have anybody from the Corporation Counsel's office to testify on that?

Mr. SISK. I might say that the Corporation Counsel's office will be called, and in line with the statements made yesterday, we will examine the Corporation Counsel.

Mr. HARSHA. I would just like to ask the doctor one question.

Doctor, on page 4 you say that rather than have the Congress of the United States attempt to fix the qualifications of an optometrist, we feel this matter should be left to the discretion of the District of Columbia Commissioners. Now, why do you think that the District of Columbia Commissioners are any better qualified to change these qualifications than the Congress?

Dr. ALBERT. I think it is a more flexible procedure, sir, and I think that was the intent of the Reorganization Act.

Mr. HARSHA, Is that your only reason for that opinion?

Dr. ALBERT. Yes; unless I can call on counsel.

Mr. MAGEE. I will be very glad to answer that and give the views of the medical society on it.

STATEMENT OF WARREN E. MAGEE, ESQ., GENERAL COUNSEL,

MEDICAL SOCIETY OF THE DISTRICT OF COLUMBIA

Mr. MAGEE. I was requested by the Corporation Counsel's Office to furnish them an opinion in this field, may it please the committee. The Commissioners have authority under three sections of the code as they presently exist. I have given these sections to your counsel and they can be checked out very carefully.

For example, under the Optometric Act which appears in title 2 of the District of Columbia Code, you will find sections 2-502 and 2-503 which regulate the practice of optometry and provide for the establishment of the Board of Optometry to adopt rules and regulations.

Directly under this latter section, an annotation or footnote to the code makes this statement, and I read verbatim:

Commissioners may regulate, modify, or eliminate the license requirements and promulgate regulations. See sections 47-2344, 47-2345.

Those are very clear delegations of authority by the Congress to the Commissioners for this purpose, and it reads, it is very brief and I would like to read this very first paragraph. It is entitled:

Promulgations of Regulations Authorized. Suspension or revocation of licenses-Bonding of licensees authorized to collect money-Exemptions.

(a) The Commissioners are further authorized and empowered to make any regulations that may be necessary in furtherance of the purpose of this chapter and to suspend or revoke any license issued hereunder when, in their judgment, such is deemed desirable in the interest of public decency or the protection of lives, limbs, health, comfort, and quiet of the citizens of the District of Columbia, or for any other reason that may be deemed sufficient.

Then, a long list of further authority is conferred on the Commissioners and then we turn to the next section which is cited in the code, which is title 47, section 2344, headed:

Commissioners may regulate, modify, or eliminate license requirements. The Commissioners of the District of Columbia are authorized and empowered, when in their discretion such is deemed advisable, to require a license of other businesses or callings not listed in this chapter and which, in their judgment, require inspection, supervision, or regulation by any municipal agency or agencies and to fix the license fees therefor in such amount as, in their judgment, will be commensurate

with the cost to the District of Columbia of such inspection, supervision, or regulation, and are further authorized and empowered in their discretion to modify any other provisions of this chapter as far as eliminating therefrom any business or calling in this chapter required to be licensed, or to raise or lower the amount of license fees provided for in this chapter, as the cost of inspection, supervision, or regulation is raised or lowered.

Then if you go back to the Optometric Act, itself, which you will notice, that the Commissioners are empowered and title to, in the very act, through the Board of Optometry, which is a board of optometrists appointed by the Commissioners to make any rules and regulations they desire for the control of optometry. This appears in the code, and I will cite for the information of the committee

Mr. HARSHA. Just cite the section.

Mr. MAGEE. Yes, sir.

Mr. HARSHA. We are in a peculiar position. Recently Commissioners sent legislation down here requesting broad authority to regulate and prescribe rules in all of these fields. If they have already got such authority, why do they need further legislation?

Mr. MAGEE. If you want my frank opinion, sir, they don't need it. I will be very honest with you, I have looked at the Bible bill (S. 2953). The provisions which the Bible bill covers are covered by these sections of the code.

The Commissioners and if I may illustrate, this is what occurred some years ago. I think it was about 8 or 10 years ago that the U.S. attorney for the District of Columbia felt that the entire Healing Art Practice Act should be rewritten, and he undertook to rewrite this act, which he did. The act was submitted to the Congress. The Commissioners took the firm position with the U.S. attorney through the Corporation Counsel's Office (I attended a hearing, I was there when it occurred) that the Commissioners of the District of Columbia under these sections which I have read to the committee here, had the full power to make any rules or regulations which the U. S. attorney thought were needed to regulate the practice of medicine. It was in this category of regulation, and they told the U.S. attorney, "Bring your regulations to the Commissioners, we will consider them and if we feel they are needed in the public interest, we will pass them."

