May 3, 1965 

Honorable R. Ii. Cory, Chairman Opinion No. C-429 

State Affairs Committee 

House of Representatives Ret Constitutionality of 

Austin, Texas House Bill 583. 

Dear Represe~ntative~cory: 

You have requested an opinion from this office concerning the constitutionality of House Bill 583 of the 59th 

Legislature. 

Section 3 of Rouse Bill 583 provides in part that 

from and after the effective date of the Act no person ehall: 

“(a) Offer, use, make use of, or attempt 

to offer, use or make use of, any gift enterprise 

of any nature whatsoever, directly or indirectly 

In or with any retail sale of gasoline, 011, OP 

other petroleum product for use in any motor 

vehicle. 

“(b) Use, issue, furnish or distribute, in, 

with, or for the retail sale of any gasoline, oil, 

or other petroleum products for use in any motor 

vehicle any tickets, coupons, certificates, carda, 

stamps, or other similar devices, as a part of or 

In connection with any gift enterprise as herein 

defined. ” 

Section 2(b) of House Bill 583 providea that “gift 

enterprise” shall means 

I, 

s .the selling of anything with a promise, 

either’express or implied, to give anything in 

consideration of such sale or any plan, scheme, 

device or arrangement whereby the seller either 

expressly or impliedly promise8 to give the buyer 

anything In consideration of such sale and shall 

-2020- 
Hon. R. H. Cory, page 2 (c-429) 

include but not be 

ing, distributing, 

the sale of goods, 

limited to the issuing, supplyor furnishing, furnishing, in, with, or for 

wares, or merchandise any tickets, 

coupons, certificates, cards, stamps, or other 

similar devices, which ahall entitle the.purchaser 

receiving the same wlth the sale of such gooda 

wares or merchandise to procure from any person, 

firm, association, or corporation, any goods, 

wares, or merchandise upon the production of any 

number of such tickets, coupons, certificates, 

cards, stamps, or other similar devices." 

Section l(a) and Section 7, the emergency clause of 

the Act, of House Bill 583, state that the Act 18 enacted pursuant to the provisions of Section 47 of Article III of the Constitution of Texas. Section 47 of Article III of the Constitution 

of Texas provides that: 

"The Legislature shall pass laws prohibiting 

the establishment of lotteries and gift enterprises 

In this State, as well as the sale of tickets in lotteries, gift enterprises or other evasions involving 

the lottery principle, established or existing in 

other states." (Emphasis added), 

In passing upon the constitutionality of House Bill 

583, the initial consideration must deal with the queetion of 

whether the acts prohibited by House Bill 583 are the type of 

acts which the provisions of Section 47 of Article III of the 

Constitution of Texas directs the Leglelature to enact laws to 

prohibit. 

House Bill 583, in effect, prohibits and makes It a 

misdemeanor, puniehable by a fine or lmprlsomnent or both, for 

anyone to use, issue OP distribute any tickets, coupons, certlficates, Card8, stamps, or other sSmllar devices in connection with 

the retail sale of gasoline , 011 or other petroleum products for 

use in any motor vehicle under an arrangement which would entitle 

the purchaser of the gasoline, 011 or other petroleum product to 

procure goods, wares or merchandlae In exchange for such tickets, 

coupons, certlficatee, cards, stamps or other similar devices, 

For the foregoing prohibited acts to fall within the 

scope of the mandate found In Section 47 of Article III of the 

Constitution of Texa8$ such act8 must in actuality, and not merely 

in name, be a lottery, gift enterprise or other evasion involving 

the lottery principle. 

