Dvorine v. Castelberg Jewelry Corp.

Offutt, J., delivered the opinion of the Court. The Castelberg Jewelry Corporation carries on a merchandising business in Baltimore, in connection with which it maintains stores for the sale of jewelry, silverware, optical goods, ornaments, and other wares of the same general character. As a part of its business it conducts a branch or department for the sale of eyeglasses, and to stimulate that part of its business it furnishes optometrical service to such of its patrons as desire it, and for that purpose employs a registered optometrist, and supplies him with the instruments and mechanical ⁶⁶³ appliances needed for that work, as well as with an office in which it may be done. In the course of the service the optometrist examines any patron presenting himself for that purpose and informs him of the result of the examination.

If, as a result of it, glasses are found to be needed, the patron may purchase them from the corporation, or from some other person, or he may purchase them from the corporation with or without a prescription. Where the glasses are not bought from the corporation, a charge is made for an examination; if glasses are bought from it, the charge for the examination is included in the price of the eyeglasses. But whenever a charge is made, whether for an examination or for eyeglasses or lenses, it is made in the name of the corporation, and the corporation informs the public through advertisements in the public press and otherwise that it specializes in “the scientific fitting of modern glasses and frames” and offers “consultations and examinations without charge.” The actual physical work of the examination is done by a registered optometrist, who, as a result of it, determines whether any glasses are needed and, ifi they are, the particular kind which are required, their measurements and shape. As a necessary consequence of that course of business, the company receives any profits and bears any losses which may result from the examinations and sales of eyeglasses, but the patron nevertheless is assured of the service of a competent and skilled optometrist.

Or, stated in another way, the company supplies the service, and in that sense practices optometry in making it available to its patrons, but the service is actually performed by a natural person who is registered and licensed by the State to practice the art or science of optometry. The basic act regulating the practice of optometry in this state is chapter 652 of the Acts of 1914, which created the “Maryland State Board of Examiners in Optometry.” The essential purpose of that statute was to limit the practice of optometry in this state to persons who were found to possess the skill, competence, and ⁶⁶⁴ training needed for the examination of the human eye and the prescription of suitable lenses to correct errors in vision without detriment to the public health. In addition to providing for examinations to insure the requisite competence, the statute provides for the registration of persons found to be qualified to practice the art, and makes it unlawful for persons other than physicians or surgeons to practice in this state without first having been registered as optometrists. It defines the practice of optometry as “the employment of any means, except the use of drugs, medicine or surgery, known to the science of optics for the purpose of determining, correcting and prescribing by means of lenses for any optical condition existing in the human eye, and also the employment of any means, except the use of drugs, medicine or surgery, for the purpose of detecting diseased conditions.” Code, art. 43, sec. 315.

It also prohibits the use by optometrists of “the title M.D., Surgeon, Doctor, Physician, Eye Specialist, EyeSight Specialist, Oculist, Opthalmologist, Doctor of Opthalmology, Doctor of Optometry, Doctor of Optics, or any title containing the word Doctor or the abbreviation Dr., or any word or abbreviation that will or can convey the impression that he is engaged in the treatment of diseases or injuries of the human eye, or make use of drugs, medicine or surgery, in the practice of Optometry” (Code (Supp. 1935) art. 43, sec. 326), although those who have obtained a degree as such may use the title of “Doctor of Optics” or “Doctor of Optometry.” Otherwise the optometrist must use the word “Optometrist” in connection with his name, wherever his name appears. An optometrist who is also a physician and surgeon is not affected by the statute, and may use the title of his profession, nor does it apply to persons who merely sell eyeglasses as merchandise, nor to opticians. The Maryland Association of Optometrists is a corporation formed to further the interests of optometry, and the Maryland State Board of Examiners in Optometry is' an administrative agency created by chapter 652 of ⁶⁶⁵ the Acts of 1914, and charged with the administration of that statute. Israel Dvorine, B. Woodward Hazel, J. Fred Andreae, Martin Roos, and Ralph A. Highbarger at present constitute the board.

On August 14th, 1935, these five persons, as individuals and as constituting the Maryland State Board of Examiners in Optometry, herein called the Board of Examiners, and the Maryland Association of Optometrists, brought this suit against the Castelberg Jewelry Corporation to secure an injunction restraining it (a) “from engaging in the practice of optometry in the State of Maryland, either directly in its corporate or trade name, or indirectly by hiring licensed or registered optometrists to engage in said practice for it at its place of business or elsewhere,” and (b) “from holding itself or themselves out as having the right to practice optometry, and from advertising that it has the right to prescribe lenses and make examinations of the eyes, and from prescribing, fitting, adjusting or selling lenses for correcting or aiding the optical condition of human eyes, and from employing, engaging or contracting with any licensed or registered optometrists to carry on or conduct the practice of optometry for it at its said place of business or elsewhere.” In their bill of complaint, in addition to the facts stated above, they allege that under its charter the defendant was authorized “to manufacture, buy, sell, rent, and otherwise deal in jewelry, silverware, ornaments, novelties, optical goods, as well as goods, wares and merchandise of every class and description. * * * To carry on any other business which may be calculated directly or indirectly to effectuate the aforesaid objects or any of them, or to facilitate the transaction by the corporation of the aforesaid businesses, or any part thereof, or the transaction of any other business which may be calculated directly or indirectly to enhance the value of its assets and property.” It is further alleged that the defendant maintains an optical department which “is under the supervision and direction of an employee of the defendant corporation, who is a licensed or registered op ⁶⁶⁶ tometrist of the State of Maryland, and in which optical department the defendant corporation through its said agent or employee has been and now is continually determining, testing and examining the optical and diseased conditions of the eyes of persons at its said place of business, and is attempting to correct such optical conditions by means of lenses prescribed and sold to said persons with such defective and diseased eyesight, for and on behalf of said defendant corporation; and the public has been and is now being continuously solicited by the defendant corporation by extensive advertisements inserted in the daily newspapers published in Baltimore City and by divers other ways and means to call at the jewelry store conducted by said defendant corporation at the aforesaid address, to have their eyes tested and examined, and consultations held with said registered or licensed optometrists, employed by said defendant corporation, without charge and prescribing by means of lenses for optical conditions of the eyes, and for the further purpose of having the public purchase such lenses as are prescribed by its said employee to correct and overcome such optical conditions.” They further state that the defendant is unlawfully practicing optometry and “exploiting commercially” the certificate of registration issued to the registered optometrist employed by it, and that by such “illegal practice of optometry” the defendant “is building up a tremendous volume of business in the sale of prescribed lenses and eyeglasses, for the correction of optical conditions of the eyes, which unlawful acts are highly detrimental to all licensed practicing optometrists in the State of Maryland, the larger portion of whom are members of said Maryland Association of Optometrists, Incorporated; and violates the duties imposed by law upon the Maryland State Board of Examiners in Optometry.” To that bill the defendant filed a combined answer and demurrer. In its answer it in effect admitted the allegations of material fact made in the bill, but denied that it was engaged in the practice of optometry within the ⁶⁶⁷ meaning of the statute. The demurrer was disregarded, testimony was taken in connection with the pleadings, the case was heard, and on December 16th, 1935, the court by its decree of that date dismissed the bill. The appeal is from that decree.

