeal, in the absence of a finding that he was manifestly wrong. Bounds v. Brown, 201 Miss. 564, 29 So.2d 657; Hamrick v. Cook (Miss.), 40 So.2d 267; Jenkins v. Thweatt (Miss.), 42 So.2d 95; Martin v. Hartley, 208 Miss. 112, 43 So.2d 875; Stroud v. Loper, 190 Miss. 168, 198 So. 46.

II. A corporation, unlicensed partnership or individual cannot practice the professions of medicine, law, dentistry and optometry by the employment of licensed practitioners. Sears Roebuck Co. v. State Bd. of Optometry, 213 Miss. 710, 57 So.2d 726.

III. Any State Board which grants licenses "to practice any profession" is authorized under Mississippi Laws 1946, Chapter 431, Code of 1942, Supp. Sections 8923-51, to obtain an injunction in chancery court against any person practicing such profession without a license. Busch Jewelry Co. v. State Bd. of Optometry, 216 Miss. 475, 62 So.2d 770; Sears Roebuck Co. v. State Bd. of Optometry, supra.

IV. The statutes here involved do not violate Section 14 of the State Constitution and Article 14 of the amendments to the Constitution of the United States. Busch Jewelry Co. v. State Bd. of Optometry, supra; Klein v. Department of Registration Education, 73 S.Ct. 93.

APPELLANT IN REPLY.

I. In the absence of a statute specifically exempting the practice of optometry, such practice constitutes the practice of medicine. Baker v. State, 91 Tex. Cr. 521, 240 S.W. 924; Joyner v. State, 181 Miss. 245, 179 So. 573; Sec. 8888, Code 1942; Chap. 68, Laws 1896; 41 Am. Jur., Sec. 28 p. 158.

II. The Legislature in 1920, when it passed Chapter 217 of the Laws of 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. 8832-8846, 8878-8893, Code 1942; Chap. 217, Laws 1920.

III. Dr. Savell was engaged in the practice of medicine under a license issued him by the State Board of Health. Busch Jewelry Co. v. State Bd. of Optometry, 216 Miss. 475, 62 So.2d 770; Sec. 8923-51, Code 1942.

1. Optometry — injunction for unlawful practice.

Where nonresident partnership rented office space in their optical store to a physician authorized to practice optometry within State, and guaranteed a minimum weekly income, and physician spent full time during office hours prescribing eye glasses, which prescriptions were filled by partnership, partnership and physician were engaged in the unlawful practice of optometry, and were properly enjoined.

Headnote as approved by Hall, J.

HALL, J.

(Hn 1) There is no substantial difference between the facts and controlling principles in this case and those in Busch Jewelry Co. et al. v. State Board of Optometry, 216 Miss. 475, 62 So.2d 770, Certiorari Denied by U.S. Supreme Court, October 12, 1953, 98 L.Ed. Advance Reports No. 1, page 45.

Capitol Optical Company is a partnership firm composed of Tony Sward, R.M. Gardiner, and John Mayfield. These partners are engaged in business in Chicago, Illinois, as a partnership under the trade name of M.G.S. Optical Service. Under that trade name they employed Dr. J.J. Savell, a licensed physician under the laws of Mississippi, to work for them in prescribing eye glasses in their optical store in Jackson, Mississippi, at a salary of $104.00 per week. That agreement was oral. After our decision in Sears, Roebuck Co., et al. v. State Board of Optometry, 213 Miss. 710, 57 So.2d 726, the parties entered into a written contract whereby the partnership rented to Dr. Savell office space in its store measuring approximately 10 feet by 5 feet for the price of $40.00 per month and guaranteed him a minimum income of not less than $114.00 per week. This contract was subject to cancellation by either party on 10 days written notice. Dr. Savell testified that he gives full time to the business of Capitol Optical Co. during office hours, but does some outside medical practice on his own account outside of office hours. He contends that his prescribing of eye glasses is done pursuant to his license as a physician and not as an optometrist, but the lower court adjudicated that he is unlawfully engaged in the practice of optometry as an employee of Capitol Optical Co. and enjoined him and the partners composing Capitol Optical Co. from further unlawfully practicing optometry.

From the final decree of the chancery court an appeal was taken to this Court, and the record was filed here on November 1, 1952. The appellants and appellees entered into a written stipulation duly filed in this Court to the effect that the decision in this cause will be controlled by the decision of the United States Supreme Court in the Busch Jewelry Co. case, supra, and agreeing that this case should be passed on this docket until the Supreme Court of the United States acted on the appeal in the Busch case.

Notwithstanding this stipulation, the appellants have filed a lengthy brief raising substantially the same questions which were raised and passed upon in the Busch case. These questions were settled in the Busch case. The decree in this case does not deprive Dr. Savell from engaging in the practice of medicine in a lawful manner. It only enjoins him from practicing optometry in an unlawful manner, and it is accordingly affirmed.

Affirmed.

McGehee, C.J., and Lee, Kyle, and Holmes, JJ., concur.

CAPITOL OPTICAL Co., et al. v. STATE BOARD OF OPTOMETRY.

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