The provisions of Section 47 of Article III of the Constitution of Texas were diecussed at great length by the Supreme 

-2021- 
, 

Hon. R. H. Cory, page 3 (C-,429) 

Court of Texas in the case of City of Wink v. Qrlffith Amusements 

co., 129 Tex. 40, 100 S.W.2d 645 (193o), in which the court stated: 

.It is hardly necessary to argue that 

the 'B&& Night' plan of the defendant In error 

if not a lottery, is at the very least a 'gift 

enterprise involving the lottery principleO, and 

obviously an evasion of the lottery laws of the 

state. That 'gift enterprIseaD are a form of 

lottery evasion is 80 well known that courts 

take judicial knowledge of the plan. . . .* 

I, 

e .If it be granted that the plan of 

defendant In error!8 IBank Night' was not a 

lottery because a charge was not made for the 

registration entitling one to participate Sn 

the drawing (and this is the only distinction 

which Is here or could be made), then It clearly 

comes within the condemnatorv terms of the Constitution, because it Is a 'gift enterprise' lnvolvln _g the o er e, whlc e author ies 

hold I that princlpl by which something Is to be 

given zy chance. . *eq 

"In general, It may be said that chance Is 

the basic element of a lottery. Unless a scheme 

for the awarding of a prize requires that it be 

awarded by a chance, it is not a lottery. o . D 

"There are9 however, in a lottery, according 

to the authorities, three neceaeary element89 namely, 

the offering of a prize, the award of the prize by 

chance, and the giving of a consideration for an 

-unity to wfn the prize. 0 .But the Constitution condemn8 those things which fall short of containing all of the essential elements of a lottery, 

namelv. those thinns which involve the lotterv 

principle, of whi& PchanceD is the one which-constitutes the very basis of a lottery, and without 

which it would not be a lottery. ' (Emphasis added). 

The decision of the Supreme Court of Texas in City of Wink v. 

Griffith Amusement Co., supra., makes it abundantly clear that 

the course of conduct condemned by Section 47 of Article III Of 

the Constitution of Texas must be either a lottery or involve the 

lottery principle, and to fall within this category 8.ny so-called 

lottery, gift enterprise or other evasion involving the lottery 

principle must have present the essential element of a lottery-- 

namely, the element of chance. The prize or thing to be awarded 

must be determined bv chance. These orincioles laid down bs our 

Supreme Court in City of Wink v. Griffith Amusement Co., 8upraQ, 

-2022- 
Hon. R. H. Cory, page 4 (C-429) 

that a lottery or gift enterprise ^. _ . _ 

Involves the element of chance, 

flnas support In numerous aecislons from other jurlsdlctions. 

S@&II~Orio v. Jacobs, 275 P. 563 (WaSh.SUp. 1929); D'Orlo v. 

p Candy C 0.9 2b6 13. 1037 (Utah Sup. 1928); RUSSell v. 

Equltable Loan & Security Co., 58 S.E. 881 (Georgia Sup. 1907); 

State v. Fox-Great Fall8 Theater Corp., 

SUP. 1942) G it d J 

132 P.2d 689 (Montana 

; n e ewelers Mfg. Co. v. Keckle , 90 P. 781 

(Kan. Sup. 1907) Bills v. People, lb.1 P 2d 1 

1947); City of Oiford v. Ritz Theater, 

Barker v. State, 193 S.E. 605 

lb0 So~8fi~~::d~g~~; 

(0 eorgia Ct.App. 1937). 

While the provisions of House Bill 583 state that It is 

enacted pursuant to the provisions of Section 47 of Article III 

of the Constitution of Texas, and define8 the prohibited acts as 

a gift enterprise, we are of the opinion that when the prohibited 

acts are tested by the principles set forth In Cit of Wink v 

Griffith Amusement Co., supra., that an easenti*8L 

lacking, and i the absence of such element the acts prohibited 

in House Bill g83 cannot be regarded as the lottery, gift enterprise or other evasion Involving the lottery principle to which 

Section 47 of Article III of the Constitution of Texas is directed. 

The essential element which is absent from the acts 

prohibited in HOUSe Bill 583 is the element of chance. In the 

instant case the prize or thing to be awarded is not determined 

by chance. The purchaser of gasoline, oil or other petroleum 

product8 at retail, for use In his motor vehicle and who is given 

tickets, coupons8 certificates, cards, stamps or other slmllar 

devices, is not dependent upon the element of chance In the procuring of his award or prize in the form of gOOdsr wares or merchandise--he merely surrenders a specified number of tickets, 

coupons, certificates, cards, stamps OP other slmllar device8 in 

exchange for certain specified goods, wares or merchandise. 

