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Gates v. Kilcrease

Supreme Court of Arizona

December 22, 1947

GATES et al.
v.
KILCREASE

Appeal from Superior Court, Pinal County; Levi S. Udall, Judge.

Affirmed.

Laney & Laney, of Phoenix, for appellants.

Robert Denton, of Casa Grande, and Snell, Strouss & Wilmer, of Phoenix, for appellee.

Blake, Superior Judge. Stanford, C. J., and La Prade, J., concur. Udall, J., having disqualified himself as he was the trial judge, Honorable Benjamin Blake, Superior Court, Graham County, was called to sit in his stead.

OPINION

Blake, Superior Judge.

[66 Ariz. 329] This is an appeal from a judgment in a suit brought under the Declaratory Judgment Act, Code 1939, § 27-701 et seq., refusing an injunction to plaintiff-appellants to compel defendant-appellee to refrain from the practice of optometry. The case was tried to the court without a jury.

A brief statement of the facts is as follows: At the time of bringing this action in the Superior Court of Pinal County in April, 1944, and for some time prior thereto and since said time, defendant V. W. Kilcrease, a licensed osteopathic physician, was engaged in Casa Grande and Coolidge, Pinal County, Arizona in the practice of optometry.

This phase of his practice consisted of employing objective and subjective means and methods, other than the use of drugs, to determine the refractive powers of the human eye, and the visual and muscular anomalies thereof; prescribing and adapting lenses or prisms for correction or relief, and thereby prescribing and fitting eyeglasses to aid the power of vision of persons patronizing him.

Defendant did not claim the right to practice optometry by having obtained a license to so practice under the Optometry Act, but did and does claim authority to practice optometry by reason of being a licensed Osteopathic Physician under Section 67-1407, A.C.A., 1939, being a part of article 14 regulating optometry, which section provides as follows:

"This article shall not apply to physicians licensed to practice under the laws of this state * * *." (Emphasis supplied.)

[66 Ariz. 330] The defendant takes the position that he is a "physician" licensed to practice under the laws of Arizona within the meaning of the word "physician" as used in the above code section; that, therefore, the statutory provisions requiring a person to be licensed as an optometrist before doing the acts defined as practicing optometry have no application to him; and that his license to

Page 248

practice osteopathy entitled him to engage in the business of prescribing and furnishing eyeglasses in the manner defined in the statute as constituting the practice of optometry.

The appellants make the following Assignments of Error:

"Assignment of Error No. 1. The appellants assign as error the holding of the lower court that the word 'physician' as used in Section 67-1407, A.C.A., 1939, exempting physicians licensed to practice under the laws of Arizona from the requirements of Article 15, Chapter 67, A.C.A. 1939, includes ...


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