WHITTEN v. CALIFORNIA STATE BOARD OF OPTOMETRY (1936)

Defendant California State Board of Optometry appeals from a judgment of the superior court granting a writ of prohibition staying proceedings to revoke plaintiff's certificate of registration. Of the several similar allegations setting forth the charges against plaintiff, those contained in the first count may be taken as typical: “That the said Ward M. Whitten, advertised, or caused to be advertised, in the Los Angeles Herald and Express, on the 14th day of January, 1936, optical business and treatment in which untruthful and improbable statements were made in that the said Ward M. Whitten offered for sale complete glasses containing single vision lenses and including frames and examination for Seven and 50/100 ($7.50) Dollars; that said statement was improbable and untruthful in that the said Ward M. Whitten refused to sell complete glasses containing single vision lenses and including frames and examination for Seven and 50/100 ($7.50) Dollars to persons answering said advertisement.”

Jurisdiction to suspend or revoke certificates of registration is conferred upon defendant by the act to regulate the practice of optometry (Deering's General Laws 1931 and Supp.1933, Act No. 5668). Section 11 of the act sets forth the grounds for revocation or suspension of certificates. Among the grounds set forth in subdivision 3 of section 11 is the following: “The advertising of optical business or treatment or advice in which untruthful, improbable or impossible statements are made.” Defendant concedes that it was without jurisdiction to proceed on charges that respondent's advertising contained “improbable statements.” Hewitt v. State Board of Medical Examiners, 148 Cal. 590, 84 P. 39, 3 L.R.A. (N.S.) 896, 113 Am.St.Rep. 315, 7 Ann. Cas. 750. It is contended, however, that plaintiff is charged with having made untrue statements in his advertisements and for this reason defendant had jurisdiction to proceed with the hearing.

To justify suspension or revocation of plaintiff's certificate it was necessary to establish that in his advertising he made an untrue statement. In the proceedings pending before the board it does not appear that plaintiff is charged with having made a statement. The charge is that plaintiff by advertisements offered certain goods for sale and thereafter refused to fulfill the terms of his offer. By such conduct, according to the accusations, plaintiff made promises and thereafter broke them. The word “statement,” as used in the act, imports the declaration of the existence of certain facts. It is not charged in the proceedings that plaintiff untruthfully stated the existence of any fact. If the Legislature had intended to include conduct such as that charged against plaintiff among the grounds for revocation of certificates, it would have been an easy matter to include appropriate language for that purpose.

The judgment is affirmed.

WOOD, Justice.

I concur: CRAIL, P. J.