Consequently, in view of the decision in City of Wink 

v. Griffith Amusement Co., supra., and the principles setforth 

therein, we are of the opin'ion that the acts prohibited by House 

Bill 583 are not the type of acts which the provisions of Section 

47 of Article III of the &nstltution of Texas direct8 the Legislature to enact laws to prohibit, 

As we are of the opinion that Section 47 of Article III 

of the Constitution of Texas is neither a mandate to, noP authorization for, the Legislature to prohibit the course of conduct set 

forth in House Bill 583, it then become8 necessary, in passing upon 

the constitutionality of House Bill 583, to ascertain if the provisions of the Act, which clearly regulate, if not in fact prohibit, 

certain bu8inesSeS and occupations, as well as restricting the use 

of private property and the freedom of contract, are a valid exercise of the police power of the State. If the provisions of 

-2023- 
Hon. R. H. Cory, page 5 (C-429) 

House Bill 583 are within the police power of the State, the 

Act is constitutional. However, should the provisions of House 

Bill 583 exceed the police power of the State, the enactment then 

contravenes the due process clause of the Constitution of Texas, 

Section 19 of Article I, and is unconstitutional. 

It Is clear that in order for House Bill 583 to be a 

proper exercise of the police power of the State it must be 

reasonably necessary to the protection or improvement of the 

public health, safety, morals, good order, comfort and general 

welfare. 12 Tex.Jur.2d 415, Constitutional Law, Sections TO111. As was stated by the court in Ex Parte Smythe, 116 Tex. 

Grim. 146, 28 S.W.2d 161 (1930 

t 

and in Neel v. T 

Control Board, 259 S.W.2d 412 $ex.Civ.App. 

exas Liquor 

1933 , error re *, 

n.r.e.), the bill must: 

II 

. . .have some reasonable relation to the 

subjects included in such power, and the law must 

tend, in a degree that is perceptible and clear 

toward the prevention of some offense ormst 

evil, or the furtherance of some object within the 

scope of the police power. 6 R.C.L. Constltutional Law, Paragraph 227:"' (Emphasis added). 

