State ex rel. Stephan v. Pepsi-Cola General Bottlers, Inc., PEPSI-COLA

Decision Date19 February 1983
Docket NumberNo. 54813,PEPSI-COLA,54813
Citation659 P.2d 213,232 Kan. 843
PartiesSTATE of Kansas, ex rel., Robert T. STEPHAN, Attorney General, Appellant, v.GENERAL BOTTLERS, INC., Appellee.
CourtKansas Supreme Court

Syllabus by the Court

1. Courts will not consider and decide questions where there is no case or controversy. City of Roeland Park v. Cross, 229 Kan. 269, 623 P.2d 1332 (1981).

2. A penal statute shall be strictly construed against the State. State v. Doyen, 224 Kan. 482, 488, 580 P.2d 1351 (1978).

3. In an action to enjoin a promotion by Pepsi-Cola where bottle caps were furnished to consumers entitling them to redeem them for cash and prizes, it is held: The Kansas Trading Stamp Act (K.S.A. 21-2801 et seq.) is applicable to such practice. It is further held the practice complained of is exempt under K.S.A. 21-2803.

Wayne E. Hundley, Deputy Atty. Gen., argued the cause, and Robert T. Stephan, Atty. Gen. and Linda P. Jeffrey, Asst. Atty. Gen., were with him on brief, for appellant.

Steve R. Fabert, of Fisher, Patterson, Sayler & Smith, Topeka, argued the cause and was on brief, for appellee.

HERD, Justice:

This is an appeal from the trial court's order denying the appellant's (State's) motion for summary judgment and entering judgment for the appellee (Pepsi-Cola).

During the fall of 1981 Pepsi-Cola conducted a promotional program entitled "Pepsi Challenge! DOUBLE PAY-OFF." Under the rules of the scheme the purchaser of one or more items of Pepsi-Cola products, namely bottles of Pepsi-Cola, Diet Pepsi and Mountain Dew, was issued one or more bottle caps specially marked with stars. Under the cap appeared a letter, cash amount or a facsimile of a certain merchandise item. If an individual collected letters to spell out the word "CHALLENGE," a $500 cash prize was awarded. If an individual obtained a bottle cap marked twenty-five cents, fifty cents or one dollar, a cash prize in that amount was awarded. If a bottle cap containing an image of a television, bicycle, tape player/radio or barbeque grill was obtained, one of those prizes was awarded. Another bottle cap was worth twenty-five dollars worth of groceries.

The specially marked bottle caps were randomly distributed among caps used to seal Pepsi's carbonated beverages. Thus, one way to obtain the caps was to purchase bottles of Pepsi products. However, no purchase was required to procure the bottle caps. Free caps could be obtained by writing or visiting the nearest Pepsi-Cola bottling plant.

Initially the attorney general brought suit against the Pepsi-Cola bottling companies of Topeka, Manhattan and Marysville, along with Pepsi-Cola General Bottlers, Inc., requesting a permanent injunction on the basis the "Pepsi Challenge! DOUBLE PAY-OFF" was being conducted in violation of the Kansas Trading Stamp Act, K.S.A. 21-2801 et seq. Later, upon joint motion of the Topeka, Manhattan and Marysville defendants, those three defendants were dismissed from the action.

Both parties filed motions for summary judgment. After considering the evidence and trial briefs the trial court granted Pepsi-Cola's motion and entered judgment accordingly.

Appellee argues the appeal is moot because the activity sought to be enjoined ceased December 31, 1981. The Attorney General, on the other hand, claims that since a permanent injunction which would enjoin any similar promotional program in the future was sought an actual controversy exists.

The Supreme Court will not consider and decide questions when its decision would not be applicable to any actual controversy and where the judgment itself would be unavailing. At the same time, however, an appeal will only be dismissed when it "clearly and convincingly appears the actual controversy has ceased and the only judgment which could be entered would be ineffectual for any purpose ...." Moyer v. Board of County Commissioners, 197 Kan. 23, 25, 415 P.2d 261 (1966). In other words, it is the duty of this court to render a judgment which can be given effect, and to avoid merely declaring principles which cannot affect the matter in issue. City of Roeland Park v. Cross, 229 Kan. 269, 623 P.2d 1332 (1981).

