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SILVER v. LANSBURGH & BRO.

May 8, 1939

SILVER et al.
v.
LANSBURGH & BRO. et al.



The opinion of the court was delivered by: LUHRING

The plaintiffs, by their amended bill of complaint filed December 16th, 1936, seek an injunction to restrain the defendant corporations from directly or indirectly engaging in the practice of optometry in the District of Columbia.

The claim for relief is based upon two grounds, namely: (a) That optometry is a learned profession, the very nature of which prohibits the practitioner thereof from any affiliation or connection with a corporation or non-optometrist; and (b) that the Optometry Law of May 28, 1924, specifically prohibits the employment in this jurisdiction of duly registered and licensed optometrists by a corporation or non-optometrist.

 The plaintiffs are optometrists duly registered and licensed as such by the District of Columbia under the provisions of an Act of Congress, approved May 28, 1924, entitled "An Act to regulate the practice of Optometry in the District of Columbia," Tit. 20, § 261 et seq., Code D.C. (1929), and are entitled to practice the profession of Optometry in said District of Columbia, and they are now engaged in the practice of their said profession of Optometry in said District. They bring this suit in their own right and on behalf of all duly registered and licensed optometrists similarly situated in the District of Columbia.

 The defendant, Lansburgh and Bro., is a corporation organized under the laws of the District of Columbia, with authority to conduct a general mercantile business. For some years it has operated and now operates a department store at Number 420 Seventh Street, N.W., in the City of Washington, D.C.

 The defendant, Buhl Optical Company, is a corporation organized under the laws of the District of Columbia and authorized to manage, conduct, operate and own optical and optometrical stores, either managed, conducted, operated and/or owned by itself or others jointly, and to hire, engage, use and employ licensed optometrists to examine the eyes of patrons and to furnish and fit eyeglass requirements for the improvement or correction of visional defects or deficiencies of the eyes of such patrons.

 The defendant, Buhl Optical Company, a Delaware corporation, although made a party, is not before the court.

 On the 24th day of July, 1935, the defendant, Lansburgh and Bro., entered into a contract with its codefendant, the Buhl Optical Company, whereby Lansburgh leased to Buhl for a period of three years from September 1st, 1935, the exclusive privilege of conducting as optical department "wherein there will take place the examination of the eyes, the sale of eye glasses and other usual optical goods on the main floor of the store," in a space or location to be designated by Lansburgh.

 The Buhl Optical Company by this contract agrees to hire and pay the wages of all employees necessary to the proper conduct of its business, and Lansburgh and Bro. agreed to pay each week to such employees the wages due them as directed by Buhl Optical Company.

 The contract further provides that all moneys receivable from the sale of merchandise in the optical department shall be paid to and collected by Lansburgh, who shall retain as rental a sum equal to twenty per cent of the entire gross business done by Buhl, credit and cash, less returns and refunds, for each and every month of occupancy. Buhl guarantees to Lansburgh a minimum return as rental the sum of $4500 each fiscal year during the term of the lease, based on a minimum gross volume of business of $22,500 for each such fiscal year. Lansburgh and Bro. guarantees payment of all charge and credit sales when approved and passed by it. Buhl agrees to spend for advertising the optical department a minimum sum equivalent to five per cent of the gross volume of business.

 Provision is made for an accounting on or about the 15th of each month for the preceding month, and Lansburgh agrees to pay over to Buhl all moneys collected from the optical business, less the rental, wages of employees and other authorized expense, including freight, advertising and advances on vouchers, and in the event moneys advanced in any one month exceed the rental charges for that month, it is agreed that the difference shall be paid forthwith by Buhl.

 "The Lessee (Buhl) agrees to abide by all the store rules and regulations, and the Lessor (Lansburgh) shall be the ultimate arbiter in all disputes or adjustments which may arise in the course of the business with customers or between employes. The Lessee shall discharge any employee the Lessor shall request for the welfare of the store."

 "It is agreed between the parties that the business of the Lessee with reference to advertising and sale of goods, shall be conducted to all outward appearances as part of the business ...


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