Midwest Video v. Campbell

• Citation: 80 N.M. 116,1969 NMSC 34,452 P.2d 185
• Decision Date: 24 March 1969
• Docket Number: No. 8671,8671
• Parties: MIDWEST VIDEO, a Division of Home Theaters, Inc., an Arkansas Corp., and Black Hills Video Corporation, a corporation, Plaintiffs-Appellees, v. Hon. Jack M. CAMPBELL, Governor of New Mexico, Hon. Boston E. Witt, Attorney General of New Mexico, Hon. George Richard Schmitt, Assistant Attorney General of New Mexico, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 185

452 P.2d 185

80 N.M. 116

MIDWEST VIDEO, a Division of Home Theaters, Inc., an Arkansas Corp., and Black Hills Video Corporation a corporation, Plaintiffs-Appellees, v. Hon. Jack M. CAMPBELL, Governor of New Mexico, Hon. Boston E. Witt, Attorney General of New Mexico, Hon George Richard Schmitt, Assistant Attorney General of New Mexico, Defendants-Appellants.

No. 8671.

Supreme Court of New Mexico.

March 24, 1969.

Boston E. Witt, Atty. Gen., David R. Sierra, Asst. Atty. Gen., Santa Fe, David L. Norvell, Clovis, for appellants

Lynell G. Skarda, Clovis, Moses, McClellan, Arnold, Owen & McDermott, Little Rock, Ark., for appellees.

OPINION

COMPTON, Justice.

Plaintiffs brought this action against the defendants, challenging the constitutionality of § 67--7--13(m), N.M.S.A. 1953, as to them, for injunctive relief and for a declaratory judgment. From an adverse judgment, the defendants appeal.

The action was brought here pursuant to an order of a three-judge court in United States District Court for the District of New Mexico. Midwest Video Corporation v. Campbell, 250 F.Supp. 158 (D.N.M.1965). That court postponed and stayed a similar action for a reasonable time pending the termination of proceedings in the state courts of New Mexico in order for the parties to secure an interpretation of the 'price advertising' statute as applied to plaintiffs before passing on its constitutionality. We expressly note that plaintiffs are exposing their federal claims here for the purpose of complying with Government & Civic Employees Organizing Committee, C.I.O. v. Windsor, 353 U.S. 364, 77 S.Ct. 838, 1 L.Ed.2d 894, so that this court may interpret the statute in the light of the constitutional objection heretofore presented to the three-judge federal court.

The statute in part prohibits:

'(m) Advertisting by any means whatsoever the quotation of any prices or terms on eyeglasses, spectacles, lenses, frames or mountings, or which quotes discount to be offered on eyeglasses, spectacles, lenses, frames or mountings or which quotes 'moderate prices,' 'low prices,' 'lowest prices,' 'guaranteed glasses,' 'satisfaction guaranteed,' or words of similar import.'

The appeal turns on the meaning of the word 'advertising' as used in the statute. The court found and concluded that the plaintiffs are not 'advertising' and thus not violating § 67--7--13(m), N.M.S.A.1953. The court further concluded that the enforcement of § 67--7--13(m), N.M.S.A.1953, as to these plaintiffs is a denial of equal protection of the laws making such unconstitutional and void under the equal protection clause of Art. II, § 18, of the New Mexico Constitution, and that the defendants should be permanently enjoined from enforcing § 67--7--13(m), N.M.S.A.1953, as to these plaintiffs.

We think the ruling of the court that plaintiffs are not 'advertising' was correct. The finding was ample support in the evidence. The plaintiffs are corporations with their principal offices in Little Rock, Arkansas. Plaintiff Midwest owns and operates a community antenna television system in Clovis, New Mexico. Midwest's Clovis CATV system primarily receives television signals from three FCC licensed stations in Amarillo, Texas, which is located approximately one hundred miles from Clovis. These regularly broadcast television signals are received at a FCC licensed microwave station located at Friona, Texas, owned by the plaintiff, Black Hills Video, and relayed by its microwave facilities to Midwest at Clovis. At Clovis the signals are converted and simultaneously circulated by cable to some 5,600 television sets of Midwest's subscribers. Texas does not have a statute prohibiting 'price advertising' of optometry services and supplies, and as a result all three of the Amarillo stations carried by the plaintiff Midwest's CATV system in Clovis broadcast 'price advertisements' of Amarillo optical firms.

The defendants argue that the trial court erred in findings that the plaintiffs are not advertising within the purview of the statute. In common usage, 'to advertise' has a variety of meanings, the broadest being 'to give notice to' or 'to make known to.' Webster's Third New International Dictionary (1961). Appellants urge us to adopt this definition and, thus, to determine that any activity which in any way contributes to the dissemination of proscribed information violates § 67--7--13(m), N.M.S.A.1953. Appellees answer by calling to our attention several cases from other jurisdictions in which this broad meaning has been held inapplicable. See State v. Guardian Foundation of Texas, 128 S.W.2d 880 (Tex.Civ.App.1939); Planned Parenthood Committee of Phoenix v. Maricopa County, 92 Ariz. 231, 375 P.2d 719. They assert that 'advertising' is properly construed to mean 'any form of public announcement intended to aid directly or indirectly in the sale of a commodity' (emphasis added), Webster's New International Dictionary (2d Ed. 1953), (this definition has been omitted from Webster's Third New International Dictionary, supra), and that like hotel owners who install TV sets for their patrons, or perhaps owners of large apartment houses who install a single TV aerial for all the apartments, they have no intention whatsoever with respect to advertising.

Both parties cite and rely to some extent on New Mexico Board of Examiners in Optometry v. Roberts, 70 N.M. 90, 370 P.2d 811, aff'd sub...