Evening star. [volume] (Washington, D.C.) 1854-1972, 1897-12-08

perfectly plain, there is q border line be-.
tween the two, the accurate delimitation Of
cumstances under new or different condi.
lions give rise to new applications that
must remain uncertain uftil settled by Judi
cha! determination IN an actual case. II
strict accuracy of definition and certainty
Of application be required in zach exercise
Of the power by the Legislature, so as to
prevent the inclusion, by possible copstruc-
ton, OF something not within that power.
there would be few laws creating new of
lenses in response to newly developed pub
lie needs that would escape condemnation
1T is the duty of the courts to take a lib
eral view OF the situation presented to the
legislature In such cases and to give it's
acts providing therefor q sensible con-
struction such as will effectuate the legis-
lative intention, and, Impossible, SO as to
avoid an unjust or an absurd conclusion
Re Chapman 166 U. s., p. 667.)
Ordinary Discounts.
I'VE dot not feel called upon, at this
time, to undertake a specification Of the
particular conditions in which the act under
consideration might or might not apply to
actual merchants in the ordinary course
and practice Of competitive business, or to
determine just what character of induce
ments by way Of gift, or premium may ard
may not be held out to purchasers at the
time and as part of their purchases. That
discounts for cash or in proportion to
amounts of purchases. when made by the
merchant himself to his customers, may be
regarded as certain; and the exercise of
pressly attempted. Nor can 1t with reason
be said to apply to bona flde cooperative
associations and the like.
1T is possible also that 1t might not be
operative in a case where the sale of
lawful article is accompanied by a gift of
something specific and certain, not attended
with any element of chance, and where the
gift is not the real object OF the sale in an
attempt to evade acts regulating or pro-
hibit.ng a particular traffic, as for exam
pie in the case of Lauer vs.. the District
of Columbia (recently decided).
Some cases have been cited by counsel
wherein such sales were either held not to
be embraced in the statute, or, II compre-
hended. to render 1t void. The statutes in
volved were not. in all respects, like ours,
but It is unnecessary to point out the diff
ferences. in the view that we take of tine
application of those cases to the grounds
of decision in this case.
"GO Yellow Stone Kit VS.. The State, IS
Ala, 1876: S. c.. Z. L. r. A. 800.
I'm that case the defendant made a free
gift of tickets emitting the holders to
means whereby to gather a crowd to
whom he offered patent medicines for sale.
The distribution of the tickets and the
prizes had connection with the sales
held that the act did not constitute lot
terry within the meaning of the statute. be-
cause there was no consideration demand
ed or received for the tickets.
"(2 Long VS.. State, "a Nd, 585.
'In that case the court Of appeals of
Maryland recousidered the conclusion
reached on a former appeal (I3 Md. 52O
and declared the statute void because Of
liberty of the citizen. Long was a coffee
dealer, and, in order to induce customers
gave with each package of coffee sold a
ticket emitting the purchaser to select a
displayed ON a table for examinatio by
intending purchasers. 60 People VS.. Gill
soE, 100, N. Y, 1876.
9TH" facts Of that case were substan-
TALLY the same as those in Long VS.. the
state supra, and the statute which made it
a crime for a merchant, in selling any ar
ticle OF food to promise to give the pun
chaser SON tthing else in addition TO the
article sold as prize or reward tor max
ing the purchase was denounced in vigor-
Gus terms and declared Void.si
80 Commonwealth VS.. Emerson, 1865
Mass, 146. There the statute declared that
No person shall sell, exchange or dispose
of any property or offer or attempt to do
SO upon any representation. advertisement,
notice or inducement that anything other
than what is specially stated to be the
subject OF the sale or exchange is, or is
to be. delivered or received, or in any way
connected with or part of the transact
ton. The defendant WAS a retail tobacco
dealer. He displayed in his window a
great number Of photographs of distin-
guished people, and each purchaser of a
package OF tobacco was permitted to select
one Of the photographs without further
consideration. Nothing was said In respect
Of the invalidity OF such statute, but the
court held that the transaction was not
within its prohibition, saying that the
terms OF the statute were not intended
and do not purport to forbid a sale Of two
things at once. even II one of them is the
principal object of desire and the other an
additional inducement which turns the
scale
without approving disappearing the
foregoing decisions, and reServing our
opinion in respect of the application of our
statute to the facts involved therein until
manding it. we can pass them by as having
no necessary bearing upon the case OF
these plaintiffs in error.
I'm like manner, we think this case may
be decided without reference to the num-
erous decisions cited by counsel for the
District, in each of which the element of
chance in the distribution of gifts and
prizes was the controlling fact
Within the Scope.
without the necessity of declaring that
the acts proved in this case constitute the
conduct of a lottery or gift enterprise, as
those words are commonly understood, or
even Of finding that the element Of chance
operates Intentionally and distinctively In
the scheme Of the Trading Stamp Com
pany, we think, nevertheless, that they
come within the prohibition of the statute,
which, as before said, furnishes Its own
definition Of gift enterprise
Although one of the most shrewdly
planned of the many devices to obtain
something for nothing, and one appar-
emily entirely novel. 1t could hardly have
come more clearly within the scope Of the
statute had 1t been we'll known and ex-
pressly in the contemplation of Congress
at the time Of the enactment.
THE Washington Trading Stamp Com
pany and Its agents are not merchants
engaged in business as that term is COM
monty understood. They are not dealers
in ordinary merchandise engaged in a
legitimate attempt to obtain purchasers
for their goods by offering fair and law
full Inducements to trade Their business
Is the exploitation of nothing more nor
less than cunning device
with no stock in trade but that de-
vice and the necessary books and stamps
and so-called premiums with which to OPP
crate it successfully, they have interviewed
in the legitimate business carried on In
the District of Columbia between seller
and buyer, not for the advantage of either,
but to prey upon both. They sell nothing
to the person to whom they furnish the
premiums. They pretend simply to act
for his benefit and advantage by forcing