It was said of the police power of the State in Houston 

& T.C. Ry. Co. v. Dallas, 98 Tex. 396, 84 S.W. 648 (1905), at page 

and quoted w approval in Neel v. Texas Liquor Control Board, 

~~~r~~,,,,,,,~:~~~~~a':' S.W.2d b4b (Civ.App. 1949, error ref.) 

"It is commensurate with, but does not 

exceed, the duty to provide for the real needs 

of the people in their health, safety, comfort, 

and convenience as consistently as may be with 

private property rights. o .But as the citizen 

cannot be deprived of his property without due 

process of law9 and as a prevention by force of 

the police power fulfills this requirement only 

when the power is exercised for the purpose of 

accomplishing, and In a manner appropriate to 

the accomplishment of, the purpose for which it 

exists, it may often become necessary for courts 

0 s .to inquire as to the existence of facts upon 

which a given exercise of the power rests and into 

the manner of its exercises and If there be an invasion of property rights under the guise of this 

power, without justifying occasions OP In an unreasonable, arbitrary or oppressive way3 to give 

the injured parties the protection which the Constitution secures, It 

-2024- 
Hon. R. H. Cory, page 6 (C-429) 

Large discretion necessarily is vested in the Leglslature to determine not only the requirements of the public lnterest, but also by what measures those interests may be properly 

and effectively secured, If there is room for a fair difference 

of opinion as to the necessity and reasonableness of an enactment 

on a subject lying within the domain of the police power the 

courts will not Interfere. 12 Tex.Jur.2d 422, Constitutional Law, 

Sec. 76. Rut, as was pointed out by the courts in the foregoing 

decisions, the judgment of-the Legislature does not conclude lnquiry by the courts as to the existence of the facts essential 

to support the exercise of the police power. 

Section 1 of House Bill 583 provides in part that: 

"The Legislature finds as facts and determines 

that.2 

II 

. . . 

"(b) The sale of gasoline, oil and other 

petroleum products at retail for use In motor 

vehicles is a substantial and integral part of 

the economic life of the State, providing a means 

of livelihood for in excess of 40,000 Texas gasoline service station operators and their families 

as well as providing employment for thousands of 

other Texas citizens employed by such petroleum 

retailers. 

"(c) The State of Texas and the Texas public 

have a vital interest in the maintenance of a 

sound and healthy economy In the retailing of gasoline and other petroleum products, not only because 

of such retailers' contributions to the State's 

total economy and the care and maintenance of motor 

vehicles traveling on Texas highways, but also, 

because such retailers each year collect for the 

State of Texas hundreds of millions of dollars on 

taxes on gasoline and other petroleum products in 

which taxes such retail operatorsare being forced 

to furnish and distribute stamps, coupons and other 

such tickets or devices as a part of various kinds 

of gift enterprises established in the retail sale 

of gasoline, oil and other petroleum products. 

"(d) The gasoline retail market in Texas is 

in a state of chaos and despair with thousands of 

service station operators being forced out of .* 

business each year due to long prevailing, bare 

subsistence margins of retail operations over 

-2025- 
Hon. R. H. COrY, Page 7 (c-42q) 

which such retail operators have no control and 

from which they are helpless to extricate themselves since, unlike,the free and competitive 

market prevailing in the sale and distribution 

of ordinary products and commodities, service 

station dealers and operators are, in practically 

all instances, not free to bargain as to the 

prices for which they purchase gasoline and 

other petroleum products from their supplier 

and unable to freely and Independently determine 

the sales price of their products. 

"(e) Gift enterprises and the giving, dlstributingo and the furnishing of tickets, coupons, 

certificates, cards, stamps and other similar devices with retail sales of gasoline, 011 and 

other petroleum products are substantial contributing factors to the prevailing chaotic retail market 

conditions in Texas and the losses and business 

failures of thousands of small independent service station operators each year.'! 

The only decision by the courts of this State concerning 

the prohibition of acts similar to those found in House Bill 583, 

namely the giving of trading stamps in connection with the purchase 

of a product, is the case of Texas Liquor Control Board v. Super 

Savings Stamp Company, 303 S.W.2d b,36 (Tex.Civ.App. 193'0 Whir 

the court In this case stated that it was within the authority 0: 

the Texas Liquor Control Board to promulgate a rule or regulation 

prohibiting the giving of trading stamps in connection with the 