They decided that the rewriting of the Medical Health Practices Act was unnecessary. They opposed the U.S. attorney and it never became law, that the Commissioners could do this.

Now what Dr. Albert was pointing out in the way of flexibility simply means this, and it is illustrated by the code:

The optometrists tell you gentlemen that they want the standards of their calling raised. This is fine. All they have to do is take the standards to the Board of Optometrists which the Commissioners have appointed their friends, submit the regulations to them and if the Commissioners feel those regulations are in the public interest, they will adopt them.

The optometrists did this in 1930. They went to the Board of Optometry and they raised their educational standards. And in the code you will find the Commissioners' order raising the standards. under their regulatory powers, and that appears under section 253

of title 2.

Here is the Commissioners' order, raising the standards of educational requirements which the optometrists asked for, and has added. to the act.

Now, we had a discussion about the two cases, one of which is on trial and was completed before Judge Green, involving the fitting of contact lenses—

Mr. SISK. Mr. Magee, may I break in?

Mr. MAGEE. Yes, sir.

Mr. SISK. I don't know how long your statement is. Áre you actually making your statement now?

Mr. MAGEE. This is practically half of it. If you want, I will finish my statement and then answer any questions if there are any. Mr. SISK. You go ahead, then, and complete your statement.

Mr. MAGEE. I just wanted to make one observation and then I'll go back to the statement.

The case which was tried before Judge Green involved a Commissioners' regulation. There is no act of Congress yet existent which puts the fitting of contact lenses in the Optometric Act. The Commissioners put it in the act in 1951 by a Commission order under these rules.

When the case was concluded against the optician who was being prosecuted, the defense counsel moved for a directed verdict on the ground that the practice of optometry did not include the fitting of contact lenses, and this is a contact-lens case.

The court ruled in denying the motion that the Commissioners had authority and they had placed contact lenses under the act; therefore, the prosecution could go forward, showing that the court, at least one court, Judge Green, when this issue had arisen, had decided that the Commissioners can make such a regulation and that a criminal prosecution can be conducted under it.

Now, this is a flexible thing.

Tomorrow the optometrists may want additional standards other than those here in the act. If this practice is followed, gentlemen, they will be here every year, and they have been here year after year on this act. This started in 1938, this act has been coming up and coming up.

I was in Europe when the Nuremberg trials and this committee requested that I send a written opinion in regard to the Optometric Act which was submitted to the Congress in 1936, which I wrote in Europe and sent to the committee.

These acts which are involved, as this act, have been before this Congress year after year after year and Congress has not passed them. Now the act seeks to do three things. The act first seeks to take a skilled art and in my written statement which you gentlemen can read, our court of appeals and our district court have clearly defined the practice of optometry. They say exactly what it is. They say it is a skilled art, it is not a part of theology, it is not a part of the practice of law, and it is not a part of the practice of medicine. This means, gentlemen, I don't think you can make it such by legislative fiat, because it is a calling and they have said that you cannot take principles applicable to three learned professions and apply these principles to the practice of optometry because it is not a learned profession, it is a skilled art. Therefore professional rules have no application.

This is the fitting of eyeglasses, this is a mechanical process.

They point out optometrists cannot and should not ever treat, examine an eye in sickness or in health. It is not his field, it has nothing to do with it. This act attempts to give them this right.

Then, the act does this: The act says that being a profession, which the court says it is not, a corporation cannot hire these gentlemen in their establishment because this is a corporate practice of optometry. This has been litigated in this court, and this jurisdiction, and in our district court and in our court of appeals in the Silver v. Lansburg, which is cited in my little memorandum and which I hope you gentlemen will read.

It is very clear, and this is litigation among optometrists, just as this other litigation these gentlemen were describing to you was litigation among optometrists trying, as they call it, to have the courts declare them to be a learned profession, so an optometrist cannot work for Sears and Roebuck, he cannot work for Lansburgh's, but the courts have said that he has a right to do this because it is a calling and you cannot forbid him from doing it.

So you are getting into serious constitutional areas when you attempt to take a calling and say it is a profession, and then regulate it as if it were a profession.

Now, gentlemen, this is what this act does and our courts have said, the Silver case is still the law, that you cannot do this.

