The optometrist licensed to practice in the District of Columbia is expressly prohibited from using any title indicating that he is engaged in the practice of medicine or the treatment of the eye. Physicians and surgeons are exempted from the provisions of the act, and may practice optometry without being licensed thereunder (secs. 279 and 280, title 20, D. C. Code (1929)).

Furthermore, in the District of Columbia many of the licensed optometrists advertise in the press and in the telephone directory. They maintain store fronts with attractively decorated display windows. Electric signs are not

uncommon.

The facts in evidence justify the conclusion of the court of appeals of Maryland in the case of Dvorine v. Castelberg Corp. (170 Md. 661, 669), and the court here finds that optometry "is essentially a mechanical art, which requires skill, manual dexterity, and a knowledge of the use and application of certain mechanical instruments and appliances designed to measure and record the errors and deviations from the normal which may be found in the human eye, rather than the knowledge and learning appropriate to professions or callings which deal with causes and conduct rather than with conditions and effects. It is in its nature empirical rather than learned."

The court further finds that the defendants, Lansburgh & Bro., and Buhl Optical Co., are not engaged in the practice of optometry in the District of Columbia contrary to the provisions of the act entitled "An act to regulate the practice of optometry in the District of Columbia," approved May 28, 1924.

There is sharp conflict of authority. The cases are reviewed in Dvorine v. Castelberg Corps., supra; State ex rel. Attorney General v. Gus Blass Co. (1938 Ark. 1159); and State v. Gate Optical Co. et al. (339 Mo. 427). See also Georgia Board of Optometry v. Friedman (183 Ga. 669).

The primary purpose of the Code, title 20, sections 261 et seq., is the protection of public health and not to further personal interests of optometrists by protecting the calling itself.

The amended complaint must be dismissed, and it is so ordered.

Dr. TENEROWICZ. Dr. Kanstoroom, when you were making a statement yesterday and being questioned by Mr. Kaufmann something was said about $200. You said that it was to be used as part of a fund to be paid for drafting a new bill and in connection with other work here at the Capitol.

Dr. KANSTOROOM. Do you inquire as to the purpose of it?

Dr. TENEROWICZ. Yes.

Dr. KANSTOROOM. The alleged purpose of the money was to create a slush fund to be used here on the hill in connection with optometry legislation.

Dr. TENEROWICZ. Was it in fact a slush fund?

Dr. KANSTOROOM. You must take my statement and then decide from it, make your own interpretation. As I have said, though, many times, I did not contribute to that fund. I left that meeting and did not return. I do not know whether they gathered the slush fund or not.

Dr. TENEROWICZ. What do you mean by a "slush fund?"

Dr. KANSTOROOM. Mr. Chairman, my experience on the hill here is very limited. I do not know the proper parliamentary procedure or the routine by which things can be accomplished or allegedly accomplished. My interpretation of the slush fund was that someone in the "know" would intercede here and have a bill of his own introduced, not for the purpose of accomplishing it, because it was too far-fetched, but for the purpose of getting a checkmate to H. R. 278. Dr. TENEROWICZ. That is a dangerous statement, I would say. Dr. KANSTOROOM. I make it only because I was in a room where it was said that was the purpose of the contribution. At that time they stated they wanted everybody to chip in and pay a moral obligation to

Dr. TENEROWICZ. Let us go to the bottom of it. I should like to have dates, if you can give them.

Dr. KANSTOROOM. I do not have the dates of those meetings.

Dr. TENEROWICZ. The committee would like to know just what this is all about. Am I to understand that a number of optometrists or doctors got together?

Dr. KANSTOROCM. No. Mr. Kaufmann was the chairman of that meeting. He is a layman employing registered optometrists.

Dr. TENEROWICZ. When this meeting was held between you, somebody else, and Mr. Cecil Kaufmann, and this $200 was allegedly mentioned, did Mr. Kaufmann at that time tell you for what purpose he wanted the $200?

Dr. KANSTOROOM. It was explained to me by Mr. Kaufmann at that time that they wanted part of that money to chip in to defray the expenses of Lyon & Lyon and their associates, who are lawyers, in connection with the Silver v. Lansburgh & Brother case, a decision in which case has just been handed down. The remainder of the money was to be spent effectively, in an effective way, to create a new optometry bill. The inference was I have nothing concrete and absolutely definite about this-that this was to be a slush fund.

Dr. TENEROWICZ. In other words, you want the committee to understand that a part of the money in question was to be used for the payment of attorneys and the remainder was to be paid in connection with the drafting of a new optometry bill; is that right? Dr. KANSTOROOM. Yes; that is right?

Dr. TENEROWICZ. Why did you refuse to contribute; did you give Mr. Kaufmann any reason for not putting up the $200?