sale at retail of alcoholic beverages 

this decision affords little, if any 

, we are of the opinion that 

, assistance in connection 

with the Issue of whether the giving of trading stamps In connection with the retail sale of gasoline , oil and other petroleum 

products Is within the police power of the State. The sale of 

alcoholic beverages is by Its very nature in an area in which the 

State may exercise its police power for the protection of the 

public health, safety, morals9 good order, comfort and general 

welfare. However, the exercise of the police power of the State 

in this specific area dealing with the sale of alcoholic beverages 

would not necessarily justify Its exercise in the area of the 

retail sales of gasoline, oil and other petroleum products which 

do not have connected w9th:;thezi.r sale the possible detriment to 

the public interest or welfare. 

While there have been no court decisions In Texas 

dealing specifically with the constftutionality of a statute containing provisions similar to those contained fn House Bill,583, 

there have been an abundance of court decisions in other jurfsdictions upon similar statutes., 

-2026- 
Hon. R. H. Gory, page 8 (C-429) 

While there is a definite split of authority on this 

question, the great majority of the State court opinions hold 

that statutes prohibiting and regulating the use of trading stamps 

are unconstitutional as not being within the sphere of the police 

z-co. , 

jfht3. 

ices. 226 m&s. 

Stamp Legisiatibn; 134 A.L.R..Constitutlonality of Statute Prohibiting Giving of Premiums or Trading Stamps with Purchase of 

Commodities; 133 A.L.R. 1087, Constitutionality of Statute PPOhibiting Giving of Premiums or Trading Stamps. 

In fact, there appears to be only two decisions In the 

United States since 1919--Steffey v. City of Casper, 357 P.2d 

456 (wyo. 1961) and Cushenberry v. Shanahan, 190 Kan. 378, 378 

P.2d 66 (1963), which have held this type of legislation to be 

constitutional. 

The minority view that legislation prohibiting or 

severely curtaialng the use of trading stamps is a valid exercise 

-2027- 
Hon. R. H. Gory, Page 9 (C-429 ) 

In Ed. Schuster & Co. v. 

737 (1941), a statute whlch,,in eff 

Steff'es, 237 Wis. 41, 295 N.W. 

ect, prohibited the use of 

trading stamps to avoid the state's fair trade act was sustained. 

That case may be regarded. as being on different footing from that 

of a statute which, in effect, abolishes the use of trading stamps. 

Trading stamps have been said by the courts taking the 

minority view to8 ? 

I 

appeal to cupidity and lure to improvidence," 

the Rast case); produce.?provoked and systemized reckless buying," 

the Eer case); "encourage indiscriminate and unnecessary purchasing" and"force other merchants into using stamps or suffer 

loss of trade by failure to do so" (the Pitney case). They have 

been called the tools of a business which "is a mere parasltetn 

[the Underwood case). They have further been said to produce 

,,pern‘fcious and evil effects," (the Wgig;e case); and to tak: a 

large sum of money. e .from the mere an and his customers9 

and add $0 the gross cost of living of all the people of the 

District, (the Kraft case). 

However9 a most forceful rebuttal to the minority 

view's arguments is found in the case of Lawton v. Stewart Dry 

Goods Co., 197 Ky. 394, 247 S.W. P48 16 (1923js where the court 

stated8 

"In the first place it is said that the 

trading stamp or premium system encourages profllzate and wasteful buying and operates as a 

lure to Improvidence. As a matter of fact, it 

is simply a convenient method of allowing a discount for cash. Therefore, it encourages cash 

buying and operates as an incentive to prudence' 

and economy. But let us assume that it is a lure 

tc improvidence, Have we reached the point where 

the prohibition of every business that leads to 

improvidence may be regarded as a proper governmental 

function? Nothing is more alluring to the purchaser 

-2028- 
Hon. R. H. Gory, page 10 (C-429) 

, 

than an attractive advertisement or a beautiful 

shop window, but can it be said that the merchant 

who employs such means to Increase his profits may 

be put out of business because, perchance, some 

one may see the advertisement or look in the-window and be Induced to buy when he cannotafford 

to do so? If so, how f may the doctrine Abe 

carried? Why not prohi r It all forms of sdvertislng 

and the sale of all articles of luxury on the ground 

that they lead to extravagance? Why not require 

every merchant to restrict his stock to overalls or 

cotton dresses so as to reduce the 'lure' to a 

minimum? r 

"Another objection Is that the trading stamp 

Introduces into business a middleman who receives 

a profit, not only from the stamps sold, but from 

those that are not redeemed, and thereby adds to 

the cost of the article. If the middleman may be 

