on the battleship Maine, are denied a hearing. To my mind, no principle of law, divine or human, international or municipal, recognizes or could justify such an incongruous procedure. It is as clear to my mind as the shining sun is to my physical sight, that the high commissioners of our ever-generous government, at Paris, in negotiating the treaty of peace, never intended, when they put into that treaty the words "all claims for indemnity, national and individual, of every kind, of either government, or of its citizens or subjects against the other government, that may have arisen since the beginning of the late insurrection in Cuba and prior to the exchange of ratifications of the present treaty," to exclude the claims of that class of our citizens entitled to its highest protection and generosity, while admitting all others. It is equally clear to me that the congress of the United States, in the passage of the act to carry into effect the beneficient stipulations of the treaty in this regard, did not intend to exclude the claims of the sailors who went down to a watery grave on that ever-memorable occasion, now all the more so because, as the case is presented to the court, it is admitted that the explosion of the Maine was caused either by the act of the Spanish government or through agencies for which it was responsible. In the cases at bar the United States government has released Spain of all liability for injuries which it is admitted Spain was responsible for, and has agreed on its part to adjudicate and settle all claims of every kind for indemnity that arose in behalf of its citizens for such wrongs between certain dates. Between those dates it is claimed that many of our citizens were injured and many killed; some in peaceful avocation on shore in Cuba, others "in the line of duty" on the battleship in a Cuban harbor; some in civilian habit, others in soldiers' garb; some while engaged in personal, gainful pursuits, others while serving their government in time of peace, prepared to sacrifice their lives in its behalf in time of war. Some were shot, others .beaten; still others blown into eternity, while quietly asleep on shipboard, in the vain dream that they were safe, as the guests of a friendly nation. Under these conditions I fail to perceive that there is any difference between one class of citizens and another, and can draw no distinction. Without classification they are all entitled to exactly the same consideration, and I cannot believe that the government of the United States, under the exercise of its sovereignty over its citizens, in the arrangement of the terms of peace with a vanquished enemy, would scrupulously provide for the claims of naturalized foreigners, who may have sought American citizenship for no other purpose than to secure the protection of its flag, and at the same time ruthlessly disregard and fail to provide for reasonable indemnity to other citizens native born, whose patriotism had led them to enlist in its service and to risk their lives in its defense in time of war. According to my view these are some of those individual claims of citizens of the United States against Spain which were relinquished to Spain and which the United States bound itself by the treaty of peace of December 10, 1898, to adjudicate and settle, and, therefore, the demurrers should have been overruled and the claims investigated and adjudicated on their merits by the Commission. This being my opinion, I am constrained to dissent from the decision of my colleagues. LEGAL HOLIDAYS. SERVICE OF LEGAL PROCESS. NEW YORK COURT OF APPEALS. (Decided March 4, 1902.) JOHN FLYNN, as Sole Administrator of the Estate of ROSE FERRIGAN, Deceased, Respondent, v. THE UNION SURETY & GUARANTY COMPANY, Appellant. Lawful service of a summons may be made on a legal holiday known as Labor Day. The provisions of the Public Holiday Law, that such days shall be considered as Sunday as regards the transaction of business in public offices, does not interfere with the service of a summons upon the State superintendent of insurance, while absent from his office on Labor Day, in an action against a foreign corporation that had designated him as its attorney for the service of process against the company. Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department, affirming a judgment entered upon a verdict directed by the court. Eliot Norton for appellant; Carlisle Norwood for respondent. HAIGHT, J.-The plaintiff had recovered a judgment against one T. for conversion, and an execution thereon had been issued against his person, upon which he had been committed to jail. T., as principal, and the defendant, as surety, gave a bond to the sheriff in the usual form, upon which T. was from the limits and was absent there from on the 3d admitted to the jail limits. T. subsequently departed day of September, 1900, on which day this action was brought upon the bond for the amount due and unpaid upon the execution by the service of the summons personally upon Francis Hendricks, superintendent of insurance, at Syracuse, N. Y. The defendant was a foreign insurance corporation, doing THE ALBANY LAW JOURNAL. business in this State, and had previously executed a power of attorney in accordance with the provisions of the statute, constituting the superintendent of insurance of this State or his successor in office its true and lawful attorney in this State on whom process of law may be served in any action or special pro ETROIT co 199 LIBRARY whom service of process coa be made by law could ceeding instituted against it. The day on which the Van Tassell, 