City of Springfield v. Hurst
| Decision Date | 02 August 1944 |
| Docket Number | 29889. |
| Citation | 144 Ohio St. 49,56 N.E.2d 185 |
| Parties | CITY OF SPRINGFIELD v. HURST. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
A provision in an ordinance of a municipal corporation, which ordains that 'no person, partnership, corporation, or agent or employee therein engaged in or connected with the sale of eyeglasses, ophthalmic lenses, eyeglass frames and mountings, shall include in any advertisement by newspaper radio, display, or otherwise, any statement advertising the price of lenses, or of complete eyeglasses, including lenses either with or without professional services or credit terms instalment payments or price plans,' is a reasonable and valid exercise of the police power and is not violative of the federal or state Constitution.
Appeal from Court of Appeals, Clark County.
On December 22, 1942, an affidavit was filed against the defendant, Howard H. Hurst, which charges that 'on or about the 21 day of December, A. D. 1942, in the city of Springfield, county of Clark, and state of Ohio, one Howard H. Hurst, engaged in and connected with the sale of eyeglasses did advertise the price of eyeglasses by displaying the price of said eyeglasses and did not in conjunction therewith use the words 'without lenses' in a manner to be clearly discernible or read in such manner as to be clearly understood contrary to Section 2 of Ordinance 4217 of said city in such case made and provided.'
To this affidavit the defendant filed a motion to quash which, by the consent of the parties, was 'considered as a demurrer.' The court found that the affidavit was demurrable and ordered and adjudged that the motion to quash, considered as a demurrer, be sustained and the defendant discharged.
On appeal, the Court of Appeals reversed the judgment of the trial court and remanded the cause for further proceedings. The defendant filed an appeal as of right and a motion to certify the record. This court refused to dismiss the appeal and allowed the motion to certify.
Orville Wear and Cole & Hodge, all of Springfield, for appellant.
Abe Gardner, City Sol., of Springfield, for appellee.
The sole question is the constitutionality of the applicable part of Section 2 of Ordinance No. 4217, of the city of Springfield, passed November 9, 1942. Section 2 of the ordinance reads as follows:
'No person, partnership, corporation, or agent or employee therein engaged in or connected with the sale of eyeglasses, ophthalmic lenses, eyeglass frames and mountings, shall include in any advertisement by newspaper, radio, display or otherwise, any statement advertising the price of lenses, or of complete eyeglasses, including lenses, either with or without professional services or credit terms, instalment payments or price plans, or the price of any frames or mountings, unless in conjunction therewith the words, 'without lenses' appear in such manner to be clearly discernible, or read in such manner as to be clearly understood.'
The defendant contends that this section of the ordinance is violative of (1) Section 3, Article XVIII of Ohio Constitution, which authorizes municipalities to adopt such local police, sanitary and other similar regulations as are not in conflict with general laws; (2) the part of Section 1, Article I of the Ohio Constitution, which assures the inalienable rights of liberty and of acquiring, possessing and protecting property; and (3) the part of the 14th Amendment to the federal Constitution which provides that no state shall deprive any person of life, liberty or property without due process of law. As incidental to the first contention the defendant maintains that such action of the ordinance conflicts with Section 1295-31, General Code.
The city of Springfield contends that the ordinance has a reasonable relation to the health and general welfare and is a valid exercise of the police power.
Section 2 of the ordinance prescribes two separate and distinct offenses. It prohibits (1) advertising the price of lenses or of complete eyeglasses, including lenses, and (2) advertising the price of any frames or mountings without using the words 'without lenses' in conjunction therewith. The affidavit charges the defendant with the first offense only. Though the words 'and did not in conjunction therewith use the words 'without lenses' in a manner to be clearly discernible,' appear in the affidavit they may be regarded as surplusage, for the reason that the affidavit does not charge the defendant with advertising the price of frames or mountings in a forbidden manner, which would be the gist of the second offense prescribed in the ordinance.
The applicable provision of the ordinance is all-comprehensive in that it prohibits advertising the price of lenses or complete eyeglasses by all natural and artificial persons engaged in or connected with the sale of such articles.
