13 N.W.2d 283 | Mich. | 1944
Lead Opinion
I am unable to accept the reasoning of Mr. Justice BUTZEL that the ordinance in question "bears such relation to the health, morals, safety and general welfare of the public that its constitutionality cannot be questioned."
In construing the ordinance, I have in mind that there is no claim made that cheap glasses damaging to health were sold or that the sale of a better grade of glasses than advertised had any detrimental effect upon the buyer.
It is to be noted that the ordinance has nothing to do with the regulation of the practice of optometry. Its real purpose is the prevention of false, fraudulent, *273 and misleading advertising of eyeglasses or lenses.
In Carolene Products Co. v. Thomson,
"The Constitution guarantees to citizens the general right to engage in any business which does not harm the public. People,ex rel. Valentine, v. Berrien Circuit Judge,
In People v. Snowberger,
"Generally, it is for the legislature to determine what laws and regulations are needed to protect the public health and secure the public comfort and safety. If it passes an act ostensibly for the public health, and thereby destroys or takes away the property of the citizen or interferes with his liberty, it is for the courts to determine whether it relates to and is appropriate to promote such public health."
In State, ex rel. Booth, v. Beck Jewelry Enterprises, Inc.,
"To forbid price advertising by an optometrist is regulation of his practice. But to forbid price advertising by appellees is merely regulation of their merchandising. * * *
"Truthful price advertising is a legitimate incident to a lawful merchandising business. Deprivation of the right so to advertise has been held to violate the due process clause of the Fourteenth Amendment. * * * We cannot assume that the legislature intended to permit the sale of eyeglasses as merchandise but to deprive the dealer of one of the reasonable and lawful means of procuring purchasers for such merchandise."
The case of Jones v. Bontempo,
"The trade of barbering, operating as it does directly on the person of the customer, affects the health, comfort and safety of the public and may be regulated within reasonable limits by the legislative branch of the government under that power known as the police power, `conceded to reside in the people's representatives, which is rightfully exercised by the regulation of the use of private property, or so restraining personal action, as to secure, or tend to the comfort, health, or protection of the community.' State v. Gardner,
"Therefore, those engaged in the occupation of barbering or those desiring to pursue that business may be examined as to their competency and fitness and are subject to supervision and control in the matters of cleanliness, sanitation, conduct, habits, infectious and contagious diseases, and things of that kind. * * *
"How the mere advertising of the price of haircuts as done by the plaintiff could in any wise affect public health or welfare is difficult to understand.
"If this legislation, absolutely prohibiting the advertising of prices of barber services, were to be upheld, it would likewise be necessary to uphold legislation prohibiting the vendors of groceries, meats or other commodities from advertising prices thereof in any manner, the unreasonableness of which is at once apparent.
"This court is unanimously of the opinion that the particular legislation complained of in this case unduly interferes with the constitutional prerogatives of plaintiff as to freedom of action, speech and property rights."
In my opinion the evil sought to be corrected by the ordinance is a business evil. The ordinance has no relation to public health and is an unlawful interference with private business. It is void as being in violation of the Fourteenth amendment of the United States Constitution.
The decree of the trial court is reversed, without costs as a constitutional question is involved.
NORTH, C.J., and STARR, WIEST, and BOYLES, JJ., concurred with SHARPE, J. REID, J., took no part in the decision of this case. *276
Dissenting Opinion
Plaintiffs own a factory in Chicago and maintain offices or stores throughout the country. They manufacture and fill orders for eyeglasses and the parts thereof. They do business in Detroit under the assumed name of National Optical Stores Company. One of their stores or offices is located in a downtown office building where orders on prescriptions are taken for eyeglasses and frames. These prescriptions from doctors and optometrists are sent to Chicago to be filled. The manufactured articles are forwarded to the Detroit office and, from there, delivered to the customer. Plaintiffs advertised the prices charged for the eyeglasses in newspapers, circulars, et cetera.
Controversies with the Better Business Bureau of Detroit arose over plaintiffs' business methods, and, for a time, their advertising was not accepted by the newspapers. Finally, plaintiffs signed an agreement not to engage any further in unethical business practices. Shortly thereafter the common council of the city of Detroit passed an ordinance that became effective on November 19, 1942, known as Ordinance 288-D, entitled:
"An ordinance prohibiting misleading statements in advertisements in connection with the sale of eyeglasses, lenses, eyeglass frames and mountings and their supporting accessories; prohibiting advertising of the price of eyeglasses or lenses; regulating advertising of the price of frames and mountings and their supporting accessories; and providing penalties for the violation of the provisions thereof." *261
Section 2 of the ordinance reads as follows:
"No person, partnership or corporation or agent or employee thereof, engaged in or connected with the sale of eyeglasses, or lenses, shall include in any advertisement, by newspaper, radio, window display, handbill, poster, or any other form of advertising any statement advertising the price of lenses or of complete eyeglasses, including lenses, either with or without professional services; or offer any gift, premium, discount, special price or free eye examination in any such advertisement."
