Roschen v. Ward Kresge Co v. Same, s. 667
Decision Date | 22 April 1929 |
Docket Number | 668,Nos. 667,s. 667 |
Citation | 49 S.Ct. 336,73 L.Ed. 722,279 U.S. 337 |
Parties | ROSCHEN v. WARD, Atty. Gen. of New York, et al. S. S. KRESGE CO. v. SAME |
Court | U.S. Supreme Court |
Mr. Walter N. Seligsberg, of New York City, for appellants.
These are suits brought by dealers in eyeglasses for an injunction prohibiting the enforcement of chapter 379 of the New York Laws of 1928, which amends the Education Law (Consol. Laws, c. 16) by inserting two sections, of which the material portion makes it unlawful to sell at retail in any store or established place of business 'any spectacles, eyeglasses, or lenses for the correction of vision, unless a duly licensed physician or duly qualified optometrist, certified under this article, be in charge of and personal attendance at the booth, counter or place, where such articles are sold in such store or established place of business.' The complainants moved for a preliminary injunction, a statutory court of three judges was convened and after a hearing the injunction was refused and the bills were dismissed on the ground that no cause of action was shown. 29 F.(2d) 762.
The complainants sell only ordinary spectacles with convex spherical lens, which merely magnify and which it is said can do no harm. The customers select for themselves without being examined and buy glasses for a relatively small sum. It is said that the cost of employing an optometrist would make the complainants' business impossible, and that in the common case of eyes only grown weaker by age the requirement is unreasonable. But the argument most pressed is that the statute does not provide for an examination by the optometrist in charge of the counter. This as it is presented seems to us a perversion of the act. When the statute requires a physician or optometrist to be in charge of the place of sale in personal attendance at it, obviously it means in charge of it by reason of and in the exercise of his professional capacity. If we assume that an examination of the eye is not required in every case it plainly is the duty of the specialist to make up his mind whether one is necessary and, if he thinks it necessary, to make it. We agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean. Moreover, as pointed out below, wherever the requirements of the act stop,...
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