State ex rel. Booth v. Beck Jewelry Enterprises
| Decision Date | 14 May 1942 |
| Docket Number | 27579. |
| Citation | 41 N.E.2d 622,220 Ind. 276 |
| Parties | STATE ex rel. BOOTH et al. v. BECK JEWELRY ENTERPRISES, Inc., et al. |
| Court | Indiana Supreme Court |
Appeal from Allen Circuit Court; Harry H. Hilgemann, Judge.
Pell & Pell, of Shelbyville, George N. Beamer, Atty. Gen Francis N. Hamilton, John R. Walsh, and Jos. W. Hutchinson Deputy Attys. Gen., and Wendell Harris, of Ft. Wayne, for appellants.
Hoffman & Hoffman and Colerick & Corbett, all of Ft. Wayne for appellees.
Appellant in its complaint for a permanent injunction charged that certain conduct of appellees constituted the practice of optometry within the meaning of Chapter 38 of the Acts of 1935 requiring licenses which appellees did not possess. The judgment followed the prayer of the complaint that appellees 'be and they hereby are permanently enjoined from practicing or engaging in the practice of optometry in the State of Indiana without the license required by law.' Without filing motion to modify the judgment appellant appealed. After the case had been fully briefed on the merits at the time of oral argument appellees asked and later were granted permission to amend their briefs so as to present their contention that the judgment gave appellant all the relief it asked and hence it had no right to appeal.
There were seven special findings of fact and three conclusions of law. Conclusion 2 is 'that the selling, trading and bartering of eye-glasses and spectacles, as set out in Finding No. 5, does not constitute the practice of optometry as defined by the statute of the State of Indiana.' From this conclusion it is apparent that the practices set out in Finding 5 were not by the trial court intended to be enjoined because they were outside of his definition of the practice of optometry. We may look to the whole record to ascertain the meaning or effect of the judgment. Fleenor v. Driskill, 1884, 97 Ind. 27, 33. See, also, Hanley v. Mason, 1908, 42 Ind.App. 312, 85 N.E. 381, 732. One of the two controversial questions below and in this appeal is whether such sales without a lecense are forbidden by the statute which appellant is administering. The trial court said they were not and the substantial effect of his judgment was to deny to appellant the relief to which it is entitled if his definition is erroneous. We shall therefore consider the questions presented and argued.
To the complaint which was filed September 6, 1938, appellees filed answer admitting practices in violation of the statute up to the twenty-sixth day of November, 1938, but asserted that since that date their practices have been within the law. The first part of Finding 5 is as follows: 'That on the 26th day of November, 1938, the said defendants ceased the practice of optometry as set forth in Finding No. 4, but since said time have engaged in the business of selling, bartering and trading eye-glasses and spectacles in the various cities and places set out in the plaintiff's complaint herein and in the foregoing Finding No. 2; that in the carrying on of sad business the said defendants have maintained places of business and establishments for said purpose, in which they displayed cases containing eye-glasses and spectacles of various types, styles, and lenses, and acting either through themselves or through their agents and salesmen have exhibited said eye-glasses and spectacles to prospective customers and assisted said customers to try them on and make tests as to their adaptability by reading magazines or signs which were available, and have at times assisted in adjusting the frames of glasses and spectacles to the faces of said prospective purchasers:'
The remainder of this finding may be disregarded as a conclusion of law. It was admitted in oral argument that the two lenses of every set of glasses sold by appellees are alike. Appellant also contends that the uncontradicted evidence adds the further facts that the customer and the salesman sit at opposite sides of a table, that the salesman hands the glasses to the customer who is requested to read available magazines and signs on nearby buildings, that if he does not see well with the glasses another set is handed by the salesman to the customer and the process is repeated until a pair is found with which the customer is satisfied. For the purpose of this case we shall treat all these facts as if properly found. If such practices are not within the definition of section 4 of the statute then so far as the sale of the glasses is concerned, the decision below was correct. The section reads:
'The practice of optometry is hereby defined to be any one of the following acts, or any combination of, or part of the following acts:
'(a) * * * The examination or diagnosis of the human eye, to ascertain the presence of abnormal conditions or functions which may be diagnosed, corrected, remedied or relieved, or the application or prescription of lenses, prisms, exercises, or any physical, mechanical, physiological or psychological therapy, or the employment of any means, for the purpose of detecting any diseased or pathological condition of the eye, or the effects of any diseased or pathological condition of the eye, which may have any significance in a complete optometric diagnosis of the eye or its associated structures.