On November 18, 1943, plaintiffs filed a bill to restrain its enforcement. They particularly assail the validity of section 2 of the ordinance claiming that, contrary to both the State and Federal Constitutions, it deprives plaintiffs of the right of free speech and press and takes their property without due process of law. The right to advertise one's merchandise for the purpose of creating public demand and securing trade for the advertiser is, subject to the police power, included in the right to liberty and property. Packer Corporation v. Utah,
At the oral argument of the case, we suggested that plaintiffs might not be entitled to any relief whatsoever if we found that they did not come into court with clean hands. The question, however, was *262 not raised by defendants and we shall not consider it. However, they did question whether plaintiffs, claiming to be dispensing opticians exclusively, had a right to challenge the constitutionality of the ordinance in regard to its effect on the fitting and sale of eyeglasses over the counter. Nevertheless the trial judge took the broader view and held that the entire ordinance was so related to public welfare, health, morals and safety that it was a valid exercise of police power and he denied plaintiffs any relief. The issue in the case, therefore, resolves itself into whether or not these interests of the public are involved. If they are, the ordinance must be held valid; otherwise, condemned.
While usually it would not be necessary to review the testimony in a case involving the constitutionality of an ordinance, we believe the facts brought out in the instant case fully demonstrate that the ordinance calls for a proper exercise of the police power by the common council of the city of Detroit. Several years ago plaintiffs placed in charge of their Detroit office, located in a downtown building, a manager who previously had been engaged in selling ladies' goods. One of the rooms of this suite rented by plaintiffs was turned over to a doctor of medicine where he conducted his own practice and also performed optometry work for plaintiffs' customers. As patients called at plaintiffs' offices, they were told that a prescription from a doctor was required and they were referred to the doctor in plaintiffs' offices. The prescriptions were left with plaintiffs' manager who had them filled in Chicago and who delivered the glasses to the customers and collected for them. Several years ago the office of the doctor was completely separated from those of plaintiffs by a partition. Although the office still adjoined those of plaintiffs, the only entrance into the doctor's office *263
was from the hallway. The record leaves some doubt as to what the exact relationship was between the doctor and plaintiffs. The trial judge who heard the case characterized the doctor's testimony as being worthy of little, if any, credence. The doctor used the lavatory in plaintiffs' offices to wash his instruments. Plaintiffs' manager, on the other hand, used the doctor's telephone. The doctor testified that he paid the manager of plaintiffs' office $12 a month for the use of the space, and that the manager signed the receipts for the rent. The manager denied that he had received any rent from the doctor but later upon returning to the witness stand admitted that he received a sealed envelope from the doctor once a month and sent it to the Chicago office. The doctor testified that he kept a copy of all the prescriptions that were filled at plaintiffs' Detroit offices. This included prescriptions of outside doctors which patients brought to the plaintiffs. The office manager wrote upon every prescription the measurement for the bridge size, the temple length and other data. The question might arise whether the doctor, acting as an optometrist, was not associated with the plaintiffs in advertising the price of eyeglasses. However, the plaintiffs are not being prosecuted under the optometry act. SeeSeifert v. Buhl Optical Co.,
The record shows that plaintiffs advertised the sale of eyeglasses for $2.87. Prospective customers upon being told that plaintiffs only filled prescriptions usually went to the doctor in the adjoining office. The doctor charged and kept a fee of $2 for his prescription. This brought the cost of the eyeglasses up to $4.87. Plaintiffs did not stop there. It was shown that the average price exacted from customers was over $14 for a pair of eyeglasses. *264 This clearly indicates that the plaintiffs were deceiving the public by misleading price advertising. While they do not deny that the sum of $2 extra was exacted by a third party for a prescription, it is claimed that they were willing to sell eyeglasses for $2.87. An officer of the Better Business Bureau of Detroit testified that when customers called to purchase glasses at the advertised price, they were told that they were the "cheapest form of glasses, that the frames were not satisfactory, as a piece of metal, they would stain their skin about the eye, the nose grip was in one piece, and there was no play to it, and no comfort; in fact, that only a person on the welfare would buy a pair of glasses such as these."
It was further shown that plaintiffs were not the only offenders in such "bait" advertising. Even plaintiffs claimed, and introduced evidence to prove, that when the advertising of prices was stopped, their business showed a very heavy decline. In rebuttal plaintiffs' manager testified that he told customers to go to any physician they pleased for their prescriptions. Plaintiffs also claim that even if they were guilty of fraudulent advertising, there are proper or remedial statutes to stop such practice. See Act No. 328, § 33, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 17115-33, Stat. Ann. §
It was stipulated in the record by all parties that:
"The care of the human eye is important to the health of the individual; that no human eye is like *265 any other human eye, and that improper lenses or eyeglasses directly affect the condition of the human eye and health."
