State v. Rones
| Decision Date | 01 June 1953 |
| Docket Number | No. 41179,41179 |
| Citation | 223 La. 839,67 So.2d 99 |
| Parties | STATE v. RONES. |
| Court | Louisiana Supreme Court |
James I. McCain and Charles Rosen, II, New Orleans, for appellant.
George R. Fearon, Syracuse, N. Y., Nelson S. Wooddy, New Orleans, of counsel, for appellant, amicus curiae.
Fred S. LeBlanc, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Severn T. Darden Dist. Atty., Peter J. Compagno, Asst. Dist. Atty., and William J. Wegmann, New Orleans (Racivitch, Johnson & Wegmann, New Orleans), for appellee.
The defendant James Rones, as owner of the Rish Optical Company, inserted in a daily newspaper published in New Orleans an advertisement substantially as follows:
NOW IN NEW ORLEANS!!! Rish brings you the finest optical service anywhere!! . . . Highly experienced opticians to carefully fit your glasses. Whether it be a broken lens or a new pair . . . skilled hands, plus precision machinery, will--in a matter of hours--have them completed . . . Rish celebrates our New Orleans opening with this sensational event!!! SAVE $7 to $18
35 New and Exciting Styles
Oculists' Prescriptions Filled
One-Day Service
147 BARONNE, Across from Pere Marquette Bldg.
(All italics ours.)
As a result of this advertisement the defendant was charged in a bill of information with violating LSA-R.S. 37:1063(9), which provides:
'No person shall:
* * *
* * *
'(9) Advertise as free or for a price, any of the following: The examination, or treatment of the eyes; the furnishing of optometrical services; or the furnishing of a lens, lenses, glasses, or the frames or fittings thereof.'
The bill of information charged the offense denounced by the statute in two counts, (1) that the defendant willfully and unlawfully advertised as free or for a price the furnishing of optometrical services, and (2) that he willfully and unlawfully advertised for a price the furnishing of a lens and lenses and glasses and the frames and fittings thereof. Defendant filed a motion for a bill of particulars, and in response the State informed him that the optometrical services advertised were 'that opticians were available to fit glasses, repair broken lens or complete a new pair', and that the advertisement of lenses, etc., was for the general public upon a retail basis.
To the bill of information as thus amplified the defendant filed a demurrer and a motion to quash, which were overruled. After trial he was adjudged guilty upon both counts and sentenced to pay a fine of $350.00 or to serve seven months in the parish prison on each count, the sentences to run concurrently.
The first matter for our consideration is the appellant's contention in his demurrer that the bill of information as amplified by the bill of particulars shows as to the first count that the defendant was advertising the furnishing of optical services, which is not within the prohibition of the statute regulating the profession of optometry, LSA-Revised Statutes, Title 37, Chapter 12, Sections 1041 et seq. Section 1041(3) defines 'optometry' as follows:
"Optometry' means that practice in which a person employs or applies any means other than the use of drugs, medicines, or surgery for the measurement of the powers and testing the range of vision of the human eye, and determines its accommodative and refractive state, general scope of function and the adaptation of frames and lenses to overcome errors of refraction, and restores as near as possible with these mechanical appliances normal human vision.'
The problem, then, is whether the advertisement of 'highly experienced opticians to carefully fit your glasses' was as advertisement of the furnishing of optometrical services within the meaning of the statute.
According to the definition of optometry quoted above, the optometrist adapts frames and lenses to overcome errors of refraction and restores as nearly as possible with these mechanical appliances normal human vision. The optician, on the other hand, as pointed out by the appellant, is engaged in the business of furnishing lenses to customers on the prescriptions of licensed optometrists or qualified physicians, putting the lenses into frames selected by the customer, and fitting the frames to the face.
The words 'adapt' and 'fit' are synonymous. According to Webster's New International Dictionary (2d ed.), the word 'adapt' means to make suitable; to fit, or suit; to adjust; to alter so as to fit for a new use; to render fit by changing, and the word 'fit' means to make fit or suitable; to adapt to the purpose intended; to bring to a required form or size; to shape aright; to adapt to model; to adjust.
