Olson v. Ross
| Decision Date | 11 April 1918 |
| Court | North Dakota Supreme Court |
Application by Theodore Olson for a writ of habeas corpus.
Writ granted.
Writ issued.
Miller Zuger, & Tillotson, James Manohan, and Frank T. Walcott, for petitioner.
The statute in question, being penal, must be strictly construed. Chase v. Curtis, 113 U.S. 452.
This trading stamp system has been employed in various states for a long time, and its plan has been defined and passed upon by the courts. Com. v. Gilson, 125 Ky. 440.
An ordinary trading stamp or coupon is in substance a mere form of allowing discounts on cash payments, and its issuance is entirely harmless and within the constitutional right of contract. Ex parte Drexel, 147 Cal. 763; Chaddock v Day, 75 Mich. 527.
One engaged in the trading stamp system here under consideration is engaged merely in conducting a discount system, on cash purchases. Ex parte Holland, 147 Cal. 763; Ex parte Hutchinson, 137 F. 949; Denver v. Frueauff, 39 Colo 30; Lohman v. State, 81 Ind. 17; Sperry v Temple, 137 F. 992, 993; Winston v. Beeson, 135 N.C. 271; State ex rel. Simpson v. Sperry & H. Co., 110 Minn. 378.
That there is a marked difference between the use by merchants of trading stamps as a symbol or token to enable them to give a discount on small as well as large purchases, and the use of stamps and coupons as an advertising medium, is recognized by merchants and laymen generally. 53 Current Opinion, p. 440.
The use of a co-operative discount system by merchants promotes thrift. The collection of these little pieces of paper finally represents something of value and under such practice the habit of thrift and saving is formed. Tanner v. Little, 240 U.S. 384.
"It is a landmark of our Constitution that the individual is permitted to engage in any lawful pursuit in a legitimate and honorable manner, and he is above interference even by the legislature if he keeps within the limits suggested." People ex rel. Appell v. Zimmerman, 102 A.D. 103.
The contract here in question has been repeatedly held valid. Young v. Com. 101 Va. 853, 869; State v. Caspare, 115 Md. 7; State v. S. & H. Co., 110 Minn. 378; People v. Dycker, 72 A.D. 308; Ex parte Drexel & Holland, 147 Cal. 763; O'Keefe v. Somerville, 190 Mass. 110; Com. v. Sisson, 178 Mass. 578; State v. Dalton, 22 R. I. 77; Montgomery v. Kelly, 142 Ala. 552.
It has also been so held to be beneficial to all concerned. State v. Shugart, 138 Ala. 86; Montgomery v. Kelly, 142 Ala. 552; Ex parte McKenna, 126 Cal. 429; Ex parte Drexel, 147 Cal. 763; Denver v. Frueauff, 39 Colo. 20; Hewin v. Atlanta, 121 Ga. 723; Opinion of Justices, 208 Mass. 607; O'Keefe v. Somerville, 190 Mass. 110; Com. v. Emerson, 165 Mass. 146; Com. v. Sisson, 178 Mass. 578; Opinion of Justices, 115 N.E. 978; Long v. Maryland, 74 Md. 565; State v. Caspare, 80 A. 606; People v. Sperry & H. Co., 164 N.W. 503; State v. Sperry & H. Co., 110 Minn. 378; State v. Ramseyer, 73 N.H. 31; People v. Gillson, 109 N.Y. 389; People v. Dycker, 72 A.D. 308; People v. Zimmerman, 102 A.D. 103; Winston v. Beeson, 135 N.C. 271; Com. v. Moorhead, 7 Pa. Co. Ct. 513; State v. Dalton, 22 R. I. 77; State v. Dodge, 76 Vt. 197; Young v. Com. 101 Va. 853.
