State ex rel. Sperry & Hutchinson Co. v. Weigle, Dairy & Food Commissioner , 166 Wis. 613 ( 1917 )

The following opinion was filed December 20, 1917:

Pee Cueiam.

In these cases it is decided:

(1) Ch. 480 of the Laws of 1917, creating sec. 1747m of the Wisconsin Statutes and prohibiting the use,, issuance, or delivery or causing or authorizing “to be furnished or delivered to any other person, firm, corporation, or association within this state, in connection with the sale of any goods, wares or merchandise, any trading stamp, token, ticket, bond, or other similar device” entitling the purchaser receiving the same to procure in exchange therefor “any goods, wares, merchandise privilege, or thing of value,” and prescribing penalties for violation of the act, is an appropriate and constitu-v tional exertion of the police power of the state to prohibit and regulate the transactions embraced in the act.

(2) The provisions of the act authorizing “any manufacturer, packer or dealer” to “issue any slip, ticket, or check with the sale of any goods, wares or merchandise,” bearing on its face “a stated cash value” and “redeemable only in cash” at the face value in sums of twenty-five cents or over “by the person, firm or corporation issuing the same,” do not violate accepted constitutional principles of classification, ^ nor do they constitute an invasion of the constitutional right guaranteeing to every person the equal protection of the laws.

(3) The act is not unconstitutional as impairing the obligation of contract; it being prospective in its operation, and does not affect the use of trading stamps, tokens, tickets, bonds, or similar devices in connection with sales made before it goes into effect.

(4) The act does not deprive persons of property or liberty without due process of law by the imposition of such excessive penalties as to intimidate against testing its legality.

(5) The nature and kind of business of the several plaintiffs and the methods employed by them respectively in their conduct show that they are severally engaged in transactions in connection with their respective businesses which this statute denounces and forbids.

An opinion will be filed expressing the views of the court upon the questions involved in this decision.

The following opinion was filed January 5, 1918:

Siebeckee, J.

The proceedings in these actions were instituted to restrain the defendants as state officers from enforcing the provisions of ch. 480, Laws 1917, entitled “An act to create section 1747m of the statutes, prohibiting the use óf trading stamps,, and providing a penalty.” It is thereby enacted :

“Uo person, firm, corporation or association within this state shall use, give, offer, issue, transfer, furnish, deliver, or cause or authorize to be furnished or delivered to any other person, firm, corporation, or association within this state, in connection with the sale of any goods, wares or merchandise, any trading stamp, token, ticket, bond, or other similar device, which shall entitle the purchaser receiving the same to procure any goods,' wares, merchandise privilege, or thing of value in exchange for any such trading stamp, token, ticket, bond, or other similar device, except that any manufacturer, packer or dealer may issue any slip, ticket, or check with the sale of any goods, wares or merchandise, which slip, ticket or check shall bear upon its face a stated cash value,” redeemable only in cash at the stated amounts by the party issuing them when presented in amounts aggregating twenty-five cents or over.

The other parts of the act prescribe penalties for its violation and enjoin upon the dairy and food commissioner the duty of enforcing the act. The act is assailed by all the complainants as unconstitutional and void upon the grounds (1) that it invades their liberties by denying them the right to freely conduct their private businesses, which, they claim, are in no way inimical to the public welfare; (2) that it denies the freedom of contract in relation to such business; (3) that it provides an improper and' arbitrary classification of persons engaged in such businesses conducted by identical methods; (4) that the limitations of the amounts at which trading stamps may be redeemed are unreasonable and arbitrary; and (5) that the penalties imposed are so severe and excessive as to intimidate persons accused of violating the act from enforcing their legal rights and thus deprive them of due process of law.

The issuing of trading stamps or other similar tokens in connection with the sale of goods, wares, and merchandise, redeemable in merchandise or money by the. trader or some other person or a corporation for him, has been practiced for a long period of time and is considered lawful unless prohibited by law. In recent times the trading-stamp business has been the subject of much attempted legislative regulation which aimed to restrict the use of such stamps in various ways and means. The courts that have dealt with such legislation are not agreed in their views as to the effect the practice of issuing trading stamps in connection with the sale of merchándise has upon the public generally, nor do their views harmonize as to whether the issuance and redemption of such stamps in the manner this has usually been done in the trade is a proper subject for legislative regulation in the interest of public welfare within the prescribed limitations of the legislative power under the federal and several state constitutions. The scope within which the legislative function may be exercised within the police power of a state, so far as applicable to the plaintiffs and the subjects involved in this litigation, is well set forth in the case of Crowley v. Christensen, 137 U. S. 86, 11 Sup. Ct. 13:

