66* * * No advertising of any nature shall be used by the Lessee unless submitted to and approved by the Lessor."

"The Lessee agrees that it will carry in stock merchandise which shall in character be in keeping with merchandise offered for sale throughout the store. The department of the Lessee shall be ready for operation during the business hours of the Lessor, and the Lessee agrees to mark the selling price of its goods in plain figures; and said prices shall meet legitimate competition in the District of Columbia."

Pursuant to the leasing agreement the defendant, Lansburgh & Bro., designated a space or location on the main floor of its store to be occupied by Buhl. This space was properly equipped with the necessary facilities for the examination of the eyes and the sale of eyeglasses and the usual optical goods. It was placed in charge of an optometrist duly licensed and registered under the optometry law of the District of Columbia. The examination rooms are of modern design and afford the necessary privacy. The optometrist is furnished with all mechanical devices and instruments used by optometrists generally in determining visual defects and in the adaption of lenses for the aid and relief thereof.

The leasing contract was otherwise complied with by the parties. Lansburgh received and collected all receipts from the sale of merchandise; paid the wages of the employees hired by Buhl; and accounting was duly had between the parties. Advertisement of the optical department was prepared by Buhl and approved by Lansburgh and the business with reference to such advertising and sale of goods was conducted to all outward apeparances as part of the business of Lansburgh. The salary of the optometrist was paid by Buhl and no charge was made for the examination of the eyes.

The optometrists employed by Buhl, and who are in charge at the Lans burgh store, have full and exclusive control, without direction from the de fendants or any of their officers or employees, in their practice of optometry. The defendants do not direct them in the manner they pursue their practice nor in the kinds of prescriptions given. These matters are left entirely to the judgment of the optometrists. They and they alone examine the eyes of the patients, and adapt the lenses for the correction of such defects.

In the examination of the eyes for the purpose of determining visual defects and in the adaption of lenses for the aid and relief thereof, the optometrists use various devices and instruments. Among such instruments are the retinoscope, ophthalmoscope, and ophthalmometer. Test lens sets consisting of spheres, cylinders, and prisms are used in connection with a test lens frame or similar device to test the patient's ability to read letters and numerals from a test card or chart. It is here and finally that the patient, himself, fits his eyes by a system of trial and error aided by the optometrist.

Optometry is not a learned profession, comparable with law, medicine, and theology, notwithstanding standards of education are prescribed by the statute and rules of the Board. It certainly has nothing in common with law or theology; until recently, it was never claimed to be a part of medicine. E. E. Arrington in his History of Optometry (1929) says:

"1. Ocular refraction is not, and never has been, a part of medicine, either by inheritance, basic principles, development, or practices. It is an applied arm of optical science, resting upon the work and discoveries of physicists and opticians through the ages, down to modern times. It does not treat the eye, whether in health or disease, but adapts the light waves which enter the eye, in accordance with optical principles, so as to produce focused and single vision with the least abnormal exertion on the part of the eye. And finally, its distinction from and independence of medicine have been affirmed by supreme court decisions in every case in which the question has been brought up for adjudication."

The optometrist licensed to practice in the District of Columbia is expressly prohibited from using any title indicating that he is engaged in the practice of medcine or the treatment of the eye. Physicians and surgeons are exempted from the provisions of the act, and may practice optometry without being licensed thereunder. (Secs. 279 and 280, title 20, D. C. Code (1929).)

Furthermore, in the District of Columbia many of the licensed optometrists advertise in the press and in the telephone directory. They maintain store fronts with attractively decorated display windows. Electric signs are not

uncommon.

The facts in evidence justify the conclusion of the Court of Appeals of Maryland in the case of Dvorine y. Castelberg Corp., 170 Md. 661, 669, and the court

here finds that optometry "is essentially a mechanical art, which requires skill, manual dexterity, and a knowledge of the use and application of certain mechanical instruments and appliances designed to measure and record the errors and deviations from the normal which may be found in the human eye, rather than the knowledge and learning appropriate to professions or callings which deal with causes and conduct rather than with conditions and effects. It is in its nature empirical rather than learned."

The court further finds that the defendants, Lansburgh & Bro. and Buhl Optical Co. are not engaged in the practice of optometry in the District of Columbia contrary to the provisions of the act entitled "An Act to regulate the practice of Optometry in the District of Columbia," approved May 28, 1924.