56 Hun, 423; Peun, summons was served was a public holiday known as Labor Day, and after this action was moved for trial the defendant asked for a dismissal of the complaint upon that ground. This motion was denied, and an exception was taken. ton v. Bd. Supervisors Oswego OF CHIGAN. ave The other questions raised upon been correctly answered by the Appellate Division, and do not require further discussion. The judgment should be affirmed, with costs. PARKER, Ch. J.; GRAY, O'BRIEN, BARTLETT, MARTIN and VANN, JJ., concur. Judgment affirmed. TRADING STAMPS PROHIBITORY PRO VISION OF THE PENAL CODE UNCONSTITUTIONAL. The Public Holiday Law, as incorporated in chapter 614 of the Laws of 1897, amending the Statutory Construction Law in relation thereto, has recently received the attention of this court in Walton v. Stafford (162 N. Y. 558) and Page v. Shainwald (169 N. Y. 246), in which it has been held that the transaction of business was not prohibited upon legal holidays which were not Sundays, except as to the presentment, acceptance or payment of commercial paper. THE PEOPLE OF THE STATE OF NEW YORK ex rel. We did not, however, in these cases enter upon a construction of the concluding clause of the sentence, to the effect that "the days and half days aforesaid shall be considered as the first day of the week commonly called Sunday and as public holidays or half NEW YORK SUPReme Court, Appellate Division, holidays for all purposes whatsoever as regards the transaction of business in the public offices of this State or counties of this State." The obvious purpose of this statute was to authorize the closing of the public offices of the State and the counties upon public holidays for the purpose of relieving the officers and employes in such offices from the duty of performing official services on such days. For this purpose the days are to be considered as the first day of the week, commonly called Sunday. This is the extent of the statute. It does not prohibit an officer from voluntarily performing an official act on such days or render such acts void or voidable unless the act is such as to create an unlawful preference under the Recording Act or is prohibited by some other statute, none of which have any application to the act here complained of. In this case, as we have seen, the service was made upon the superintendent in the city of Syracuse, miles away from his office in the capitol at Albany. It was served upon him for the reason that he was the appointed agent of the defendant, representing it in this State for the purpose of receiving and admitting the service of process in actions or special proceedings sought to be brought against it. In receiving and accepting service he acted as agent of the defendant company and not as an officer of the State. While the statute required the defendant, before engaging in business in this State, to execute and deliver to him a power of attorney to receive the service of process, his action under the power of attorney was that of the company, to whom he could be called to account for any misconduct or omission with reference thereto. If the defendant had been a natural person residing in this State, or if its officers, upon LOUIS A. MADDEN, Appellant, v. JOHN DYCKER, Sheriff of Sullivan County, Respondent. THIRD DEPARTMENT. (Decided May, 1902.) Appeal by the relator, Louis A. Madden, from an order granted by the county judge of Sullivan county and entered in the office of the clerk of the county of Sullivan on the 28th day of December, 1901, dismissing a writ of habeas corpus theretofore granted in the proceeding and remanding the relator to the custody of the sheriff of the county of Sullivan. Duncan Edwards, for the appellant; John P. Roosa, Jr., for the respondent. CHASE, J.- By' chapter 768 of the Laws of 1900, section 384p was added to the Penal Code as follows: "Issue of trading stamps and other devices.- A person who shall: "1. Issue trading stamps or other devices to any person engaged in any trade, business or profession, with the promise, express or implied, that he will give to the person presenting to him such stamps or other devices, money or anything of value, without receiving from such person the value thereof, or make to any such person any concession or preference in any way on account of the presentation of such trading stamps or other devices; or, "2. Being engaged in any trade, business or profession, shall distribute or present to any person dealing with him any such trading stamp or other device, in consideration of any article or thing purchased of or any services performed by him, shall be guilty of a misdemeanor. other vouchers in or upon packages of goods sold or manufactured by him. Such tickets, coupons or other vouchers to be redeemed by such merchant or manufacturer either in money or merchandise, whether such packages are sold directly to the consumer or through retail merchants. Nor shall it be unlawful for any person to issue with such packages tickets, coupons or other voucher so issued by such merchant or manufacturer." Sperry & Hutchinson Company is a corporation organized under the laws of the State of New Jersey. The objects for which the corporation was formed are set forth in the certificate of incorporation as follows: "To buy, sell and exchange merchandise; to do a general advertising business; to print, issue and circulate advertisements; to make and carry out contracts with corporations and individuals; to advertise their business by special and useful devices; to give merchandise in exchange for trading stamps, which are to be certificates