“It is undoubtedly true that it is the right of every citizen of the United States to pursue any lawful trade or business, under such restrictions as are imposed upon all persons of the same age, sex, and condition. But the possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country, essential to the safety, health, peace, good order, and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is then liberty regulated by law. The right to acquire, enjoy, and dispose of property is declared in the constitutions of several states to be one of the inalienable rights of man. But this declaration is not held to preclude the legislature of any state from passing laws respecting the acquisition, enjoyment, and disposition of property. What contracts respecting its acquisition and disposition shall be valid and what void or voidable; when they shall be in writing and when they may be made orally; and by what instruments it may be conveyed or mortgaged, are subjects of constant legislation. And as to the enjoyment of property, the rule is general that it must be accompanied with such limitations as will not impair the equal enjoyment by others of their property. Sic utere tuo ut alienum non laidas is a maxim of universal application. For the pursuit of any lawful trade or business the law imposes similar conditions. Regulations respecting them are almost infinite, varying with the nature of the business.”

Legislation respecting the trading-stamp business by Congress and many states differs so materially in scope, purpose, and effect, as well as in the restraints and compulsion imposed thereby, that judicial, opinion respecting the same affords no general definite opinion regarding the competency of these legislative efforts. In the recent case of State ex rel. Simpson v. Sperry & Hutchinson Co. 110 Minn. 378, 126 N. W. 120, decided April, 1910, an act was held valid in so far as it prohibited the issuing of trading stamps redeemable in merchandise which depended upon chance, uncertainty, or contingency, but held that the trading-stamp business as conducted by the Sperry & Hutchinson Company was free from any of these elements; and also held that the provisions of the act which imposed restrictions and conditions whereby any stamp so issued was to state its face value and made separately redeemable in specified articles, was an unreasonable and arbitrary regulation and hence invalid. The court of appeals for the District of Columbia in the case of Dist. of Columbia v. Kraft, 35 App. D. C. 253, decided May, 1910, involving the inquiry whether or not the issuance of trading stamps as usually issued by merchants and traders was forbidden by the act, exhaustively reviews the decisions of the courts on the subject in the several states, and separates and distinguishes the decisions of the different courts as to the statutes and questions involved in the litigation before such courts. The result of such investigation discloses a wide diversity of opinion as to the extent the legislature is empowered to regulate and prohibit the trading-stamp business as it is commonly conducted by dealers and merchants throughout the several states. We do not deem it necessary to point out the separate and detailed result of each of these adjudications for the purpose of indicating what bearing they respectively have upon the questions presented in the instant cases. We fully recognize that the holdings of some of the courts are to the effect that the trading-stamp business, when conducted as the plaintiffs in these cdses conduct their trading-stamp business, is not subject to legislative regulation under the police power of the state. This conclusion seems to be based upon the reasoning that such business serves a useful' and legitimate purpose and is not attended by any pernicious, harmful, or evil consequences. The supreme court of the United States in the cases of Rast v. Van Deman & Lewis Co. 240 U. S. 342, 36 Sup. Ct. 370; Tanner v. Little, 240 U. S. 369, 36 Sup. Ct. 379; and Pitney v. Washington, 240 U. S. 387, 36 Sup. Ct. 385, decided in March, 1916, exhaustively considers the subject of the power of the legislature to regulate the use of profit-sharing coupons or trading stamps under the police power. Upon hearing and extended argument the court held that the scheme and practice of issuing such trading stamps in connection with the conduct of a lawful business as commonly practiced and the redemption thereof in articles of merchandise or premiums in addition to the articles sold is attended with evil and pernicious consequences, which have a tendency to affect the general welfare similar in effect to the evils attending a “lottery” and “gaming.” Tbe court observed: “It is tbe duty and function of tbe legislature to discern and correct evils, and by evils we do not mean some definite injury but obstacles to a greater public welfare' Speaking of tbe character of tbe scheme of conducting tbe business with which tbe court was then dealing, it is stated:

“With this comment we may say that all of tbe schemes have a common character — something is given besides that which is or is supposed to be the immediate incentive to the transaction of sale and purchase, or something of value given other than it.” 240 U. S. 360.

