State v. Lutey Bros.

• Decision Date: 08 March 1919
• Docket Number: 4331.
• Citation: 179 P. 457,55 Mont. 545
• Parties: STATE v. LUTEY BROS.
• Court: Montana Supreme Court

179 P. 457

55 Mont. 545

STATE v. LUTEY BROS.

No. 4331.

Supreme Court of Montana

March 8, 1919

Appeal from District Court, Silver Bow County; John V. Dwyer, Judge.

Lutey Bros., a corporation, was convicted of violating the Trading Stamp Law, and it appeals. Reversed and remanded, with directions.

Galen Mettler & Toomey, of Helena, Walker & Walker, of Butte, and Frank T. Wolcott, of New York City (New York Bar), for appellant.

Jos. R Jackson, N. A. Rotering, Frank P. Riley, and A. C. McDaniel all of Butte, for the State.

COOPER J.

This is an appeal from a judgment of conviction in a criminal prosecution originally brought in a justice's court of Silver Bow county, for a violation of chapter 17, Laws of 1917, commonly known as the "Trading Stamp Law," the title and section 1 of which read as follows:

"An act to regulate the giving or furnishing of bonuses or premiums, such as the giving or furnishing of stamps, coupons, tickets, certificates, cards, gifts or premiums, such as crockery, chinaware, aluminumware, tinware, or anything else that may be included with or contained in packages of any kind of merchandise, of any description, or other similar device for, or with or in connection with the sale of goods, wares or merchandise, and providing a penalty for the violation thereof.

Section 1. 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, as a gift or bonus, or otherwise, in, with, or for the sale of any goods, wares or merchandise, any premium or bonus, including stamps, coupons, tickets, certificates, cards, or other similar 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 premium or bonus, including 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 device; and every person, firm or corporation placing premiums or bonuses of goods, wares or merchandise, including such as crockery, chinaware, aluminumware, tinware, graniteware, or anything else that may be included or contained or delivered with packages of any kind of merchandise of any description, shall, before so furnishing, selling or using the same, obtain a separate license therefor from the county treasurer of each county wherein such furnishing or selling or using of such premiums or bonuses shall take place, for each and every store or place of business in that county from which such furnishing or selling of premiums or bonuses as herein enumerated, or in which such shall take place."

Section 2 imposes an annual license fee of $6,000 for permission to do what section 1 prohibits merchants from doing without such license.

Section 4 declares that any person, firm, or corporation violating any of the provisions of the act is guilty of a misdemeanor, punishable by fine or imprisonment in the county jail, or by both such fine and imprisonment.

The trial in the justice's court resulted in a verdict of guilty and the imposition of a fine. The defendant appealed to the district court, where, after the overruling of a demurrer to the complaint, upon the ground, among others, that the facts stated did not constitute a public offense, a trial de novo was had upon an agreed statement of facts. Conviction again followed. Defendant appeals from the judgment of conviction.

The complaint charges that-

The defendant "did willfully, unlawfully, wrongfully and intentionally use, as a gift and bonus, in and with and for the sale of certain goods, wares and merchandise, *** a premium, to wit, stamps, commonly known as, called and designated Sperry Hutchinson trading stamps, which stamps then and there entitled the purchaser receiving the same with such sale of goods, wares and merchandise to procure from the Sperry & Hutchinson Company, *** a premium and bonus free of charge, to wit, the sum of one mill, lawful money of the United States of America, *** without *** having obtained a separate license therefor," etc.

The agreed statement shows substantially these facts: The defendant Lutey Bros. is a corporation doing a mercantile business in the city of Butte in nine different stores. The Sperry & Hutchinson Company, a New Jersey corporation, engaged in furnishing to retail merchants "trading stamps" under a contract the preamble of which recites the scheme to be "a co-operative system of giving a cash discount on small as well as large cash purchases, for the purpose of encouraging cash trade," etc., entered into a contract with Lutey Bros. to furnish to it the system and services relating thereto. The stamps were furnished and used by the defendant, the method of their issue and use being briefly the following: The customer who made a purchase at any one of the Lutey stores was, upon payment in cash, furnished one trading stamp for each ten cents paid by him, which in turn the purchaser was required to paste in so-called stamp books, each with a capacity for 1,000 stamps. These stamp books when filled with 1,000 of the trading stamps, representing purchases amounting in all to $100, the Sperry &...