ЗЗ2
THE GREEN BAG
the common carrier of passengers as to call for an application of the same rule of responsibility. In support of this ruling the following list of authorities is cited: Hart v. Washington Park, 157 Ill. 9, 41 N. E. 620, 29 L. R. A. 492, 48 Am. St. Rep. 298; Fox v. Buffalo Park. (Sup.) 47 N. Y. Supp. 788; Lane v. Society, 62 Minn. 175, 64 N. W . 382, 29 L. R. A. 708; Herrick v. Wixom, (Mich.) 80 N. W. 117; Scofield v. Wood, 170 Mass. 415, 49 N. E. 636; Dunn v. Society, 46 Ohio St. 93, 18 N. E. 496, i L. R. A. 754, 15 Am. St. Rep. 556; Mastad v. Brethren, 83 Minn. 40, 85 N. W. 913, 53 L. R. A. 803, 85 Am. St. Rep. 446; Railway Co. v. Moore's Adm'r, 94 Va. 403, 37 S. E. 70, 37 L. R. A. 258; Thompson v. R. R., 170 Mass. 577, 49 N. E. 913, 40 L. R. A. 343, 64 Am. St. Rep., 323; Sebeck v. P. V. Verein, 64 N. J. Law 624, 46 Atl. 631, 50 L. R. A. 199, 81 Am. St. Rep. 511.
POLICE POWER. (TRADING STAMP LEGISLA TION — ARBITRARY DISCRIMINATION)
N. Y. SUPREME COURT — App. Div., 4th DEPT. An apt illustration of the necessity of con stitutional limitations to prevent the necessary but sometimes abused police power from exceed ing its legitimate confines, as a beneficent instru ment of protection, and becoming an aggressive engine of oppression, is the case of People v. Zimmerman, 92 New York Supplement, 497. It is a trading stamp case. New York Laws, p. 1651, c. 657, prohibited dealing in trading stamps or coupon tickets unless the stamp or device should have legibly printed or written on the face thereof, the redeemable value thereof in money, required the ticket or stamp to be redeemed in goods or money at the option of the holder, subjected the person charged with its redemption to liability for its face value, and made the violation of the act a misdemeanor, but excepted from its pro visions tickets or coupons issued by a manufac turer or merchant in its own name, and redeem able by him. It is obvious that the statute was designed to, and would put an end to the trading stamp business, since if the stamps were redeem able in cash at their face value, the giving of them would be a useless act of circumlocution, the same result being attainable with less expense and inconvenience by reducing the price of the article sold by the amount of the face value of the stamps given. As the court observes, "The rock on which the system is built, is the redemp tion of the stamps in merchandise. The enor mous quantities of merchandise thus disposed of enables the company of redemption, acting for a multitude of business concerns, to purchase very close to the actual cost, so that each person or
firm in trade is not called upon to contribute the full sum with which it will be chargeable upon a cash redemption." In answer to the contention that the statute was within the range of the police power, on the ground that it was in support of good morals, it is said that it is no more against good morals to issue a ticket redeemable in merchandise than to redeem in money or merchandise at the elec tion of the holder. The pith of each transaction is a gift to the purchaser, and as an inducement to secure trade, and generally for cash, for in most instances payment for the goods is a prerequisite to the delivery of the trading stamp or coupon ticket. It may be that the trading stamp busi ness tends to demoralize trade. It may be that people in moderate or straitened circumstances are prone to purchase beyond their means by the incitement of a gift after a stated amount has been expended. The farmer who attends an auction sale is often disposed to buy what he docs not need, led along by the competition of bidding, or by the fact that time is allowed on the purchase. If a grocer should reduce the price of flour or coffee below cost, it might tend to the demoralization of the grocery trade, and would certainly be exasperating to his competi tors. These slight derelictions may be impru dent, but they are not the subject of legislative control. It is argued that in any event the moral question is eliminated by the provision of the act which excludes from its operation, tickets or coupons issued by a merchant or manufacturer in his own name, and redeemable by him, and it is submitted that it cannot be so reprehensible as to be a crime to issue a coupon ticket redeem able by a third person, and still be without sin to issue one redeemable by the seller of the goods. It is also held that the statute is unconstitutional on the further ground that by allowing merchants or manufacturers to deal in trading stamps issued by themselves, it creates a. preferential class. Upon this point it is said, "The vice, it seems, is not in alluring one to buy by promise of a gift, but in permitting the promise to be fulfilled by another than the seller. It is a nar row ledge for the distinction to rest upon, when in one instance the transaction is subject to leg islative control to the extent of confiscation, while in the other it goes without let or hin drance. If the seller, by arrangement with a re sponsible company, secures the performance of the agreement, and the arrangement is satisfac tory to the buyer, it would seem that such a plan ought not to be made a crime, while redemption by the merchant is deemed an honest transaction. The statute is not founded on the moral claim pretended.
