Young v. Commonwealth

• Decision Date: 17 September 1903
• Parties: YOUNG. v. COMMONWEALTH.
• Court: Virginia Supreme Court

45 S.E. 327

101 Va. 853

YOUNG.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Sept. 17, 1903.

CONSTITUTIONAL LAW—LIBERTY—POLICE POWER—USE OF TRADING STAMPS.

1. The word "liberty" as used in the Constitution of the United States and of the several states, is deemed to embrace the right of a citizen to be free in the employment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purpose above mentioned.

2. The only authority which a state has for the enactment of a prohibitory and penal law for the regulation and control of a business arises out of its police power, which power includes only those matters which pertain to the public safety, the public health, or the public morals.

3. Act Feb. 19, 1898 (Acts Gen. Assem. 1897-98, p. 442), which prohibits the use of trading stamps and similar devices which may be used in payment and purchase of or exchange for articles of merchandise from any person or corporation other than the party using same, is in contravention of section 1, Amend. 14, of the Constitution of the United States, and section 1, art. 1, of the Constitution of the state of Virginia, and is void as an infringement on personal liberty.

4. Acts of the General Assembly are presumed to be passed in the utmost good faith, and are not to be declared void by the courts unless clearly unconstitutional.

Error to Circuit Court, Clarke County.

One Young was convicted of using trading stamps in violation of law, and brings error. Reversed.

Marshall McCormick and W. Benton Crist, for plaintiff in error.

Wm. A. Anderson, Atty. Gen., for the Commonwealth.

HARRISON, J. This writ of error brings in question the constitutionality of an act of the General Assembly approved February 19, 1898, entitled "An act to prohibit the use of trading stamps, trading checks, and similar gift enterprises, and providing a punishment for those who use them, " which is in the following words:

"Be it enacted by the General Assembly of Virginia, that

"1. No person shall sell or offer for sale any article or merchandise of any description whatever with the promise, express or implied, to give or deliver or in any manner hold out the promise of gift or delivery of any ticket, check, metal or paper stamp, or other written or printed promise or assurance, express or implied, that the said ticket, check, metal or paper stamp, or written or printed promise or assurance, may be used in payment or purchase of or exchange for any other articles of merchandise from any other person or corporation.

"2. It shall not be unlawful for any merchant or manufacturer to place tickets or coupons in packages of goods sold or manufactured by him, such tickets or coupons to be redeemed by such merchant or manufacturer either in money or in merchandise, whether such packages are sold directly to the customer or through retail merchants; nor shall it be unlawful for any person to give out with such package, tickets or coupons so given out by such merchant or manufacturer.

"3. Any person violating the provisions of this act shall be guilty of a misdemeanor, and shall be punished by a fine of not more than one thousand dollars, or be imprisoned in jail, not exceeding six months, or both, in the discretion of the justice or jury trying the offense."

Acts Gen. Assem. 1897-98, pp. 442, 443, c. 406.

On the 8th day of April, 1903, the plaintiff in error, a merchant doing business in the town of Berryville, Va., was arrested upon a warrant charging him with the violation of this act, taken before a justice of the peace, tried, convicted, fined $10, and adjudged to pay costs. Upon appeal to the county court of Clarke county this judgment was approved and affirmed, and upon further appeal the judgment of the county court was affirmed by the circuit court of the same county. From this last-mentioned judgment a writ of error was awarded by this court.

The facts, as they appeared before the justice of the peace and as proven in the county court, are substantially as follows: On the 8th day of April, 1903, a customer called at the store of the defendant, and bought one dozen cans of tomatoes, for which he paid the defendant the sum of $1.20, which was the fair and reasonable market value of the same, and was the regular price which the defendant charged all of his customers for such merchandise. After the purchase price was paid, the defendant delivered to his cus-tomer 12 tickets, checks, or stamps, commonly called "trading stamps." These stamps were issued to the defendant by a corporation organized and existing under the laws of the state of New Jersey, known as "The Sperry & Hutchinson Company, " and were delivered to the customer by the defendant under and by virtue of the terms of a written agreement between the Sperry & Hutchinson Company and himself. By the terms of this agreement the company undertook to advertise the business of the defendant by the usual mediums of advertising, as well as by other unique and novel methods; to furnish the defendant its trading stamps, to be redeemed in the manner hereinafter mentioned; to print the name, business, and business address of the defendant in the subscriber's book issued by the company, and to deliver such books to the people living in the vicinity of Berryville, Va., explaining to them the use thereof, and to use its best endeavors to promote the business and trade of the defendant. In consideration of the foregoing the defendant agreed to take from the company from time to time "trading stamps" in sufficient quantities to give each of his customers paying cash for their purchases one stamp for each and every ten cents represented in a purchase, ten for every dollar represented in a purchase, and so on. For the use of these stamps the defendant was to pay the company at the rate of 50 cents per hundred on all stamps given and distributed by him. The company further agreed to open a store or other place of business at Berryville, Va., for the purpose of redeeming such stamps as might be given and distributed by the defendant and its other subscribers, and to carry therein and keep on exhibition thereat a stock of goods consisting of albums, ac-cordeons, carving sets, cut glass bowls, field glasses, opera glasses, silver-plated ware of various kinds, including knives, forks, and spoons, and many other useful articles too numerous to mention. With these articles the company agreed to redeem the stamps given and distributed by the defendant when presented by any one of his customers in lots of 990 stamps; the holder to designate the article with which he or she desired to have such stamps redeemed, the article or one identical therewith to be delivered to the holder at the time of the presentation of the stamps for redemption. And to this end the company agreed to keep its store open during the usual business hours, that the public might, during those hours, have the opportunity of inspecting the merchandise therein and selecting the articles with which they might desire to have their stamps redeemed. The proof shows that pursuant to the terms of this agreement the company has advertised the business of the defendant in the manner provided for by the contract, and has maintained in the town of Berryville a place of business in which it carries a number of the articles mentioned in the agreement for the redemption of stamps; that such articles may be inspected by all persons either prior or subsequent to making a purchase and receiving stamps from the defendant, and that upon accumulating 990 stamps the customer will be entitled to present the same, and receive in exchange therefor from the company any one of the articles of merchandise mentioned that he may choose to select; that at the time of purchase of the one dozen cans of tomatoes the customer in question knew, through the advertisements circulated by the trading stamp company, that the defendant gave trading stamps with all cash sales, and for that reason purchased from the defendant in preference to some other merchant who did not give stamps; and also knew the general value of the articles of merchandise from which he would be entitled to have his selection in the redemption of such stamps.

The defendant contends that the act of assembly under which he is prosecuted deprives him of his liberty and property without due process of law, and is, therefore, in conflict with the fourteenth amendment to the Constitution of the United States, and is also in conflict with the Declaration of Rights of the state of Virginia.

The fourteenth amendment (section 1) provides that "no state shall make or enforce any law which shall abridge the privileges or immunities of the 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 Declaration of Rights of the state of Virginia, as it existed at the time of the passage of this act and under the new Constitution, guaranties in all capital or criminal prosecutions the right of trial by jury, in order "that no man be deprived of his liberty except by the law of the land, or the judgment of his peers."

The word "liberty, " as used in the Constitution of the United States and the several states, has frequently been construed, and means more than mere freedom from restraint. It means not merely the right to go where one chooses, but to do such acts as he may judge best for his interest, not inconsistent with the equal rights of others; that is, to follow such pursuits as may be best adapted to his faculties, and which will give him the highest enjoyment. The liberty mentioned is deemed to embrace the right of the citizen to be free in the...