Plaintiffs claim, however, that the ordinance was passed in order to benefit their competitors, as is evidenced by the fact that the Michigan Association of Opticians and the Wayne County Association of Optometrists have appeared in the case as intervening defendants and appellees. There is nothing in the record that sustains this claim. The ordinance was regularly passed by the common council of the city of Detroit. The motives of the common council or the members thereof cannot be inquired into for the purpose of determining the validity of its ordinances, People v. Gardner,
We agree that it is to the interest of the public to keep the prices of glasses down. There is nothing whatsoever in the ordinance which forbids the sale of glasses as merchandise. Merchants may engage in the sale of optical goods without the aid of optometrists and if they only exact a reasonable price and sell good merchandise, that fact becomes quickly known. It should not be necessary to advertise the price and thus open the door to fraud and deceit that is so amply shown by the facts in this case. It can readily be seen that if advertising the price of eyeglasses, *266
so necessary to public health, is permitted, others may advertise at a lower price than plaintiffs. The result would be that the public, on account of the very low price, might purchase glasses of poor workmanship and material, equipped with poorly ground lenses and ill-fitting frames. We believe that the ordinance bears such relation to the health, morals, safety and general welfare of the public that its constitutionality cannot be questioned. Our attention has been called to a number of cases. We find the only one in which the precise question was squarely brought before the court was in Commonwealth v. Ferris,
"A familiar ground of the regulation or restriction of contracts or of advertising in a commercial business is the prevention of fraud and mistake. Where the public are not cautious or watchful in their buying habits and are likely to be misled, the legislature may require not only the absence of active deception (Commonwealth v. Reilly,
"The prohibitions against `advertising lenses or complete eyeglasses including lenses at a fixed price,' and against advertisements laying `claim to a policy or continuing practice of generally underselling competitors,' may be treated together. They may be sustained as measures in the interest of the public health, an unquestioned ground for the exercise of police power. In Roschen v. Ward,
"Gen. Laws, chap. 112, § 72, as amended by Stat. 1926, chap. 321, § 2, forbade anyone not a licensed optometrist to sell `spectacles, eyeglasses or lenses for the purpose of correcting defective vision.' In Commonwealth v. S.S. Kresge Co.,
"The legislature evidently was not prepared to prohibit the sale of eyeglasses and lenses as merchandise, to be selected by the buyer. But it was *269
prepared to discourage it, by eliminating the temptation to and pressure upon customers that result from the assurance that no more than a named price will be charged, or that the price is less than competitors ask. As in Roschen v. Ward,
In coming to our conclusion we have not overlooked the case ofState, ex rel. Booth, v. Beck Jewelry Enterprises, Inc.,
Plaintiffs and appellants claim that the ordinance contravenes the State optometry act, 1 Comp. Laws 1929, § 6781 et seq.
(Stat. Ann. § 14.641 et seq.). The State optometry act is limited solely to optometrists (Kindy Opticians, Inc., v.State Board of Examiners in Optometry,
Justice SHARPE in his accompanying opinion states that the ordinance forbidding the advertising of the price of eyeglasses has no relation to public health and general welfare. The testimony shows that after the prospective customer had secured a prescription, he was told by appellants' agent that the eyeglasses sold at the advertised price were of the cheapest form, would stain the skin about the eye, were unsatisfactory in many respects, and only such *271 as a person on the welfare would purchase. The advertising of the low price in itself nevertheless would influence many persons to purchase such glasses and thus neglect or impair their eyesight. The advertiser might not be successfully prosecuted for false advertising since he offered glasses at the advertised price. Other manufacturers might not be as frank in disclosing the inferior quality of glasses they sold at the advertised price. All parties concede that improper lenses or eyeglasses directly affect eyesight and health. It is also common knowledge that eyesight, once impaired, as a rule cannot be restored to its former condition. The advertising at a cheap price influences the public, particularly those with lower incomes, to purchase inferior glasses and it thus contributes to the impairment of their eyesight.
I agree that there may be merit in the claim that fixing the price of haircuts in no way directly or indirectly affects the public welfare or health; also that neither does the advertising of the price of health underwear, orthopedic shoes or other articles of clothing affect the public health. The public can readily see or quickly ascertain what they are getting. At most, they lose their money or have some temporary discomfort. The public is amply protected in the purchase of prepared foods, medicines, et cetera, by the food, drug and cosmetic act. 52 Stat. at L. p. 1040, chap. 675 (21 USCA, § 301 et seq.). However, in the matter of eyeglasses, the public with eyesight already impaired invariably cannot tell with any degree of certainty whether proper glasses are being furnished or not. The public has a right to be protected against advertising which by the low price named attracts the unwary to purchase inferior glasses. *272
I believe the correct rule of law is set forth inCommonwealth v. Ferris, supra, from which we have so fully quoted and which largely relies upon the opinion written by Mr. Justice Holmes in Roschen v. Ward,
When it comes to selling glasses over the counter without advertising the price, possibly the rule of caveat emptor applies, but when the public is lured by a price "bait" to purchase inferior glasses which cause deleterious results, the ordinance that prohibits price advertising has a direct bearing on the health and general welfare.
The decree of the trial court should be affirmed, but without costs, a public question being involved.
BUSHNELL, J., concurred with BUTZEL, J.