Ritholz v. City of Salt Lake

• Decision Date: 27 May 1955
• Docket Number: No. 8296,8296
• Citation: 3 Utah 2d 385,284 P.2d 702
• Parties: d 385 Benjamin D. RITHOLZ et al., d/b/a King Optical Company, Plaintiffs and Respondents, v. The CITY OF SALT LAKE et al., Defendants and Appellants.
• Court: Utah Supreme Court

Page 702

284 P.2d 702

3 Utah 2d 385

Benjamin D. RITHOLZ et al., d/b/a King Optical Company Plaintiffs and Respondents, v. The CITY OF SALT LAKE et al., Defendants and Appellants.

No. 8296.

Supreme Court of Utah.

May 27, 1955.

Christenson, Holmgren & Christoffersen, Geo. E. Bridwell, Salt Lake City, for appellants.

Keith Jay Holdsworth, Salt Lake City, amicus curiae.

Clifford L. Ashton, Salt Lake City, for respondents.

CROCKETT, Justice.

Price advertising of eyeglasses is prohibited by an ordinance of Salt Lake City. Its validity is here challenged.

Plaintiffs operate King Optical Company in Salt Lake City in which they sell eye-glasses to customers on prescription of licensed doctors and eye specialists. ¹ They engage in public advertising including the running of ads in local newspapers that they will sell any eyeglasses for the uniform price of $8.98, which is conceded to be in violation of a Salt Lake City ordinance. The parts material to the attack here made upon it are as follows:

'No person, firm, [etc.] * * * engaged in the sale of prescription eye-glasses, * * * shall directly or indirectly cause to be * * * published, * * * in any manner whatever any statement of advertisement of any kind or nature.

'(1) That states a definite or fixed price or range of prices for such articles, * * *'.

In a declaratory judgment action, ² the trial court found the ordinance to be unconstitutional and granted a permanent injunction against enforcing it.

The ordinance is attacked on two grounds:

First, that it is ultra vires the powers of the city, and

Second, that it is an unwarranted infringement of constitutionally guaranteed rights, going beyond the proper exercise of the police power.

In relation to the ultra vires question, it should be noted that in this state, cities are creatures of statute ³ and limited in powers to those delegated by the legislature, ⁴ ] which we have characterized as: 'first, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation * * *.' ⁵

This court has generally adhered to a policy of rather strictly limiting the extension of the powers of a city by implication. ⁶ Plaintiff urges that because of this commitment we should hold the ordinance invalid since there is no express authority delegated to the city relative to advertising eyeglasses. It is pointed out, however, that the powers relied on by the city in enacting this ordinance are the expressly delegated powers to 'license, tax and regulate * * * the business conducted by merchants, wholesalers and retailers, shopkeepers and storekeepers * * *' ⁷ (emphasis added), to preserve the safety, health and morals of the city ⁸ and to safeguard the general health of the inhabitants. ⁹ We stated in Ogden City v. Leo ¹⁰ that 'where the power 'to regulate' a particular calling or business is conferred on a city, it authorizes such city to prescribe and enforce all such proper and reasonable rules and regulations as may be deemed necessary and wholesome in conducting the business in a proper and orderly manner.'

In this particular context the power to regulate business can mean only such regulations as are reasonably and substantially related to the safeguarding of the public health which raises the question whether the advertising proscribed by the ordinance bears such a relation. This involves consideration of the constitutional as well as the ultra vires problem since the city cannot be authorized to do what the legislature itself has not the power to do. ¹¹

To begin with, we observe that the city offered no evidence at the trial to show any relationship between advertising eyewear and public health. There is urged before us only conclusions of law made by other courts, presumably upon the basis of some factual showing in each case. But we disregard this deficiency in the presentation of evidence and consider the contentions presented to us. From them it appears, and we assume it to be a fact, that the only argument which can be made that price advertising is detrimental to public health is directed at low price advertising. The rationale of these cases is that such prohibition of advertising is related to public health because advertising eyewear will bring about low prices and hence poor quality, resulting in damage to the eyes and consequent poor health. ¹² It is argued that such advertising will possibly deceive people whose eyes actually need special corrective lenses, or case hardened lenses required in hazardous occupations, which cannot be furnished for the low advertised price, and that they will thus not receive the proper lenses for their eyes with the ill results above mentioned. With due deference to the opinions of those courts which have arrived at that conclusion, there are cogent reasons which persuade us to the opposite result.

