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 ; Page 351 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 .