Shannon v. Rogers, A-6674

• Decision Date: 25 June 1958
• Docket Number: No. A-6674,A-6674
• Citation: 314 S.W.2d 810,159 Tex. 29
• Parties: Robert K. SHANNON et al., Appellants, v. S. J. ROGERS et al., Appellees.
• Court: Texas Supreme Court

Page 810

314 S.W.2d 810

159 Tex. 29

Robert K. SHANNON et al., Appellants, v. S. J. ROGERS et al., Appellees.

No. A-6674.

Supreme Court of Texas.

June 25, 1958.

Rehearing Denied July 23, 1958.

Dan Moody, Austin, Henry Klepak, Dallas, for appellants.

Keith, Mehaffy, McNicholas & Weber, Beaumont, for appellees.

GARWOOD, Justice.

On motion for rehearing the opinion handed down on April 16, 1958, is withdrawn and the following substituted therefor.

By this direct appeal pursuant to Article 1738a, Vernon's Tex.Civ.Stats., and Rule 499-a, Texas Rules of Civil Procedure, the appellants Shannon et al., licensed practitioners of optometry, attack a temporary injunction issued by the trial court against certain professional advertising on their part, the injunction being based entirely upon an amendment to Art. 4565g, Vernon's Tex.Civ.Stats., and issued over the appellants' plea that the portion of the amendment alleged to prohibit such advertising is void by reason of defectiveness of the caption under Art. III, Sec. 35, Vernon's Tex.Const. Our holding is that, while the particular provision is constitutional, the injunction must be dissolved.

The appellees-plaintiff, Rogers et al., are licensed competitors of the appellants in the practice of optometry, a profession or occupation somewhat elaborately regulated by Chapter 10, Arts. 4552-4566, inc., of Title 71, Revised Civil Statutes of 1925, to Art. 4565g, of which the provision now in question was added in 1957, the amending act being Ch. 240, Acts 55th Leg., Reg.Sess., p. 501, and known as S.B. No. 104. Both the original Art. 4565g and the amending act and caption thereof are relatively short, and accordingly both the former ¹ and the latter ² are fully copied as footnotes. Since the amending act deals also with paragraph (1) of Art. 4565d, the original of the latter is copied in a third footnote. ³

It will be noted that the critical provision in the amending act is the last sentence of Art. 4565g as rewritten, reading as follows 'It shall be unlawful for any person, firm or corporation in this state * * * to publish * * * any statement or advertisement concerning ophthalmic lenses, frames eyeglasses, spectacles or parts thereof which is fraudulent, deceitful, misleading, or which in any manner whatsoever tends to create a misleading impression, including statements or advertisements of bait, discount, premiums, price, gifts or any statements or advertisements of a similar nature, import or meaning.'

The case was evidently heard below on the pleadings, the reference in the decree to the hearing of evidence apparently having to do with a hearing on venue and other matters not going to the merits.

According to the verified original petition of the appellants-defendant, the factual basis of the suit is an advertisement published on and after January 1, 1958, by the appellants-defendant, a substantially correct description thereof being as follows:

'Single Vision Glasses

As Low as $12.50

(Picture of a man wearing glasses)

Complete Optical Service

Eyes Examined

Glasses Fitted

Lenses duplicated

Choice of many frame styles

(Picture of eyeglasses)

E-A-S-Y Credit

No Money Down

Pay just $1 weekly

499 Pearl St.

Douglas

Optical

Offices at

Zales Jewelers'

The appellees-plaintiff alleged that said advertisement, and such similar advertisements as would thereafter be published but for legal restraint, were in violation of the above quoted portion of amended Art. 4565g, the sense of the pleading being that the advertisements were illegal because they 'included a statement as to the price of spectacles by the respondents.'

The decree of the trial court, after reciting that the appellants-defendant 'began * * * to advertise the price of spectacles or eye-glasses which included therein statements of the price thereof' and 'That the said advertisements * * * constituted a violation of Article 4565g * * * as amended * * *', proceeded to enjoin the appellants-defendant 'from the further violation of Article 4565g (otherwise known as Senate Bill No. 104, Acts 55th Legislature, Regular Session, 1957), by publishing, causing, or allowing to be published any statement or advertisement concerning ophthalmic lenses, frames, eyeglasses, spectacles or parts thereof which include therein any statements or advertisements of price or any statements or advertisements of a similar nature, import or meaning, either in newspapers, by radio broadcast, television, billboard signs, or otherwise * * *.'

