Olson v. Ross

• Decision Date: 11 April 1918
• Citation: 39 N.D. 372,167 N.W. 385
• Parties: OLSON v. ROSS, Sheriff.
• Court: North Dakota Supreme Court

39 N.D. 372

167 N.W. 385

OLSON

v.ROSS, Sheriff.

Supreme Court of North Dakota.

April 11, 1918.

Syllabus by the Court.

The constitutionality of a statute will be considered only when the question is properly before the court, and necessary to a determination of the cause.

One who is not prejudiced by the enforcement of a statute cannot question its constitutionality or obtain a decision as to its invalidity on the ground that it impairs the rights of others.

The North Dakota trading stamp act (Laws 1917, c. 238), relates only to trading stamps redeemable in goods, wares, and merchandise, and does not prohibit or regulate the sale of trading stamps redeemable only in cash.

Original application by Theodore Olson for a writ of habeas corpus against Andrew Ross, Sheriff of Cass County. Writ issued.Miller, Zuger & Tillotson, of Bismarck, James Manahan, of St. Paul, Minn., and Frank T. Wolcott, of New York City, for petitioner. Wm. Langer, Atty. Gen., Chas. W. Dunn, of New York City, and S. L. Nuchols, of Mandan, for respondent.

CHRISTIANSON, J.

This is an original application for a writ of habeas corpus presented to this court after a denial of an application for such writ by Judge Cole of the Third judicial district. It appears from the petition that the petitioner has been arrested and is held in the custody of the sheriff of Cass county by virtue of a commitment duly issued by a justice of the peace, in Cass county, in a criminal action properly instituted before him, wherein the petitioner is charged with violating the provisions of the so-called trading stamp act, viz. chapter 238, Laws 1917.

Section 1 of the act provides:

“Every person, firm or corporation who shall use, and every person, firm or corporation who shall furnish to any other person, firm or corporation to use in, with or for the sale of any goods, wares, or merchandise, any stamps, coupons, tickets, certificates, cards, or other similar schemes or devices which shall entitle the purchaser receiving the same with such sale of goods, wares or merchandise to procure from any person, firm or corporation any goods, wares or merchandise, free of charge or for less than the retail market price thereof, upon the production of any number of said stamps, coupons, tickets, certificates, cards, or other similar devices, shall before so furnishing, selling or using the same obtain a separate license from the auditor of each county wherein such furnishing or selling or using shall take place for each and every store or place of business in that county, owned or conducted by such person, firm, or corporation from which such furnishing or selling, or in which such using, shall take place. Provided that this act shall not apply to using or furnishing coupons, tickets, certificates, cards or similar devices contained in or attached to the original package of said goods, wares, or merchandise, by the manufacturer, jobber, distributor, or packer thereof, and directly redeemable by the manufacturer, jobber, distributor, packer or retailer of such goods, wares or merchandise.”

The other sections prescribe the procedure for obtaining the license, fix the license fee, and declare that “any person, firm or corporation violating any of the provisions of this act shall be guilty of a misdemeanor.”

The criminal complaint charges that the petitioner is an employé and manager of the Sperry & Hutchinson Company, a foreign corporation, and not a manufacturer, packer, jobber, or distributor, and that without first having obtained a license under the statute above quoted, he did willfully and unlawfully furnish to one Victor J. Baldwin, a merchant, for use by him as evidence of and discount to customers making cash payments for merchandise certain green trading stamps, redeemable in cash by the Sperry & Hutchinson Company, and that such trading stamps were furnished to the said Baldwin with the intent that he should give said stamps to customers as evidence of and discount for cash payments for merchandise in accordance with the conditions and provisions of a certain written contract.

The contract which is set out in the complaint recites that Baldwin, “desires to adopt and use a co-operative system of giving a cash discount on small as well as large cash purchases, for the purpose of encouraging cash trade,” and that “the Sperry & Hutchinson Company * * * is fully equipped to furnish said system and services relating thereto.” By the contract Baldwin agreed “to order and receive such S. & H. green trading stamps, redeemable in cash, in lots of not less than five pads per lot, and a minimum of not less than five pads every six months, each pad containing 5,000 stamps, and to pay upon delivery for the use and redemption thereof in cash and its services in connection therewith $15 per pad.” Baldwin further agreed “to offer said stamps to customers upon making cash purchases, and when accepted give as evidence of and discount for cash payment, and only for redemption in cash by said agent (Sperry & Hutchinson Company), one of said stamps to be given with each 10-cent purchase and multiple thereof.” The Sperry & Hutchinson Company agreed to deliver to Baldwin “its S. & H. green trading stamps redeemable in cash” when ordered by him, as provided in the contract, and to furnish him with its trading stamps books in reasonable quantities, the books to be given to the customers, in which to preserve the stamps until presented to the Sperry & Hutchinson Company for redemption in cash. The Sperry & Hutchinson Company further agreed to redeem the stamps in cash at their face value (one mill each), but when the stamps are presented in its trading stamp books each containing 1,000 stamps then it agreed to pay $2 in cash for such redemption, or two mills each for said stamps. On the back of each stamp is the following printed statement:

“Subject to the notice in our green stamp book this stamp will be redeemed by us in cash. It is our property and not transferable except as stated in such notice.

[Signed] Sperry & Hutchinson Company.”

It will be noted that the contract and the stamps expressly stipulate that the stamps are redeemable in cash only. There is no provision for a redemption in goods, wares, or merchandise.

The petitioner claims that he is unlawfully in custody, and that the commitment under which he is held is void for two reasons: (1) That the trading stamp law is unconstitutional and void (a) because it violates the right of liberty guaranteed by both the federal and state Constitutions, (b) because the act discriminates in favor of persons and corporations who give trading stamps in original packages which are redeemable by themselves or their retailers in goods, wares, and merchandise; (2) that the facts set forth in the complaint do not constitute a violation of the statute for the reason that the trading stamps furnished by petitioner are redeemable in cash only.

[1][2] It is requested that we first determine the constitutionality of the statute. A constitutional question does not arise merely because it is raised and a decision thereon sought. A party who...