Tennessee Board of Dispensing Opticians v. Roy H. Park, Broadcasting of Tennessee, Inc.

NEARN, Judge. This is a suit brought in the Chancery Court of Hamilton County by the Tennessee Board of Dispensing Opticians against; (1) Roy H. Park Broadcasting of Tennessee, Inc., owners of WDEF Television Station in Chattanooga; (2) Times Printing Company, which publishes The Chattanooga Times newspaper; (3) Optical Center of Rossville, Inc., a Georgia corporation and (4) Eyear Optical, Inc., a Georgia corporation. The suit was brought to enjoin the Optical Center of Rossville, Inc. and Eyear Optical, Inc. from advertising over Tennessee based media and to also enjoin The Chattanooga Times and WDEF Television Station from carrying advertisements of dispensing opticians. [580] Service of process was had upon the Georgia defendants by means of T.C.A. § 20-235. The complaint charges all the defendants with violation of T.C.A. § 63-1404(g). By appropriate pleadings the Georgia corporations (a) deny that provisions of T.C.A. § 20-235 are applicable to them and therefore, they are not properly before the Court and (b) deny that provisions of T. C.A. § 63-1401 et seq. are applicable to them as they are not dispensing opticians within the purview of the statute. The news media also deny that they are within the purview of the statute. The facts of the case, which were stipulated by the parties, were that: A. The Optical Center of Rossville, Inc. and Eyear Optical, Inc. entered into contracts which resulted in commercials for optical products being carried by WDEF Television Station which station was said to have had a substantial number of viewers in both Tennessee and Georgia. B. The Optical Center of Rossville, Inc. entered into contracts which resulted in newspaper advertisements for optical products being carried in The Chattanooga Times which was said to have had a substantial number of readers and subscribers in both Tennessee and Georgia. C. That there was no evidence as to where the contracts were made. D. That the Optical Center of Ross-ville, Inc. and Eyear Optical, Inc. were in full compliance with the Georgia law but if they were operating in Tennessee as a Tennessee corporation they would be subject to the provision of T.C.A. § 63-1401 et seq. The Chancellor found that T.C.A. § 63-MO 1 et seq. was limited in its application to dispensing opticians operating within the State of Tennessee and that defendant foreign corporations were not subject to service of process under the Tennessee Long Arm Statute. He further held that the statutes were not applicable to the news media. Therefore, he dismissed the complaint. The plaintiff Board has appealed this decision alleging three Assignments of Error which are, the Court erred in holding that: (1) The Chattanooga Times and WDEF-TV were not subject to the prohibitions of T.C.A. § 63-1401 et seq., (2) the advertising of optical goods via Tennessee media by Georgia corporations does not afford a basis of jurisdiction under T.C.A. § 20-235 for purposes of enjoining the Georgia corporations from illegally advertising and (3) assuming a jurisdictional basis exists, Georgia corporations cannot be enjoined from advertising optical goods in Tennessee media because said corporations are not subject to the provisions of T.C.A. § 63-1401 et seq. The alleged errors will not be treated in this Opinion seriatim. T.C.A. § 63-1401 authorizes the Board to “establish a code of ethics and standards of practice for dispensing opticians in Tennessee . . .”. T.C.A. § 63-1404 authorizes the Board to suspend “or to revoke any certificate to practice as a dispensing optician in the state of Tennessee . . for violation of certain rules including (g), [To] “advertise by the use of handbills, circulars, posters, window displays, neon signs, radio, television or newspaper.” T.C.A. § 63-1410 in the first paragraph provides for suspension or revocation of the license of dispensing opticians for violation of the provisions of the Chapter. The second paragraph empowers the Board to seek injunctive relief in the proper Court for continued violations. It is evident that the purpose of the statute is to regulate the activities of [581] those engaged within this State in the business of dispensing opticals. Appellate Courts, on occasions, have been criticized for using such words as “evident” when interpreting statutes. Legal wags have been known to say such words are a substitute for logical reasoning. However, we think the word “evident” is here appropriate for we do not know how, or under what authority, the Tennessee Board could regulate the activities of citizens of Georgia in that State or citizens of any other state except this one. As to citizens of this State its application is to “dispensing opticians” and the Chapter does not either directly or inferentially attempt to regulate the activities of news media of this State. The business end of its regulatory rifle is aimed squarely at dispensing opticians dispensing opticals in this State and none other. From the stipulations filed in this cause it must be logically concluded that neither of the Georgia corporations are dispensing any opticals within this State. The issue of whether or not the Georgia defendants are properly before the Court, by virtue of this Long Arm Statute T.C.A. § 20-235, is intellectually challenging, but whether or not they are properly before the Court need not be answered, for in either event, we hold that the provisions of Chapter 98 of Public Acts of 1955 are applicable to only those persons dispensing opticals in the State of Tennessee. The Georgia corporations are not persons dispensing opticals in the State of Tennessee. The news media defendants are not dispensing opticals in this State or any other and they are therefore, not included in any authority granted the Board. The Board has no jurisdiction or authority in fact over the Georgia corporations. We therefore hold that the Board has exceeded the authority given it under the said Chapter by seeking injunctive relief. In this instance it was without authority to do so. The original complaint must fail. All Assignments of Error are overruled and the Chancellor is affirmed. Costs of the appeal are adjudged against the appellant. CARNEY, P. J., concurs.