CONCLUSION

There is sharp conflict of authority. The cases are reviewed in Dvorine v. Castelberg Corp., supra; State ex. rel. Attorney General v. Gus Blass Co., 1938 Ark. 1159; and State v. Gate Optical Co. et al., 339 Mo. 427. See, also, Georgia Board of Optometry v. Friedman, 183 Ga. 669.

The primary purpose of the Code, title 20, Secs. 261 et seq., is the protection of public health and not to further personal interests of optometrists by protecting the calling itself.

The amended complaint must be dismissed, and it is so ordered.

[Signed] O. R. LUHRING, Justice.

MAY 8, 1939.

MARCH 6, 1939.

Honorable President and Members of the Senate Fortieth Legislative Assembly. GENTLEMEN: I am returning Senate bill 70 without my approval. This bill applies very drastic regulations in the practice of optometry and goes further in repression than I feel is justified. The very first section extends the scope of optometry until it includes the offering for sale of frames for glasses. While sponsors of the bill declare its purpose is to protect the public, the particulars of the bill indicate that it moves also toward the suppression of unwanted competition.

For example, it removes from the present law the exemption of the sale of "complete ready-to-wear eyeglasses as merchandise from a permanent place of business in good faith and not in evasion of this act by any person not holding himself out as competent to examine and prescribe for the human eye."

Thousands of people in the past have been satisfactorily served by the simple method of trial and error in buying ready-made glasses at small cost to themselves. Senate bill 70 would deny the people this privilege and force them to patronize an optometrist or physician. The recent California act, which this bill follows, does not go far, preserving the exemption as to the sale of ready-made glasses.

Senate bill 70 would bar a licensed optometrist from practicing as agent of an unlicensed person, company, or corporation. There are corporations now employing licensed optometrists, which have a long record of reputable service. This bill would put them out of business as corporations. It is represented that other corporations maintaining optometric departments are rapacious and unreliable. Yet the same devices which are suggested to the proprietors of reputable corporations for continuing their business, such as leasing to independent licensed optometrists, are available to the less reputable, and the present alleged abuses would continue.

In this connection let me quote from an article in the Missouri Law Review which comments on a Missouri decision on the question of corporate practice of optometry:

"So large a part of an 'independent' practitioner's work may come from the corporation that he is, as a matter of fact, as much under its control as an employee; the fear of losing the profitable contract may be as effective as the fear of losing a job. The evils of commercialization would seem equally present in both instances; though the importance of this consideration varies with the type of 'profession' involved; for example, commercialization may be a social evil in the practice of law and not be so in the practice of optometry.

"It is notable that the cases involving the practice of optometry by a corporation are all of recent origin and the growing tendency on the parts of legislatures and the courts is to countenance such practice." (Missouri Law Review, January 1937, p. 98.)

Proponents of this legislation point to the practice of law, medicine, and dentistry, where corporate practice is prohibited or frowned on, and claim the same right for optometrists. The comparison does not fully hold. The optometrist does does not treat the eye as does the oculist. There is no need for "confidential relationship" with the person he serves. The optometrist measures the powers of vision and adapts lenses for the correction and aid of human vision. He is also the vendor of merchandise in the form of glasses; and the latter element is emphasized to such a degree as to make optometry quite as much a business as a profession. Such being the case, the prohibition of corporate practice by properly licensed persons does not seem warranted.

In my study of this situation I find that company or corporation practice does occupy a legitimate place in optometry. A great proportion of graduates of optometrical schools find employment with such concerns, become self-supporting, acquire valuable experience, and later go into practice for themselves. If they did not have this opportunity, many graduates would not succeed.

While the service rendered in such establishments may not be on the average as high in equality as that furnished by the independent practitioner, the average cost to the patron is probably less. There is definitely a place for syndicate practice, honestly conducted, in the low-cost field.

I would approve provisions to ban fraudulent and deceptive advertising. Experience proves, however, that reliance must not be placed wholly on legislation. There must be improvement in ethics among practitioners of optometry and an education of the public to be on guard against charlatans and predators.

I have the honor to remain,

Very respectfully yours,

Governor.