Although undoubtedly the caption is irregularly drawn, we do not consider the variances between it and the particular provision in question sufficiently grave to warrant our declaring the latter invalid, especially in the light of the liberal view customarily indulged by this Court in respect of captions. See Central Education Agency v. Independent School Dist., 152 Tex. 56, 254 S.W.2d 357.

The variance most heavily attacked by the appellants-defendant is that whereby by the caption indicates that amended Art. 4565g is to contain only certain provisions (specifying particular activities as being permissible to ophthalmic dispensers) whereas the article as written (rewritten) in the body of the act contains not only these provisions, but also the provision with which we are here concerned and which is a prohibitory provision having no close relationship to the permissible activities stated. Our reason for not regarding this obvious variance as fatal to the provision in question is that the caption actually does contain a reference to that provision. The caption thus having announced that the body of the act (bill) would contain such a provision, the fact that the body of the act puts it in a place (rewritten 4565g) where the caption indicates it would not be put, does not, in our opinion, constitute a failure to state the subject matter of the provision in the caption, which is all the constitution requires.

The constitutional provision is, of course, directed at pending legislation. Doeppenschmidt v. International & G. N. R. Co., 100 Tex. 532, 101 S.W. 1080, 1081. In so far as it deals with captions of bills, as distinguished from the matter of multiple subjects thereof, its object is to facilitate and protect the legislative process by affording legislators and other interested people a ready and reasonably accurate means of knowledge of the contents of bills without their having to read the full text.

The Constitution plainly assumes, however, that the entire caption will be read; and if such a reading necessarily discloses the bill to contain a particular provision, no more is required. There is no requirement that the body of the bill shall be arranged in the particular form or sequence indicated by the caption so as to avoid a particular provision being placed where the caption indicates it would not be placed. There is no implication that, although the subject actually is 'expressed in its (the bill's) title', and although the reader of the title (caption) is thereby told that the bill contains a given provision, the reader may, nevertheless, without reading the whole body of the bill, properly assume that the caption reference was false and that the body of the bill contains no such provision because he could only find it in a place where the caption indicated it would not be.

We know of no decision which we consider contrary to our foregoing view. Decisions such as Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799, and Texas-Louisiana Power Co. v. City of Farmersville, Tex.Com.App., 67 S.W.2d 235, contemplate situations in which the caption fails to mention a particular provision that is in the bill or in which the caption, while containing general language that might include the provision in question, yet contains also specific language affirmatively indicating that no such provision is to be included. In the instant case, the caption expressly asserts the provision in question to be in the body of the act, contains no language at variance with that assertion, and is consistent with the body of the act to the extent that the latter does contain such a provision.

The fact that the act in question adds the provision here under attack to original Art. 4565g, which latter dealt with a somewhat different subject, may, indeed, be defective draftsmanship. But it does not follow, in our opinion, that the caption to the amendatory act has failed to meet the constitutional requirement that the provision be 'expressed' therein. As explained in Board of Water Engineers of the State of Texas v. City of San Antonio, 155 Tex. 111, 283 S.W.2d 722, a particular provision in the body of an amendatory bill (act) does have to be germane to the original act in order to uphold the caption of the amendatory bill in those cases wherein the caption states merely that the original act is being amended without specifying what the amendment is. The reason for that rule is that the caption in effect tells the reader that the bill contains nothing except what is germane to the original act. The rule has no application to a situation like the present, in which the caption of the amendatory act expressly states that the body of the act includes the new provision in question, although it also states, in effect, that the new provision will be in a different place in the act than that in which it is actually found.

It is argued further that the caption described the bill (act) as one regulating 'ophthalmic dispensers', and them only, whereas the corresponding provision of the act itself applies to 'any person, firm or corporation in this state', including thereby 'optometrists'. The difficulty with this argument, as we see it, is that the caption does not refer exclusively to ophthalmic dispensers. The fact that the caption starts with the words, 'An Act relating to ophthalmic dispensers;' does not settle the matter. As before stated, we think the Constitution assumes that the reader will read the...