payment within six months after legal service of a copy of the decree herein of said sum of $278.13, with interest at the rate of six per cent. per annum from the date of the service of a copy of such decree, and with any other lawful charges that may accrue by virtue of the provisions of section 3262 of the Compiled Laws of Utah of 1907." A decree or judgment was entered by the court that the plaintiff "have judgment as prayed for in his complaint against the defendant quieting the title of the said plaintiff to all of the property described in its complaint, against all claims, pretensions, or demands of the said defendant, on condition, however, that if the defendant shall pay or cause to be paid within six months after service or notice of the entry of the decree the sum of $278.13, with interest thereon, then, upon such payment, the defendant will be entitled to a decree of this court that he is the owner of and entitled to the possession of the property hereinafter described, and quieting his said title thereto against all claims whatsoever of the plaintiff, but that if the payment of said sum or sums be not paid as herein provided, then the defendant shall stand barred and foreclosed of any and all interest whatsoever in said property." From the judgment so entered, the defendant has prosecuted this appeal.

We are of the opinion that the judgment is not responsive to, and is not supported by, the findings. The judgment was evidently entered, and is defended, on the theory that, in equity, the defendant was not entitled to the relief quieting the title of the property in him until he himself did equity by paying the taxes, together with legal interest. Conceding that the court, under circumstances, could properly so have withheld such relief from the defendant, yet, upon the findings, we find no basis for a judgment in favor of the plaintiff quieting the title of the property in it. No finding is made by the court showing that the plaintiff had title, or right of posession, or that it had acquired or held any right, title, or interest in or to the property, except that it paid the taxes from 1895 to 1906, and that such payments by plaintiff "tended to preserve the property for the defendant."

No finding is made that the property was sold or purchased for nonpayment of taxes, or that any certificate of sale or tax deed was held by plaintiff or was issued, or that the plaintiff otherwise obtained or acquired any title to, or estate in, the property, or any right to possess it. To the contrary, the court expressly found "that the plaintiff has no other right, title, estate or interest in, or claim to the property in question than that set forth in these findings growing out of the payment of the taxes aforesaid." Notwithstanding such findings, the court nevertheless entered a decree that, if the defendant failed to repay the amount of the taxes within six months, "the title of the property should be quieted in the plaintiff against all claims and demands of the defendant," and that the defendant be barred and foreclosed of any and all interest whatsoever in and to the property. There is, therefore, no finding to support the judg ment that the plaintiff is the owner or entitled to the possession of the property, or to a "judgment as prayed for in its complaint" quieting the title in itself and decreeing that the defendant has no interest or estate therein. Neither do we find anything in the evidence to justify a finding that the plaintiff had obtained any such title, or right of possession, or other interest, except, as found by the court, an equitable lien for taxes paid. Now, assuming that the court, on equitable principles, could have refused to declare the defendant vested with fee-simple title as against plaintiff's claim or lien, until the defendant repaid the taxes, still, there being no finding and no evidence to show that the plaintiff had title or was the owner or entitled to the possession of the property, and it being found and shown by the evidence that it had no interest in or to the property except an equitable lien for the payment of the taxes, the court was not justified in rendering a judgment that it be came the owner and was entitled to the possession of the property upon the defendant's mere default to pay the taxes as required by the court. The court could not thus divest the defendant of the fee-simple title found to be in him, and vest the plaintiff with title found not to be in it. Under the

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circumstances, and in view of the findings, we think the judgment which ought to have been entered by the court is that the defendant is the owner of the property subject to plaintiff's claim, and that upon the defendant's default to pay the taxes and discharge the lien as required by the court, to order the property sold under the direction of the court, and the proceeds of sale applied in payment of plaintiff's claim, and the surplus, if any, yielded to the defendant.