Prohibition of the trading stamp business has been repeatedly held to be in violation of constitutional rights. Montgomery v. Kelly, supra; Hewin v. Atlanta, supra; State v. S. & N. H. Co. supra; State v. Ramseyer, supra; People v. Gillson, supra; State v. Dalton, supra; State v. Dodge, supra; State v. Sperry & H. Co., 94 Neb. 785.
The decisions of the courts of last resort of each state are supreme as to whether any laws or ordinances enacted within their borders are violative of the state's Constitution. 11 Cyc. 751 note 5, 753, note 12; State ex rel. Kickbush v. Hoeflinger, 37 Wis. 393; Ellis v. Northern P. R. Co., 80 Wis. 459; Security Nat. Bank v. St. Croix Power Co., 117 Wis. 211; Soehnlein v. Soehnlein, 146 Wis. 330; Re Opinion of Justices, 115 N.E. 978; Rast v. VanDeman & Lewis Co., 240 U.S. 342; Tanner v. Little, 240 U.S. 369; Pitney v. Washington, 240 U.S. 387; 208 F. 605.
"The use of coupons, profit sharing certificates, and the like is an entirely legitimate method of advertising, and the merchants employing this method are entitled to the protection of the Constitution of the United States." State v. Shugart, 138 Ala. 86; Ex parte Drexel, 147 Cal. 763; Hewin v. Atlanta, 121 Ga. 723; Com. v. Sisson, 178 Mass. 578; Winston v. Beeson, 135 N.C. 271.
When a suitor in this state invokes the protection of its Constitution and calls for the construction of its own laws, its own supreme court is supreme, and its judges need not follow the decisions of any Federal tribunal when the reasoning of those decisions is at variance with their own judgment. 115 N.E. 978; 11 Cyc. 751 and 753 and cases cited; 37 Wis. 393.
The plan of this system is to enable the merchant to sell his goods for cash, instead of on time. This is an advantage to him, and is also a benefit to the customer who practically receives a discount and who will buy more cautiously if he pay cash, and will spend only according to his means. Winston v. Beeson, 135 N.C. 271.
The Trading Stamp Law of this state is unconstitutional and void because it violates the right of liberty guaranteed by both Federal and state Constitutions. Denver v. Frueauff, 39 Colo. 20, 80 P. 389; People v. Dycker, 76 N.Y.S. 111; People v. Gilson, 109 N.Y. 387; Ex parte Drexel, 147 Cal. 763.
The law is unconstitutional in that it discriminates in favor of persons and corporations who give trading stamps in original packages redeemable by themselves or their dealers in goods, wares, or merchandise. It is an arbitrary classification. Gulf Ry. v. Ellis, 165 U.S. 152; Frorer v. People, 141 Ill. 171; State v. Sperry & H. Co., 110 Minn. 378; State v. Caspare, 80 A. 606; Winston v. Beeson, 135 N.C. 271; State v. Goodwill, 6 L.R.A. 621; State v. Loomis, 115 Mo. 307; Southern R. Co. v. Greene, 216 U.S. 418.
"It is not a statute for the protection of a particular class of individuals supposed to need protection, but for the punishment of certain corporations on account of their delinquency." Seaboard Air Line v. Simon, 47 So. 1001; Gulf R. Co. v. Ellis, 165 U.S. 152; Tanner v. Little, 240 U.S. 369; Re Opinion of Justices, 115 N.E. 978; People v. Zimmerman, 102 A.D. 103; Winston v. Beeson, 135 N.C. 271; People v. Dycker, 72 A.D. 308; Denver v. Frueauff, 39 Colo. 20; State v. Dalton, 22 R. I. 77.
William Langer, Attorney General, Chas. W. Dunn, and S. L. Nuchols, for respondent.
The statute under consideration is an appropriate and proper exercise of the police power of the state, and the power to enact it is not denied by the state Constitution. State Const. art. 1.
