Kelley v. Duling Enterprises, Inc.

• Decision Date: 08 December 1969
• Docket Number: No. 10561,10561
• Citation: 84 S.D. 427,172 N.W.2d 727
• Parties: C. A. KELLEY, Donald P. Hines and Austin W. Battin, constituting the Board of Examiners in Optometry in and for the State of South Dakota, Plaintiffs and Respondents, v. DULING ENTERPRISES, INC., an Iowa Corporation, Duling Optical Co. of South Dakota, an Iowa Corporation, Edward W. Duling, Melvin Koenig, Dean Posner, Robert Knudtson, Darrell Hoeg, Henry Horst, d/b/a Horst Sign Company, Areawide Communications, Inc., owners and operators or Radio Station WNAX, Defendants, and of which Duling Enterprises, Inc., Duling Optical Co. of South Dakota, Dean Posner, Robert Knudtson, and Darrell Hoeg are Appellants.
• Court: South Dakota Supreme Court

Page 727

172 N.W.2d 727

84 S.D. 427

C. A. KELLEY, Donald P. Hines and Austin W. Battin,

constituting the Board of Examiners in Optometry

in and for the State of South Dakota, Plaintiffs and Respondents, v. DULING ENTERPRISES, INC., an Iowa Corporation, Duling

Optical Co. of South Dakota, an Iowa Corporation, Edward W.

Duling, Melvin Koenig, Dean Posner, Robert Knudtson, Darrell

Hoeg, Henry Horst, d/b/a Horst Sign Company, Areawide

Communications, Inc., owners and operators or Radio Station

WNAX, Defendants,

and of which

Duling Enterprises, Inc., Duling Optical Co. of South

Dakota, Dean Posner, Robert Knudtson, and Darrell

Hoeg are Appellants.

No. 10561.

Supreme Court of South Dakota.

Dec. 8, 1969.

Rehearing Denied Jan. 12, 1970.

Mead Bailey, Sioux Falls, for defendants and appellants; T. M. Whicher, Sioux City, Iowa, Bangs, McCullen, Butler & Foye, Rapid City, of counsel.

Alan L. Austin, Watertown, for plaintiffs and respondents.

BURNS, Circuit Judge.

The plaintiffs, constituting the South Dakota Board of Examiners in Optometry, brought this action seeking by the first cause of action alleged in the complaint to enjoin defendants from conduct allegedly in violation of SDC 1960 Supp. 54.0609 entitled 'Ophthalmic appliances: unlawful advertising; exceptions'. Compare SDCL 1967, 34--15--3, the body of which is the same but which is entitled 'Fraudulent advertising or sale of spectacles as misdemeanor--Penalty.'

By the second cause of action alleged the Board also seeks injunctive relief against the defendants to restrain them from 'capping and steering' of persons to certain optometrists under alleged arrangements and agreements, from controlling and directing the practice of optometry and from engaging in the practice of optometry in South Dakota.

By statute the practice of optometry is declared to be a profession. It is defined by statute 'as examination of the human eye and its appendages, and the employment of any means for the measurement of the powers of vision, or any visual, muscular, neurological, interpretive, or anatomical anomalies of the visual processes, and the prescribing or employment of lenses, prisms, frames, mountings, visual training procedure, and any other means or method for the correction, remedy, or relief of any insufficiencies or abnormal conditions of the visual processes of the human eye and its appendages except by the use of drugs or surgery, and an optometrist is one who practices optometry under the provisions of this chapter.' SDC 1960 Supp. 27.0701; SDCL 1967, 34--7--1.

The defendants, Duling Enterprises, Inc. and Duling Potical Co. of South Dakota and the other defendants-appellants are not optometrists. They are engaged in the optical business and are known as opticians. An optician does not have professional status. An optician is one who grinds spectacle lenses to prescription and dispenses spectacles. Webster's Third New International Dictionary. There is no statutory definition of optician and unlike the optometrist he is given no professional status by statute.

'Unprofessional conduct' by an optometrist is defined by statute. SDCL 1967, 36--7--25. It is made unprofessional for an optometrist to seek patronage by any means of advertising except by professional card in the form prescribed by statute and the Board. SDCL 1967, 36--7--19. The exercise of such power of regulation of optometrists has been held by our Court to be a valid exercise of the police power. Norwood v. Parenteau et al., 75 S.D. 303, 63 N.W.2d 807. But such statutes and regulations do not apply to opticians.

Although SDC 1960 Supp. 54.0609 relates to spectacles, eyeglasses, lenses and ophthalmic appliances the statute applies to all persons. As has been pointed out above the caption to this section is 'Ophthalmic appliances: unlawful advertising; exceptions.' This statute is incorporated in the compiled laws of 1967 as follows:

'34--15--3. Fraudulent advertising or sale of spectacles as misdemeanor--Penalty.--It shall be unlawful for any person, firm or corporation to employ house to house canvassing, price or bait advertising, or advertising in which untruthful or misleading statements are made to entice the public into buying spectacles, eyeglasses, lenses, frames or other ophthalmic appliances, eye examinations or visual services. Whoever shall violate any of the provisions of this section shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not exceeding one hundred dollars or by imprisonment in the county jail not exceeding thirty days, or by both such fine and imprisonment.'