2, 3

We think that the contention made by the appellant that the court's findings in respect of the plaintiff's payment of taxes, and declaring it entitled to an equitable lien there for on the property, were not within the issues, is not well founded. Nor, in view of the record, is the further claim tenable, which is made by the appellant, that if the plaintiff be given a lien for the payment of the taxes it ought to be charged with the reasonable rents and profits derived by it from the property. Such a claim is urged for the first time in this court. No such issue was tendered, and no such claim was made in the court below. It is not shown what the rents and profits were, nor was there any evidence offered or introduced on such a subject. This case has been tried twice, and has twice been here on appeal. We see no merit to this appeal, except the question relating to the form of the judgment as rendered and entered. We think this litigation ought to end, and see no good purpose in remanding the case for a new trial. It is therefore adjudged by this court that the judgment of the court below as entered be set aside, and the case remanded to the trial court with directions to enter a judgment that the defendant is the owner and entitled to the possession of the property subject to plaintiff's lien for the payment of the taxes amounting to $278.13, together with accrued interest and costs, that the defendant be required to pay the same to the plaintiff, or to the clerk of the district court for its use, within thirty days after the entry of such judgment, and in default thereof the property be sold under the order and direction of the court, and the proceeds of sale applied, first,

to the costs of sale, then in payment of plaintiff's claim together with accrued interest and costs, and the surplus, if any, yielded to the defendant; and that the defendant be given the right of redemption as in case of sales under execution. Costs to appellant.

It is so ordered.

FRICK and MCCARTY, JJ., concur.

STATE ex rel. HALLEN v. UTAH STATE BOARD

OF EXAMINERS IN OPTOMETRY et al.

No. 2111. Decided April 2, 1910 (108 Pac. 347).

1. PHYSICIANS AND SURGEONS-OPTOMETRY-REGULATION. The Legislature has power to define and regulate the practice of optometry, and to that end to prescribe reasonable qualifications to be possessed by those who desire to engage in the practice, and to provide reasonable means by which such qualifications may be ascertained, in order to authorize those qualified to practice, and to prevent those who are not from doing so. (Page 343.)

2. PHYSICIANS AND SURGEONS-"OPTOMETRY"-CERTIFICATES TO PRACTICE STATUTES. Comp. Laws 1907, regulating the practice of optometry in section 1686x1, defines optometry as the employment of "subjective and objective" mechanical means to determine the accommodative and refractive conditions of the eye, and in the three preceding sections created a board of examiners, defining to what extent applicants for a license to practice shall be examined before license, with a proviso that every person then engaged in the practice of optometry shall file an affidavit thereof, and satisfactory evidence with said board, who shall, in consideration of three dollars, issue to him a certificate of registration. Section 1686x5 provides that a failure to apply in time for a certificate shall be a waiver of right thereto. The board furnished blanks to be filled in by applicants under the proviso, stating their names, addresses, length of time and where engaged in refracting. Held, that where an applicant complied with the terms of the proviso, filled in the blanks correctly, and filed an affidavit under oath, he was entited to a certificate, though he used only the subjective method, since while it was the intention to require all those who had no practice to take an examination as to both methods, one method was sufficient under the proviso, as otherwise section 1686x5 would be inoperative. (Page 344.)

3. PHYSICIANS AND SURGEONS-CERTIFICATE TO PRACTICE-OPTOMETRY -REVOCATION OF LICENSE. Under such facts the board could not refuse to give him a certificate because of incompetency, under the power given to the board to revoke certificates for gross incompetency, since revocation therefor could be had only on charges and hearing thereon. (Page 344.)

Appeal from District Court, Third District; Hon. Geo. G. Armstrong, Judge.

Proceedings by the State, on the relation of Percy Hallen, against the Utah State Board of Examiners in Optometry and its members.

Judgment for relator. The board appeals.

AFFIRMED.

Thurman, Wedgwood & Irvine for appellant.

E. A. Walton for respondent.

FRICK, J.

This proceeding was instituted in the district court of Salt Lake County to compel the Utah State Board of Examiners in Optometry, the appellant in this court, to issue a certificate called a "certificate of registration" to the petitioner, who is respondent here, to authorize him to practice optometry, in accordance with the provisions of a certain act passed in 1907 (Laws 1907, p. 87), and which act is now included in the Compiled Laws of 1907, constituting sections 1686x to 1686x12 thereof.

The material parts of the act on which the petition of respondent is based are, in substance, as follows: Section 1686x provides that it shall be unlawful to practice optome try in the State of Utah without obtaining the certificate provided for in the act. Section 1686x1 defines what shall constitute the practice of optometry in the following language: "The practice of optometry is the employment of subjective and objective mechanical means to determine the