The Hawaiian gazette., 1907-01-15
TRADING STAMPS
ACT HELD VOID

BY unanimous opinion the Supreme
Court has declared the law of 1905
prohibiting the use of trading stamps
to be unconstitutional and void.
Before the validity of the law was
questioned the Honolulu Merchants
Association had disapproval of the
use of trading stamps 1t is not likely,
therefore, that the Supreme Court s de-
cision will cause any general adoption
of this method of promoting business.
The courts decision is in the test
case of the Territory against NJ. A.
Gunst & Co., tobacconists, an appeal
from the District Court of Honolulu
which found the defendant "guilty Of
violating act IS of the session laws
Of 1905 in selling two cigars for %
cents to one Derby on representation,
advertisement, notice and inducement
that it would deliver to the purchaser
trading stamp and coupon emitting
the purchaser to receive from defendant
some other property unsolicited and un-
identified by him at or before the time
OF the sale''
The opinion says the conviction was
proper unless, as claimed by defendant,
the sta tute was invalid wholly or in
part because contrary to either or both
the fifth and fourteenth amendments
of the federal constitution
Justice Wilder is author of the opin-
ion, the syllabus of which reads: "Act
50 of the Session Laws of 1905, in so
far as it prohibit person from sell
ing property on the representation and
ipducement that the purchaser shall
have the right to select and receive
some other property as n gift or pre-
MUM, which is unsolicited and uniden.
titled by him at or before the sale, and
the issuance of trading stamps for that
purpose, ia unconstitutional and void. ~
1t is stated in the opinion that the
statute is an exact copy Of, and was
approved month or so after, the Cali
forna statute. The court quotes de-
cisions, both State and Federal, at
length and finds that the statute, so
far as it attempts to prohibit trans
actions of the kind involved in this
case, is contrary to the fifth amend
ment of the Constitution of the United
States From the reasoning Of the
court it would appear that the law can
only be enforced against gift enter
prises having tho element of chance
in them. The fifth amendment pro-
vides that no person shall be deprived
of life, liberty or property without due
process of law. That "the liberty re-
ferred to means more than mere free,
dom from restraint" is n proposition
the court backs up with the following
among other citations:
at means not merely the right to
go where one chooses, but to do such
acts as he may Judge best for his in.
terest, 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
best enjoyment. The liberty mention
ed is deemed to embrace the right of
the citizen to be free in the enjoyment
of all his faculties; to be free to use
them in all lawful ways; to live and
work where he will; to earn his live.
lihood by any lawful calling, and for
that purpose to enter into all con.
tracts which may be proper, necessary
and essential to his carrying out to
successful conclusion the purpose above
In line with this doctrine Justice
Wilder says: "The scheme carried on
by defendant is form OF advertising.
II is intended to attract new and re-
tain old customers on the theory of
making them believe that they are get
ing something for nothing, In reality,
! concern can well afford to give away
hese premiums by virtue of the ad-
profits made by the larger
alel. In this case the defendant had
he undoubted right to sell the two
igars in question. To deny that it
lso had the right to give the pur.
haser some other property in addition
ghich he could select would be to deny
Is right to do business at all"