The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1907-01-15
TRADING STAMPS
ACT HELD VOID
The Supreme Court Finds 1t Is
Against the Federal
Constitution.


| 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 IS de-
cision will cause any general adoption
of this method of promoting business
The court IS decision is in the test
case of the Territory against NJ. A.
1 Gunst & Co., tobacconists, an appeal
| from the District Court of Honolulu
which found the defendant equity of
violating act So of the session laws
of 1905 in selling two cigars for 25
! cents to one Derby on a 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 I'M
identified by him at or before the time
| of the sale.'
The opinion says Fthe conviction was
proper unless, as claimed by defendant,
the statute was invalid wholly or in
part because contrary to either or both
the fifth and fourteenth amendments
of the federal constitution y
Justice Wilder is author of the opin-
ion, the syllabus of which reads: "Act
So of the Session Laws of 1905, in so
far as it prohibits person from sell
ing property on the representation and
inducement that the purchaser shall
have the right to select and receive
some other property as 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, is unconstitutional and void. -
1t is stated in the opinion that the
statute is an exact copy of, and was
approved a month or so after, the Cali
fornia 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 the 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 'tthe liberty re-
ferred TO means more than mere free |
dom from restraint is a proposition
the court backs up with the following |
among other citations:
"It means not merely the right TO
go where one chooses, but to do shch
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 a
successful conclusion the purpose above
-
In line with this doctrine Justice
Wilder says: ''The scheme carried on
by defendant is a form of advertising.
1t is intended to attract new and re-
tain old customers on the theory of
making them believe that they are get
ting something for nothing. In reality.
a concern can well afford to give awav
these premiums by virtue of the adj
profits made by the larger
sales. In this case the defendant had ;
the undoubted right to sell the two
cigars in question. To deny that it
also had the right to give the pur-
chaser some other property in addition
which he could select would be to denv
its right to do business at ALL
NJ. +. Prosser, Deputy Attorney Gen
eral, and Thompson & Clemens APP
peared for the Territory, and Kinney.
Mechanism & Derby for defendant.