People v. Gillson

Decision Date05 June 1888
PartiesPEOPLE v. GILLSON.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from general term, supreme court, Third department.

Trial and conviction of Hugh B. Gillson for selling food, and giving away, as a part of the transaction, a premium, in violation of the act of 1887. The defendant appeals.

Hamilton Harris and Montignani & Scherer, for appellant.

Franklin M. Danaher, for respondent.

Section 335 a, Pen. Code, (chapter 691, Laws 1887,) is not in violation of nor contrary to the provisions of the fourteenth amendment to United States constitution. U. S. v. Cruikshank, 92 U. S. 542, 569;U. S. v. Harris, 106 U. S. 629, 644, 1 Sup. Ct. Rep. 601. That amendment has not taken from the states the powers of police that were reserved at the time the original constitution was adopted. Beer Co. v. Massachusetts, 97 U. S. 25;Slaughter-House Cases, 16 Wall. 36, 130;Barbier v. Connolly, 113 U. S. 27, 32, 5 Sup. Ct. Rep. 357;Mugler v. Kansas, 8 Sup. Ct. Rep. 273. The act does not abridge the privileges and immunities of citizens. U. S. v. Cruikshank, 92 U. S. 542, 569;People v. Gallagher, 93 N. Y. 438;Bradwell v. State, 16 Wall. 130;Cory v. Carter, 48 Ind. 327, 17 Amer. Rep. 738. It is a valid exercise of the police power as a statute in furtherance of the prohibition against lotteries. People v. Noelke, 94 N. Y. 142;Wilkinson v. Gill, 74 N. Y. 67;Com. v. Wright, 137 Mass. 250;Com. v. Sullivan, 15 N. E. Rep. 491; Governors v. Union, 7 N. Y. 238;Hull v. Ruggles, 56 N. Y. 424;Walker v. State, 49 Ala. 398;Dunn v. People, 40 Ill. 465;Thomas v. People, 59 Ill. 160;State v. Clarke, 33 N. H. 329;Skiff v. Johnson, 57 N. H. 475;U. S. v. Olney, 1 Deady, 461. It is a valid exercise of the police power as a health law,-a regulation of trade in food products. In re Jacobs, 98 N. Y. 98;People v. Marx, 99 N. Y. 377, 2 N. E. Rep. 29; Wynehamer v. People, 13 N. Y. 412;Stone v. Mississippi, 101 U. S. 814;Bertholf v. O'Reilly, 74 N. Y. 509;State v. Burgoyne, 7 Lea, 173, 40 Amer. Rep. 60; Dabbs v. State, 39 Ark. 353, 43 Amer. Rep. 275; Davis v. State, 68 Ala. 58, 44 Amer. Rep. 128. It does not deprive the accused of his property, (Bertholf v. O'Reilly, 74 N. Y. 521;Mugler v. Kansas, 8 Sup. Ct. Rep. 273;People v. West, 106 N. Y. 293, 12 N. E. Rep. 610;) nor interfere with the freedom of trade, (People v. Marx, 99 N. Y. 386, 2 N. E. Rep. 29; People v. West, 106 N. Y. 293, 12 N. E. Rep. 610; Tied. Police Power, 490, 491; People v. Cipperly, 37 Hun, 326.) Nothing but a clear violation of the constitution will justify the judicial department in declaring a legislative act void. People v. West, 106 N. Y. 296, 12 N. E. Rep. 610; U. S. v. Harris, 106 U. S. 629, 1 Sup. Ct. Rep. 601;People v. Draper, 15 N. Y. 543;People v. Briggs, 50 N. Y. 553;People v. Albertson, 55 N. Y. 54;Kerrigan v. Force, 68 N. Y. 385;Bertholf v. O'Reilly, 74 N. Y. 509;People v. Comstock, 78 N. Y. 361;Mugler v. Kansas, 8 Sup. Ct. Rep. 273;Stuyvesant v. Mayor, 7 Cow. 606.