This penal statute does not prohibit all advertising of the products and services designated. It makes it unlawful to employ advertising in which untruthful or misleading statements are made to entice the public into buying. It prohibits bait advertising to entice the public into buying. It makes it a crime to employ price advertising to entice the public into buying.

As used in criminal statutes the word 'entice' is not a word referring to approved conduct. It may mean seduce. It is synonymous to lure, trap or snare. To entice as used in penal statutes may mean to inveigle, decoy, tempt, delude, to persuade against one's will or better judgment, or to draw into a situation by ruse or wiles. See Words and Phrases, Per.Ed. Vol. 14A and Webster's Third New International Dictionary.

The word 'bait' may be used to mean 'a lure * * * to attract fish.' But in a penal statute 'bait' means 'an enticement that is marked by trickery or duplicity.' Webster's Third New International Dictionary.

On behalf of the Board it is contended that price advertising and bait advertising are the same. Standing alone the term 'price advertising' carries no connotation of enticement by trickery or duplicity. But when coupled with the words 'to entice', there is little distinction between the terms 'price advertising to entice' and 'bait advertising to entice.'

In construing a particular word or term in a statute reference will be had to the meaning of the words with which it is associated. The rule of ejusdem generis applies to the construction of statutes. State v. Fairbanks, 65 S.D. 272, 273 N.W. 188, 111 A.L.R. 759; State ex rel. Gammons v. Sorlie, 56 N.D. 650, 219 N.W. 105.

As used in this criminal statute the terms 'advertising in which untruthful or misleading statements are made to entice', 'price advertising to entice' and 'bait advertising to entice' are of the same genre. The compiler and publisher of the Compiled Laws of 1967 in using the caption 'Fraudulent advertising or sale of spectacles as misdemeanor--Penalty' over this section has quite accurately indicated the contents and purpose of the statute.

As so construed we find no constitutional defect in this penal statute. The numerous cases cited by respondents mostly relate to statutes and regulations prohibiting all advertising by optometrists and opticians, thus placing opticians under the same restrictions as the professions and to that extent giving them some status as members of a profession. Such statutes are sustained as a proper exercise of the police power of the state to protect the public health and safety and promote the general welfare. They rest upon the reasoning that the grinding of lenses to prescription, or even the placing of ground lenses in frames and the dispensing of spectacles and eyeglasses may be determined by legislative bodies to have relation to the health, safety and welfare of the public. See Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563; New Mexico Board of Examiners in Optometry v. Roberts, 70 N.M. 90, 370 P.2d 811; Annot., as to Validity of Acts Prohibiting Price Advertising, 89 A.L.R.2d at page 935 and cases cited; Bedno v. Fast, 6 Wis.2d 471, 95 N.W.2d 396.

It is obvious that if statutes in effect elevating opticians to professional status and prohibiting them from soliciting patronage by any form of advertising except for use of a prescribed form of professional care are a valid exercise of the police powers of the state, then a criminal statute such as SDCL 1967, 34--15--3 making it unlawful to employ price or bait advertising to entice or untruthful or misleading statements to entice the public to buy appliances and services having relation to the public health is constitutional.

Finding of Fact 13 made by the trial court is as follows:

'(13) That the newspaper, television, radio and telephone directory advertisements use various forms of price or bait advertising such as the following phrases, included in or incorporated in said advertisements, to-wit:

(a) 'Quality prescription eye glasses'

(b) 'High quality, low-cost eye glasses'

(c) 'Save money safely'

(d) 'Home of quality low cost eye glasses'

(e) 'Don't be satisfied with less than the finest quality prescription eye glasses,

(f) 'State law prohibits advertising price but quality guaranteed prescription eye glasses are available at Duling Optical, where you save money safely'

(g) 'To save waiting, call or write for an appointment'

(h) 'You may write or call for an appointment but it isn't necessary'

(i) 'No appointment necessary'

(j) 'Smart Savings'

(k) 'Quality service, why pay more'

(1) 'State law prohibits advertising price but you'll save money safely at Duling'

(m) 'It's fashionable to be thrifty'

(n) 'Go modern and save on prescription eye glasses'

(o) 'Its smart to save, even smarter to save safely'

(p) 'Be a saver and be a good looker'

(q) 'Hoot mon and you save money too'

(r) 'Style-plus savings'

(s) 'Inquire about 'our breakage twelve month guarantee"

(t) 'Duling Optical has that winning combination of high quality materials and workmanship, and fast efficient service, yet Duling is able to maintain a reasonable price for prescription eye glasses'

(u) 'Why pay more, why settle for less?'

(v) 'For your next pair of prescription eye glasses go to the Duling Optical Company'

(w) 'You save...