dispensed with, what is to become of all agents, 

factors, brokers, and commission merchants? Indeed, why not go all the way and prohibit not only 

all retail merchants, but all wholesale merchants 

and jobbers and compel everybody to buy directly 

from the manufacturer? 

"Another alleged evil is that the trading 

stamp or premium gives opportunity for fraud in 

values and prices. It is true that one may use 

the trading stamp or premium dishonestly, just 

as he may be dishonest in other respects, but we 

fail to see wherein the'use of~trading stamps or 

premium affords any greater opportunity for fraud 

than already exists. Indeed, all businesses afford an opportunity for fraud in values and prices, 

but a business that may be dishonestly conducted 

should not be prohibited because of the dishonesty 

of some who are engaged ,in the business. 

"Another contention is that the trading 

stamp gives opportunity for coercion, in that 

merchants are compelled to buy in order to compete with their rivals. Doubtless the trading 

stamp company may ask one merchant to buy its 

stamps on the ground that his competitors have 

bought or intend to buy, but that is not a form 

of coercion of which the.~~law will take notice. 

The same method of making sales is followed by 

all business houses> particularly the wholesalers 

who desire to introduce some novelty or a new 

-2029- 

. 
. 

Hon. Ft. H. Cory, page 11 (C- 429) 

line of goods, and, if the legislature undertook 

to prohibit every business whose agents indulged 

In the practice of arousing a spirit of rivalry 

among theircustomers, the channels of trade would 

soon be closed." 

The court stated in Sperry & Hutchinson Co. v. McBride, 

supra., that: 

"Trading stamps have been in use long 

enough so that any purchaser of merchandise 

who is Interested in acquiring and converting 

them to his advantage cannot be said to be 

likely to be deceived as to their value. 

.there is no reasonable cause to believe 

that the'dealer who offers them in consideration 

of cash or approved ccedit sales will resort to 

fraudulent practices. 

In People v. Victor, 287 Mich. 506, 283 N.W. 606 (1939), 

the Court held unconstitutional a statute which orohibited -ertain 

classes of merchants from giving premiums, such as trading stamps 

to promote sales. The court said: 

'By giving a premium, the defendant was 

merely offering the purchasing public more for 

its money. Surely there is nothing reprehensible 

in that. It Is apparent that the giving of a 

premium has no evil effects which the Legislature 

has sought to correct. . .There is no reasonable 

relation between the prohibition of the giving of 

a premium and the protectio$ of the public health, 

morals, safety and welfare. 

Attorney General's Opinion No. WW-1047 (1961) dealt 

with the constitutionality of House Bill 438, Acts of the 57th 

Legislature, Regular Session (1961). House Bill 438, which was 

not enacted into law, contained essentially the same type of 

fi 

rovisions found in the present House Bill 583. While House Bill 

38 was much broader in scope and not limited merely to the retall sale of gasoline, oil and other petroleum products for use 

in motor vehicles as is House Bill 583, each of these bills are 

essentially the same in operation as they would prohibit the 

giving of trading stamps or other similar devices in connection 

with retail sales. 

Attorney General's Opinion No, WW-1047 (1961) held that 

House Bill 438 was unconstitutional and stated therein that! 

-2030- 
Hon. R. H. Cory, page 12 (C- 429) 

"Doubtedless, trading stamps may be a 

source of annoyance to some. The use of these 

stamps may be especially worrisome and, indeed, 

even costly to many merchants who feel obliged 

to use them in order to meet the competition 

from other stores that do so. But does this 

reasonably necessitate the assertion of the 

police power? In our opinion, It clearly does 

not. 

served 

In Spann v. Dallas, supra., it was obin page >lb : 

'It is with common humanity--the average 

of the people that police laws must deal. A 

lawful and ordinary use of property is not to 

be prohibited because repugnant to a particular 

class.' 

"Moreover, would it not be just as reasonable 

to outlaw advertising or credit or 'free parking' 

at Fto.+es and 'free delivery service' or 'free 

gift flapping' or any one or more of the countless other trade inducements which are customarily 

utilized by merchants In a competitive business 

economy. These 'extras' surely add to the cost 

of doing business just as do trading stamps. They 

also oblige the other merchants to do likewise in 

order to hold their trade. Indeed, some merchants 

may not be able to meet the competition. But is 

that not what free enterprise is: the right of 

every citizen to use his property as he chooses, 

and as best he cans without interference from the 

government, so long as the rights of others are 