An injunction is an order to do or refrain from doing a certain act. K.S.A. 60-901. When properly applied it operates only in futuro, and not to provide relief for past or completed acts. Where the need for an injunction has ceased this court will not review the merits of the issue on appeal. State ex rel., v. Eastin, 179 Kan. 555, 556, 297 P.2d 170 (1956). To obtain injunctive relief from prospective injury it must be shown there is a reasonable probability of injury and an action at law will not afford an adequate remedy. "Mere apprehension or a possibility of wrong and injury ordinarily is not enough to warrant the granting of an injunction." Clawson v. Garrison, 3 Kan.App.2d 188, 195-96, 592 P.2d 117 (1979).

Since Pepsi-Cola has, at least for the present, ceased the complained-of activity, the State is now asking for prospective injunctive relief. No evidence has been offered to show a reasonable probability Pepsi will conduct the same type of promotion in the future. However, we take judicial notice of the numerous such promotions now being used and thus find the issue of adequate public concern to constitute a sufficient case and controversy to justify considering the case on its merits.

Pepsi-Cola argues regardless of the technical niceties involving the construction of the Trading Stamp Act, the Act itself has no application to the present case.

The Kansas Trading Stamp Act was first enacted in 1917. L.1917, ch. 331. At that time the legislature imposed a prohibitive license fee on users of trading stamps. The Act was upheld in the face of a constitutional attack in The State v. Wilson, 101 Kan. 789, 168 P. 679 (1917), and again in The State v. Mercantile Co., 103 Kan. 733, 176 P. 321, reh. denied 103 Kan. 896, 176 P. 670 (1918). In 1957 the law was changed. At that time the precursor of the present statute was enacted, making the issuance of trading stamps a criminal offense. L.1957, ch. 177. See Cushenbery v. Shanahan, 190 Kan. 720, 378 P.2d 66 (1963).

The evil attributed to trading stamps and therefore the legislative purpose behind the Act was discussed in State v. Wilson, 101 Kan. at 799, 168 P. 679:

"If the use of trading stamps tends to induce persons to make purchases beyond the limit which they would otherwise observe, and beyond their reasonable needs, it may be regarded as to that extent inimical to the interest of the public....

"The trading stamp device offers an inducement to make purchases from the merchant using them, which is not connected with the merits of his goods, or with his customers' need of them. It lends itself readily to fostering a belief on the part of the buyer that the stamps cost him nothing--that they are given as lagniappe."

K.S.A. 21-2801 makes it unlawful for:

"Any person, firm, association or corporation to use, issue or distribute, or for any person, firm, association or corporation to furnish to any other person, firm, association or corporation to use, issue or distribute, in, with, or for the sale of goods, wares or merchandise, any stamps, coupons, tickets, certificates, cards, or other similar devices, which shall entitle the purchaser receiving the same with the sale of goods, wares, or merchandise to procure from any person, firm, association or corporation, any goods, wares, merchandise or anything of value upon the production of any number of such stamps, coupons, tickets, certificates, cards or other similar...

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11 cases
  • State v. Lundberg
    • United States
    • Kansas Supreme Court
    • July 19, 2019
    ...entity seeking to enforce it and in favor of the person against whom it is being asserted. State ex rel. Stephan v. Pepsi-Cola Gen'l Bottlers, Inc. , 232 Kan. 843, 846, 659 P.2d 213 (1983) ; Bishop , 215 Kan. at 483, 524 P.2d 712.Here, applying strict construction, or indeed plain reading a......
  • Kansas Gas & Elec. v. Eye, 63127
    • United States
    • Kansas Supreme Court
    • April 13, 1990
    ...probability of such injury exists and an action at law will not afford an adequate remedy. State ex rel. Stephan v. Pepsi-Cola Gen'l Bottlers, Inc., 232 Kan. 843, 845, 659 P.2d 213 (1983). Appellants contend there is no evidence that dissemination of the Quality First information will cause......
  • Mid-America Pipeline Co. v. Wietharn
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    • March 2, 1990
    ...or possibility of wrong or injury ordinarily does not warrant the granting of an injunction. State ex rel. Stephan v. Pepsi Cola Gen'l Bottlers, Inc., 232 Kan. 843, 845, 659 P.2d 213 (1983); Clawson v. Garrison, 3 Kan.App.2d 188, 195-96, 592 P.2d 117 The district court incorrectly concluded......
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