Humes v. City of Little Rock

• Decision Date: 02 November 1898
• Citation: 138 F. 929
• Parties: HUMES v. CITY OF LITTLE ROCK.
• Court: U.S. District Court — Eastern District of Arkansas

138 F. 929

HUMES v. CITY OF LITTLE ROCK.

United States Circuit Court, E.D. Arkansas, Western Division.

November 2, 1898

Rose Hemingway & Rose, for complainant.

W. J Terry, City Atty., W. S. McCain, and Jacob Trieber, for defendant.

WILLIAMS District Judge.

The city of Little Rock has passed the following ordinance:

'An ordinance for the better regulating the license on gift enterprises.

'Be it ordained by the city council of the city of Little Rock:

'Section 1. That it shall be unlawful for any person, firm or corporation to engage in, exercise or pursue the avocation, business or enterprise of selling, giving away, distributing or otherwise disposing of periodical tickets or premium stamps, without first having obtained and paid for a city license therefor from the proper city authorities, as provided in the next section.

'Sec. 2. Every person, firm or corporation engaging in, exercising or pursuing the avocation, business or enterprise of selling or giving away, distributing or otherwise disposing of periodical tickets or premium stamps shall pay a license of fifty dollars per week in advance.

'Sec. 3. Whosoever shall engage in, exercise or pursue the avocation, business or enterprise of selling or giving away, distributing or otherwise disposing of periodical tickets or premium stamps without having first obtained and paid for the same as above provided shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not to exceed twenty-five dollars for the first offense, fifty dollars for the second offense and fifteen dollars for each subsequent violation of this ordinance, and each day which said ordinance may be violated shall be a separate offense.'

The plaintiff, alleging that the license demanded is prohibitive in its amount, and that the ordinance was passed for the purpose of suppressing his business, has brought suit for an injunction, and a temporary restraining order has been issued. It is conceded that the bill accurately describes the business carried on by him, and the case comes on for final hearing upon its allegations.

The method of conducting the complainant's scheme is thus described in the bill:

'He (complainant) solicits the merchants of the city to patronize him, and to such as agree to do so he issues stamps, for which they pay. He issues a great number of copies of a little book in which these stamps can be pasted, and which contains a directory, giving the name and address and the occupation of all the merchants who agree to patronize him. He sends out a large number of canvassers, who place copies of the book in every household in the city, and explain to every one the advantages of patronizing the merchants holding the stamps. When a person purchases goods from a merchant who does business with your orator, and pays cash for the amount of his purchase, or pays his bill therefor promptly on first presentation at the end of the exact proportion to the amount of his purchase. Your orator has a store in the said city, in which he keeps a stock worth several thousand dollars, embracing a vast assortment of useful and ornamental articles for the home, varying in cost from mere trifles to things of considerable expense; and the persons receiving these stamps can, whenever they desire, present them at your orator's store, and receive in exchange therefor any article which they may select of the value of the stamps surrendered.'

1. It will be observed that no element of chance enters into the plan. There are no drawings; no opportunities to win a larger sum upon a wager of any kind. The stamps have the same purchasing power in the hands of every one, and every one has the same right of selection among the complainant's stock. The question presented by the bill is, has the city council the power to license or suppress an enterprise of this character? That a city can only pass such ordinances as its charter authorizes is the established law of the state. Tuck v. Waldron, 31 Ark. 465; Ex parte Martin, 27 Ark. 467; Geotler v. State, 45 Ark. 454. Hence it is necessary to inquire under what statute this ordinance was adopted, and we find that section 5132 of Sandels and Hill's Digest authorizes cities to tax, license, and suppress a number of occupations, all of them either necessarily or probably detrimental to public health or morals, and among them 'gift enterprises.' No definition of the term is given, and we are therefore compelled to look elsewhere to ascertain its meaning.

So far as our researches, aided by the industry of counsel, have enabled us to discover, the term has been judicially defined only in one case (Lohman v. State, 81 Ind. 15), where the court holds that it means 'a scheme for the division or distribution of certain articles of property, to be determined by chance, among those who have taken shares in the scheme. ' This definition has been approved by Anderson and Black in their law dictionaries, and impresses us as correct. There is nothing immoral in a gift, and, indeed, giving is often to be commended. It is not likely, at least in our time, to grow to such dimensions as to constitute an evil threatening the well-being society. To be pernicious, a gift must be a mere cover for a lottery, and the evil company in which 'gift enterprises' are found in the statute indicates that it is the gifts of fortune that are referred to. The Legislature was apparently apprehensive lest the term 'lottery' should be held to apply only to cases where money was at stake, and added gift enterprises to cover all other similar devices where articles of property were disposed of by chance. It is apparent that such devices are highly pernicious, and they are plainly within the legislative intent.

The statute having given no definition of what it means by 'gift enterprise,' we do not feel privileged to ignore the only judicial definition that the term has received, particularly when it has been accepted by the two latest compilers of legal dictionaries. The law is sufficiently uncertain without our making it more so by differing from the only existing authorities. We therefore conclude that 'gift enterprises,' as used in the statute, imply an element of chance, and that, as no such element is to be found in the plaintiff's scheme as described in the bill, it does not fall within the terms of the enactment, and the defendant has no power either to license or suppress it.

We have not overlooked the able decision of the Supreme Court of the District of Columbia in Lansburgh v. District of Columbia, 11 App.Cas. 512. But that case is clearly distinguishable from this. The act of Congress governing the District...