Norwood v. Parenteau, No. 9375

CourtSupreme Court of South Dakota
Writing for the CourtLEEDOM
Citation63 N.W.2d 807,75 S.D. 303
PartiesNORWOOD v. PARENTEAU et al.
Docket NumberNo. 9375
Decision Date13 April 1954

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.

[75 S.D. 304] Parnell J. Donohue, Bonesteel, for appellant.

Austin & Hinderaker, Watertown, for respondents.

LEEDOM, Judge.

The State Board of Examiners in Optometry,[75 S.D. 305] 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

Page 809

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 [75 S.D. 306] 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 [75 S.D. 307] 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

Page 810

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 [75 S.D. 308] was neither claimed nor proven that any of appellant's advertising was deceptive, and no charge was made of misconduct except as to...

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7 practice notes
  • DLH, Inc. v. NEBRASKA LIQUOR CONTROL COM'N, No. S-02-033.
    • United States
    • Supreme Court of Nebraska
    • 18 Julio 2003
    ...Inc. v. Riedemann, 277 N.W.2d 911 (Iowa 1979); Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193 (Mo.1972) (en banc); Norwood v. Parenteau, 75 S.D. 303, 63 N.W.2d 807 (1954); Toole v. State Bd. of Dentistry, 306 Mich. 527, 11 N.W.2d 229 (1943); Public Counsel v. Public Utility Com'n, 104 S.W......
  • State v. Nuss, No. 9941
    • United States
    • Supreme Court of South Dakota
    • 11 Abril 1962
    ...it. Mundell v. Graph, 62 S.D. 631, 256 N.W. 121; City of Sioux Falls v. Kadinger, 74 S.D. 217, 50 N.W.2d 797; Norwood v. Parenteau, 75 S.D. 303, 63 N.W.2d 807. Consequently, our review Page 639 of such matters must be confined to the question of legislative power and not the wisdom of its a......
  • Kelley v. Duling Enterprises, Inc., No. 10561
    • United States
    • Supreme Court of South Dakota
    • 8 Diciembre 1969
    ...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 Although SDC 1960 Supp. 54.0609 relates to spectacles, eyeglasses, lenses and......
  • Hinesley, In re, No. 10334
    • United States
    • Supreme Court of South Dakota
    • 16 Mayo 1967
    ...as to reasonableness are not for the courts but for the Legislature, which is entitled to form its own judgment'. Norwood v. Parenteau, 75 S.D. 303, 63 N.W.2d Reversed. HOMEYER, P.J., and ROBERTS and RENTTO, JJ., concur. BIEGELMEIER, Judge (dissenting). Respondent Motor Sales prevailed in t......
  • Request a trial to view additional results
7 cases
  • DLH, Inc. v. NEBRASKA LIQUOR CONTROL COM'N, No. S-02-033.
    • United States
    • Supreme Court of Nebraska
    • 18 Julio 2003
    ...Inc. v. Riedemann, 277 N.W.2d 911 (Iowa 1979); Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193 (Mo.1972) (en banc); Norwood v. Parenteau, 75 S.D. 303, 63 N.W.2d 807 (1954); Toole v. State Bd. of Dentistry, 306 Mich. 527, 11 N.W.2d 229 (1943); Public Counsel v. Public Utility Com'n, 104 S.W......
  • State v. Nuss, No. 9941
    • United States
    • Supreme Court of South Dakota
    • 11 Abril 1962
    ...it. Mundell v. Graph, 62 S.D. 631, 256 N.W. 121; City of Sioux Falls v. Kadinger, 74 S.D. 217, 50 N.W.2d 797; Norwood v. Parenteau, 75 S.D. 303, 63 N.W.2d 807. Consequently, our review Page 639 of such matters must be confined to the question of legislative power and not the wisdom of its a......
  • Kelley v. Duling Enterprises, Inc., No. 10561
    • United States
    • Supreme Court of South Dakota
    • 8 Diciembre 1969
    ...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 Although SDC 1960 Supp. 54.0609 relates to spectacles, eyeglasses, lenses and......
  • Hinesley, In re, No. 10334
    • United States
    • Supreme Court of South Dakota
    • 16 Mayo 1967
    ...as to reasonableness are not for the courts but for the Legislature, which is entitled to form its own judgment'. Norwood v. Parenteau, 75 S.D. 303, 63 N.W.2d Reversed. HOMEYER, P.J., and ROBERTS and RENTTO, JJ., concur. BIEGELMEIER, Judge (dissenting). Respondent Motor Sales prevailed in t......
  • Request a trial to view additional results

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