Page images


New York, N.Y., March 28, 1966. Hon. John Dowdy, Chairman, Subcommittee No. 4, Committee on District of Columbia, U.S. House of Representatives, Washington, D.C.

DEAR MR. CHAIRMAN: The American Newspaper Publishers Association takes this opportunity to express its views with respect to bill H.R. 12937 and related bills which are subject of hearings by your subcommittee.

The ANPA is an association of daily newspapers founded in 1887. Our 975 members represent 90 percent of the daily newspaper circulation in the United States.

As we understand it, the bills would provide authority for the Board of Commissioners of the District of Columbia to "refuse to issue, renew, or restore any license authorized by this act * * * for any of the following causes:

“(7)(8). Advertising directly or indirectly the performance of optometric serve ice or any part thereof, including the furnishing of ophthalmic or optical material, in any form, manner, or way, or through any medium, whether it be printed, audible, visible, electronic, or in any other fashion, except as authorized by regulations issued under section 10 of this act.”

Under section 10 of the proposal, the District Commissioners could authorize the use of professional cards and small signs at the optometrist's office.

It is disturbing to learn that a group of optometrists seeks enactment of a law to prohibit truthful advertising by optometrists.

We believe that optometrists have a right to declare themselves ethical; that they have a right to declare themselves professional and to endeavor to improve their public image; that they can be licensed by government. However, it is entirely another matter if they expect government to enforce their own particular ethics when it includes a prohibition against truthful advertising.

This association objects to the passage of any bill by the Congress which would set up a series of conditions controlling the advertising by optometrists in the District of Columbia. We take the position that it should be legal to advertise any service or product which it is legal to sell. This is fundamental.

if there is anything false or misleading in advertising, prosecution of those responsible for the advertising should be made under the provisions of laws touching upon false and misleading advertising now in existence in the District of Columbia.

If any one type of advertising be prohibited, plausible excuses will not be lacking for extending the prohibition to advertising by other groups, classes or individuals. We do not believe that Government controls should be so extended because to do so would place more hurdles in the path of individual initiative.

To enact the proposal now before your subcommittee would create a situation that would deny to the public information it is entitled to have. To restrict such information is to censor—to impair the right of the people to know.

We earnestly recommend that your subcommittee reject the proposal now before you, and request that this letter be made a part of the hearing record. Sincerely yours,

STANFORD SMITH, General Manager.

HOUSTON, TEX., March 30, 1966. Hon. John Dowdy, Chairman, Subcommittee Number 4, House District Committee, Longworth House Office Building, Washington, D.C.

We the Board of directors of the Ophthalmic Dispensing Association of Texas by unanimous vote this date request the following statement be included in the testimony of the hearings on H.R. 12937:

Resolved, The Ophthalmic Dispensing Association of Texas wishes to be recorded as opposing H.R. 12937. This bill is considered as a further attempt by optometry to restrain trade and the right of the public to freely choose the supplier of optical goods and services. This bill, is passed would severely affect the historic ophthalmologist-optician relationship the methods and procedures of which effectively caring for the public which seeks medical eye care.

EVERETT C. OLNEY, President.





(220 Ind. 476, 41 NE(20) 622; 141 A.L.R. 876) Physicians and Surgeons, $ 1542--what constitutes practice of optometry-sale of

glasses 1. Sales of sets of glasses, the two lenses of which are alike, the method being for the salesman who sits at a table opposite the customer to hand glasses to the latter who tries them until he makes his choice by the trail and error method is not the practice of optometry within the statute which defines such practice in terms which include both the scientific professional examination of the eyes and vision and the furnishing of remedies, including lenses, for the correction of abnormal conditions.

(See annotation on this question beginning on page 883.) Judgment, g 68construction-looking to whole record.

2. The court on appeal may look to the whole record to ascertain the meaning or effect of the judgment. Statutes, $ 255construction—"and" as meaning "or."

