courts in the ruling that a profession cannot be practised in the market place. We are opposed to this section and urgently request that it be stricken from the bill.

Dr. TENEROWICZ. Is there anything else anyone has to offer?

Mr. KAUFMANN. Mr. Chairman, I know you want to get rid of this thing as quickly as you can. I hope you will not have a meeting the first week in June, as I will not then be in town.

Dr. TENEROWICZ. I am willing to meet next week. We will adjourn and date will be announced for the next meeting.

(Thereupon, at 4 p. m., hearing adjourned to meet at the call of the chairman.)

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IN THE COURT OF COMMON PLEAS No. 1 FOR THE COUNTY OF PHILADELPHIA

March term, 1938. No. 4511

Commonwealth of Pennsylvania v. Fred William Haussmann

ADJUDICATION

This is an appeal from the action of the Board of Mercantile Appraisers, which imposed a mercantile tax on the appellant as a retail vendor. There is no question involved as to the amount of business for which the tax was imposed, but the question is whether the nature of the business of the appellant, or some part of it, is such that it is subject to the tax. The tax was assessed under the act of May 2, 1899, Public Law 184, as amended.

The court makes the following

FINDINGS OF FACT

1. The appellant, Fred William Haussmann, is a qualified and licensed optometrist, having his offices at 915-916 Philadelphia Saving Fund Building, in the city of Philadelphia, which offices are equipped with instruments necessary for the practice of the profession of optometry.

2. The appellant, in the practice of his profession examines the eyes of his patients and, when necessary, prescribes eyeglasses.

3. In practically all cases the appellant, after prescribing eyeglasses, procures an order from his patient for the eyeglasses, and depending on the kind and quality of the frames selected, the appellant procures such glasses from manufacturing opticians and includes the charge therefor in his bill to the patient, in addition to his charge for his services in examining the eyes and fitting the glasses. The appellant's charge for examining eyes when he does not supply glasses is $2 a visit, although the instances in which he performs such limited service are very few.

4. The appellant is a retail vendor of eyeglasses insofar as he takes orders therefor from his patient, has them made up by manufacturing opticians, and then delivers them to his patient, though the charge therefor may be included in a gross charge made on the basis of $2 a visit for examining the eyes with the additional sum for the glasses, depending on the kind and quality ordered by the patient.

DISCUSSION

Undue stress has been laid by the appellant on the decision in the case of Neill v. Gimbel Brothers, Inc., which will appear in 199 Atl. Rep. 178. The practice of optometry was there given the status of a profession and that is all. The court did not decide, nor does the decision of the court mean that, because optometry is regarded as a profession, one engaged in it may, to all intents and purposes, be a vendor of merchandise and then claim exemption from the imposition of the mercantile tax because he happens to be an optometrist. Mr. Justice Schaffer, in writing the opinion for the court, indicated as much by the following statement:

"The professional charges of optometrists are for examing the eyes, for prescribing glasses, and for examing and fitting glasses after they are made. Prescriptions for glasses formulated by optometrists are filled by the patient's own optician or by an optician chosen by the optometrists."

Here is the clearest statement that the professional charges of optometrists cannot properly include the charge for furnishing the glasses themselves. The professional charges for "examining," "prescribing," and "fitting" the glasses after they are made.

The court, in giving optometrists the advanced position of professional men, states in the plainest language that their professional charges are for the pro

fessional services indicated, and it is also assumed by the court that the prescriptions for the glasses are filled by the patient's own optician or by an optician chosen by the optometrist; that is to say, that the glasses prescribed will be furnished by some optician who, on the basis of furnishing them, would be charged with the mercantile tax, the same as any other vendor. However, in the instant case, the appellant not only examines the eyes and prescribes the glasses, and fits them after they are made, which are all very proper professional services, but is engaged in the business of supplying the glasses themselves by taking the orders therefor from his patients, having them made up by other opticians, and then, in turn, delivering them and charging for them to his patients, so that in a case where, as he frankly admitted at the hearing, his charge for examining the eyes and prescribing glasses would be only $2, yet, if his patient selected a pair of glasses that would cost, let us say, $50, his gross charge to the patient would be $52.

No amount of quibble can convince this court, that insofar as the appellant himself takes orders for glasses and has them made up and then delivers them to his patients and charges therefor, he is not engaged in the selling of those glasses to the patients. If others who make up and sell glasses to people are subject to the tax, there is no reason why the appellant should not be subject to the same tax. We do not approve of the reasoning that such a person as the appellant, when he undertakes to combine with his professional work as an optometrist the business of an optician should be exempt from the payment of the mercantile tax, limited, of course, to the amount received by him for the glasses supplied, excluding his professional service charge of $2 a visit, which he admitted to be his charge at the hearing.

