# Head v. New Mexico Board of Examiners in Optometry/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Douglas
United States Supreme Court
374 U.S. 424
Head v. New Mexico Board of Examiners in Optometry
Argued: April 15 and 16, 1963. --- Decided: June 17, 1963
This case comes to us on appeal from the Supreme Court of New Mexico. One of the appellants, Agnes K. Head, owns a newspaper in Hobbs, New Mexico. The other appellant, Permian Basin Radio Corporation, owns and operates a radio station there. Hobbs is in the southeastern corner of the State, close to the Texas border, and much of the area served by both the radio station and the newspaper lies in Texas. The appellants were enjoined from accepting or publishing within the State of New Mexico a Texas optometrist's advertising found to be in violation of New Mexico law. The appellants claim that the state law, as applied, imposes an unlawful burden on interstate commerce. Permian also argues that regulation of advertising by radio has been preempted by the Communications Act of 1934. We noted probable jurisdiction, 371 U.S. 900, 83 S.Ct. 207, 9 L.Ed.2d 163, and invited the Solicitor General to express the Government's views concerning the question of federal preemption. We have concluded that the judgment should be affirmed.
Section 67-7-13 of the New Mexico Statutes Annotated deals generally with the practice of optometry. It prohibits several varieties of unauthorized practice, and forbids even licensed practitioners from employing certain sales techniques, such as house-to-house canvassing, peddling on streets or highways, or offering lenses and frames as premiums. It also prohibits:
The purpose of this provision, according to the Supreme Court of New Mexico, is to 'protect * * * citizens against the evils of price-advertising methods tending to satisfy the needs of their pocketbooks rather than the remedial requirements of their eyes.' 70 N.M. 90, 94, 370 P.2d 811, 813. Similar laws have been enacted in many States to assure high standards of professional competence.
The facts stated in the complaint were not disputed. Appellants received and published advertisements from Abner Roberts, an optometrist who resided and conducted his business in the State of Texas, just a few miles east of Hobbs. In the words of the complaint, this advertising consisted of 'the quotation of prices on eyeglasses and spectacles, and of the quotation of discounts to be offered on eyeglasses and spectacles.' The appellants conceded that the advertising violated § 67-7-13(m). Finding the statute applicable and violated, the trial court enjoined each of the appellants 'from accepting or publishing within the State of New Mexico advertising of any nature from Abner Roberts which quotes prices or terms on eyeglasses * * * or which quotes moderate prices, low prices, lowest prices, guaranteed glasses, satisfaction guaranteed, or words of similar import * * *.' The Supreme Court of New Mexico affirmed, ruling that the injunction did not unlawfully burden interstate commerce and that the State's jurisdiction had not been ousted by federal legislation. 70 N.M. 90, 370 P.2d 811.
Without doubt, the appellants' radio station and newspaper are engaged in interstate commerce, and the injunction in this case has unquestionably imposed some restraint upon that commerce. But these facts alone do not add up to an unconstitutional burden on interstate commerce. As we said in Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852, upholding the application of a Detroit smoke abatement ordinance to ships engaged in interstate and international commerce: 'In determining whether the state has imposed an undue burden on interstate commerce, it must be borne in mind that the Constitution when 'conferring upon Congress the regulation of commerce, * * * never intended to cut the States off from legislating on all subjects relating to the health, life, and safety of their citizens, though the legislation might indirectly affect the commerce of the country. Legislation, in a great variety of ways, may affect commerce and persons engaged in it without constituting a regulation of it, within the meaning of the Constitution'. Sherlock v. Alling, 93 U.S. 99, 103, 23 L.Ed. 819; Austin v. State of Tennessee, 179 U.S. 343, 21 S.Ct. 132, 45 L.Ed. 224; Louisville & Nashville R. Co. v. Commonwealth of Kentucky, 183 U.S. 503, 22 S.Ct. 95, 46 L.Ed. 298; The Minnesota Rate Cases, Simpson v. Shepard, 230 U.S. 352, 33 S.Ct. 729, 57 L.Ed. 1511; Boston & Maine R. Co. v. Armburg, 285 U.S. 234, 52 S.Ct. 336, 76 L.Ed. 729; Collins v. American Buslines, Inc., 350 U.S. 528, 76 S.Ct. 582, 100 L.Ed. 672.' 362 U.S., at 443-444, 80 S.Ct., at L.Ed. 1511; Boston & Maine R. Co. v.
Like the smoke abatement ordinance in the Huron case, the statute here involved is a measure directly addressed to protection of the public health, and the statute thus falls within the most traditional concept of what is compendiously known as the police power. The legitimacy of state legislation in this precise area has been expressly established. Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563. A state law may not be struck down on the mere showing that its administration affects interstate commerce in some way. 'State regulation, based on the police power, which does not discriminate against interstate commerce or operate to disrupt its required uniformity, may constitutionally stand.' Huron Portland Cement Co. v. City of Detroit, supra, 362 U.S., at 448, 80 S.Ct., at 818.