PECKHAM, J.

In 1887 the legislature of this state enacted chapter 691, which is entitled ‘An act to amend the Penal Code by adding an additional section thereto, to be known as section three hundred and thirty-five a.’ That section reads as follows: Sec. 335 a. No person shall sell, exchange, or dispose of any article of food, or offer or attempt to do so, upon any representation, advertisement, notice, or inducement that anything other than what is specifically stated to be the subject of the sale or exchange is or is to be delivered or received, or in any way connected with or a part of the transaction, as a gift, prize, premium, or reward to the purchaser. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and, in addition thereto, shall be liable to a penalty of twenty-five dollars, to be recovered, with costs, by any person suing therefor in his own name.’ The section is placed as the last one in chapter 8 of the Penal Code, which is entitled ‘Lotteries;’ and the chapter is devoted to enactments defining and relating to lotteries. On the 7th day of October, 1887, a purchaser of two pounds of coffee from defendant, on the 6th day of October, 1887, at the sales-room of the Great Atlantic & Pacific Tea Company, 11 North Pearl street, in the city of Albany, made affidavit, before a police justice of the city, that the defendant ‘did, on the 6th of October, sell,’ etc., ‘two pounds of coffee upon a representation that a thing other than what was specifically stated to be the subject of the sale, to-wit, crockery and glassware, was to be given and received, and in that way connected with and made part of the transaction, as a gift or prize to the purchaser, and in that way defendant did sell the coffee upon such representation, and did deliver, as a gift,’ etc., a tea-cup and saucer to the purchaser of the coffee, who received it as part of the transaction of the sale of the coffee. Upon such affidavit the justice issued his warrant, and the defendant was arrested and brought before him. He then waived an examination, and gave bail to the special sessions, where he was subsequently tried and convicted of the offense above charged. The defendant was sentenced to pay a fine of $10, or be imprisoned for 10 days. This conviction was affirmed at the general term of the supreme court, and from the judgment of affirmance the defendant appeals to this court. A reference to the testimony on the trial discloses the fact that the witness did not buy the coffee for his own use, but in order to make a case against the tea companies. Hence the certainty observable in the testimony of the witness as to the inducements which operated upon his mind, and led him to purchase the coffee. The witness said, in his evidence, that he knew defendant, and that he was a clerk at premises No. 11 North Pearl street, in the city of Albany, which were used and occupied as a tea-store, and that on October 6th the witness purchased of defendant at that place, and defendant sold him, two pounds of coffee, ‘upon a representation, advertisement, notice, and inducement that a thing other than the said coffee, which was specifically stated to be the subject of said sale and exchange, to-wit, one decorated cup and saucer, was to be given, presented, delivered, and received, and in that way connected with and made part of the transaction of the purchase and sale of the coffee, as a gift, prize, premium, and reward to me;’ and upon such representation he purchased and received the coffee, and the cup and saucer. He further said he would not have purchased the coffee but for the inducement of the present; that it was stated to him, if he purchased but one pound of coffee, he got a check; and, when he purchased two pounds, he got two checks, which entitled him to a present; and he would have bought but one pound if he could have got a present with one. It also appeared that the articles which formed the inducement for the purchase were lying in full view of the purchaser on a counter, and his choice of anything on the counter was given him, provided he purchased as much as two pounds of coffee; that being the sole consideration upon which his right of choice depended. The witness further testified that there were two signs in front of the store. One was a business sign, reading, ‘Great Atlantic & Pacific Tea Co.;’ the other, ‘Try our 8 o'clock breakfast coffee; checks given away with this coffee.’ This was substantially the testimony, and it was uncontradicted. Upon these facts, the courts below have pronounced the defendant guilty of a violation of the above-mentioned act, and it has been held a valid exercise of legislative power.

