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on the battleship Maine, are denied a hearing. To than to secure the protection of its flag, and at my mind, no principle of law, divine or human, the same time ruthlessly disregard and fail to prointernational or municipal, recognizes or could vide for reasonable indemnity to other citizens justify such an incongruous procedure.

native born, whose patriotism had led them to It is as clear to my mind as the shining sun is enlist in its service and to risk their lives in its

my physical sight, that the high commissioners defense in time of war. of our ever-generous government, at Paris, in According to my view these are some of those negotiating the treaty of peace, never intended, individual claims of citizens of the United States when they put into that treaty the words “all against Spain which were relinquished to Spain claims for indemnity, national and individual, of and which the United States bound itself by the every kind, of either government, or of its citizens treaty of peace of December 10, 1898, to adjudicate or subjects against the other government, that may and settle, and, therefore, the demurrers should have arisen since the beginning of the late insur- have been overruled and the claims investigated rection in Cuba and prior to the exchange of ratifi- and adjudicated on their merits by the Commission. cations of the present treaty," to exclude the claims This being my opinion, I am constrained to dissent of that class of our citizens entitled to its highest from the decision of my colleagues. protection and generosity, while admitting all others. It is equally clear to me that the congress

LEGAL HOLIDAYS. of the United States, in the passage of the act to carry into effect the beneficient stipulations of the

SERVICE OF LEGAL PROCESS. treaty in this regard, did not intend to exclude the claims of the sailors who went down to a watery

NEW YORK COURT OF APPEALS. grave on that ever-memorable occasion, now all the more so because, as the case is presented to

(Decided March 4, 1902.) the court, it is admitted that the explosion of the Maine was caused either by the act of the Spanish Joun Flynn, as Sole Administrator of the Estate of government or through agencies for which it was

Rose FERRIGAN, Deceased, Respondent, V. The

UNION SURETY & GUARANTY COMPANY, Appellant. responsible.

In the cases at bar the United States government has released Spain of all liability for injuries which

Lawful service of a summons may be made on a it is admitted Spain was responsible for, and has legal holiday known as Labor Day. agreed on its part to adjudicate and settle all claims such days shall be considered as Sunday as regards

The provisions of the Public Holiday Law, that of every kind for indemnity that arose in behalf the transaction of business in public offices, does not of its citizens for such wrongs between certain interfere with the service of a summons upon the dates. Between those dates it is claimed that many State superintendent of insurance, while absent from of our citizens were injured and many killed; some his office on Labor Day, in an action against a foreign in peaceful avocation on shore in Cuba, others corporation that had designated him as its attorney “in the line of duty” on the battleship in a Cuban for the service of process against the company. harbor; some in civilian habit, others in soldiers' Appeal from a judgment of the Appellate Division garb; some while engaged in personal, gainful pur- of the Supreme Court in the First Judicial Depart. suits, others while serving their government in ment, affirming a judgment entered upon a verdict time of peace, prepared to sacrifice their lives in directed by the court. its behalf in time of war. Some were shot, others Eliot Norton for appellant; Carlisle Norwood for .beaten; still others blown into eternity, while respondent. quietly asleep on shipboard, in the vain dream that HAIGHT, J.- The plaintiff had recovered a judgthey were safe, as the guests of a friendly nation. ment against one T. for conversion, and an execution

Under these conditions I fail to perceive that thereon liad been issued against his person, upon there is any difference between one class of citizens which he had been committed to jail. T., as prinand another, and can draw no distinction. With- cipal, and the defendant, as surety, gave a bond to out classification they are all entitled to exactly the the sheriff in the usual form, upon which T. was same consideration, and I cannot believe that the from the limits and was absent therefrom on the 3d

admitted to the jail limits. T. subsequently departed government of the United States, under the exer- day of September, 1900, on which day this action cise of its sovereignty over its citizens, in the

was brought upon the bond for the amount due and arrangement of the terms of peace with a

unpaid upon the execution by the service of the quished enemy, would scrupulously provide for the summons personally upon Francis Hendricks, superclaims of naturalized foreigners, who may have intendent of insurance, at Syracuse, N. Y. The desought American citizenship for no other purpose fendant was a foreign insurance corporation, doing




business in this State, and had previously executed a whom service of process can be made by could