And the gentleman from Tennessee and the gentleman, I think, from Texas, have made this statement, I think it is very interesting, they want optometrists to be on the same plane as an ophthalmologist. This is the key to the whole picture.

Tennessee has rejected this, and this gentleman's own State in a very late decision, we talk about archaic, here is the State, here is the case, may it please the court-sorry, may it please the gentlemen of the committee, American Chemical Corporation v. Sykes (391 Southwest 2d 643), decided by the highest court of Tennessee on June 2, 1965. Now, in this case the optometrist did what he wanted to do. He went into a court, qualified as an optometrist, and testified that acid spilled in the eye of a patient caused blindness, and based on that testimony which was contrary to the testimony of an ophthalmologist, the district court at the lower level affirmed the compensation award based on this so-called expert testimony of an optometrist.

Here is what the highest court in Tennessee said:

The trial court erred in awarding the claimant workmen's compensation benefits for the loss of vision in his right eye. The evidence failed to establish that there was a causal connection bet een the splashing of acid into the eye while he was at work and the loss of vision. The complainant consulted an optometrist 15 minutes after the acid splashed in his eye. The optometrist's examination disclosed a mild conjunctivitis, a reddening of the blood veins and a 2400 vision in his right The optometrist testified that his blindness came from the acid in his eye. The ophthalmologist testified to the contrary, giving medical reasons therefor. However, the court followed the optometrist.

eye.

In reversing, the highest court of Tennessee said this:

An optometrist's training is in a field of measuring the powers of vision and fitting the lenses for correction thereof, and does not qualify him as a medical expert in the field of diseases of the eye. Therefore the testimony of the optometrist who was a witness for the claimant was of no more probative value in determining the causal connection between the accident and claimant's loss of vision than the claimant himself.

Now this act attempts in the sections, to reverse the decisions. However, the court of appeals and the Supreme Court of the United States have ruled precisely in the same manner.

In my memorandum I have pointed out to you that years ago, this is an eye case, and it is this point, Judge Taft, before he became

President and subsequently, Supreme Court Justice of the United States, wrote the famous landmark opinion of Ewing v. Goode, 78 F. 2d. 442 (1897). That was a glaucoma case where a doctor was sued on the theory that his treatment had caused the loss of sight in the eye. There was no medical testimony in that case substantiating the complainant's claim.

Judge Taft said that in this field of treatment of the eye, in the eye field there is no other guide but medical testimony, no other guide.

Now that decision was rendered a long time ago, but our court of appeals has adopted this opinion, I have given you four cases from 1965 on back where they relied on Ewing v. Goode, so that this-the optometrist is not an expert.

May it please the committee, you cannot make them one by just saying he is, by a legislative fiat. I don't think the court will accept this.

Now, our position on behalf of the medical society I think is a simple one, I am not going to read my statement, I am about finished, may it please you gentlemen.

Regulations, for example, take the State of Virginia-the optometrists tried to do in the State of Virginia precisely what they are trying to do before this committee; they tried to have their profession called a learned profession, and we see the same language in the beginning of that act as we see here coming from the American Optometric Association; optometry is a profession. But, the act stopped there.

The Virginia act permits advertising, permits commercial hiring of optometrists, and it does not give them the things they ask for in this act.

Now, I want to go into this antidiscrimination matter.

Oh, by the way, I might tell the court that the very latest decision

Mr. SISK. This is a legislative committee.

I appreciate the gentleman's remarks, he is testifying as a fine lawyer, but if he will just stick to the bill here under consideration and complete his statement as quickly as possible, we would appreciate it.

Mr. MAGEE. Yes, sir. I merely want to refer to this matter of whether or not opticians can fit contact lenses under the direction of a physician, which has been litigated in Mississippi and recently decided in the case reported in the State Board of Optometry v. Charles Chester, 169 Southern Reporter 468, argued twice in the Court of Appeals of Mississippi, and here is what they said:

This court cited with approval High v. Ridgeway's Opticians, 129 Southeast Second 301, 1963, and states that the optician fitting the contact lenses under the doctor's prescription amounted to no more than a mechanical adjustment and he is practicing neither optometry nor medicine when he does this.

You gentlemen asked questions in regard to the antidiscrimination provisions in the act which we have recommended be deleted.

It want to leave with the committee an exhibit. This is an exhibit emanating from the optometrists. It came about in this fashion, I will summarize briefly what happened.

The optometrists were unable to get a provision in the Virginia bill providing against discrimination. The optometrists went to the attorney general of Virginia and the attorney general of Virginia