Commonwealth v. S.S. Kresge Co.

• Decision Date: 28 May 1929
• Citation: 267 Mass. 145,166 N.E. 558
• Parties: COMMONWEALTH v. S. S. KRESGE CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

267 Mass. 145

166 N.E. 558

COMMONWEALTH

v.S. S. KRESGE CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 28, 1929.

Exceptions from Superior Criminal Court, Suffolk County; Frederick W. Fosdick, Judge.

The S. S. Kresge Company was found guilty on agreed facts of violating the statute relative to the practice of optometry, and it brings exceptions. Exceptions overruled.

C. F. Lovejoy, Asst. Atty. Gen., for the Commonwealth.

H. Parker and H. W. Conant, both of Boston, for defendant.

RUGG, C. J.

The several counts in the indictment charged that the defendant, not being lawfully authorized to practice optometry, (1) held itself out as a practitioner of optometry, (2) practiced optometry, (3) attempted to practice optometry, and (4) sold eyeglasses for the purpose of correcting defective vision. Trial by jury was waived and the case submitted on an agreed statement of facts. These in substance are that the defendant for many years and at the time alleged maintained in Boston a place of business where it engaged in the sale and distribution of general merchandise according to the department store method, and where it also sold eyeglasses under these conditions: Divers types and kinds of eyeglasses were displayed on or within showcases and accessible to all; nearby such showcases and intended for the use of prospective purchasers were cards containing words and phrases printed in various sizes of type, each different size designated by a number, which number also appeared upon the eyeglasses, so that customers could make examination of the eyeglasses designed to fit particular defects in vision. On their inquiry or request respecting said card, customers were advised to read the several paragraphs on the card, until they reached a type so small that they could not read it, and then to indicate to the defendant's employee, the number or numbers appearing opposite said type on said cards. The employee of the defendant, at the request of the customer, picked out from its stock in the showcase eyeglasses bearing numbers corresponding to such number or numbers appearing on the card, and indicated by the customer, and if, by looking at the type so indicated, through such spectacles, customers found them satisfactory, they were purchased of the defendant's agents, without any further inquiry or suggestion, and so such glasses were sold by the defendant to such purchaser. Thus the defendant sold spectacles and eyeglasses designed to fit varying defects of vision disclosed by inability to read the type of differing sizes arranged on the card.

The indictment is based upon G. L. c. 112, § 72, as amended by St. 1926, c. 321, § 2. Its pertinent words are: ‘Whoever, not being lawfully authorized to practice optometry, holds himself out as a practitioner of optometry, or practices or attempts to practice optometry, or sells or attempts to sell spectacles, eyeglasses or lenses for the purpose of correcting defective vision, * * * or violates any other provision of sections sixty-six to seventy-three, inclusive, shall be punished. * * *’ The practice of optometry is defined by G. L. c. 112, § 66, to be ‘the employment of any method or means other than the use of drugs for the measurement of the powers of vision and the adaptation of lenses for the aid thereof.’ It further is provided by G. L. c. 112, § 73, as amended by St. 1926, c. 321, § 3: ‘The seven preceding sections shall not apply to physicians and surgeons lawfully entitled to practice medicine in the commonwealth, or to persons who neither practice nor profess to practice optometry, but who sell spectacles, eyeglasses or lenses, either on prescription from such physicians or surgeons, or from optometrists authorized to practice in the commonwealth, or as merchandise from permanently located and established places of business when not sold for the purpose of correcting defective vision. * * *’

[2][3] The guiding principle for the interpretation of a statute is that it must be construed, if reasonably possible, so as to effectuate the purpose of the framers, ascertained from its several parts and the meaning fairly attributable to all its words, considered in connection with the cause of its enactment, the subject to which it is applicable, the preexisting state of the common and statutory law, the mischief to be remedied and the object to be accomplished. It must be interpreted as enacted. Its omissions cannot be supplied and its excrescences cannot be cut out by the judicial department of government. The court can only interpret according to the common and approved usages of the language the words used, without enlargement or restriction and without regard to its own conceptions of expediency. Every rational presumption will be indulged in favor of the validity of an act of the legislative department of government and the court will not refuse enforcement unless its conflict with the Constitution is established beyond reasonable doubt. Where practicable, a statute must be so interpreted as not to render it contrary to the terms of the Constitution and also to avoid grave doubts on that score. Perkins v. Westwood, 226 Mass. 268, 271, 115 N. E. 411, and cases there collected; Duggan v. Bay State Street R. Co., 230 Mass. 370, 374, 119 N. E. 757, L. R. A. 1918E, 680; See v. Building Com'r of Springfield, 246 Mass. 340, 343, 141 N. E. 105;Thacher v. Secretary of Commonwealth, 250 Mass. 188, 190, 145 N. E. 256;Arruda v. Director General of Railroads, 251 Mass. 255, 263, 147 N. E. 21;Morse v. Boston, 253 Mass. 247, 252, 148 N. E. 813;Bouchard v. First People's Trust, 253 Mass. 351, 362, 148 N. E. 895;Thurman v. Chicago, Milwaukee & St. Paul R. Co., 254 Mass. 569, 151 N. E. 63, 46 A. L. R. 563;Kennedy v. Commissioner of Corporations and Taxation, 256 Mass. 426, 430, 152 N. E. 747;Collector of Taxes of Boston v. National Shawmut Bank, 259 Mass. 14, 20, 156 N. E. 48. It is clear that ‘amendment may not be substituted for construction, and that a court may not exercise legislative functions to save the law from conflict with constitutional limitation.’ Yu Cong Eng v. Trinidad, 271 U. S. 500, 518, 46 S. Ct. 619, 623 (70 L. Ed. 1059).

[4] The main intent of the Legislature in enacting the statute here assailed was to preserve and promote the public health. The original statute on which the sections already quoted were founded was St. 1912, c. 700. That statute was declared constitutional in Commonwealth v. Houtenbrink, 235 Mass. 320, 126 N. E. 669. The ground of that decision was that the statute was designed and had a rational tendency to promote and preserve the public health and was a valid exercise of the police power. That statute was amended by St. 1920, c. 512, and these provisions were embodied in G. L. c. 112, §§ 66 to 73, both inclusive. We do not understand that the validity of those sections is now assailed. The contention is that said sections 72 and 73 have been converted into unconstitutional enactments by the amendments of St. 1926, c. 321, §§ 2 and 3. The change wrought in section 72 by the amendment in said section 2 was to strike out the words ‘attempts to determine by an examination of the eyes the kind of glasses needed by any person,’ and to insert in place thereof the words ‘sells or attempts to sell spectacles, eyeglasses or lenses for the purpose of correcting defective vision.’ The change wrought in said section 73 by said section 3 was to add, in a section exempting from the operation of the seven preceding sections, among others, those persons not optometrists who sell spectacles, eyeglasses and lenses as merchandise from permanent places of business, the condition or limitation ‘when not sold for the purpose of correcting defective vision.’

It is plain that sections 66 to 72 of G. L. c. 112, both inclusive, were intended in the main to regulate and to govern the treatment of the individual with eyeglasses for alleviation of the consequences of impaired vision. That is apparent both from a general survey of all the sections as a group and from a detailed...