Dr. KANSTOROOM. I did not feel that I, a registered optometrist, although interested in all legislation concerning optometry, was morally obligated to help a part of the cost of the Lansburgh case, which cost ran to between $3,000 and $3,500.

At that time Dr. Stapsy said that unless that group contributed a portion of the $1,500 necessary to print a brief and expedite and get a decision, he was going to drop the case.

Dr. TENEROWICZ. Do you know any other doctor or doctors or optometrist or optometrists who were approached in the same way you were?

Dr. KANSTOROOM. Mr. Selinger, an optometrist, sat in that same meeting, and

Dr. TENEROWICZ. Am I to understand that you were not the only one at that meeting with Mr. Kaufmann?

Dr. KANSTOROOM. I was not.

meeting.

There were 8 or 10 others at the

Dr. TENEROWICZ. Were they all doctors of optometry?

Dr. KANSTOROOM. No. There were three or four lawyers; there were probably two men who were not registered optometrists but who were hiring registered optometrists, and there were probably three registered optometrists.

Dr. TENEROWICZ. Referring to this assessment of $200 each, do you know to whom that assessment was to be applied; whether to all the doctors of optometry or only to certain ones?

Dr. KANSTOROOM. It was to be applied against those sitting at the time in the room. They were asked to contribute their voluntary share.

Following that particular meeting, at which I protested any contribution to defend the case against Lansburgh, I went back to my store, consulted my store with reference to a contribution, and the store went on record that it would not permit or sanction my giving or contributing any money in my own name or in the name of the store for any such fund.

Mr. LYON. Mr. Cecil Kaufmann, who was chairman of that meeting, will be here in a few minutes; and I ask the privilege of having this testimony of Dr. Kanstoroom, with reference to that meeting, read by the reporter so that Mr. Kaufmann may have a chance to refute it.

I was present at those meetings, and I should like to clarify my position in the matter and to refute the statements of Dr. Kanstoroom.

In the first place, I should like to state my position in the matterwhom I represent. As you probably know, several individual optometrists some years ago filed suit against Lansburgh & Bro., a corporation, and the Buhl Optical Co., a corporation, attempting to enjoin them from the corporate practice of optometry. To make clear the position of the two corporations, I will say that Lansburgh & Bro. leased to the Buhl Co. the exclusive privilege of conducting an optical department in its store. The Buhl Co. employed the services of licensed optometrists.

This case was prosecuted for several years, and there came a time when my client thought that because it was bearing the burden of this litigation from the beginning, it would be only fair that other concerns similarly situated should contribute to the cost of that litigation. It was felt that the other corporations, such as Hecht's, Woodward & Lothrop, Kann's, and others, having optical departments, would suffer if this litigation went against Lansburgh & Bro. In other words, this was looked upon as a common battle, and it was felt by the defendants in this suit that they should not bear the total cost of the litigation.

So that this meeting was held in the office of Mr. Kaufmann for two purposes. Primarily it was to raise contributions to take care of an appeal in the event one proved to be necessary. At that time the case was still pending in the District Court of the United States for the District of Columbia. It had been argued and submitted to Mr. Justice Luhring, but no decision had been handed down. It was mutually agreed between counsel for both parties that in the event the plaintiffs or individual optometrists lost or if the defendants, Lansburgh & Bro. and others, lost, there would be an appeal. Anticipating the definite necessity of an appeal in the case, it was thought that some mutual arrangement should be made. My client thought that some arrangement should be made to bear mutually the burden of this appeal. That was discussed at the meeting to which Dr. Kanstoroom has referred, and the parties there, numbering at least 8, representing various corporations or corporation departments or jewelry stores, who were in a similar position, were called upon to bear a pro rata share of the burden of an appeal, including the representation of that group by counsel and the cost of printing briefs and the record.

At that time it was brought to the attention of the group that H. R. 278 had been introduced by Mr. Smith. of Virginia. It was felt that, since the bill had not been introduced by request, as shown

on the face of the bill, something had to be done by way of fighting this litigation under existing law so as to prevent the passage of H. R. 278. The group delegated three counsel to make a careful study of H. R. 278 and to draw up what we termed a counter bill, which would include all the helpful things in H. R. 278 and exclude all the unhelpful things in it, which were detrimental, as we believed, to the public. Three counsel were designated to prepare a counter bill, which is H. R. 5238.

This money to which Dr. Kanstoroom erroneously refers as a slush fund, which infers immoral practices on the part of this group and immoral intentions, was to be used to pay three counsel for the preparation of H. R. 5238. The money was to stop there. This money was to be paid to the three counsel for preparing H. R. 5238 and submitting it to the corporation counsel of the District of Columbia with a discussion, with a view to having it ultimately introduced in the House and become law.