In answer to the claim that the schemes embodied in the conduct of the trading-stamp business are but a lawful method of advertising, and an enterprise merely incidental to the conduct of a lawful calling, and as _ beneficial to the customer as to themselves, by granting a discount or rebate upon the price or an equivalent by the gift of some useful article of definite value, the court declares:

“These contentions have the support 'of a number of cases. They are opposed by others, not nearly so numerous as the supporting cases' but marking a change of opinion. ■ Both sets of cases indicate by the statutes passed upon a persistent legislative effort against the .schemes under review or some form of them, beginning in 1880 and repeated from time to time until the statute in controversv was passed in 1913.” 240 U. S. 363.

We are persuaded that those decisions should be followed, in that the trading-stamp schemes, as complainants in the instant cases have evolved and applied them in-the conduct of their business, result in pernicious and evil effects and that the purchasers are subjected to the following evils:

“They rely upon something else than the article sold. They tempt by a promise of a value greater than that article and apparently not represented in its price, and hence it may be thought that thus by an appeal to cupidity lure to improvidence. This may not be called in an exact sense a ‘lottery,’ may not be called ‘gaming;’ it may, however, be considered as having the seduction and evil of sncb, and whether it has may be a matter of inquiry, a matter of inquiry and of judgment that it is finally within the power of the legislature to mate — certainly in the first instance, and, as we have seen, its judgment is not impeached by urging against it a difference of opinion. Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549, 31 Sup. Ct. 259; German Alliance Ins. Co. v. Lewis, 233 U. S. 389, 34 Sup. Ct. 612. And it is not required that we should be sure as to the precise reasons for such judgment or that we should certainly know them or be convinced of the wisdom of the legislation. Southwestern Oil Co. v. Texas, 217 U. S. 114, 30 Sup. Ct. 496; Munn v. Illinois, 94 U. S. 113.” 240 U. S. 365.

We recognize the foregoing consideration of that court as expressive of the true basis of the legislation embodied in ch. 480, which is here assailed as unconstitutional. There is manifestly a wide-spread belief that the scheme of conducting the trading-stamp business has in it the lure which leads to deception and improvidence of the buyer, which are adverse and injurious to the public interests and general welfare. While the different schemes detailed in the complaint of the plaintiffs in these actions do differ in some respects from those involved in the foregoing cases before the-federal supreme court, yet in their essential features they are identical in so far as they affect the public generally and subject it to the general principles of legislative regulation and prohibition within the police power of the state. Tanner v. Little, 240 U. S. 369, 36 Sup. Ct. 379. It is urged that the act in question deprives the plaintiffs of constitutional rights recognized by this court in Bonnett v. Vallier, 136 Wis. 193, 116 N. W. 885; State ex rel. Winkler v. Benzenberg, 101 Wis. 172, 76 N. W. 345; State v. Redmon, 134 Wis. 89, 114 N. W. 137, and other cases in this and other states holding that:

“A police regulation must not extend beyond that reasonable interference which tends to preserve and promote enjoyment, generally, of those ‘unalienable rights’, with which ‘all men are endowed’ and to secure which ‘governments are instituted among men/ and must not violate any express prohibition or requirement of the state or national constitution.” 136 Wis. 201.

The principles of these decisions do not conflict with the holding that the trading-stamp business as now conducted is subject to regulation and prohibition in an appropriate and constitutional manner. The law on the subject as embodied in the decided cases shows that the police power is held to include all those regulations which promote the general interest and prosperity of the public generally. We acquiesce in this view and hold that the legislature did not exceed its power by the enactment of ch. 480, Laws 1917. State v. Wilson (Kan.) 168 Pac. 679.

It is claimed that the part of the act providing “that any manufacturer, packer or dealer may issue any slip, ticket, or check with the sale of any goods, wares or merchandise, which slip, ticket or check shall bear upon its face a stated cash value and shall be redeemable only in cash for the amount stated thereon, upon presentation in amounts aggregating twenty-five cents or over of redemption value, and only by the person, firm or corporation issuing the same,” violates accepted constitutional principles of classification and deprives plaintiffs of the equal protection of the law. The scope of the legislative power to distinguish and classify objects of legislation has been repeatedly passed upon by this court.

“Each new exercise of the power of police regulation presents anew to the courts the question of possible relationship between the distinguishing characteristics of the classes and the object and purposes of the regulation.” “The question to be considered, however, is the distinction between the classes as classes, whether there are characteristics which, in a greater degree, persist through the one class than in the other which justify legal discrimination between them.” State v. Evans, 130 Wis. 381, 110 N. W. 241.

