Bedno v. Fast
| Decision Date | 03 March 1959 |
| Parties | Anna BEDNO et al., co-partners d/b/a King Optical Co., Appellants, v. Dan B. FAST et al., as the Wisconsin Board of Examiners in Optometry, et al., Respondents. |
| Court | Wisconsin Supreme Court |
Padway, Goldberg & Previant, Milwaukee, A. G. Goldberg, Saul Cooper, Milwaukee, of counsel, for appellants.
Stewart G. Honeck, Atty. Gen., Warren H. Resh, John H. Bowers, Asst. Attys. Gen., William J. McCauley, Dist. Atty., Hugh O'Connell, Special Asst. Dist. Atty., Milwaukee, for respondent.
The statutes involved are:
Sec. 153.10 'It shall be unlawful for any person to advertise either directly or indirectly by any means whatsoever any definite or indefinite price or credit terms on lenses, frames, complete glasses or any optometric services; to advertise in any manner that will tend to mislead or deceive the public; to solicit optometric patronage by advertising that he or some other person or group of persons possess superior qualifications or are best trained to perform the service; or to render any optometric service pursuant to such advertising.'
None of the facts are in dispute, it being stipulated by the parties that the allegations contained in the complaint and answer, together with the exhibits attached thereto, constitute all the evidence in the case.
Plaintiffs are manufacturers and merchants of optical goods. They engage in the practice of optical dispensing, which consists of taking facial measurements, processing, fitting and adjusting mountings, frames and lenses in the filling of prescriptions. They duplicate, replace and reproduce such devices without prescription where no optometrical service is required. Plaintiffs own and operate a factory at Chicago for the manufacturing and processing of optical goods, as well as branches in numerous cities of the United States and Canada for the dispensing of such goods. The orders taken from customers at these branches, including the Milwaukee office, and sent to the Chicago factory to be filled according to the prescriptions. The eyeglasses or lenses are returned to the branch office where the frames are fitted to the customer's face.
All advertising contracts are made in Chicago and advertisements are placed in newspapers from the Chicago office. All accounting and banking activities incidental to the operation of the branch offices are carried on in Chicago. Annual sales of the business, between the Chicago office and the various branches, exceed two and one-half million dollars.
A one-price policy is maintained by the plaintiffs. Single-vision eyeglasses are $9.98; bifocal glasses are $4.98 additional. These prices include any correction, size, style, shape or color of lenses or frames.
On opening their branch in Milwaukee on September 16, 1957, plaintiffs placed advertisements in the local newspapers containing statements such as, They have also published and circulated matter which advertises that glasses may be obtained for $9.98 complete with frames and lenses. There is no allegation in the pleadings that any of the statements contained in said advertisements are false, misleading, fraudulent, deceiving, or for the purpose of causing misunderstanding. It is admitted that such statements are full, fair, complete and truthful, and all articles so advertised are actually of the type, kind, quality and description as set forth in the advertisements.
Three questions are presented on appeal, the first of which is:
Are secs. 153.10 and 153.11, Stats., which prohibit the advertising of prices of complete glasses, applicable to plaintiffs, who do not practice optometry, or to their price advertising?
As to the purposes of ch. 153, the legislature declared in sec. 153.12:
'This chapter is passed in the interests of public health, safety and welfare and its provisions shall be liberally construed to carry out its objects and purposes.'
Sec. 153.10, Stats. must therefore be read and interpreted with those purposes in mind.
The prohibition of price advertising of glasses is directed to 'any person.' Plaintiffs argue that ch. 153 is entitled 'Optometry' and that analysis of the chapter as a whole, as well as its legislative history, indicates that sec. 153.10 is intended to be limited in its application to persons practicing optometry. We cannot agree. As observed by the learned trial court, the words 'any person' are clear and unambiguous and there is no room for construction. See Callaghan's Wisconsin Digest, Statutes, sec. 174.
The fact that the prohibition applies to any price advertising on lenses, frames, complete glasses 'on any optometric services' does not result in the modification of the language preceding the conjunction 'or.' An optician, while not required by the law to be licensed, dispenses lenses, frames and complete glasses.
Considered in the light of the purpose of the statute, we can only conclude that sec. 153.10 applies to opticians as well as optometrists. The optometrist is one who measures defects of the eye and applies the principles of optics to prescribe corrections in vision. The optician's business is that of grinding lenses according to the prescription and fitting the completed glasses to the face of the customer. It can hardly be argued that the regulation of optometry--to insure that persons' eyes are properly tested and their individual needs properly prescribed for--is not in the interest of public health. But to permit such a prescription to be translated into eyeglasses which are the product of poor material and craftsmanship by opticians interested in underselling their competitors, is to defeat the purpose of the statute. If the public is not protected from unscrupulous practices by both optometrist and optician, it is not protected at all.
The legislative history of sec. 153.10 () shows that it was drafted by an attorney for the department of agriculture and presented by a special committee representing the state and the optometric association. It would be entirely unreasonable to presume that the members of such a committee would sponsor a bill which would have the effect of prohibiting price advertising of glasses by optometrists but not by opticians.
Retail stores which are permitted to sell eyeglasses of a certain type incidental to their other business are prohibited by sec. 153.02 from advertising the same, except by price marking on the glasses. Is the purpose of the chapter served by prohibiting advertising by optometrists and dime stores, for instance, but not by opticians?
We must hold that the statute means just what it says and applies to plaintiffs as 'persons' engaging in advertising relating to the prices of 'lenses, frames, complete glasses.'
Plaintiffs argue that the advertising in...
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