or vouchers to be sold by the corporation, and to be redeemed by it in merchandise according to its contracts, rules and regulations." The relator is in the employ of said company. Ralph B. Towner is engaged in the retail drygoods business at Monticello, N. Y. On the 27th day of December, 1901, said company, by the relator acting for it, entered into an agreement with said Towner, the material parts of which are as follows: "That the said party of the first part, for the consideration hereinafter mentioned, agrees with the party of the second part to perform in a faithful manner the following, viz.: To print in the directory of their subscribers' book, the name, business and address of the party of the second part; to deliver to the people of this vicinity said books and explain to them how to use the same; to open and maintain a store in the abovenamed town for the purpose of redeeming such stamps as are issued in the regular way by merchants duly authorized by the first party to handle the same; to keep on exhibition, in said store, goods and merchandise with which to redeem said stamps when presented in the above-mentioned books and in lots of nine hundred and ninety (990) stamps collected in the regular way; to use their best endeavors to promote in every way the business interests and trade of the party of the second part. "That the party of the second part, in consideration of the foregoing, agrees with the party of the first part, to perform in a faithful manner, the following, viz.: To receive of the party of the first part a sufficient number of trading stamps to be supplied as a discount for cash trade, to all persons who may call for them, and the party of the second part also agrees to give out said stamps as follows, viz.: One (1) stamp to be given for each and every ten cents represented in a purchase, ten stamps for one dollar, etc. Said party of the second part also agrees not to dispose of said stamps in any other way; to pay the party of the first part fifty cents per hundred for the use of all stamps disposed of, and to make weekly settlements with the authorized collector of the party of the first part; to display signs, furnished by said party of the first part, which read, 'We give Trading Stamps,' in the windows of the place of business of the party of the second part; the party of the second part also agrees not to use any other coupons, trading stamps, or similar device during the existence of this contract." The relator thereupon sold to said Towner one pad of trading stamps, consisting of 5,000 stamps, for $25, and said Towner agreed with him to distribute and present to cash customers said stamps as provided by said contract. Such stamps consist of gummed paper about the size of postage stamps, the face side bearing the name of said company, and also the words "Trading stamp." Books containing 990 blank spaces in which such trading stamps could be pasted were distributed, containing an Explanation," including the following: When you have filled your book (33 pages) with Green Trading Stamps from any or all of the merchants combined with whom we have contracted, it can be exchanged at our store, which is permanently located here, for your choice of over a thousand articles on exhibition. "You will only receive stamps for the multiple of ten contained in your purchase. If your bill is twenty cents, you get two stamps; if it is thirty-five cents, you get three stamps, etc. "Bear in mind the merchants make no advance in the price of their goods, and have so contracted with this company, but, on the contrary, the increase of trade secured by them by this plan will 'enable them to sell closer than ever before." It appears that in the conduct of the trading stamp business by said company, the articles of value to be exchanged for a book of stamps are exhibited continuously and openly in a store occupied by said company. Nothing of value is required from the person presenting the books of coupons and nothing is required by the company from the collectors, except that they shall obtain the stamps in connection with cash purchases of goods. The articles to be exchanged for the stamps are certain and fixed and only subject to the choice of the collector of the books of stamps. On the same day that said contract was made and said book of stamps delivered to said Towner, a complaint was made against the relator to a justice of the peace and a warrant was issued upon which the relator was arrested, and he was committed to the sheriff to await the action of the grand jury. On the same day a writ of habeas corpus was issued and the relator brought before the county judge of the county, who thereupon dismissed the same, and the relator was remanded to the custody of the sheriff of the county, from which order dismissing said writ this appeal is taken. By chapter 691 of the Laws of 1887 there was added to the Penal Code, section 335a, as follows: "No person shall sell, exchange or dispose of any article of food or offer or attempt to do so upon any representation, advertisement, notice or inducement that anything other than what is specifically 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 a part of the transaction as a gift, prize, premium or reward to the purchaser. Any person violating any of the provisions of the foregoing section shall be deemed guilty of a misdemeanor * * *"' 66 The court declared section 335a unconstitutional, and, in speaking of this statute, say: "It is evidently of that kind which has been so frequent of late, a kind which is meant to protect some class in the community against the fair, free and full competition of some other class. The members of the former class, thinking it impossible to hold their own against such competition and, therefore, flying to the legislature to secure some enactment which shall operate favorably to them or unfavorably to their competitors in the commercial, agri This section of the Penal Code is included in cultural, manufacturing or producing fields." chapter 8 thereof, entitled "Lotteries." 