The ordinance is here attacked primarily upon the grounds that it is an encroachment on property rights and the right of free expression guaranteed by Section 1, Art. 1 of the Utah Constitution which assures that: 'All men have the inherent and inalienable right to enjoy and defend their lives and liberties; to acquire, possess and protect property; * * * to communicate freely their thoughts and opinions, * * *.'

Clearly among the rights attendant upon ownership and enjoyment of property are the rights to exchange, pledge, sell or otherwise dispose of it--rights which must be adequately protected. Among other fundamental privileges is freedom to express one's thoughts, including freedom to publish notice of a willingness to dispose of one's property, ¹³ and upon what terms. It cannot be doubted that this ordinance does constitute a limitation upon such rights, a limitation which can only be justified if it is necessary for the health, morals, welfare or some similar important consideration of the public weal.

In judging the propriety of this enactment, we must take into consideration the balance between the alleged evil sought to be corrected and the limitation on constitutional rights the ordinance would impose. In reference to the use of the police power for such a purpose, this Court has said: 'There must exist an evil of a substantial nature, the correction of which would serve the public welfare * * *.' ¹⁴ We turn to inquire as to the nature and extent of the alleged evil, i. e. the claimed adverse effect upon public health.

It should be borne clearly in mind that the purported cause of such evil is solely that of price advertising of eyeglasses. The advertised price does not relate to or in any way affect the professional examination of the customer's eyes. It is not as though the customer went to the plaintiff and purchased eyeglasses for the advertised price, trusting entirely to plaintiff that he would receive correct glasses to fit his condition. If it were so, there might be more merit to the argument that glasses of an inferior grade would be furnished which could result in harm. But under the plaintiff's system of operation, the customer goes to an eye specialist who gives him an examination and writes out a prescription indicating the glasses needed; the prescription is then presented to plaintiff whose function it is to fill the prescription according to the specifications. Such a customer has already manifested sufficient interest in the care of his eyes that he will likely check back with the specialist to see that the glasses are proper, hence he is not entirely at the mercy of a vendor such as plaintiff. People will, and as a matter of fact they usually do, use some degree of circumspection relative to items like eyeglasses which they know must serve a corrective function with respect to such important and delicate organs as their eyes.

In respect to the argument that this advertising will 'deceive the unwary' so that a certain percentage of people will be injured by their own folly, the answer is that this is true of all forms of advertising. If the advertiser actually overreaches or deceives, he is in violation of the law against such practice, ¹⁵ and a remedy is available. ¹⁶ It should be noted that the law cannot be made, nor could one be enforced, which would entirely protect the completely naive and gullible. In any event, if a customer desires to use ordinary care, adequate protection is afforded so that there would seem to be little or no danger to his eyes from the use of glasses furnished at an advertised price. Indeed, the customer may benefit therefrom.

There are also other considerations to be taken into account as against the contention made by the city that the ordinance would tend to insure better quality of eyeglasses and conserve public health. One of these is that the basic theory underlying our system of government, its laws and our entire social system, is that all persons shall enjoy the highest possible degree of individual freedom consistent with the same degree of liberty in others, which theory this restriction upon plaintiffs' business runs counter to. Another is the effect which free competition, of which price advertising is a necessary adjunct, has upon business. Such freedom in competition has proved very beneficial to our economy and our standard of living. Its stimulus has resulted in producing ever more efficient methods by which the American people have been furnished more and better services and higher quality merchandise. They have proved themselves sufficiently good judges of the quality of products that those who excel in furnishing superior ones succeed and continue to improve, while others fail.

The very element of competition through price advertising may well have beneficial effects upon the quality of the product sold which would offset any possible slight detriment to health that may be hazarded if such advertising were curtailed....