State v. Ramseyer

• Decision Date: 06 September 1904
• Citation: 58 A. 958,73 N.H. 31
• Parties: STATE v. RAMSEYER.
• Court: New Hampshire Supreme Court

58 A. 958

73 N.H. 31

STATE

v. RAMSEYER.

Supreme Court of New Hampshire. Rockingham.

Sept. 6, 1904.

Transferred from Superior Court, Stoue Judge.

Information by the state solicitor against Samuel E. Ramseyer. Defendant's motion to quash the same was denied, and the case was transferred to the Supreme Court for hearing of defendant's exception. Sustained.

The information charges that the defendant, on April 16, 1903, at Portsmouth, sold "to one Charles E. Jenness certain property, to wit, one pocketbook, and in connection with such sale did give to said Jenness 10 stamps or coupons which entitled said Jenness, the purchaser of said pocketbook, to receive from the Sperry-Hutchiuson Company, a corporation organized under the laws of the state of New Jersey, certain property other than the property sold as aforesaid, to wit, other than the said pocketbook, on presentation to said Sperry-Hutcbinson Company, being a person or corporation other than the person so selling said pocketbook as aforesaid." It was agreed that the witnesses for the state, if called, would testify as follows: The defendant, acting as a clerk in a dry goods store in the city of Portsmouth, on the day specified in the information, sold to the person named therein a certain pocketbook, and at the same time and as part of the transaction delivered to that person 10 stamps or coupons, which entitled the purchaser to demand of the Sperry-Hutchinson Company any one of a number of articles on exhibition at the store of that company which the purchaser might select; that the Sperry-Hutchinson Company is a corporation organized under the laws of the state of New Jersey, and is not the proprietor of the store where the pocketbook was sold and where the coupons were delivered to the person named in the information.

John W. Kelley and Streeter & Hollis, for the State.

Tillinghast & Murdock, for defendant.

WALKER, J. The facts constituting the alleged crime, as set forth in the information, are in brief that the defendant, upon the sale by him to one Jenness of a pocketbook, also gave to the latter a coupon or order which entitled the holder to receive from another party some other article of value. It may be assumed in favor of the state that it was understood by Jenness when he purchased the pocketbook that as a part of the transaction and as an inducement thereto he was to receive, and in fact did receive, from the defendant a coupon authorizing him to demand of and obtain from a third party other property than the article bought of the defendant. This transaction on the part of the defendant, it is claimed, constituted a crime by virtue of sections 1 and 2, c. 60, p. 298, Laws 1899. Section 1 of the statute is as follows: "No person or company shall, in the sale, exchange, or disposition of any property, give or deliver in connection therewith or in consideration of said sale, exchange, or disposition, any stamp, coupon, or other device which entitles the purchaser or receiver of said property, or any other person, to demand or receive from any person or company other than the person making said sale, exchange, or disposition, any other property than that actually sold or exchanged; and no person or company other than the person so selling or disposing of property shall deliver any goods, wares, or merchandise upon the presentation of such stamp, coupon, or other device." Section 2 provides that "any person or company who violates any provision of the foregoing section shall for each offense be punished by fine of not less than twenty nor more than five hundred dollars." That the facts alleged in the information constitute a crime within the literal meaning of the statute may be conceded. The defense is that the statute is unconstitutional and void.