66 Thereafter a company doing business in the city of Albany had in front of their store a sign as follows: Try our Eight o'clock breakfast coffee. Checks given away with this coffee." The method pursued by such company was to give a purchaser of one pound of coffee a check, and when he had purchased two pounds he received two checks, which entitled him to a present. The articles which formed the inducement for the purchase were lying in full view of the purchaser on a counter, and his choice of anything on the counter was given him provided he purchased as much as two pounds of coffee, that being the sole consideration upon which his right of choice depended. One Gillson purchased two pounds of coffee and with the checks obtained a decorated cup and saucer, which was chosen by him from the articles so on the counter. He was arrested charged with the violation of said section 335a, tried, and found guilty. The judgment was affirmed at the General Term, but was reversed by the Court of Appeals. (People v. Gillson, 109 N. Y., 389). Again, it says: "The learned counsel for the people claims that the act is a valid exercise of the police power in furtherance of the policy of the State to prohibit the setting up of lotteries and the sale of lottery tickets. A careful reading of the statute fails to show any such purpose." Again, it says: 'The proof in this case shows there was no lottery or pretense of lottery in the transaction upon which the defendant was convicted of violation of the act. There was not the slightest element of chance in the case." Again, it says: "I lay no stress whatever upon the argument that this kind of transaction naturally induces people to purchase more than they want of any article of food in order to get the other article with which it comes to them in the shape of a gift, and thus the poorer people are led to extravagance in outlay." Again, it says: 'It seems to me that to uphold the act in question upon the assumption that it tends to prevent people from buying more food than they may want, and hence tends to prevent wastefulness or lack of proper thrift among the poorer classes, is a radically vicious and erroneous assumption and is to take a long step backwards and to favor that class of paternal legislation which, when carried to this extent, interferes with proper liberty of the citizen and violates the constitutional provision referred to." The Court of Appeals in the Gillson case discussed at length the principles affecting the determination of that case and such opinion has since been repeatedly approved by the courts of this State, and it has also been cited with approval in most of the other States of the Union. So far as the decision in that case affects this case, it is It is, therefore, the settled law of this State that controlling upon us. The opinion there states as it is not within the police power of the legislature propositions firmly established and recognized: to prohibit the sale of any article of food upon any That a statutory enactment will not be declared representation, advertisement, notice or inducement unconstitutional and, therefore, void unless a clear that anything other than what is specifically stated and substantial conflict exists between it and the to be the subject of the sale is to be delivered or Constitution; that every presumption is in favor of received, or in any way connected with or a part the constitutionality of legislative acts and that the of the transaction as a gift, prize, premium or recase must be practically free from doubt before an ward to the purchaser. In the Gillson case act of the legislature should be declared unconsti- the gift, prize, premium or reward was not tutional; that all property is held subject to the to be given with the purchase of one pound general police power of the State to so regulate of coffee, but a person purchasing one pound and control its use in a proper case as to secure of coffee obtained a check which it was necessary the general safety and the public welfare; that to retain until a further purchase of a pound of liberty in its broad sense as understood in this coffee enabled the purchaser to obtain a gift, prize, country, means the right not only of freedom from premium or reward. Such sale of one pound of servitude, imprisonment or restraint, but the right coffee with the accompanying delivery of a check of one to use his faculties in all lawful ways, to for use after a further purchase, does not make a live and work where he will, to earn his livelihood case differing in principle from an arrangement or in any lawful calling and to pursue any lawful trade agreement making it necessary to obtain 10 or or avocation. even 990 checks before a gift, prize, premium or reward could be received. We are of the opinion that the Gillson case determines that, notwithstanding the act in that case under consideration, articles of food can be sold upon the inducement that checks in the form of trading stamps are to be given in connection therewith, redeemable by the seller of the goods in lots of 990 checks or stamps providing the gifts, prizes, premiums or rewards are openly displayed