The distinction between the dealers who use tokens and coupons as trading stamps redeemable in articles of merchandise, whether by themselves or third parties, and dealers ivho issue them as a cash discount of a specified sum payable in cash by the dealer only, is a pronounced one. We have above indicated that the business of using trading stamps in ways and manners disclosed in the complaints of the parties to these actions has incidents and tendencies of such a pernicious character that justified legislative interference for the correction of the evils. It is manifest that there is a clear and well defined distinction between such practices and that of issuing a “slip, ticket, or check” which bears upon its face a stated cash value “redeemable only in cash” by the person issuing them, and that this practice is wholly different in effect on the purchaser than those detailed in the complaint. These distinctions in the conduct of the trading-stamp business are emphasized in the Rast and Tanner Cases as good ground for different legislative treatment in regulating the business and serve as a basis for a proper and appropriate classification within the principles recognized in the decisions on the subject by this court. See cases cited in State v. Evans, 130 Wis. 381, 110 N. W. 241, and Kiley v. C., M. & St. P. R. Co. 138 Wis. 215, 222, 223, 119 N. W. 309, 120 N. W. 156.

“It is the duty and function of the legislature to discern and correct evils, and by evils we do not mean some definite injury but obstacles to a greater public welfare" (citing). “And, we repeat, it may make discriminations if founded on distinctions that we cannot pronounce unreasonable and purely-arbitrary.” Rast v. Van Deman & Lewis Co. 240 U. S. 342, 36 Sup. Ct. 370.

When the purchaser and seller understand that the token, coupon, or stamp issued with the sale of goods is of a stated cash value, redeemable in cash and-only by the person issuing it, the transaction thereby becomes purged of the objectionable features and influences which such legislation condemns, and it follows naturally and .logically that the legislative function has been properly exerted by enactment of the exception above quoted to remedy the evil incident to the unrestricted use of -the trading stamps. Since, then, this exception is not discriminating and does not deprive persons of the equal protection of the law, the claim that it infringes upon their property, contract, and private business rights is not well founded and does not require further consideration. The claim that the statute deprives the plaintiffs of their right to contract seems to be predicated on the grounds that the plaintiffs are deprived of this right in carrying on a lawful business and that rights connected with existing contracts are infringed. The terms of the statute are prospective in their operation and hence do not interfere with the enforcement of contract provisions that have been executed before it became effective on January 1, 1918. It is an accepted rule that a subject within the legislative power to regulate, of necessity makes contracts in relation thereto subject to regulation.' The terms of the act being prohibitory of the trading-stamp business as therein specified, it must follow that the right to contract concerning the business is necessarily confined within the limits that the regulations prescribe.

It is contended that the penalties prescribed by the statute are so excessive and severe, in view of the nature of the act it penalizes, as to intimidate persons from resort to the courts in defense of legal rights involved in an alleged violation of it and thus denies persons due process and equal protection of the law. This claim is urged upon the authority of Bonnett v. Vallier, 136 Wis. 193, 116 N. W. 885. In that case the penal features of the act there in question were found to be so involved in complexity as to make a good-faith resistance to an alleged violation thereof a most hazardous undertaking by exposing the accused to' a system of penalties which increased from time to time if the resistance to the prosecution wás not successful, and thus practically compelled persons to refrain from defending against any prosecution. The terms of the statute before us are simple and clear and readily understood by the lay mind, and hence inform him what acts are condemned by it. Under these facts and conditions persons accused of violating.the act are in no way subject to a scheme of penalties complex in their features nor accumulative in character as were those involved in the statute under consideration in the Bonnett Case. We find nothing in the penal features of the act to sustain the contention that it deprives of liberty and property rights without due process of law.

The provision prescribing that any “slip, ticket, or check” issued by a manufacturer, packer, or dealer shall be redeemed by him “upon presentation in amounts aggregating twenty-five cents or over of redemption value” is reasonable in its requirements and meets a practical exigency in the conduct of business affairs. It was evidently designed to prevent imposition of conditions in using such coupons which would harass the purchaser or seller with redemption in very small amounts and thus prevent their practical usefulness.

By the Court. — It is considered, ordered, and adjudged that neither of the several complaints states facts sufficient to constitute a cause of action for the relief demanded therein; that the demurrers to the several complaints be sustained; and that the several complaints be dismissed, with costs in favor of the defendants in each of said actions.