Those who in pursuit of their vocation engage in making such sales may be divided into three classes--(a) the optometrist, (b) the optician and (c) the mere retailer.
Optometry is a limited statutory profession and is defined by Section 1295-21, General Code, 'to be the application of optical principles, through technical methods and devices in the examination of human eyes for the purpose of ascertaining departures from the normal measuring their functional powers and adapting optical accessories for the aid thereof.' A member of the learned profession of medicine may specialize in the care and treatment of the eye and make examinations for the correction of vision. Although he, in his practice as a physician, does much that is beyond the scope of optometry, he, when duly licensed, may also do the same work as an optometrist. In other words, he may, in addition to other professional work, practice optometry. Therefore, when we speak of the optometrist we shall include the physician who practices optometry.
The optometrist tests and measures the eye, but, also, may and often does sell lenses and complete eyeglasses. The distinction between an optometrist and an optician has been pointed out by this court in a case in which a corporation, carrying on the business of an optician, together with its officers, agents and employees, was charged with contempt for the violation of a permanent injunction against the practice of optometry. Rowe v. Standard Drug Co., 132 Ohio St. 629, 638, 9 N.E.2d 609. See, also, State ex rel. Bricker, Atty. Gen., v. Buhl Optical Co., 131 Ohio St. 217, 2 N.E.2d 601. The optician furnishes eyeglasses upon the prescription of an optometrist and must grind the lenses or have them ground according to prescription, fit them into a frame and bend the frame to fit the face. The mere retailer sells complete eyeglasses regardless of the need of the customer. He lets the customer try on various pairs and pick a pair that seems to fit.
The first contention of defendant is twofold. He claims that the ordinance provision (a) 'transcends the powers' granted by Section 3, Article XVIII of the state Constitution, authorizing the enactment of 'such local police, sanitary and other similar regulations, as are not in conflict with general laws,' and (b) conflicts with Section 1295-31, General Code. Counsel for defendant maintain that 'Section 1295-31 is patently a regulation of the extent to which optometrists may go in advertising for business.' Then counsel continue with this statement: 'The Ohio State Board of Optometry may revoke, suspend or cancel the certificate of any optometrist found 'guilty of fraudulently advertising a price of spectacles or eyeglasses by cards, circulars, statements or otherwise, with intent to deceive or mislead the public.'' Counsel say, arguendo, that the ordinance is in conflict with the part of Section 1295-31, quoted and referred to.
It is our judgment that there is no such conflict, and that the ordinance provision before us is not invalid on that ground and does not transcend the powers granted by such section of the state Constitution.
The second contention of the defendant relates to Section 1, Article I of the state Constitution, which assures the rights of liberty and property, and the third contention to the due process clause in the Fourteenth Amendment to the federal Constitution. These contentions may be considered together. If the ordinance provision under consideration is a reasonable and valid exercise of the police power, the provision is constitutional; otherwise it is unconstitutional.
The sale of eyeglasses by a retail vendor may be regulated if not prohibited altogether. For instance, statutes which, respectively prohibit (a) the sale of eyeglasses unless fitted by a competent person (D. S. Kresge Co. v. Ottinger, Atty. Gen., D.C., 29 F.2d 762), (b) a retail sale of eyeglasses unless a licensed physicianoptometrist is present (Roschen v. Ward, Atty. Gen., 279 U.S. 337, 49 S.Ct. 336, 73 L.Ed. 722), and (c) anyone not a licensed optometrist from selling 'spectacles, eyeglasses or lenses for the purpose of correcting defective vision' (Commonwealth v. S. S. Kresge Co., 267 Mass. 145, 150 166 N.E. 558, 559) have been held constitutional. See Commonwealth v. Ferris, 305 Mass. 233, 25 N.E.2d 378, in which those cases are cited and commented upon. The danger of allowing a retailer to offer eyeglasses in mass to a customer who makes his own selection may well be restricted by legislation which prevents advertising them at a fixed price. The advertising would increase the sales and incidentally the harm that comes from using unfitted eyeglasses.
On the question whether the optician may be constitutionally prohibited by legislation from advertising the price of lenses and complete eyeglasses, there is a conflict of...
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