'(b) * * * The application, use, or adaption of physical, anatomical, physiological, psychological or any other principles through scientific professional methods and devices, to the examination of the eyes and vision, measuring their function for the purpose of determining the nature and degree of their departure from the normal, if any, and adopting optical, physiological and psychological measures and/or the furnishing or providing any prosthetic or therapeutic devices for the emendation thereof.' Acts 1935, c. 38, § 4, § 63-1004, Burns' 1933 (Supp.), § 13174, Baldwin's Supp.1935.
Subsection (a) has two separable parts: the first twenty-five words (ending with 'relieved') pertain to the examination of the eye without designating the character of the examination. The remainder of (a) likewise pertains to the examination of the eye but designates various means, all, however, for the purpose of detecting a pathological condition or its effect. There is no suggestion in (a) of any remedial action. There is no mention of vision. It is the eye which is the subject of examination.
The first part of (b) (ending with words 'if any') likewise pertains to the examination of the eye but also includes vision--'eyes and vision.' But this examination is 'through scientific professional methods,' and not otherwise. The purpose of the examination is to determine 'the nature and degree of their departure from the normal.'
The latter part of (b) is the only portion of the definition which purports to cover any remedial action and is chiefly relied upon by appellant. The argument is that 'furnishing * * * prosthetic * * * devices' means furnishing eyeglasses, 'for the emendation thereof' means to correct, and 'thereof' refers to 'eyes and vision;' so that the whole clause means furnishing eyeglasses to correct eyes and vision. We can accept this view. Appellant thinks this is enough to make its case. But we can not agree.
The italicized conjunctive 'and' joins the two parts of (b) so that read as a whole it pertains to the scientific professional examination of the eyes and vision and the furnishing of remedies, including lenses, for the correction of their abnormal conditions. We realize that courts sometimes substitute the disjunctive for the conjunctive where the context requires but here we see no reason for such substitution. It seems to us that the Legislature was careful with its 'ands' and 'ors' in this whole subsection. Later the symbol 'and/or' is used which does not add certainty but does permit a choice between the conjunctions. If any such choice had been intended where the italicized 'and' appears we should expect to find the same symbol. We think the two parts were intended to be read together. Since there is no pretense that appellee's sales are made in connection with scientific or professional examination either of the eyes or vision the definition does not fit the facts.
We can not find in the opening words of the section justification for severing words and phrases from their context or rearranging them to procure a definition which, in the language of the trial judge, might have been stated, if intended, 'in plain English language.' Nowhere in the definition is mentioned either 'sale' or 'eyeglasses,' two very common English words. But they were used by the same Legislature elsewhere in the act. See infra § 12(d). Why not in section 4? Instead, technical words were used which may not have been understood by the legislators themselves. It ought not be necessary to use a glossary to find the meaning of a penal statute.
Considering the section as a whole we think it defines the practice of optometry substantially as it has been defined by statutes and decisions of other states and does not apply to the sale of eyeglasses as articles of merchandise. New Jersey State Board of Optometrists v. S. S. Kresge Co., 1934, 113 N.J.L. 287, 174 A. 353; Johnson v. State, 1927, 22 Ala.App. 149, 113 So. 484; State v. Knapp, 1930, 327 Mo. 24, 33 S.W.2d 891.
Appellant makes much of the fact that appellees or their employees sit at a table instead of standing behind a counter and that they hand the glasses to the customers instead of permitting them to select those which they will try. By this method the lenses with which the customers can best see are probably found more quickly then by starting at one end of a row of one hundred and taking them in order. A clerk familiar with his merchandise can...
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