I do resent very positively the inference by Dr. Kanstoroom that there was any intention on the part of that group to use that fund to obtain the passage of this bill in Congress. That is an unjustifiable reflection upon that group, upon the House of Representatives, upon the attorneys also, and I think it should be resented.

Dr. TENEROWICZ. Can you tell the committee the name of the contributors and the amounts they contributed?

Mr. LYON. I did not have anything to do with the financial end of this matter. I did not participate in that matter. Mr. Kaufmann, who was chairman of that meeting, is on his way over here, and he will have the records as to these contributions. Again, I am sure that Mr. Kaufmann will corroborate everything I have said here about this raising of a fund.

Dr. KANSTOROOM. The term "slush fund" is simply my designation; it is not something concrete. It is my interpretation of a fund that was discussed at the meeting held at that time.

I should like to have you, Mr. Chairman, ask Miss Tuck ferber, who runs the optical department at Hecht's, whether she is cognizant of the fact that there was in possession of a Miss Hutton, an employee of Mr. Kaufmann, last year, there has been during the last year or more, more than $800 held in escrow. Please ask the lady whether she knows that more than $800 has been held in escrow during the last year or more by a Miss Hutton, who is an employee of Mr. Kaufmann.

Dr. TENEROWICZ. We will call Miss Tuckferber.

Dr. KANSTOROOM. I want it understood correctly. This item of $1,500 is the one that was necessary, as it was said, to get a decision from Judge Luhring in the Silver v. Lansburgh case. It was by mutual agreement that the cost of that suit would be carried by the plaintiff and the defendant in the litigation suit. That would mean $750 each. You can readily see that such an amount left quite a surplus if they obligated themselves

Mr. LYON. Will you please repeat that; I did not understand.

Dr. KANSTOROOM. The item of $1,500 in question at that time was the amount necessary to print a brief that was necessary for Judge Luhring before he could hand down a decision in the case of Silver v. Lansburgh.

Mr. LYON. That is not correct. No printed briefs had to be printed for use of the judge in the District Court of the United States for the District of Columbia. That was in reference to the printing of a brief in the event an appeal was taken.

Dr. KANSTOROOM. The question of $1,500 presented itself at that meeting technically. I may be incorrect, but the amount was stated and our share our moral obligation, as they put it, as I rememberwas that we should put up one-half of that, or $750. That amount was to come from the group to help defray the expenses for Dr. Stapsy. That left $50 balance in the money Miss Hutton held in escrow that was contributed by other optical interests. Where did that $800 come from, and why was it? Why should it be held in escrow all that time by an employee of Mr. Kaufmann?

Dr. TENEROWICZ. You will have a chance to ask Miss Tuck ferber about that when she takes the stand.

Dr. KANSTOROOM. All right.

Will Mr. Brylawski testify today. I want to ask some questions in connection with the brief he submitted yesterday.

Mr. LYON. Because of the serious nature of the accusations impliedly made by Dr. Kanstoroom's testimony, I ask that Mr. Cecil Kaufmann, who is here now, will be allowed to speak at this time in connection with the statements of Dr. Kanstoroom. Because of the serious implications of those statements, I ask that the reporter read so that Mr. Kaufmann may hear the statements made by Mr. Kanstoroom this morning. Obviously, Mr. Kaufmann should have a chance to refute those statements.

Dr. TENEROWICZ. Dr. Kanstoroom, have you any other statement to make?

Dr. KANSTOROOM. No; I have finished.

Dr. TENEROWICZ. Then let us hear Mr. Kaufmann.

STATEMENT OF CECIL KAUFMANN

Mr. KAUFMANN. I should like to say at the outset that anything said may be distorted.

These accusations do not upset me at all. I know quite honestly what that meeting was for, and I know quite accurately what the fund was for, because I more or less acted, if you please, in the position of a judge advocate to decide whether these boys waging this war in behalf of so-called corporate practice would require assistance or whether they would not.

You must understand, sir, that all over these United States there is litigation of this character going on. I do not think it reduces itself to a local situation. It is national in scope. I think we first entered into difficulty 10 or 12 years ago. The State of Ohio optometrists tried to put through a law to put corporate practice out of business. Indiana, Illinois, Tennessee, Pennsylvania, Massachusetts, Maryland, New York, and Michigan' did likewise. Those are the more familiar ones, as I remember, in the last 10 or 12 years. In many instances the optometrists were successful in having themselves legislated in by using the law, in those instances where their educational background was not adequate to place them o nthat professional level with theology, medicine, and law, which level those professions have enjoyed for many, many years.