March 2, 1959 —
April 7, 1959.
APPEAL from a judgment of the circuit court for Dane county: RICHARD W. BARDWELL, Circuit Judge. Affirmed.
For the appellants there was a brief by the Attorney General and Warren H. Resh, assistant attorney general, and oral argument by Mr. Resh.
For the respondent there was a brief by Wiernick v. Zurlo of Milwaukee, and oral argument by Dominick D. Zurlo.
A brief was filed by Hoffman, Cannon, McLaughlin Herbon, attorneys, and Ellis R. Herbon and Gordon P. Ralph of counsel, all of Milwaukee, as amici curiae.
Petition for review under ch. 227, Stats., of findings and an order of the Wisconsin Board of Examiners in Optometry dated April 29, 1957. The findings and order were made after a hearing before the board in which the petitioner, Sheldon O. Stone, was charged with the violation of certain rules relating to unprofessional practices which had been promulgated by the board. Following the hearing the board found that the petitioner had violated certain provisions of sec. 9.08 of the rules of the Board of Examiners in Optometry referred to in 4 Wis. Adm. Code as sec. Opt 9.08. The material parts of that section are as follows:
" Unprofessional practices. The following practices, among others, constitute unprofessional conduct:
"(1) The use of any large display glaring, illuminating or flickering light sign.
"(2) The use of any office sign larger than 600 sq. inches in size over all, or containing letters over six inches in size.
"(5) The use of any printed advertisement larger than 20 sq. inches. This may contain only the name or names of the optometrists, titles, office hours, location, telephone number or numbers, and one optometric specialty.
"(7) The use or representation of eyes, or glasses or showcases, or window displays, or ophthalmic equipment as advertising."
Based upon its findings of fact that petitioner had violated the above provisions an order was entered suspending the license of the petitioner to practice optometry in Wisconsin for an indefinite period but with leave granted to apply for a vacation of the order upon a showing that the respondent, the petitioner herein, had discontinued and would in the future refrain from violating the rules of the board relating to unprofessional practices.
The trial court, upon the petition for review, determined that the board was without authority to adopt the pertinent subsections of sec. Opt 9.08, 4 Wis. Adm. Code, and the findings of fact, conclusions of law, and order of suspension were reversed and declared null and void. Judgment to that effect was entered on August 12, 1958, and the board appealed.
The petitioner does not challenge the provisions of ch. 153, Stats., providing for the appointment of the Board of Examiners and the regulation of the practice of optometry in Wisconsin. Nor does the petitioner dispute the fact that he violated the above subsections of sec. Opt 9.08, 4 Wis. Adm. Code. The sole issue to be determined is whether or not the board had authority by law to promulgate said rules.
The board points to the following sections of the Wisconsin statutes as its authority for promulgating the rules which are here challenged: Secs. 153.03 (4), 153.07 (f), 153.08, 153.11, and 227.014 (2) (a). It is unnecessary to review the specific provisions of these statutes. The rules under consideration all deal with advertising. The question at issue is to be determined, not from the statutory provisions referred to above, but by the provisions of sec. 153.10, relating to prohibited advertising.
The inference is clear that if the legislature had intended to prohibit the type of advertising covered by the rules of the board it would have so stated in sec. 153.10, Stats., as it has done in sec. 152.06 with respect to unprofessional advertising by dentists. Rules of the state board of dental examiners with respect to unprofessional advertising were challenged in Modern System Dentists v. State Board of Dental Examiners, 216 Wis. 190, 256 N.W. 922. In that case certain rules promulgated by the board were held to be beyond its powers. Thereafter the statute was amended to include the subject matter attempted to be regulated by board order. It was held in that case that it was not within the province of the board to add to the restrictions imposed by the legislature.
The same rule is applicable here. Therefore the determination of the trial court is correct and the board's order of suspension based on said rules is of no effect.
By the Court. — Judgment affirmed.