upon the seller's counter, subject only to the choice of the person obtaining the checks or stamps. some article of merchandise in addition to the thing sold. In other words, the act recognizes the right of a person to give away an article of merchandise in connection with, and as an inducement to, the making of a sale of some other article, but provides, in effect, that the giving of such additional article must be done by him directly and not through a third person. We fail to see that there is any substantial difference in principle between the two methods, or that either bears any resemblance to a lottery. The element of chance, which is the basal principle of every scheme in the nature of a lottery, is wholly wanting." In the same opinion, the court, in illustrating its argument, say: "A buys of B a suit of clothes for twenty dollars, and receives a check or stamp which entitles him to receive from C a pair of shoes worth two dollars, a hat worth two dollars, or a pair of gloves worth two dollars. It is true that A has not seen these articles at the time of purchasing the clothes, but, as he knows that he is to receive one of the articles mentioned, as he may elect, we cannot see that there is anything so uncertain about the transaction as to appeal to the gambling instinct. At any rate, it does not in any real sense partake of the nature of a lottery; it is simply one of the infinite variety of devices which are resorted to by trades people in these days of sharp competition to promote the sale of their goods." Section 335a of the Penal Code has never been expressly repealed, but subsequently section 384p was enacted which seems to expressly authorize the doing of much of that which is prohibited by section 335a, but at the same time in terms prohibits the issuing of trading stamps to any person engaged in business if accompanied with a promise that he will give to the person presenting to him such stamps, money or anything of value without receiving from such person the value thereof, and also prohibits one engaged in business from distributing such stamps. The prohibitive part of section 335a aims at the practice of issuing trading stamps that are to be redeemed by any person other than the merchant who distributes them, or the manufacturer of the packages of goods sold. Just what there is in the thing prohibited, differing from the thing expressly authorized that makes it inimical to the public welfare and general safety does not The same court, in considering the practice of appear. This record does not disclose any element giving trading stamps and its effect upon business, of chance in the transaction. Even the possibility of say: "It may be demoralizing to legitimate busisome of the stamps never being offered for redemp-ness for two great rival dry goods houses to cut tion is largely eliminated by there being no time or boundary limit to the collection of the stamps, and nothing in the arrangement preventing holders of small lots of stamps from combining with others to make a sufficient number for redemption. The transaction is not a species of lottery, and does not appeal to the gambling instinct. (People v. Gillson, 109 N. Y. 389; Commonwealth v. Sisson, 178 Mass. 578; Ex parte McKenna, 126 Cal. 429; State v. Dalton [R. I.], 48 L. R. A. 775). Section 384p is not included in the articles of the Penal Code relating either to "lotteries or "gambling." The mere fact that the stamps are redeemable by an agent of the principal or by a third person does not seem to affect the transaction so far as public safety and the general welfare of the community is concerned, or make it differ from the transaction declared to be within the prohibition of the Constitution by the Gillson case (Brannon on Fourteenth Amendment, 309). The court in the case of State v. Dalton (supra), in discussing this question, say: "It is to be observed that the act does not prohibit the vendor himself from giving or 'throwing in,' as it is sometimes termed in common parlance, some other article in addition to that sold, but only prohibits the seller from giving anything in the nature of a check or order upon some other person, which shall entitle the holder thereof to obtain from such other person may be one prices in the attempt to undersell each other, or for two competing railway lines to sell tickets at half price in the attempt of each to get an advantage over the other, yet, probably, no one would claim that such competition could be prohibited by law. 'Bargain sales' and 'bargain counters demoralizing to business, but probably no would claim that they can be abolished by law. The invention of labor-saving machinery may be said to demoralize business, and so may numerous other modern innovations in manufacturing and industrial pursuits whereby old methods have to be abandoned and new ones adopted. But whatever demoralization results therefrom is incidental to that principle of evolution which is everywhere manifest in the mercantile and industrial, as well as in the physical world. The great law of competition invites and promotes this sort of demoralization, and the remedy for one who is injured by it lies not in legislation, but in being able to keep pace with the changed, if not always improved, methods." If the giving and redeeming of trading stamps is at any time so conducted as to be, in fact, a lottery or a gambling scheme, it can be punished under the provisions of the Penal Code relating to lotteries and gambling as the same are therein fully defined and the acts as so defined prohibited. The section of the Code under which the relator |