State v. Dodge
Citation | 76 Vt. 197,56 A. 983 |
Parties | STATE v. DODGE. |
Decision Date | 26 January 1904 |
Court | United States State Supreme Court of Vermont |
Exceptions from City Court of Burlington; Hawkins, Judge.
Walter B. Dodge was convicted of violating the anti trading stamp law, and appeals. Reversed.
Argued before ROWELL, C. J., and TYLER, MUNSON, START, WATSON, and STAFFORD, JJ.
Tilllnghast & Murdock and J. T. Stearns, for appellant. M. G. Leary, State's Atty., for the State.
The respondent is charged with the offense of selling to one Claude Graton certain property for a certain sum of money, and with giving and delivering to Graton, in connection with and in consideration of the sale, three stamps or coupons, which entitled Graton to receive of the Sperry & Hutchinson Company certain property, other than the property sold as aforesaid, to wit, a certain watch chain, on presentation of the stamps or coupons to the Sperry & Hutchinson Company, contrary to No. 123, p. 93, of the Acts of 1898, which is as follows:
The respondent insists that this statute is unconstitutional, in that it deprives him of liberty and property without due process of law, which is guarantied to him by the fourteenth amendment to the Constitution of the United States.
A person living under the federal Constitution is at liberty to adopt and follow such lawful industrial pursuits as he sees fit, and has a right to the full exercise and enjoyment of his faculties in a lawful pursuit or calling, in a proper manner, subject only to such restraints as are necessary for the common welfare. When it is claimed that an act of the Legislature infringes upon such liberty or right, and the consideration of the act is properly before the court, it is the duty of the court to declare the act invalid, if it infringes upon such liberty or right; and this is so whether the act purports to be an exercise of the police power of the Legislature, or of its general governmental power to regulate business affected with a public interest. Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct 499, 38 L. Ed. 385; Allgeyer v. Louisiana, 165 U. S. 578, 17 Sup. Ct. 427, 41 L. Ed. 832. The business which the act prohibits is not of a public nature. Property, the transfer of which is prohibited, is not affected with a public interest. The merchant, who, by the act, is subject to a penalty if he delivers stamps or coupons contrary to its provisions, is under no duty to serve the public, nor to sell his wares to any one; and it cannot be said that the enactment is a proper exercise of the general governmental power of the Legislature to regulate business that is affected with a public interest, nor is it claimed by the counsel for the state that the prohibited business in any way affects the public health or safety. Therefore the cases where statutes regulating such business have been considered are not controlling upon the question in the case at bar.
But the counsel for the state contend that the act is a valid exercise of the police power of the Legislature, for the reason that it prohibits schemes which are in the nature of a lottery. This contention cannot be sustained. There is no element of chance, nor anything in the nature of gaming, in the business shown by the complainant to have been conducted by the respondent. On the contrary, it is alleged that the three stamps delivered by the respondent entitled the purchaser to receive from the Sperry & Hutchinson Company certain property, to wit, one watch chain. The agreed case shows that these stamps are given to the purchaser of goods from the merchant, and are taken to the store of the company, where they are exchanged for any one of the large number of articles that the purchaser may select; that these articles are in...
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