It has not been suggested that the statute, applicable alike to 'any person' within the State of New Mexico, discriminates against interstate commerce as such. Nor can we find that the legislation impinges upon an area of interstate commerce which by its nature requires uniformity of regulation. The appellants have pointed to no regulations of other States imposing conflicting duties, nor can we readily imagine any. Colorado Anti-Discrimination Comm'n v. Continental Air Lines, 372 U.S. 714, 83 S.Ct. 1022, 10 L.Ed.2d 84. We hold that the New Mexico statute, as applied here to prevent the publication in New Mexico of the proscribed price advertising, does not impose a constitutionally prohibited burden upon interstate commerce.
In dealing with the contention that New Mexico's jurisdiction to regulate radio advertising has been preempted by the Federal Communications Act, we may begin by noting that the validity of this claim cannot be judged by reference to broad statements about the 'comprehensive' nature of federal regulation under the Federal Communications Act. '(T)he 'question whether Congress and its commissions acting under it have so far exercised the exclusive jurisdiction that belongs to it as to exclude the State, must be answered by a judgment upon the particular case.' Statements concerning the 'exclusive jurisdiction' of Congress beg the only controversial question: whether Congress intended to make its jurisdiction exclusive.' People of State of California v. Zook, 336 U.S. 725, 731, 69 S.Ct. 841, 844, 93 L.Ed. 1005. Kelly v. State of Washington ex rel. Foss Co., 302 U.S. 1, 10-13, 58 S.Ct. 87, 82 L.Ed. 3. In areas of the law not inherently requiring national uniformity, our decisions are clear in requiring that state statutes, otherwise valid, must be upheld unless there is found 'such actual conflict between the two schemes of regulation that both cannot stand in the same area, (or) evidence of a congressional design to preempt the field.' Florida Lime and Avocado Growers v. Paul, 373 U.S. 132, 141, 83 S.Ct. 1210, 1217.
The specific provisions of the federal statute chiefly relied upon the support Permian's claim are those governing the granting, renewal, and revocation of broadcasting licenses. Under the broad standard of 'public interest, convenience, and necessity,' the Federal Communications Commission may consider a wide variety of factors in passing upon the fitness of an applicant. It is argued that the content of advertising is one of the factors which may be considered, and there is evidence that the Commission itself has on occasion so interpreted its authority. Further, the United States argues that the Commission has the authority to promulgate general regulations concerning the subject of advertising for the guidance of broadcasters. See Federal Communications Comm'n v. American Broadcasting Co., 347 U.S. 284, 289-290, 74 S.Ct. 593, 98 L.Ed. 699. This grant of federal power, it is argued, is sufficient to oust state regulation of radio advertising.
Assuming this to be a correct statement of the Commission's authority, we are nevertheless not persuaded that the federal legislation in this field has excluded the application of a state law of the kind here involved. The nature of the regulatory power given to the federal agency convinces us that Congress could not have intended its grant of authority to supplant all the detailed state regulation of professional advertising practices, particularly when the grant of power to the Commission was accompanied by no substantive standard other than the 'public interest, convenience, and necessity.' The Solicitor General has conceded that the power of license revocation is not a plausible substitute for state law dealing with 'traditional' torts or crimes committed through the use of radio. We can find no material difference with respect to the less 'traditional' statutory violation here involved. In the absence of positive evidence of legislative intent to the contrary, we cannot believe Congress has ousted the States from an area of such fundamentally local concern.
Finally, there has been no showing of any conflict between this state law and the federal regulatory system, or that the state law stands as an obstacle to the full effectiveness of the federal statute. No specific federal regulations even remotely in conflict with the New Mexico law have been called to our attention. The Commission itself has apparently viewed state regulation of advertising as complementing its regulatory function, rather than in any way conflicting with it. As in Colorado Anti-Discrimination Comm'n v. Continental Air Lines, Inc., 372 U.S. 714, at 724, 83 S.Ct. 1022, at 1027, we are satisfied that the state statute 'at least so long as any power the (Commission) may have remains 'dormant and unexercised,' will not frustrate any part of the purpose of the federal legislation.'
Affirmed.

## Notes

* ↑ 48 Stat. 1064, as amended, 47 U.S.C. § 151 et seq.
* ↑ '(i) Either in person or by or through solicitors or agents giving or offering to give to any person eyeglasses, spectacles or lenses, either with or without frames or mountings, as a premium or inducement for any subscription to any book, set of books, magazines, magazine, periodical or other publication, or as a premium or inducement for the purchase of any goods, wares or merchandise.