TO REGULATE THE PRACTICE OF OPTOMETRY IN THE

DISTRICT OF COLUMBIA

WEDNESDAY, MAY 17, 1939

HOUSE OF REPRESENTATIVES,

COMMITTEE ON THE DISTRICT OF COLUMBIA,

Washington, D. C. The subcommittee this day met at 10:35 a. m., Hon. Rudolph G. Tenerowicz presiding, for further consideration of H. R. 278 and H. R. 5238.

Dr. TENEROWICZ. The committee will please be in order. Who is the first witness?

Mr. BRYLAWSKI. My name is Julian Brylawski, 702 Earle Building, Washington, D. C., and I am president of the District Council of Municipal Affairs, which is an organization of various business and professional men who take great interest in everything connected with the District of Columbia, such as taxation, appropriations, schools, and so forth. This is a nonprofit and a noncompensating organization.

Dr. TENEROWICZ. Please proceed.

Mr. BRYLAWSKI. I would like to call as the first witness this morning Dr. George C. Havenner.

STATEMENT OF DR. GEORGE C. HAVENNER

Dr. TENEROWICZ. We shall be glad to hear Mr. Havenner at this time.

Mr. HAVENNER. My name is George C. Havenner, 2912 Albemarle Street NW., Washington, D. C.

Mr. BRYLAWSKI. I may say that Mr. Havenner has for many years been president of the Federation of Citizens' Associations of the District of Columbia and he is well and favorably known as a gentleman very much interested in all public affairs in the District.

Mr. HAVENNER. Mr. Chairman, I am an active member of the Forest Hills Citizens' Association and an honorary life member of some six or seven neighborhood citizens' associations, as well as one or two city-wide organizations. I have been active in the affairs of the District of Columbia for something like 40 years. If I may say so, I have been elected to every office that the voteless Washingtonians may confer upon one.

We have in the city of Washington 58 white citizens' associations and 21 colored citizens' associations.

The white citizens' associations are affiliated with the Federation of Citizens' Associations, and in addition to these 58 white associa

tions that are affiliated with the federation there are 10 city-wideorganizations affiliated with this body. These organizations are the American Association of Engineers, the Arts Club, the District of Columbia Congress of Parent-Teachers, the District of Columbia Federation of Women's Clubs, the Medical Society of the District of Columbia, the Pharmacists' Society of the District of Columbia, the Pharmaceutical Society of the District of Columbia, and the Society of Native Washingtonians.

The 21 colored citizens' associations are affiliated with the Federation of Civic Associations, which is their central body.

These two central bodies, with their affiliates, represent about 60,000 taxpayers in the District of Columbia, and these 60,000 taxpayers we might class as the owners of medium-priced homes. The civic organizations have not had an opportunity to study and pass upon either of the two bills now pending before the subcommittee.

Dr. TENEROWICZ. You are referring to H. R. 5238 and H. R. 278, are you not ?

Mr. HAVENNER. That is correct.

These associations usually hold their meetings between September and May or June, and many of them have adjourned for the year. Consequently we cannot get what might be called a united, city-wide, action by these various organizations.

For that reason I believe that consideration of these bills should go over to the next session of Congress, in order to give the taxpayers of voteless Washington an opportunity to study and pass intelligently upon them.

I think there are quite a few objectionable features in both bills. The main objection is that the bills prohibit corporations from employing optometrists in the first place; secondly, advertising would be prohibited. Consequently it would mean that an advertisement such as is found in one of the newspapers here, where glasses may be fitted to the eyes and purchased for $5.95 or bifocals for $7 and a little more, would not be allowed and glasses would cost more. If glasses are not allowed to be handled by optometrists employed by corporations or jewelry stores I do not believe that many of our people could take care of the eyes as they do now. Prices would probably be prohibitive. Of course, they get time payments in these stores, whereas they probably could not get time payments if they went to regular opticians.

Dr. TENEROWICZ. Do you represent these 58 white and 21 colored organizations?

Mr. HAVENNER. I will not say that I represent them now, for the reason that I am no longer president of the citizens' associations. I was president of that organization for four consecutive terms. I am the only man ever elected four consecutive terms during the whole life of the federation. I declined to permit my name to be used in connection with a fifth term.

Dr. TENEROWICZ. Did I understand you to say that the 58 and 21 organizations of which you spoke represent 60,000 taxpayers? Mr. HAVENNER. With the city-wide organizations I enumerated, those organizations represent about 60,000 city-wide taxpayers.

I believe that these organizations, through their various committees, should be given an ample opportunity to study these two bills