The practice of optometry as defined by the statute includes the fitting (adaptation) of frames and lenses to overcome the errors of refraction, etc., and the advertisement states that opticians are available 'to carefully fit your glasses'. The word 'fit', used in this advertisement without limitation, would convey to the reading public that opticians are available to fit glasses for all purposes, necessarily including the fitting of frames and lenses to overcome errors of refraction. 'Fitting glasses' means fitting them to the eyes as well as to the face. Although the defendant, an optician, may be actually engaged only in rendering optical services, such as fitting glasses to the face, adjusting the nosepieces, etc., for comfort and improving the appearance, the advertisement in the instant case does not so specify. Its broad, unqualified language is therefore an advertisement for the furnishing of optometrical services, which is denounced and prohibited by the statute.
The courts of other states have considered whether fitting glasses is an optometrical service, and have concluded that it is. See Rowe v. Standard Drug Co. (Rowe v. May Co.), 132 Ohio St. 629, 9 N.E.2d 609; Rosenthal v. O'Hara, 40 Pa.Dist. & Co. 568; Dellinger v. Arkansas State Board of Optometry, 214 Ark. 562, 217 S.W.2d 338.
In Rowe v. Standard Drug Co. et al., supra [132 Ohio St. 629, 9 N.E.2d 617], the owner of an optical business inserted an advertisement in the paper which contained the words 'Proper Glasses Quickly Give Relief' and 'Fitting by Expert Optician'. Of this advertisement the court said:
* * *'
Another advertisement considered in the same case stated that an optical department furnished glasses 'well fitted'. Of this advertisement the court said:
'* * * This constituted an unlawful holding out that he [the advertiser] was engaged in the practice of optometry, and what has been heretofore said regarding such a course of conduct is applicable.'
In his demurrer to the second count in the information as amplified by the bill of particulars, appellant contends that the statute does not apply to him because he is a retail dealer, and retail dealers are specifically excepted from the provisions of the statute by Section 1065 thereof. This section provides insofar as pertinent:
'The provisions of this Chapter shall not apply to * * * retail dealers selling glasses as merchandise in their established places of business. * * *
'No retail dealer shall directly or indirectly, advertise through any medium the sale of glasses, or peddle, solicit, sell, or offer for sale glasses from door to door, or house to house, or away from his permanent established place of business.'
This section in the first sentence exempts from the provisions of the chapter retail dealers selling glasses as merchandise in their established places of business, but the second paragraph of this same section provides an exception to this exemption by prohibiting retail dealers from directly or indirectly advertising through any medium the sale of glasses. No one reading this section could get the impression that the exemption is unqualified. After exempting retail dealers from the provisions of the chapter, the lawmakers in the next sentence began qualifying that exemption by providing that it is unlawful for any person, except those licensed to practice under the provisions of the chapter, to have certain equipment or to do certain specified acts, and the second paragraph of the section makes it manifestly clear that no retail dealer shall advertise.
Looking at the statute as a whole, as we must, to determine its meaning, we see that it is a general one defining and regulating the practice of optometry, and by one of its many provisions prohibits any person from advertising the furnishing of glasses, lenses, etc., free or for a price. Section 1065 exempts generally retail sellers of glasses from the provisions and regulations applicable to optometrists except as to certain specified particulars provided further in that same section, and the provision is plain that no retail dealer, regardless of the general exemption, shall advertise through any medium the sale of glasses or sell glasses away from his permanent established place of business.
To our minds the statute is clear and unambiguous, and the source of this particular section of the Revised Statutes, Act 172 of 1942, Section 2, reenacting Section 19 of Act 193 of 1918, supports our interpretation. It provided that 'This Act shall not apply to Retail Dealers, except as hereinafter provided,' and contained in the second paragraph the identical prohibition against advertising by a retail dealer as appears in the Revised Statutes.
The Revised Statutes of 1950 were prepared by the Louisiana State Law Institute pursuant to a mandate of the Legislature of this state, Act 42 of 1942, by which the Institute was instructed to prepare a comprehensive revision of the statutes, to...
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