While it may be difficult to define exactly or concretely the constitutional limitations upon the Legislature in the exercise of its regulating or police power, it is futile to argue that none exist. It has been so long and so universally recognized and established that the Legislature does not possess unlimited power in the enactment of statutes affecting private rights that discussion of the subject at this late day assumes only academic interest. In the practical administration of justice it can be of little, if any, utility. "All men have certain natural, essential, and inherent rights, among which are the * * * acquiring, possessing, and protecting property." Bill of Rights, art. 2. "This is not silence, nor rant and declamation, nor advice and exhortation. It is an express declaration of the private right of proprietorship. It is attached to the constitutional grant of governmental powers, as a limitation of the grant, a declaration of a right not surrendered to society. Whether it be called a declaration of the reserved right, or a reservation of the right, or a guaranty of it, or a prohibition of the violation of it, is immaterial. It is a reservation that makes the right a constitutional one. It is a guaranty of the plaintiff's natural and common-law right to own property. * * * As the broadest literal sense of this reservation is qualified by the constitutional grant of legislative powers (including the powers of police, taxation, and eminent domain), so that grant is qualified by this reservation, as well as by other guaranties and prohibitions set forth in the Bill of Rights. If the general reservation of the rights of life, liberty, and property were not qualified by the grant of legislative power, individual rights would be absolute, and the Constitution would contradict itself. If the grant of 'supreme legislative power' were not qualified by any constitutional provisions, that power would be unlimited." Doe, J., in Orr v. Quimby, 54 N. H. 590, 616, 617. "The General Court is the legislative department of the state government, and has under the Constitution an ample grant of legislative power. The extent of the power is, however, limited, not only by the express prohibitions of the Constitution, but by the nature itself of the power granted; and to be valid and binding the act of the Legislature must be within the general scope of legislative authority. The power delegated by the Constitution 'to make and ordain all manner of reasonable and wholesome orders, laws,' etc., confers no authority to make an order or law in plain violation of the fundamental principles of natural justice, though the act may not be prohibited by any express limitation in the Constitution." East Kingston v. Towle, 48 N. H. 57, 59, 97 Am. Dec. 575, 2 Am. Rep. 174. "The right of acquiring and possessing property is constitutionally reserved." State v. Express Co., 60 N. H. 219. "But even the police power, comprehensive as it admittedly is, has its limitations; and in this state, at least, it is subordinate to the equality of privilege and of burden secured by the Bill of Bights and guarantied by the Constitution in clearly expressed provisions which mean just what they declare." State v. Jackman, 69 N. H. 318, 331, 332, 41 Atl. 347, 349, 42 L. R. A. 438. "The right of acquiring property and the rights I of life and liberty, which the second article of the Bill puts together in a class of rights there described as natural, essential, and inherent, are secured for all men." Opinion of the Justices, 66 N. H. 629, 631, 33 Atl. 1076, 1078; Aldrich v. Wright, 53 N. H. 398, 399, 400, 16 Am. Rep. 339.

The limited power of the Legislature in matters relating, or purporting to relate, to the general public welfare, has always been recognized and vindicated by judicial action. The rights of "enjoying and defending life and liberty, acquiring, possessing, and protecting property, and, in a word, of seeking and obtaining happiness" (Bill of Rights, art. 2), have been deemed to be not only in a certain broad and undefined sense "natural, essential, and inherent rights," but also in a practical sense enforceable rights. That the framers of the Constitution did not concretely define these terms is no evidence that they were not intended to have an effective legal meaning. Nor is the broad grant of legislative powers contained in article 5 of the form of government, by which the Legislature is authorized "to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions, and instructions," independent of, or unlimited by, the reserved rights of citizenship mentioned in article 2 of the Bill of Rights. The true view is that both of these provisions of the fundamental law are to be considered together as interdependent, the one qualifying and limiting the other; otherwise it would result that due effect could not be given to both at the same time. Neither is supreme in a sense that would deprive the other of its effectiveness as a part of the fundamental law.

The fourteenth amendment to the Constitution of the United States provides that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." The essential rights of citizenship under a republican form of government, declared in the second article of our Bill of Rights, are not increased or rendered more stable and secure by this provision of the federal Constitution. "An enactment obnoxious to this provision of the federal Constitution is in New Hampshire no more ineffective than it would be in its absence." State v. Pennoyer, 65 N. H. 113, 115, 18 Atl. 878, 880, 5 L. R. A. 709. And as the defendant is fully protected in the exercise of all his essential rights of acquiring and possessing property by the Constitution of this state, it is unnecessary to consider whether a similar guaranty might be discovered in the fourteenth amendment of the federal Constitution.

The statute in...