The testimony added these facts to those stated: William B. Rutter, the optometrist employed by the defendant to conduct its optical department, is employed at will; he is compensated by a regular salary and commissions; the instruments and appliances used in his work are furnished by the defendant, as is his office; all charges are made in its name; all advertising is in its name, and while it may state that the examinations are by a registered optometrist, his name is not mentioned; the acts of which the appellants now complain as constituting the practice of optometry have been common and usual in this State both before and after the passage of the Act of 1914, and both corporations and natural persons have, since the passage of the act, furnished through the agency of registered optometrists service similar to that offered by the defendant without hindrance. It also appeared that in 1935 a bill was introduced in the Maryland House of Delegates the purpose of which was to make such acts unlawful, but it failed to pass. From these facts it is apparent that the important question submitted by the appeal is whether one who offers to furnish, or does actually furnish, through the agency of a registered optometrist, such service as may be required to determine whether persons applying therefor need eyeglasses, and if so what kind of eyeglasses they need, is himself practicing optometry within the meaning of the statute, although there is another question which should perhaps be first considered. That is whether the appellants, or any of them, have such an interest in the subject-matter of the litigation as will entitle them to demand equitable relief.

Without laboring the question, it may well be doubted whether the Board of Examiners as such has the power to maintain such a suit. Its duties, which are very clearly ⁶⁶⁸ defined in the act, do not include that of enforcing its provisions by civil litigation, and indeed there is nothing in the language of the act to permit the inference that the board may use the monies, which it receives to enable it to function, to engage in litigation in which it has no interest. The optical society and the individual plaintiffs are, however, in different case. The society is incorporated for the .“encouragement, protection and furtherance of the interests of optometry,” and the natural plaintiffs are themselves engaged in the practice of optometry.

The society has no property interest affected by defendant’s acts, and its right to sue is not apparent, but there is some force in the suggestion that these natural persons do have an interest as licensed optometrists in being protected against the competition in that business of unlicensed persons operating in violation of law, which could, without substantially expanding the meaning of the term, be classed as property. The cases are not in harmony on the question, but there is authority of some persuasive force which sustains the right of one lawfully engaged in business under a license from the State to equitable relief against illegal competition. Fitchette v. Taylor, 191 Minn. 582 , 254 N. W. 910 ; State v. Fray, 214 Iowa, 53 , 241 N. W. 663 . It is suggested* too, that violation of the statute is by its terms a criminal offense, and that equity will not interfere with the administration of the criminal law.

It is true that equity will not lend its aid to prevent the violation of criminal laws (14 R. C. L. 376), but will leave that to the criminal courts and the police, but the mere fact that the wrongful act is a crime will not prevent a court of equity from dealing with it, if it operates to cause irreparable injury to the complainant’s property, or causes him pecuniary harm, for which there is no legal remedy. Ibid. It becomes unnecessary to decide the question in this case, however, because while it could have been considered by the trial court on the defendant’s demurrer (Fletcher’s Equity Pleading, p. 249; Miller, Equity Proc. ⁶⁶⁹ 278, 279), the defendant made no point of it in this court, but preferred to rest its defense upon the broader ground that it is not practicing optometry within the meaning of the statute. Inasmuch as its failure to raise the point in the trial court would have prevented its consideration by this court (Code, art. 5, secs. 40, 41; Carrington v. Basshor Co., 121 Md. 71, 75 , 88 A. 52 ), there is no sound reason why it may not be waived in this court even though it was made in the trial court, in view of the fact that that court did have jurisdiction to deal with the subject-matter of the suit, whether the acts complained of were unlawful, and, if unlawful, whether they caused harm to any property interest of the natural plaintiffs, or resulted in pecuniary loss to them for which they had no adequate remedy at law.

Reverting to the question first stated, whether, upon the record in this case, the appellee is engaged in the practice of optometry within the meaning of the statute, in seeking the legislative intent, it may be helpful to consider briefly the purpose of the legislation. Manifestly that purpose was not to protect the financial interests of persons engaged in the practice, of optometry, but to protect the public against injury or harm which might result if ignorant, unskillful, or incompetent persons were permitted to offer their services as optometrists indiscriminately to all