not infringed upon? And, there is no right to be 

free from fair competition, that 'right' and our 

American right to compete honestly being mutually 

exclusive.' 

"It follows from the foregoing that, in our 

judgment, not only the weight of authority, but 

the better reasoning, pre onderates in favor of 

the view that House Bill t 38 bears no reasonable 

relation to any legitimate object within the scope 

of the police power, and, therefore, the bill contravenes the due process clause, Section 19, Article I, 

of the Constitution of Texas." 

We are of the opinion that the result reached in Attorney General's Opinion No. WW-1047 (1961), concerning the 

-2031- 
., . 

Hon. R. H. COrY, Page 13 (C-429) 

constltutlonality of House Bill 438, and the principles upon 

which results were based are equally applicable to House Bill 

583. 

While the statement of factual findings in Section 1, 

Subsections (b) through (e), of House Bill 583 attempts to overcome one of the objections raised in Attorney General's Opinion 

WW-1047 (1961) to the effect that: 

"Significantly, House Bill 438 is silent as 

to the ultimate evil at which it is directed. It 

fails to cite any reason why it could be to the 

public interest to prohibit and restrict the use 

of trading stamps in the manner provided in the 

bill. We can perceive no danger to the public 

welfare in the use of trading stamps which would 

warrant the complete prohibition of their use by 

retailers, wholesalers, stamp companies, consumers 

and others who might use such stamps. We are left 

to conclude that the reason for the enactment falls 

among those which have been discredited by the majority of the courts of the country." 

We are of the opinion such attempt is nevertheless 

insufficient to cure the unconstitutionality of House Bill 583 

for two reasons. 

First, the ultimate evil sought to be eliminated by 

the prohibitions in House Bill 5839 as stated by the factual 

findings in Section 1 thereof is the chaos and economic difficuities being encountered by those persons engaged in retail sale of 

gasoline, 011 and petroleum products for use in motor vehicles 

who give trading stamps in connection with the sale of their product. This chaos and economic difficulty referred to in House 

Bill 583 does not affect the public generally, but is limited 

to only that segmt.,t of business involved In the retail sale of 

petroleum products for use in motor vehicles. AS stated in 16 

C.J.S. 944, Constitutional Laws % 195r 

I, 

o ./Ti?le legislature cannot.use the 

police'poweras a subterfuge to do something 

that it otherwise could not do In the infringement of private interests or the restraint of 

private rights. The police power must be exercised for public purposes only; the legislature may not exercise the police power for private 

purposes, or for the exclusive benefit of particular 

individuals or classes. e 0 .' 

Such being the cases House Bill 583 appears to be merely an effort 

to ease the economic plight of a segment of the business world 

-2032- 
. 

Hon. R. H. Cory, page 14 (C-429) 

rather than a valid exercise of the police power of the State 

In the interest of the health, safety, morals, good order, 

comfort and welfare of the public in general. 

Secondly, the great weight of authority, and the 

trend of court decisions since 1919 in that only two courts 

since 1919 have held similar acts to be constitutional, while 

at least fifteen states have held legislation banning the 

use of trading stamps to be unconstitutional, leads us to the 

conclusion that statu,tes prohibiting and regulating the use 

of trading stamps, such as House Bill 583, are not within the 

valid exercise of the police power of a State and are therefore 

unconstitutional. 

In view of the foregoing, we are of the opinion that 

House Bill 583 is unconstitutional by reason of being beyond 

the scope of the police power of the State and in contravention 

of Section 19 of Arti~cle I of the Constitution of Texas, which 

provides: 

'Sec. 19. No citizen of this State shall 

be deprived of life, liberty, property, prlvileges or immunities, or in any manner dlsfranchised, except by the due course of the law of 

the land.! 

We are not passi upon whether the findings of fact 

which appear in paragraphs % , (d) and (e) of Section 3 of Houee 

Bill 583 violate our antitrust statutes. 

SUMMARY 

House Bill 583, 59th Legislature, Regular 

Session (1965) is unconstitutional by reason 

of being beyond the scope of the police power 

of the State and therefore in contravention of 

Section 19 of Article I of the Constitution of 

Texas. 

Very truly yours, 

WAGGONER CARR 

Attorney General 

Pat Bailey 

Assistant 

P%:mkh 

-2033- 
, . 

Hon. R. B. Gory, page 15 (C- 429) 

APPROVEDS 

OPINION COMMITTEE 

w. v. Geppert, Chairman 

Roy Johneon 

Sam Kellcy 

K&mal;tz 

APPROVED FORTRE ATTORNEY OENElRAL 

BY; Stanton Stone 

-2034-