New Mexico Bd. of Examiners in Optometry v. Roberts, No. 7001

Docket NºNo. 7001
Citation70 N.M. 90, 370 P.2d 811, 1962 NMSC 53
Case DateApril 11, 1962
CourtSupreme Court of New Mexico

Page 811

370 P.2d 811
70 N.M. 90
NEW MEXICO BOARD OF EXAMINERS IN OPTOMETRY,
Plaintiff-Appellee,
v.
Abner ROBERTS; Agnes K. Head, d/b/a Lea County Publishing
Co.; Permian Basin Radio Corporation; and KWEW,
Inc., Defendants-Appellants.
No. 7001.
Supreme Court of New Mexico.
April 11, 1962.

Page 812

[70 NM 92] L. George Schubert, Hobbs, for appellants Agnes K. Head and KWEW, inc.

Williams, Johnson & Houston, Hobbs, for appellant Permian Basin Radio Corp.

Earl E. Hartley, Atty. Gen., Santa Fe, Robert F. Pyatt, Sp. Asst. Atty. Gen., Hobbs, for appellee.

COMPTON, Chief Justice.

This is an appeal from a final decree perpetually enjoining and restraining defendants Agnes K. Head, d/b/a Lea County Publishing Company, publisher of the newspaper Hobbs Flare; Permian Basin Radio Corporation, owner and operator of radio Station KHOB; and KWEW, Inc., owner and operator of radio station KWEW, all of Hobbs, New Mexico, from accepting, disseminating and publishing within the State of New Mexico advertising of any nature from defendant, Abner Roberts, a resident of Texas, which quotes prices or terms on eye glasses, spectacles, lenses, frames, or mountings, or quotes discounts to be offered on same, or which quotes moderate prices, or words of similar import, as prohibited by the provisions of Sec. 67-7-13, N.M.S.A.1953.

The trial court found that the defendants, other than Roberts, in publishing the advertising, were aiding and abetting in and encouraging the violation of this section of the statute and that enjoining them from so doing does not offend either the Constitution of the United States or the Constitution of New Mexico.

The pertinent portions of the statute read as follows:

'67-7-13. Offenses--Penalties.--Each of the following acts on the part of any person shall constitute a misdemeanor and shall be punished by a fine of not less than $50.00 nor more than $200.00 or imprisonment in the county jail for not less than 30 days nor more than six (6) months, or both such fine [70 NM 93] and imprisonment for the first offense, and for a second offense a fine of not less than $200.00 nor more than $500.00, or imprisonment in the county jail for not less than 90 days nor more than one (1) year, or both such fine and imprisonment. All fines thus received shall be paid into the common school fund of the county in which such conviction takes place.

* * *

* * *

'(m) Advertising 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.'

Abner Roberts, a defendant below but not a party to this appeal, resides and practices optometry in Gaines County, Texas, located approximately 4 miles east of Hobbs, New Mexico, and in the trade area served by the news media of the other defendants who are the appellants here and who have their principal places of business in Hobbs, New Mexico. Roberts placed his advertisements with them by telephone.

Page 813

It is conceded by appellants on this appeal that if Roberts were a resident of, or practicing optometry in, New Mexico the above statute would be applicable to and enforceable against him. But it is appellants' contention that because they are engaged in interstate commerce the statute upon which this action is based constitutes an obstruction on such commerce by restraining them from engaging in interstate commerce with a citizen of Texas lawfully practicing optometry in Texas and that, therefore, (1) the statute in question violates the provisions of Article I, Section 8, Paragraph 3 of the Constitution of the United States relating to interstate commerce; and (2) that it is an unreasonable infringement of personal property rights, an unwarranted oppressive interference with the liberty of contract and violates the Fourteenth Amendment of the Constitution of the United States and Article II, Section 18 of the Constitution of New Mexico.

It is the contention of the appellee, on the other hand, that the regulation of interstate commerce is not involved in this action since the New Mexico statute as well as the decree of the court below seek only to control conduct in New Mexico in the legitimate exercise of its police power.

In support of appellants' first contention that this statute violates the commerce clause in its application to them, appellants have cited cases which define interstate commerce and conclude that newspapers with circulation in other states, and radio stations whose programs are received in other states, are engaged in interstate commerce. [70 NM 94] We have no quarrel with the decisions in these cases insofar as they deal with the prohibition by a state of all advertising relating to a commodity moving in interstate commerce into its state from another state for legal sale in its original package, or with direct burdens on, or direct interference with, the publication and circulation of newspapers in interstate commerce or the privilege of doing business in interstate commerce, or with state statutes which conflict with federal legislation where Congress has fully occupied the field. But appellants have brought to our attention no authority for the proposition that persons engaged in interstate commerce are under no circumstances subject to valid legislation of the state in which they are doing business enacted in the exercise of its police power for the health and welfare of its citizens.

The Legislature of New Mexico enacted Section 67-7-13, supra, to protect its citizens against the evils of price-advertising methods tending to satisfy the needs of their pocketbooks rather than the remedial requirements of their eyes. That this is a valid exercise of the police power of the state is not questioned in this action and, in view of the decisions cited by appellee upholding the constitutionality of similar statutes in other states, we do not think it can be. Williamson v. Lee Optical of Oklahoma, Inc., ...

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12 practice notes
  • Head v. New Mexico Board of Examiners In Optometry, No. 392
    • United States
    • United States Supreme Court
    • 17 d1 Junho d1 1963
    ...evils of price-advertising methods tending to satisfy the needs of their pocketbooks rather than the remedial requirements of their eyes.' 70 N.M. 90, 94, 370 P.2d 811, 813. Similar laws have been enacted in many States to assure high standards of professional competence.3 Page 427 The fact......
  • Rayellen Res., Inc. v. New Mexico Cultural Props. Review Committee, No. 33,497.
    • United States
    • New Mexico Supreme Court of New Mexico
    • 6 d4 Fevereiro d4 2014
    ...‘taking of property’ in violation of [constitutional protections].” N.M. Bd. of Exam'rs in Optometry v. Roberts, 1962–NMSC–053, ¶ 20, 70 N.M. 90, 370 P.2d 811. However, the Legislature gave no indication of any intention to attempt to transform privately held common lands into public land b......
  • Alber v. Nolle, No. 5323
    • United States
    • New Mexico Court of Appeals of New Mexico
    • 4 d2 Maio d2 1982
    ...destroy private property, is not a deprivation of property without due process of law. New Mexico Bd. of Examiners in Optometry v. Roberts, 70 N.M. 90, 370 P.2d 811 (1962); State v. Town of Grants, 66 N.M. 355, 348 P.2d 274 (1960); Green v. Town of Gallup, 46 N.M. 71, 120 P.2d 619 (1941); M......
  • Kelley v. Duling Enterprises, Inc., No. 10561
    • United States
    • Supreme Court of South Dakota
    • 8 d1 Dezembro d1 1969
    ...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.2......
  • Request a trial to view additional results
12 cases
  • Head v. New Mexico Board of Examiners In Optometry, No. 392
    • United States
    • United States Supreme Court
    • 17 d1 Junho d1 1963
    ...evils of price-advertising methods tending to satisfy the needs of their pocketbooks rather than the remedial requirements of their eyes.' 70 N.M. 90, 94, 370 P.2d 811, 813. Similar laws have been enacted in many States to assure high standards of professional competence.3 Page 427 The fact......
  • Rayellen Res., Inc. v. New Mexico Cultural Props. Review Committee, No. 33,497.
    • United States
    • New Mexico Supreme Court of New Mexico
    • 6 d4 Fevereiro d4 2014
    ...‘taking of property’ in violation of [constitutional protections].” N.M. Bd. of Exam'rs in Optometry v. Roberts, 1962–NMSC–053, ¶ 20, 70 N.M. 90, 370 P.2d 811. However, the Legislature gave no indication of any intention to attempt to transform privately held common lands into public land b......
  • Alber v. Nolle, No. 5323
    • United States
    • New Mexico Court of Appeals of New Mexico
    • 4 d2 Maio d2 1982
    ...destroy private property, is not a deprivation of property without due process of law. New Mexico Bd. of Examiners in Optometry v. Roberts, 70 N.M. 90, 370 P.2d 811 (1962); State v. Town of Grants, 66 N.M. 355, 348 P.2d 274 (1960); Green v. Town of Gallup, 46 N.M. 71, 120 P.2d 619 (1941); M......
  • Kelley v. Duling Enterprises, Inc., No. 10561
    • United States
    • Supreme Court of South Dakota
    • 8 d1 Dezembro d1 1969
    ...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.2......
  • Request a trial to view additional results

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