Bedno v. Fast

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtMARTIN
Citation6 Wis.2d 471,95 N.W.2d 396
PartiesAnna 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.
Decision Date03 March 1959

Page 396

95 N.W.2d 396
6 Wis.2d 471
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.
Supreme Court of Wisconsin.
March 3, 1959.

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.

MARTIN, Chief Justice.

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

Page 398

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.'

Sec. 153.11 'Any person not lawfully authorized to practice optometry, who shall practice optometry or shall hold himself out as a practitioner thereof, or who shall [6 Wis.2d 474] impersonate another practitioner or who shall violate any provisions of this chapter, or any rule or regulation made under authority thereof, shall be punished for the first offense by a fine not less than $50 nor more than $200, or by imprisonment for not more than 3 months, or both. And for a subsequent offense by a fine not less than $200 nor more than $500, or by imprisonment for not less than 3 nor more than 6 months, or both such fine and imprisonment.'

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.

[6 Wis.2d 475] 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, 'All singlevision glasses at one low price including frames and lenses. Bifocals, if desired, at small additional charge.' 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

Page 399

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 [6 Wis.2d 476] 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...

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8 practice notes
  • State v. Amoco Oil Co., No. 77-065
    • United States
    • United States State Supreme Court of Wisconsin
    • 27 Junio 1980
    ...grounds, 497 F.2d 687 (7th Cir. 1974); State v. Allied Chemical & Dye Corp., 9 Wis.2d 290, 295, 101 N.W.2d 133 (1960); Bedno v. Fast, 6 Wis.2d 471, 480, 95 N.W.2d 396 For a discussion of the doctrine of preemption and the FTCA, see Badal, Restrictive State Laws & The Federal Trade Commissio......
  • Head v. New Mexico Board of Examiners In Optometry, No. 392
    • United States
    • United States Supreme Court
    • 17 Junio 1963
    ...that suggestion. First, the remedial powers of the Trade Commission are only very rarely accorded preemptive effect, e.g., Bedno v. Fast, 6 Wis.2d 471, 95 N.W.2d 396. Second, broadcasters and publishers are expressly exempted from the criminal penalties against false and deceptive advertisi......
  • Maryland Bd. of Pharmacy v. Sav-A-Lot, Inc., SAV-A-LO
    • United States
    • Court of Appeals of Maryland
    • 31 Octubre 1973
    ...burden on interstate commerce and that it was in a field preempted by the Federal Communications Act. Page 131 In Bedno v. Fast, 6 Wis.2d 471, 95 N.W.2d 396 (1959), the court upheld the validity of a statute making it unlawful to advertise any definite or indefinite price or credit terms on......
  • State v. Interstate Blood Bank, Inc., Nos. S
    • United States
    • United States State Supreme Court of Wisconsin
    • 31 Octubre 1974
    ...S.Ct. 1861, 10 L.Ed.2d 1082; Huron Portland Cement Co. v. Detroit (1960), 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852; Bedno v. Fast (1959), 6 Wis.2d 471, 95 N.W.2d 396; Metropolitan Finance Corp. v. Matthews (1953), 265 Wis. 275, 61 N.W.2d 11 See: e.g., Chicago & N.W.R. Co. v. La Follette (1......
  • Request a trial to view additional results
8 cases
  • State v. Amoco Oil Co., No. 77-065
    • United States
    • United States State Supreme Court of Wisconsin
    • 27 Junio 1980
    ...grounds, 497 F.2d 687 (7th Cir. 1974); State v. Allied Chemical & Dye Corp., 9 Wis.2d 290, 295, 101 N.W.2d 133 (1960); Bedno v. Fast, 6 Wis.2d 471, 480, 95 N.W.2d 396 For a discussion of the doctrine of preemption and the FTCA, see Badal, Restrictive State Laws & The Federal Trade Commissio......
  • Head v. New Mexico Board of Examiners In Optometry, No. 392
    • United States
    • United States Supreme Court
    • 17 Junio 1963
    ...that suggestion. First, the remedial powers of the Trade Commission are only very rarely accorded preemptive effect, e.g., Bedno v. Fast, 6 Wis.2d 471, 95 N.W.2d 396. Second, broadcasters and publishers are expressly exempted from the criminal penalties against false and deceptive advertisi......
  • Maryland Bd. of Pharmacy v. Sav-A-Lot, Inc., SAV-A-LO
    • United States
    • Court of Appeals of Maryland
    • 31 Octubre 1973
    ...burden on interstate commerce and that it was in a field preempted by the Federal Communications Act. Page 131 In Bedno v. Fast, 6 Wis.2d 471, 95 N.W.2d 396 (1959), the court upheld the validity of a statute making it unlawful to advertise any definite or indefinite price or credit terms on......
  • State v. Interstate Blood Bank, Inc., Nos. S
    • United States
    • United States State Supreme Court of Wisconsin
    • 31 Octubre 1974
    ...S.Ct. 1861, 10 L.Ed.2d 1082; Huron Portland Cement Co. v. Detroit (1960), 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852; Bedno v. Fast (1959), 6 Wis.2d 471, 95 N.W.2d 396; Metropolitan Finance Corp. v. Matthews (1953), 265 Wis. 275, 61 N.W.2d 11 See: e.g., Chicago & N.W.R. Co. v. La Follette (1......
  • Request a trial to view additional results

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