W power of attorney in accordance with the provisions have been found within this State, service might of the statute, constituting the superintendent of in- have been made upon them upon, that surance of this State or his successor in office its true claim could be made under this stun and lawful attorney in this State on whom process service was not authorized We are, therefore, of of law may be served in any action or special pro- the opinion that the service de valid (Didsbury v,


rel. Vil. of Fu ceeding instituted against it. The day on which the Van Tassell, 56 Hun, 423; People in summons was served was a public holiday known as ton v. Bd. Supervisors Oswego Labor Day, and after this action was moved for trial The other questions raised upon ins



kave the defendant asked for a dismissal of the complaint been correctly answered by the Appellate Division, upon that ground. This motion was denied, and an and do not require further discussion. exception was taken.

The judgment should be affirmed, with costs. The Public Holiday Law, as incorporated in chap- Parker, Ch. J.; GRAY, O'BRIEN, BARTLETT, MARTIN ter 614 of the Laws of 1897, amending the Statutory and VANN, JJ., concur. Construction Law in relation thereto, has recently Judgment affirmed. received the attention of this court in Walton v. Stafford (162 N. Y. 558) and Page v. Shainwald (169

TRADING STAMPS - PROHIBITORY PRON. Y. 246), in which it has been held that the trans

VISION OF THE PENAL CODE UNaction of business was not prohibited upon legal holi

CONSTITUTIONAL. days 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.

Louis A. MADDEN, Appellant, v. John DYCKER, to the effect that “the days and half days aforesaid

Sheriff of Sullivan County, Respondent. 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,

THIRD DEPARTMENT. holidays for all purposes whatsoever as regards the transaction of business in the public offices of this

(Decided May, 1902.) State or counties of this State.” The obvious purpose of this statute was to authorize the closing of Appeal by the relator, Louis A. Madden, from the public offices of the State and the counties upon

an order granted by the county judge of Sullivan public holidays for the purpose of relieving the offi- county and entered in the office of the clerk of cers and employes in such offices from the duty of the county of Sullivan on the 28th day of Decemperforming official services on such days. For this ber, 1901, dismissing a writ of habeas corpus therepurpose the days are to be considered as the first day tofore granted in the proceeding and remanding the of the week, commonly called Sunday. This is the relator to the custody of the sheriff of the county extent of the statute. It does not prohibit an officer of Sullivan. from voluntarily performing an official act on such Duncan Edwards, for the appellant; John P. days or render such acts void or voidable unless Roosa, Jr., for the respondent. the act is such as to create an unlawful preference CHASE, J. - By chapter 768 of the Laws of 1900, under the Recording Act or is prohibited by some section 384p was added to the Penal Code as other statute, none of which have any application to follows: the act here complained of.

Issue of trading stamps and other devices.- A In this case, as we have seen, the service was made person who shall: upon the superintendent in the city of Syracuse, miles

“1. Issue trading stamps or other devices to any away from his office in the capitol at Albany. It was

person engaged in any trade, business or profession, served upon him for the reason that he was the ap- with the promise, express or implied, that he will pointed agent of the defendant, representing it in this give to the person presenting to him such stamps State for the purpose of receiving and admitting the or other devices, money or anything of value, withservice of process in actions or special proceedings out receiving from such person the value thereof, sought to be brought against it. In receiving and ac

or make to any such person any concession or cepting service he acted as agent of the defendant preference in any way on account of the presentacompany and not as an officer of the State. While tion of such trading stamps or other devices; or, the statute required the defendant, before engaging " 2. Being engaged in any trade, business or in business in this State, to execute and deliver to profession, shall distribute or present to any person him a power of attorney to receive the service of dealing with him any such trading stamp or other process, his action under the power of attorney was device, in consideration of any article or thing that of the company, to whom he could be called purchased of or any services performed by him, to account for any misconduct or omission with ref- shall be guilty of a misdemeanor. erence thereto. If the defendant had been a natural 3. It shall not be unlawful for any merchant or person residing in this State, or if its officers, upon manufacturer to place his own tickets, coupons or





