The Falls City tribune., 1911-07-14
FEDERAL JUDGES SAY APPLI.
CATION ILLEGAL
GIFT LAW ARGUED ON ITS MERITS
States Motion to Dissolve Temper
airy Injunction Sustained
by the Court


day refused to issue a temporary
injunction forbidding' the enforce
ment of the Nebraska anti-free
gift law, popularly known as the
anti-tradding stamp act. The
court afiled, however, to declare
the statute constitutional, its re-
fusal being based upon the tech
nical ground that the application
for an injunction had been i'm
properly brought against the at
torney. general, whereas there
was no evidence at hand to show
that he intended to attempt any
action against patrons of prem
ium enterprises
The decision came almost i'm
mediately after attorneys for the
plaintiffs had finished presenting
their case. Deputy Attorney
General Ayres offered motion
that the temporary injunction be
dissolved on the ground that the
plaintiffs had failed to show
that they were in any manner en-
dangered by an act of the defen-
dants, Governor Aldrich and At
torney General Martin. In sus-
tanning this motion, Circuit Judge
w. l.. Smith Of Council Bluffs,
who shared the bench with Dis
trict Judges w. II. and I. c.
Munger, said:
1T is not necessary for this
court TO express an opinion on
the validity Of the statute The
theory Of an injunction is that
the person whom it is desired to
enjoin is about to commit an act
of trespass upon the property OF
the plaintiff. | do not mean
this to be taken in an absolute
literal sense. = A man s business
is his property and is subject to
trespass.
'The plaintiffs complaint EN-
bodied an alleged interview with
the attorney general in which he
annaunced his determination to
enofrce the law. This has been
shown to be untrue and it is not
attempted to make an utterance
of the deputy attorney general
stand in its stead.
''The court finds that there is
no evidence that the attorney
general had any intention of un-
dertaking the unusual proceeding
Of himself bringing prosecution
under this statute There has
been no showing of any danger
to the busines of the plaintiff.
The court holds the opinion that
it cannot enjoin the attorney
general on fear aolne. Therefore
the restraining order issued by
the district judge is dissolved
and the temporary injunction is
refused.
Attorney C. G. Flansburg, re
presenting Sperry & Hutchinson
and William Gold, two of the
plaintiffs, asked permission to
amend the plaintiffs, bill to sub
stitute the deputy attorney for
the attorney general as a defend
ant and his declarations for the
alleged statements of the attor-
ney general. The court gave its
permission to this change, pro
vided that it not be with a view
to reconsideration of. the appli-
cation for temporary injunction
but oslely for use in the final
hearing ON application for per
manent injunction.
Claim Act Unconstitutional.
The two New York companies,
which are premium concerns Civ
ing merchandise in exchange for
trading stamps or premium tick
cts, claim that the Nebraska law
is unconstitutional in that it pro-
hibits legitimate business and
In that it is class legislation.
They aver that their business is
in no sense a gambling enter
prise. but a straight business
transaction, for the execution of
which they have valuable con-
tarcts outstanding which would
be injured by the enforcement
of the law. William Gold of
Lincoln, as Gold & Company,
with whom Sperry & Hutchinson