* ↑ See Ark.Stat.Ann. § 72-815 (1957 Replacement); Cal.Bus. & Professions Code, § 3129; Del.Code Ann., Tit. 24, § 2113; Fla.Stat.Ann. §§ 463.11, 463.14; Hawaii Rev.Laws § 68-9(d) (1960 Supp.); Ind.Stat.Ann. §§ 63-1018a(e), 63-1019(f) (1961); Ky.Rev.Stat. § 320.300; La.Rev.Stat. § 37:1063; Mich.Stat.Ann. § 14.648(i) (1961 Supp.), Comp.Laws 1948, § 338.258; Minn.Stat.Ann. § 148.57(3); Mo.Ann.Stat. § 336.110; Mont.Rev.Codes § 66-1302(11); Neb.Rev.Stat. § 71-148; Nev.Rev.Stat. § 636:300(10); N.J.Stat.Ann. § 45:12-11(h) (1962 Supp.); N.C.Gen.Stat. § 90-124(9); N.Dak.Cent.Code § 43-13-29; Okla.Stat.Ann., Tit. 59, § 943; Ore.Rev.Stat. § 683.140(6); Pa.Stat.Ann., Tit. 63, § 237; R.I.Gen.Laws § 5-35-22; S.C.Code of Laws § 56-1075; S.Dak.Code § 27.0707(6) (1960 Supp.); Tenn.Code Ann. § 63-815; Va.Code § 54 388, par. 2(d); Wash.Rev.Code Ann. § 18.53.140; W.Va.Code § 2937 (1961); Wis.Stat.Ann. § 153.10.
* ↑ The case is not one, therefore, in which the State seeks to justify a statute as a health measure on the attenuated theory that the economic well-being of a profession or industry will assure better performance in the public interest. See Baldwin v. G. A. F. Seelig, Inc., 294 U.S. 511, 522-523, 55 S.Ct. 497, 79 L.Ed. 1032. Compare Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 55 S.Ct. 570, 79 L.Ed. 1086.
* ↑ The appellants have argued that the decree below will have the effect of preventing communication between the Texas optometrist and Texas residents. A similar argument was rejected in Railway Express Agency v. People of State of New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533, which held valid a local ordinance prohibiting the display of advertising on trucks which also operated in other States.
* ↑ E.g., National Broadcasting Co. v. United States, 319 U.S. 190, 213, 63 S.Ct. 997, 1008, 87 L.Ed. 1344 ('wide licensing and regulatory powers'), id., at 217, 63 S.Ct., at 1010 ('comprehensive powers to promote and realize the vast potentialities of radio'); Federal Communications Comm'n v. Pottsville Broadcasting Co., 309 U.S. 134, 137, 60 S.Ct. 437, 439, 84 L.Ed. 656 ('unified and comprehensive regulatory system for the industry').
* ↑ See Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581.
* ↑ See 47 U.S.C. §§ 303(j), 307(a), (d), 308(a), 309(a), and 312.
* ↑ We have been cited to specific instances in which the content of advertising analogous to that involved in this case has been considered. See, e.g., Farmers & Bankers Life Ins. Co., 2 F.C.C. 455; WSBC, Inc., 2 F.C.C. 293; Oak Leaves Broadcasting Station, Inc., 2 F.C.C. 298. And see KFKB Broadcasting Ass'n v. Federal Radio Comm'n, 60 App.D.C. 79, 47 F.2d 670.
* ↑ See Interstate Commerce Comm'n v. U.S. ex rel. Los Angeles, 280 U.S. 52, 68-70, 50 S.Ct. 53, 56, 74 L.Ed. 163. Compare Allen B. Dumont Laboratories v. Carroll, 3 Cir., 184 F.2d 153, which held state censorship of motion pictures shown on television preempted by those provisions of the federal act expressly dealing with 'communications containing profane or obscene words, language, or meaning.' 47 U.S.C. § 303(m)(1)(D).
* ↑ Our attention has been directed to the following statement of Commission policy:
* ↑ The appellants urge three additional grounds for reversal. Each may be disposed of briefly. First, both appellants urge that the state statute deprives them of property, in violation of the Due Process Clause. That claim is foreclosed by Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563. See also Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93. The appellant Head claims that denial of her right to do business with Abner Roberts is a violation of her privileges and immunities of national citizenship. But the Privileges and Immunities Clause of the Fourteenth Amendment does not create a naked right to conduct a business free of otherwise valid state regulation. Madden v. Commonwealth of Kentucky, 309 U.S. 83, 92-93, 60 S.Ct. 406, 410, 84 L.Ed. 590. Finally, it is contended that the injunction constitutes an invalid restraint upon freedom of speech protected by the Fourteenth Amendment. This argument was not made to the state courts, nor was it reserved in the notice of appeal to this Court. Under Rule 10, par. 2, of the Rules of this Court, 'Only the questions set forth in the notice of appeal or fairly comprised therein will be considered by the court.' See also Rule 15, par. 1(c)(1).
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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