The act is attacked by the counsel for defendant as unconstitutional upon a number of grounds. In considering constitutional questions, certain rules have been laid down by courts in relation to the exercise of their conceded power to declare void, as being in violation of the constitution, enactments of the legislature which have been passed with all due and proper formalities. It has been frequently held, and is acknowledged by all courts as the undoubted and true rule, that a statutory enactment will not be declared unconstitutional, and therefore void, unless a clear and substantial conflict exists between it and the constitution; that every presumption is in favor of the constitutionality of legislative acts; that the case must be practically free from doubt; that, as to our state constitution, the question whether a statute is a valid exercise of legislative power is to be determined solely by reference to constitutional restraints and prohibitions; that it may not be declared void because a court may deem it opposed to natural justice and equity; that all property is held subject to the general police power of the state to so regulate and control its use, in a proper case, as to secure the general safety and the public welfare. These principles have been frequently asserted in our courts, and are so familiar that a reference to particular authorities is not thought needful. They are good and healthful rules, and should be followed by all courts. At the same time, it must be remembered that the constitution is the supreme law of the land; and that, when an act of the legislature properly comes before the court to be compared by it with the fundamental law, it is the duty of the court to declare the invalidity of the act if it violate any provision of that law.

The defendant here appeals for his protection to the clause (among others) in the constitution which provides that no person shall be deprived of life, liberty, or property without due process of law. The meaning of this provision in our state constitution has frequently been the subject of judicial investigation, and this court has had occasion very recently to discuss it in quite a number of cases, and a further elaboration is not needed. The following propositions are...

To continue reading

Request your trial
245 cases
  • State v. Superior Court of King County
    • United States
    • Washington Supreme Court
    • January 27, 1912
    ... ... without limitation, in so far as it is made to apply to the ... health, peace, comfort, and morals of the people. Formerly ... applied strictly and directly, it has now, because of changed ... economic conditions, come to be more favored, and is ... As an abstract ... legal proposition that may be readily admitted, but as is ... said by Peckham, J., in People v. Gillson, 109 N.Y ... 389, 400, 17 N.E. 343, 4 Am. St. Rep. 465, the police power ... is not above the Constitution, but is bounded by its ... ...
  • Kansas City Gas Co. v. Kansas City
    • United States
    • U.S. District Court — Western District of Missouri
    • March 2, 1912
    ... ... 'The ... accompanying suggestions of the gas inspector, Mr. Robt. W ... Goodnow, are commended to the people of Kansas City as ... being well worth their attention ... 'We ... advise that if you use the gas for fuel that you have some ... coal ... relation to the public health and a direct and plain tendency ... to aid in the securing of it. ' People v ... Gillson, 109 N.Y. 389, 17 N.E. 343, 4 Am.St.Rep. 465 ... 'Courts ... are not to be deceived by the mere phraseology in which an ... ordinance ... ...
  • State v. Duluth Board of Trade
    • United States
    • Minnesota Supreme Court
    • May 7, 1909
    ...L. S. L. & S. H. Co., 111 U. S. 746, 4 Sup. Ct. 652, 28 L. Ed. 585; Welch v. Phelps, 89 Tex. 653, 36 S. W. 71; People v. Gillson, 109 N. Y. 389, 17 N. E. 343, 4 Am. St. 465; Walsh v. Dwight, 40 App. Div. 513, 58 N. Y. Supp. 7. With these general principles in mind, we proceed to the conside......
  • Whitwell v. Continental Tobacco Co.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • November 12, 1903
    ... ... 578, 589, 7 Sup.Ct ... 427, 41 L.Ed. 832; State v. Goodwill (W.Va.) 10 S.E ... 285, 286, 6 L.R.A. 621, 25 Am.St.Rep. 863; People v ... Gillson, 109 N.Y. 389, 398, 17 N.E. 343, 4 Am.St.Rep ... 465; Butchers' Union Co. v. Crescent City, etc., ... Co., 111 U.S. 746, 755, 4 ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT