Norwood v. Parenteau

• Decision Date: 13 April 1954
• Docket Number: No. 9375,9375
• Citation: 63 N.W.2d 807,75 S.D. 303
• Parties: NORWOOD v. PARENTEAU et al.
• Court: South Dakota Supreme Court

Page 807

63 N.W.2d 807

75 S.D. 303

NORWOOD v. PARENTEAU et al.

No. 9375.

Supreme Court of South Dakota.

April 13, 1954.

Parnell J. Donohue, Bonesteel, for appellant.

Austin & Hinderaker, Watertown, for respondents.

LEEDOM, Judge.

The State Board of Examiners in Optometry, the respondents, pursuant to the authority of SDC 27.07, as amended, and the rules and regulations promulgated thereunder, cited appellant, who had practiced optometry in South Dakota for about 30 years, to appear for a hearing before the Board on a charge of 'unprofessional conduct'. The accusation of unprofessional conduct related entirely to the manner in which appellant had advertised the availability of his professional services. The evidence taken at the hearing disclosed that appellant's manner of advertising did violate the rules of the Board. It is appellant's position that the rules thus violated are an invasion of his constitutional right to follow his lawful vocation and are therefore void and that they are so restrictive as to eliminate the itinerant practitioner from the field of optometry and therefore, if given validity, achieve by indirection a result the law would not condone if such result were attempted by direct regulation. After the hearing the Board entered findings of fact and conclusions of law adverse to appellant, determined that his manner of advertising constituted unprofessional conduct and made and filed an order revoking his certificate of registration which constituted his license or authority to practice. He appealed to the circuit court of Hughes county and that court entered an order affirming the order of revocation entered by the Board. The doctor has appealed to this court. After careful consideration of all of appellant's assignments of error we are of the view that the Board was within its authority in promulgating the rules here involved and in revoking appellant's registration for the violation.

SDC Supp. 27.0701 defines the practice of optometry as follows:

'That 'the practice of optometry' is declared to be a profession and defined 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, interpretative, 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 Supp. 27.0703 relating to the powers of the Board provides in part in subsection (3):

'* * * The Board may prescribe the mediums of advertising that may be used by optometrists and the size, nature, and type of signs and professional cards that may be used. * * *'

SDC Supp. 27.0707 provides for revocation of certificates of registration by the Board after hearing, for stated causes. Subsection (6) lists 'unprofessional conduct' as a cause for revocation and defines the phrase. This subsection expressly provides independently of rules to be promulgated that certain specified conduct is unprofessional and therefore grounds for revocation of a certificate. Included in this category is the specific prohibition against use of substantially all the usual mediums of advertising to 'set forth more than the name, profession, title, location, phone number and office hours of the optometrist,' thus in effect limiting advertising in all events to these items. And then pursuant to the administrative power vested in the Board by the quoted provision of SDC Supp. 27.0703(3), SDC Supp. 27.0707(6) brings within the 'unprofessional' category, conduct violative of rules of the Board, with this language:

'* * * advertising wherein the optometrist employs any form of newspaper, sign, literature or directory professional card or window or public exhibition display of optical materials, hand bills, road signs, clock signs, novelties or favors contrary to or violating the code of ethics or any of the other lawful rules and regulations properly promulgated by the State Board.'

Pursuant to the statutory authority the Board adopted, among other rules, these:

'5.01 Printed professional advertising shall consist of and be limited to one professional card per issue of a newspaper, setting forth nothing more than the name, title, address, telephone numbers and office hours of the optometrist, with said advertisement limited to a maximum size of one column one inch per individual name and a maximum size of one column two inches for a combination of names of associated optometrists. Such professional card shall not be included in general local news columns or want ad columns, but shall be included in the regular newspaper panel of professional cards.'

'5.03 No public advertising by printed matter, radio, window display, road signs, clock signs, hand-bills, posters, circulars, periodicals, novelties, favors * * * shall be used.'

The testimony discloses that appellant has for many years served as an optometrist in several communities in western South Dakota. His practice is that of the itinerant as that word is used in the evidence. He visited the towns where he practiced with considerable regularity several times a year and maintained neither a permanent office nor a residence in any town so served. Prior to each visit he advertised his coming by a system developed over the years and which he deemed necessary to bring his old and new patients to his temporary offices. As the restrictions on advertising were first imposed he made an attempt to follow the spirit if not the letter of the law and learned as he testified, that the more moderate advertising thus employed resulted in appreciable loss of business; and so he changed again in the direction of his earlier advertising practices. At the time just prior to his hearing he was using media and methods admittedly in violation of the regulations. He distributed prohibited handbills. His newspaper ads exceeded the size allowed by the rules of the Board, and the composition was not that prescribed by statute but contained the word 'Notice' and the phrases 'Eyes Examined' and 'Glasses Fitted' in addition to the doctor's name and information as to the time and place of his visit. He also displayed a banner outside the building in which his temporary office was situated. It violated the rules and regulations. It was neither claimed nor proven that any of appellant's advertising was deceptive, and no charge was made of misconduct except as to use of unauthorized advertising as stated.

There is no question but that reasonable regulation of optometry either by specific statutory rules or by regulations promulgated by an administrative board pursuant to statutory authority, is within the police power conferred upon the legislature in the interests of the preservation of the public health and general welfare. Annotations 22 A.L.R.2d 939 and 98 A.L.R. 905. Much space is devoted in appellant's brief to the proposition that regulations of the nature here involved would be proper if optometry were designated to be one of the 'learned' professions but are improper where, as in South Dakota, the statute declares optometry to be only a 'profession'. Reliance is placed on the case of State ex rel. Attorney General v. Gus Blass Co., 193 Ark. 1159, 105 S.W.2d 853. The Arkansas case was decided in 1937. We find no sound basis for any rule of law that provides strict regulation for the learned professions and prohibits such regulation as to optometry on the ground it had not been designated a 'learned profession' by legislative action. See Klein v. Department of Registration and Education, 412 Ill. 75, 105 N.E.2d 758, certiorari denied, 344 U.S. 855, 73 S.Ct. 93, 97 L.Ed. 664; also Bennett v. Indiana State Board of Registration And Examination in Optometry, 211 Ind. 678, 7 N.E.2d 977. The contention is rejected by the New Jersey court in a recent and well considered case, Abelson's Inc. v. New Jersey State Board of Optometrists, 5 N.J. 412, 75 A.2d 867, 869, 22 A.L.R.2d 929. In that case the court said:

'The insistence is that the calling is not a 'learned profession,' but rather a 'statutory profession' falling into the category of 'occupations and businesses' reasonably regulable only in the particular areas in which the subject matter touches 'the health or welfare of the community;' and that certain sections of the amendatory act of 1948 are wholly without relevancy to the public health, but serve the pecuniary interest of the optometrists alone, and so constitute a deprivation of property without due process of law in contravention of the Fourteenth Amendment of the Federal Constitution.

'Optometry is not a mere trade or craft. It is an applied branch of the science of physiological optics, directed to the improvement of visual acuity through the correction of refractive errors. * * *

'Thus, by its very nature, the practice of optometry is subject to regulation for the protection of the public against ignorance and incapacity and deception and fraud, equally with the practice of ophthalmology and the other 'learned professions', a category originally confined to theology, law and medicine, but long since broadened in keeping with the diffusion of scientific learning and the need of specialized knowledge in the functioning of our ever-expanding and complex society. * * * One cannot qualify for the practice of the profession unless he has been graduated from an approved school or college of optometry with the degree of doctor of optometry. * * *

'But in the final analysis, it is the nature of the subject matter and the end to be served that determine the quality...