State Ex Rel. Standard Optical Co. v. Superior Court , 17 Wash. 2d 323 ( 1943 )

The Standard Optical Company is a corporation. It did two things: (1) It hired a licensed and registered optometrist to examine and test eyes and prescribe lenses therefor; (2) it advertised, as set out in the majority opinion. It has been restrained from doing both of these things in the future. I dissent as to prohibiting the first, and concur with the majority on the second. The logic back of the majority opinion on the first thing may be thus stated: (1) No one may practice optometry without a certificate of registration; (2) a corporation cannot qualify for a certificate of registration; (3) therefore, a corporation cannot hire a registered optometrist. I agree with the first two propositions, and shall therefore discuss only the third, which I think is a non sequitur.

No law of our state prohibits the employment of an optometrist by a corporation. Rem. Rev. Stat. (Sup.) § 10152, subd. (5), makes it unlawful

"To practice optometry under a false or assumed name, or as a representative or agent of any person, firm or corporation with which the accused has no connection."

The clear inference from this section is that it is lawful to practice optometry as the agent of a corporation with which onehas a connection. The Standard Optical Company owns, runs, and manages an optical office and has therein a substantial property right. There is a clear and valid distinction between a corporation practicing optometry and hiring a qualified optometrist. This distinction appears in the following quotation from State v. Brown, 37 Wash. 97, 79 P. 635, 107 Am. St. 798, 68 L.R.A. 889, which has never been overruled and which has been a rule governing property rights for over ten years. The court said:

"To own and manage property is a natural right, and one which may be restricted only for reasons of public policy, clearly discernible. To hold this portion of the statute valid would be to make possible conditions which were never designed to exist. To illustrate, suppose a man thoroughly qualified and legally licensed as a dentist should die, leaving a perfectly and completely equipped dental office to his widow, who knew nothing of dentistry and was incapable of securing a license. The widow, not being able to sell the dental office to advantage, decides to hire competent and legally licensed dentists to treat patrons of the office, and undertakes the management herself, paying bills, collecting accounts, arranging credits, making appointments, and doing other acts necessary to the supervision and control of the business affairs of the concern. Then she becomes a criminal, if this portion of the statute have virtue, because she has ``managed a dental office.' And yet, it will scarcely be contended that any of these acts injuriously affect ``the health, good order, morals, peace, or safety' of society, or menace ``the lives, limbs, health, comfort, quiet or property' of the patients treated in such office. . . .

"Congress has enacted statutes requiring masters, mates, and engineers of various vessels to pass examinations and procure licenses before engaging in the work of their respective avocations. But we are unaware of any such prerequisite for one seeking to own a ship or manage its business. Druggists who compound medicines must have a license, but this is not essential to ownership of a drug store. The owner complies with the statute when he hires a duly licensed pharmacist to attend to the matters requiring a knowledge of drugs, medicines, and poisons. Had the ``ownership' of ships or drug stores been deemed a menace to the health, safety, or welfare of those patronizing either, examinations and licenses would doubtless have been provided for. But the necessity for such requirements evidently never occurred either to Congress or the legislature. Yet the reasonableness and legality of such prerequisites could be more readily upheld than those involved in the case at bar."

Earlier in the opinion, the court said:

"The police power does not justify the withholding from one individual of a natural privilege or right, in order that a corresponding advantage may be added to the rights or privileges of another. . . .

"But we are unable to say or perceive that the health, moral or physical welfare of the public, or any of the personal or property rights of its individuals, are endangered by the ownership and management of a dental office, so long as those employed therein to do the actual dentistry work are qualified and licensed as by law required.

"In the case of In re Aubrey, 36 Wash. 308, 78 P. 900, this court held unconstitutional an act of the legislature requiring horseshoers to pass an examination. In the opinion the following language occurs:

"``"Liberty," in its broad sense, as understood in this country, means the right not only of freedom from actual servitude, imprisonment, or restraint, but the right of one to use his faculties in all lawful ways, to live and work when he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation.' And the court quotes from the case ofAllgeyer v. Louisiana, 165 U.S. 589, 17 Sup. Ct. 427,41 L. Ed. 832, where the supreme court of the United States employed similar language in a like holding."

In cases where one is prohibited from doing a certain thing and that prohibition inures to the benefit of others in the same line of endeavor by eliminating competition, this special privilege should be clearly distinguished from the contentions made that it promotes the general welfare. The question of promoting the general welfare must be resolved by balancing the destruction of natural rights against the public benefits claimed to be derived from it. I quote the justification given by the majority opinion for overriding the relator's rights:

"It is difficult to overestimate the importance of good sight. The use of lenses to improve vision is very great, and the prescribing of properly prepared glasses and the advice, in proper cases, that glasses are unnecessary, are equally important. Incalculable harm may result from improper diagnosis or advice in connection with these matters, or from the use of glasses not correctly ground. Before one may be permitted to take the examination for an optometrist's license, the applicant must show that he has followed designated courses of study which indicate that he possesses certain educational qualifications."

I agree with the principle therein stated. However, it does not apply where the person employed is qualified according to law.

Destruction of a natural right will weigh heavily in the scales. No light or fanciful benefit to the public can outweigh it. To persons who do not care to engage in optometry, the right to do so in a lawful way and upon terms of equality may appear to be academic, but such is the force of precedent that, if they do not preserve that right for those who are desirous of doing so, they may shortly find their rights infringed in their own line of endeavor. A liberty that is not secured for all is safe for none. The optometrists of the state may be benefited by the elimination of the Standard Optical Company and its ilk, but that is a far cry from serving the interests of the people.

This conflict of interests is well illustrated in the recent case of American Medical Ass'n v. United States, 63 S. Ct. 326,317 U.S. 519, which affirmed a conviction for conspiracy in restraint of trade. The court said:

"For the moment it is enough to say that the indictment charged a conspiracy to hinder and obstruct the operations of Group Health Association, Inc., a nonprofit corporation organized by Government employees to provide medical care and hospitalization on a risk-sharing pre-payment basis. Group Health employed physicians on a full time salary basis and sought hospital facilities for the treatment of members and their families. Thisplan was contrary to the code of ethics of the petitioners." (Italics mine.)

This case also establishes that a corporation can hire a physician.

I concur in the majority opinion in so far as it applies to the advertising. This is governed by Rem. Rev. Stat. (Sup.), § 10152, subd. 11 and 15. A law to protect the public against misleading and "bait" advertising is a valid exercise of the police power, being reasonably calculated to serve the welfare of the people. This is particularly true since no one has a right to deceive and hence no constitutional rights are involved.