The police power of the state is the power inherent in every sovereignty; the power to govern men and things under which the legislature may, within constitutional limitations, not only prohibit all things hurtful to the comfort, safety, and welfare of society, but prescribe regulations to promote the public health, morals, and safety and add to the general public convenience, prosperity, and welfare. 6 R. C. L. §§ 182 et seq.; 3 Words & Phrases, 2d series, 1064 et seq., and authorities there cited; State ex rel. Linde v. Taylor, 33 N.D. 76, 123, 156 N.W. 561; C. B. & Q. R. Co. v. Illinois, 200 U.S. 561, 50 L.Ed. 596, 26 S.Ct. 341, 4 Ann. Cas. 1175; State v. Wilson, 168 P. 679; Sperry & H. Co. v. Weigle -- Wis. --; Rast v. VanDeman & Lewis, 240 U.S. 342, 60 L.Ed. 679, 36 S.Ct. 370; Eubank v. Richmond, 226 U.S. 137, 142; Sligh v. Kirkwood, 237 U.S. 52; Barbier v. Connolly, 113 U.S. 27, 28 L.Ed. 923, 5 S.Ct. 357; Noble State Bank v. Haskell, 219 U.S. 104, 55 L.Ed. 112, 32 L.R.A.(N.S.) 1062, 31 S.Ct. 186, Ann. Cas. 1912A, 487; Deems v. Baltimore, 80 Md. 164, 26 L.R.A. 541, 45 Am. St. Rep. 339, 30 A. 648; Re Marriage License Docket, 4 Pa. Dist. R. 162; Bell's Gap R. Co. v. Pennsylvania, 134 U.S. 232, 33 L.Ed. 892, 10 S.Ct. 533; Mugler v. Kansas, 123 U.S. 623, 31 L.Ed. 205, 8 S.Ct. 273; Wiseman v. Tanner, 221 F. 694.
The only limitation on this power is that it may not be exerted unreasonably or arbitrarily or with unjust discrimination. Adams v. Tanner, 244 U.S. 590; Rast v. Van Deman & Lewis, 240 U.S. 342; Camfield v. United States, 167 U.S. 518, 42 L.Ed. 260, 17 S.Ct. 864; Rideout v. Knox, 148 Mass. 368; Tanner v. Little, 240 U.S. 369; Hadacheck v. Los Angeles, 239 U.S. 394, 60 L.Ed. 348, 36 S.Ct. 143; Reinman v. Little Rock, 237 U.S. 171.
This power is the least limitable of the exercises of the government. Hall v. Geiger-Jones Co., 242 U.S. 539, 61 L.Ed. 480, 37 S.Ct. 217; Sligh v. Kirkwood, 237 U.S. 52; Noble State Bank v. Haskell, 219 U.S. 104; Adams v. Tanner, 244 U.S. 590; Powell v. Pennsylvania, 127 U.S. 678; Austin v. Tennessee, 179 U.S. 343; Booth v. Illinois, 184 U.S. 425; Otis v. Parker, 187 U.S. 606; Murphy v. California, 225 U.S. 623; Rast v. Van Deman & L. Co., 240 U.S. 342; Linde v. Taylor, 33 N.D. 76, 156 N.W. 561; Wiseman v. Tanner, 221 F. 694.
"The police power of a state is as broad and plenary as its taxing power." Mountain Timber Co. v. Washington, 243 U.S. 219, 61 L.Ed. 685, 37 S.Ct. 260; Lawton v. Steele, 152 U.S. 133, 38 L.Ed. 373, 14 S.Ct. 499; Kidd v. Pearson, 128 U.S. 1, 32 L.Ed. 346, 9 S.Ct. 6; Powell v. Pennsylvania, 127 U.S. 678, 32 L.Ed. 253, 8 S.Ct. 992.
The appreciation of the consequences of such legislation is not open for judicial review. Chicago, B. & Q. R. Co. v. McGuire; German Alliance Ins. Co. v. Kansas, supra; S.W. Oil Co v. Texas, 217 U.S. 114; Munn v. Illinois, 94 U.S. 113; Otis v. Parker, 187 U.S. 606; Bunting...
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