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other vouchers in or upon packages of goods sold fifty cents per hundred for the use of all stamps or manufactured by 'him. Such tickets, coupons disposed of, and to make weekly settlements with

other vouchers be redeemed by such the authorized collector of the party of the first merchant or manufacturer either in money or part; to display signs, furnished by said party of merchandise, whether such packages are sold di- the first part, which read, 'We give Trading rectly to the consumer or through retail merchants. Stamps, in the windows of the place of business Nor shall it be unlawful for any person to issue of the party of the second part; the party of the with such packages tickets, coupons or other second part also agrees not

use any other voucher so issued by such merchant or coupons, trading stamps, or similar device during facturer."

the existence of this contract." Sperry & Hutchinson Company is a corporation The relator thereupon sold to said Towner one organized under the laws of the State of New Jersey. pad of trading stamps, consisting of 5,000 stamps, The objects for which the corporation was formed for $25, and said Towner agreed with him to disare set forth in the certificate of incorporation as tribute and present to cash customers said stamps follows: “To buy, sell and exchange merchandise; / as provided by said contract. Such stamps consist to do a general advertising business; to print, issue of gummed paper about the size of postage stamps, and circulate advertisements; to make and carry out the face side bearing the name of said company, contracts with corporations and individuals; to and also the words “ Trading stamp." Books conadvertise their business by special and useful devices; taining 990 blank spaces in which such trading to give merchandise in exchange for trading stamps, stamps could be pasted were distributed, containing which are to be certificates or vouchers to be sold an “ Explanation," including the following: “When by the corporation, and to be redeemed by it in you have filled your book (33 pages) with merchandise according to its contracts, rules and Green Trading Stamps from any or all of the regulations."

merchants combined with whom we have conThe relator is in the employ of said company. tracted, it can be exchanged at our store, which Ralph B. Towner is engaged in the retail drygoods is permanently located here, for your choice of over business at Monticello, N. Y.

a thousand articles on exhibition. On the 27th day of December, 1901, said com

“ You will only receive stamps for the multiple pany, by the relator acting for it, entered into an

of ten contained in your purchase. If your bill is agreement with said Towner, the material parts twenty cents, you get two stamps; if it is thirty-five of which are as follows: That the said party of cents, you get three stamps, etc. the first part, for the consideration hereinafter men- “ Bear in mind the merchants make no advance tioned, agrees with the party of the second part to in the price of their goods, and have so contracted perform in a faithful manner the following, viz.: with this company, but, on the contrary, the inTo print in the directory of their subscribers' book, crease of trade secured by them by this plan will the name, business and address of the party of the ' enable them to sell closer than ever before." second part; to deliver to the people of this vicinity It appears that in the conduct of the trading said books and explain to them how to use the stamp business by said company, the articles of same; to open and maintain a store in the above- value to be exchanged for a book of stamps are named town for the purpose of redeeming such exhibited continuously and openly in a store occustamps are issued in the regular way by pied by said company. Nothing of value is remerchants duly authorized by the first party to quired from the person presenting the books of handle the same; to keep on exhibition, in said coupons and nothing is required by the company store, goods and merchandise with which to redeem from the collectors, except that they shall obtain said stamps when presented in the above-mentioned the stamps in connection with cash purchases of books and in lots of nine hundred and ninety (990) goods. The articles to be exchanged for the stamps collected in the regular way; to use their stamps are certain and fixed and only subject to the best endeavors to promote in every way the business choice of the collector of the books of stamps. interests and trade of the party of the second part. On the same day that said contract was made

"That the party of the second part, in considera- and said book of stamps delivered to said Towner, tion of the foregoing, agrees with the party of the a complaint was made against the relator to a first part, to perform in a faithful manner, the fol- justice of the peace and a warrant was issued upon lowing, viz.: To receive of the party of the first which the relator was arrested, and he was compart a sufficient number of trading stamps to be mitted to the sheriff to await the action of the supplied as a discount for cash trade, to all persons grand jury. On the same day a writ of habeas corpus who may call for them, and the party of the second was issued and the relator brought before the part also agrees to give out said stamps as fol- county judge of the county, who thereupon dislows, viz.: One (1) stamp to be given for each and missed the same, and the relator was remanded to every ten

cents represented in a purchase, ten the custody of the sheriff of the county, from which stamps for one dollar, etc. Said party of the second order dismissing said writ this appeal is taken. part also agrees not to dispose of said stamps in By chapter 691 of the Laws of 1887 there was any cther way; to pay the party of the first part ' added to the Penal Code, section 335a, as follows:





