Mann v. North Carolina State Board of Examiners in Optometry

Beogden, J. C. S., 6691, Michie’s, provides that “every person, before beginning to practice optometry in this State after the passage of this article, shall pass an examination before the board of examiners,” etc. The plaintiff from 1913 to 1931 discontinued the practice of optometry, engaged in other business, and failed and omitted to pay the fees required by law. Did such conduct on his part amount to an abandonment of his license duly issued or of his right to reenter the profession without examination? It has been generally held that mere lapse of time or other delay in asserting a claim unaccompanied by acts inconsistent with his rights, will not amount to a waiver or abandonment of such right or claim. Faw v. Whittington, 12 N. C., 321; R. R. v. McGuire, 171 N. C., 211, 88 S. E., 337; Harper v. Battle, 180 N. C., 375, 104 S. E., 658. The facts found by the trial judge undoubtedly support the conclusion of abandonment except for other provisions of the statute. C. S., 6696, provides that if an optometrist fails to pay the annual tax “his certificate may be revoked by the examiners upon twenty days notice of the time and place of considering such revocation. But no license shall be revoked for nonpayment if the person so notified shall pay, before or at the time of consideration, his fee and such penalty imposed by the board.” Consequently, it is obvious that the remedy prescribed by law for failure to pay the tax is “revocation” of the license or certificate. Moreover, such revocation of the certificate is the only method prescribed by statute for foreclosing the right to practice the profession after an optometrist has been admitted to such practice. This was never done. It was held in Committee on Grievances of Bar Association v. Strickland, 200 N. C., 630, 158 S. E., 110, that “the courts everywhere are in accord upon the proposition that if a valid statutory method of determining a disputed question has been established, such remedy so provided is exclusive and must be first resorted to and in the manner specified therein.” Therefore, as the exclusive statutory method has not been invoked, the plaintiff is still an optometrist and has the right to receive the certificate upon the payment of the fees and penalty prescribed by C. S., 6696. See Vineberg v. Day, 152 N. C., 355. Reversed.