The appellant has cited the case of Commonwealth v. Lutz (284 Pa. 184), in which it was held that plumbers are not subject to the mercantile tax for materials used in their work. Plumbers and other artisans, as indicated in that case, such as carpenters, bricklayers, stonemasons, and plasterers, use materials to create the construction or make the repair involved, and the labor thereon is so bestowed on the work that the materials cannot be very well separated from the work itself. For that reason, materials so used cannot be said to have been sold separately and apart from the work done in connection therewith. For that reason, such workers were held exempt from the tax. Even in that case, however, it was held that the mere fact that a man is a plumber would not exempt him from the tax where he sold the material such as any other dealer would. For instance, if while the plumber was doing plumbing work in the real sense of the term, cutting and threading pipes, making joints, laying out a water or sewage system, etc., he should suggest to the housewife that she ought to have a new kitchen cabinet and showed her photographs from which she selected one, and he delivered such a cabinet, there is no doubt that he would be chargeable with the mercantile tax in relation to that particular transaction, although he would be obliged to plane it off here and there in order to fit it into place.

The appellant also argues that because a dentist who fits teeth for his patient is not considered subject to the mercantile tax, he ought not to be. The reference is quite as inopposite as is that of the plumber. The dentist makes molds and then out of raw materials, metals of various kinds and artificial teeth, partly prepared for him in dental laboratories, mold them and create them into structures to conform with the mouth and gums, to make them as nearly like the original teeth and settings which they are to replace. This is, likewise, a case of scientific work, labor and design of the dentist, creating out of the necessary materials the finished product required by the patient as a substitute for the natural teeth which he has lost.

There is not the slightest analogy between those cases and the position of the appellant, insofar as he orders glasses from manufacturing opticians, according to selections made by his patient. The appellant does not grind the lenses, he does not put them into their fittings, he plays no part whatsoever in making or creating them. They are handed to him by the maker and he simply hands them over to the patient, making the slight adjustments necessary to fit the contour of the head of the patient. No skill, scientific or otherwise, of the appellant, enters into the making or creation of the set of glasses, and in that, his case differs from that of a plumber and similar artisans, and the dentist. A few illustrations will show how untenable the position of the appellant is in this instance. Suppose a man who is troubled with his feet consults an orthopedist. Now, so far as the Court is informed, the orthopedist examines

the feet of the patient and then prescribes the type of correction required by the patient in his shoes, or perhaps, a special shoe built with the required correction in it. The patient takes the prescription and goes to a shoemaker to have the required shoes made. That is the usual transaction. After the patient receives his shoes from the shoemaker, he returns to the orthopedist, to have him examine the shoes to determine whether they have been properly made, in accordance with the requirements of the physician. We will say that the usual charge for such professional service is $5. Suppose the orthopedist undertook to have on hand in his office a line of sample shoes and after having examined his patient and advised certain corrective measures, showed his patient the samples and asked him to determine which style shoe he would like to have and then took the patient's order for a pair of shoes, sent the order on to the shoemaker or factory, had them delivered to his office, and then, when the patient came in, delivered the shoes to him and made a lump sum charge of, say $20? We do not think there can be much doubt that in such a transaction, insofar as the orthopedist procuring for and delivering to his patients shoes in accordance with his prescriptions, he would be the vendor of those shoes and so much of his business as could be properly ascertained to result in income to him for providing the shoes to his patients would be subject to the mercantile tax.

We will consider another instance. Suppose a physician, specializing as a physiotherapist, believing in the efficacy of artificial sunlight treatment, were consulted by a patient and he recommended to the patient such treatment and his charge for the advice was, we will say, $5, but in addition, he told the patient he could procure the proper lamp at a cost of $200, and the patient agreed and the lamp was delivered, whereupon the physiotherapist made a gross charge of $205. We think there can be no doubt that for so much of his charge as could be properly ascertained to be for the delivery to his patient of the physiotherapy lamp, such a physiotherapist would be chargeable as the vendor of such lamp, and, therefore, subject to the mercantile tax. The reason is that in so supplying the lamp the physician would not be rendering a professional service. It is the same with the appellant when he supplies glasses.

We have no desire to minimize in the slightest degree the professional standing of optometrists, as has been vouchsafed unto them by the ruling of the Supreme Court cited, but insofar as the appellant, though an optometrist and a professional man, takes orders from patients for glasses and charges his patients therefor, though included in a lump-sum charge for his professional service as optometrist and his business as optician in supplying the glasses, he is subject to the mercantile tax for the latter portion of his business. Though as an optometrist he is now regarded a professional man, he has the lawful right to engage in the business of supplying his patients with glasses, but when he does so he is subject to the mercantile tax, just as other dealers are, in respect to such business.

