Davis v. California State Board of Optometry

HOUSER, J.

This is an appeal from a judgment following an order by which a demurrer to a writ of review was sustained.

It appears that appellant is an optometrist, duly registered and licensed to practice his profession in the state of California ; that following an accusation preferred against appellant, and after hearing thereon before the respondent California State Board of Optometry, the appellant herein was convicted by said board of the offense of unprofessional conduct in using the title of “Dr.” (doctor) as a prefix to his name; that thereupon said board pronounced judgment against appellant that his certificate of registration as an optometrist be suspended for the period of one year from and after the date of said judgment; that thereafter by a writ of review issued by the superior court in and for the county of Los Angeles, appellant sought to have the legality of said judgment determined by said superior court. Respondent demurred generally to the writ, which demurrer having been sustained by the court without leave to amend, judgment was ordered “that petitioner take nothing by his

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petition, and that his petition for a writ of review be denied. ’ ’ Prom such judgment appellant prosecutes his appeal to this court.

The Optometry Law (Stats. 1913, p. 1097; Stats. 1923, p. 380; Stats. 1925, p. 573) declares (subd. 7 of sec. 11 of Stats. 1923, p. 386) that the certificate of registration of any person registered as an optometrist may be revoked or suspended by the California State Board of Optometry for any of the following causes: “ . . . When the holder uses the title ‘Doctor’ or ‘Dr.’ as a prefix to his name; ...”

No question is raised by appellant as to the sufficiency of the evidence adduced before the board to justify its judgment against him; his principal point on appeal being specifically that, admitting the use by him of the prefix “Dr.” before his name, it also appeared that the word “Optometrist” immediately followed his name, and that unless the use by him of the prefix “Dr.” tended to defraud or mislead the general public, no offense of professional misconduct was committed, and consequently that the board acted in excess of its jurisdiction in finding the appellant guilty and pronouncing sentence against him. He argues that because from his construction of various statutes relating to the practice of several kindred professions, a practitioner in any one of them may be suspended for unprofessional conduct in the use of the prefix “Doctor” only where such use “in effect works a fraud upon the public or has a tendency to mislead the public to their injury”—the same construction should be applied to the statute here under consideration. No direct authority is cited by appellant which upholds the construction which he would place either upon the other statutes to which he refers, or on the statute which is the basis for the judgment rendered by the respondent herein. Whatever may be the correct construction or interpretation to be placed upon any other statute (regarding which we express no opinion), the plain language of the statute here in question is that “when the holder (the registrant) uses the title ‘Doctor’ or ‘Dr.’ as a prefix to his name,” his certificate of registration may be revoked or suspended. The attention of this court has been directed to no language in the statute which would indicate that the action to be taken by the board in any manner de