3. The word “or” is not to be substituted for the conjunctive "and” employed in a subsection of a statute defining optometry so as to include scientific professional examination of the eyes and the furnishing of remedies, including lenses, for the correction of abnormal conditions, especially in view of the subsequent use of the symbol "and/or” in a different context in the same subsection. Statutes, $ 924-construction-reference to title---practice of optometry.

4. A subsection of a statute relating to optometry, though broad enough in terms to make its prohibition of advertising prices of glasses applicable to any person whatsoever, including persons who are selling glasses as merchandise and are not practicing optometry, will not be given that effect in view of the title of the act: ""An act to define and regulate the practice of optometry

." and the fact that the subject of the act is the practice of optometry, its object being “to define and regulate” such practice. Statutes, $ 76sufficiency of title-liberal construction.

5. The title of an act should be liberally construed in determining whether it sufficiently covers the subject matter of a particular provision thereof.

(See RČL title “Statutes," $ 85.) Physicians and Surgeons, $ 15-regulation-effect of statutory definition.

6. The field of operation of an act entitled "An act to define and regulate the practice of optometry ." is circumsc ibed by the defin of optometry in the act and does not include the advertising and sale of glasses as articles of merchandise.

APPEAL by relators from a decree of Allen Circuit Court in favor of defendant in an action by the State to enjoin defendant from a practice alleged to constitute the practice of optometry without a license. Affirmed.

Messrs. Pell & Pell, of Shelbyville, George N. Beamer, Attorney General, Francis N. Hamilton, John R. Walsh, and Joseph W. Hutchinson, of Indianapolis, and Wendell Harris, of Fort Wayne, for appellants.

Messrs. Hoffman & Hoffman and Colerick & Corbett, all of Ft. Wayne, for appellees:

The supreme courts of other states passing on this question have unanimously held that the sale of eyeglasses or spectacles as articles of merchandise without eye examination or measurement does not constitute the practice of optometry as defined in their respective optometry acts.

New Jersey State Bd. of Optometrists v. S. S. Kresge Co. 113 NJL 287, 174 A 353; Kindy Opticians v. State Examiners, 291 Mich 152, 239 NW 112; Johnson v. State, 22 Ala App 149, 113 So 484; State v. Knapp, 327 Mo 24, 33 SW (2d) 891; Bruhl v. State, 111 Tex Crim Rep 233, 13 SW (2d) 93.

The distinction between the practice of optometry and the mere sale of eyeglasses has frequently been pointed out by the supreme courts of other states.

State ex rel. Bricker v. Buhl Optical Co. 131 Ohio St 217, 2 NE(2d) 601; Harris v. State Bd. of Optometrical Examiners, 287 Pa 531, 135 Á 237; Sage-Allen Co. v. Wheeler, 119 Conn 667, 179 A 195, 98 ALR 897; Martin v. Baldy, 249 Pa 253, 94 A 1091; Saunders v. Swann, 155 Tenn 310, 292 SW 458; Babcock v. Nudelman, 367 Ill 626, 12 NE(20) 635; Price v. State, 168 Wis 603, 171 NW 77.

The bending of eyeglass mountings and frames to fit the face does not constitute the practice of optometry.

Indiana Optometry Act, Burns 1941, § 4, Ind. Anno. Stat. $ 63-1004; State ex rel. Bricker v. Buhl Optical Co. 131 Ohio St 217, 2 NE(2d) 601.

Richman, J., delivered the opinion of the court:

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 eyeglasses 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 judge ment. Fleenor v. Driskill, 1884, 97 Ind 27, 33. See, also Hanley v. Mason, 1908, 42 Ind App 312, 85 NE 381, 732. One of the two controversial questions below and in this appeal is whether such sales without a license 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 therefor 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 eyeglasses 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 said business the said defendants have maintained places of business and establishments for said purpose, in which they displayed cases containing eyeglasses and spectacles of various types, styles, and lenses, and acting either through themselves or through their agents and salesmen have exhibited said eyeglasses 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 depature 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. Apellant thinks this is enough to make its

But we cannot 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 cannot 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


« PreviousContinue »