CONCLUSIONS OF LAW

1. The appellant, as a practicing optometrist, is not subject, under the act of assembly of May 2, 1899, Public Law, 184, section 1, as amended, to the mercantile tax on any income derived from professional charges, which are "for examining the eyes, for prescribing glasses, and for examining and fitting glasses after they are made" (Neill v. Gimbel Bros., Inc., supra).

2. The appellant is subject to the mercantile tax imposed by the Board of Mercantile Appraisers of the County of Philadelphia, under the said act of assembly, as amended, for so much of his business resulting from taking orders for glasses and supplying the same to his patients.

3. As no contention has been made about the amount of the tax, the appeal is dismissed.

PHILADELPHIA, PA., July 7, 1938.

JOSEPH L. KUN, J.

SUMMARY OF STUDY BY THE DISTRICT OF COLUMBIA OPTOMETRY BOARD Section 1: This definition is inconsistent with and inferior to the definition accepted by the American Optometric Association and the International Association of State Boards of Examiners in Optometry which conforms to the practice of optotmetry as it is recognized throughout the United States and as it is

taught in the schools and universities. Because of its incompleteness this definition would prevent the optometrist from rendering to the citizens of the District of Columbia such services in which he has been thoroughly trained, as the prevention and correction of (a) Functional disorders; (b) muscular anomalies including strabismus (cross-eyes); (c) subnormal vision; (d) aniseikonia (ocular images of different sizes and shapes); (e) reading disabilities. By this definition, optometry in the District of Columbia would tend to become retrogressive rather than progressive. We recommend either of the following definitions:

(1) That the practice of optometry is defined as the science and art devoted to the examination of the eyes, the analysis of the ocular functions, and the employment of preventive or corrective optometric methods and agents for the relief of visual and ocular anomalies.

(2) That optometry is defined as the measurement and correction of refractive and muscular errors of the eye by any method not including the use of drugs and not including surgical procedures such as cutting or actual manipulation of the eyeball, but including the use of optical appliances for diagnosis or correction of such refractive and muscular errors.

Definition No. (2) was recommended by the ophthalmological branch of the Medical Society of the District of Columbia.

Section 2: We recommend that the following words be inserted at the beginning of section 2: "That in order to safeguard life and health,". We feel that these words should be included because the optometrist should assume the responsibility to detect the various pathological conditions which might impair the health of the patient and to refer the patient to the proper practitioner.

Secion 3: We recommend that the following be inserted at the end of line 12, page 2: "Each member of the Board of Optometry shall be selected from a list of optometrists submitted by a majority vote at a regular meeting of the District of Columbia Optometric Society, which list shail contain not less than two names for each member to be appointed." This is in conformity with our present optometry law and the laws of the several States whereby the privilege of nominating candidates to be appointed to a State board of optometry is granted to the members of the individual State societies. The District of Columbia Optometric Society is made up of the majority of the optometrists practicing in the District of Columbia who must adhere to a very rigid code of ethics. The members of the society, realizing the importance of the position of a board member, use their discretion in recommending to the Commissioners men of proven ability and of the highest integrity therefore always assuring the finest men available to serve on this board.

Section 4: Regarding lines 16-21 (p. 4): "Provided, however, That prior to the approval of said rules and regulations by the Commissioners of the District of Columbia, due notice shall be given to all duly licensed optometrists of the District of Columbia of said proposed rules and regulations and a hearing had thereon before said Commissioners." We feel that this is unnecessary as the board is already restricted and cannot make rules and regulations inconsistent with this act. Any rules and regulations made by this board must be approved by the Commissioners before they become effective. Furthermore, to notify each individual optometrist and to hold hearings before the Commissioners would only cause confusion, delay, and a great deal of added work and expense for the Commissioners. Never in the past have any rules and regulations been made by the board which were inconsistent with our present act as passed by Congress.

We recommend the insertion of the words, "and expenses" at the end of line 14 (p. 5). This is in keeping with our present law. In the past the Board has always been self-sustaining and will continue to be in the future.

No provision is made in this section for the privilege granted the Board to appoint committees for the purpose of considering matters pertaining to the enforcement of this act. Therefore, we recommend the following: "The Board shall have power to appoint from its membership committees, the duties of which shall be to consider such matters pertaining to the enforcement of this act and the regulations promulgated in accordance therewith as shall be referred to them and to make recommendations to the Board with respect thereto. The Board, any committee, or any member thereof, shall be entitled to the services of the Corporation Counsel of the District of Columbia, and shall have the power to issue subpenas duces tecum to compel the attendance of witnesses and the production of books, records and documents, to administer oaths and to take