“No person shall sell, exchange or dispose of any The court declared section 335a unconstitutional, article of lood or offer or attempt to do so upon and, in speaking of this statute, say: “It is eviany representation, advertisement, notice or in- dently of that kind which has been so frequent of ducement that anything other than what is spe- late, a kind which is meant to protect some class cifically stated to be the subject of the sale or in the community against the fair, free and full exchange, is or is to be delivered or received or in competition of some other class. The members of any way connected with or a part of the transaction the former class, thinking it impossible to hold as a gift, prize, premium or reward to the purchaser. their own against such competition and, therefore,

“ Any person violating any of the provisions of flying to the legislature to secure some enactment the foregoing section shall be deemed guilty of a which shall operate favorably to them or unfavormisdemeanor * *"

ably to their competitors in the commercial, agriThis section of the Penal Code is included in cultural, manufacturing or producing fields." chapter 8. thereof, entitled “ Lotteries."

Again, it says: The learned counsel for the peoThereafter a company doing business in the city ple claims that the act is a valid exercise of the of Albany had in front of their store a sign as police power in furtherance of the policy of the follows: “ Try our Eight o'clock breakfast coffee. State to prohibit the setting up of lotteries and the Checks given away with this coffee." The method sale of lottery tickets. A careful reading of the pursued by such company was to give a purchaser statute fails to show any such purpose.” of one pound of coffee a.check, and when he had Again, it says: The proof in this case shows purchased two pounds he received two checks, there was no lottery or pretense of lottery in the which entitled him to a present. The articles which transaction upon which the defendant was iormed the inducement for the purchase were lying victed of violation of the act. There was not the in full view of the purchaser on a counter, and slightest element of chance in the case.' his choice of anything on the counter was given Again, it says: “I lay no stress whatever upon him provided he purchased as much as two pounds the argument that this kind of transaction naturallyinof coffee, that being the sole consideration upon duces people to purchase more than they want of any which his right of choice depended. One Gillson article of food in order to get the other article with purchased two pounds of coffee and with the checks which it comes to them in the shape of a gift, and obtained a decorated cup and saucer, which was thus the poorer people are led to extravagance in chosen by him from the articles so on the counter. outlay.” He was arrested charged with the violation of said

Again, it says: “It seems to me that to uphold section 335a, tried, and found guilty. The judgment the act in question upon the assumption that it was affirmed at the General Term, but was reversed tends to prevent people from buying more food by the Court of Appeals. (People v. Gillson, 109 than they may want, and hence tends to prevent N. Y., 389).

wastefulness or lack of proper thrift among the The Court of Appeals in the Gillson case dis- poorer classes, is a radically vicious and erroneous cussed at length the principles affecting the de- assumption and is to take a long step backwards termination of that case and such opinion has since and to favor that class of paternal legislation which, been repeatedly approved by the courts of this when carried to this extent, interferes with proper State, and it has also been cited with approval liberty of the citizen and violates the constituin most of the other States of the Union. So far tional provision referred to." 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 act of the legislature should be declared unconsti- the gift, prize, premium or reward

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 opin- some article of merchandise in addition to the thing ion that the Gillson case determines that, not-sold. In other words, the act recognizes the right withstanding the act in that case under considera- of a person to give away an article of merchandise tion, articles of food can be sold upon the induce in connection with, and as an inducement to, the ment that checks in the form of trading stamps are making of a sale of some other article, but proto be given in connection therewith, redeemable vides, in effect, that the giving of such additional by the seller of the goods in lots of 990 checks or article must be done by him directly and not stamps providing the gists, prizes, premiums or through a third person. We fail to see that there rewards are openly displayed upon the seller's is any substantial difference in principle between counter, subject only to the choice of the person the two methods, or that either bears any resemobtaining the checks or stamps.

blance to a lottery. The element of chance, which Section 335a of the Penal Code has never been is the basal principle of every scheme in the nature expressly repealed, but subsequently section 384p of a lottery, is wholly wanting." was enacted which seems to expressly authorize the In the same opinion, the court, in illustrating its doing of much of that which is prohibited by sec- argument, say: “A buys of B a suit of clothes for tion 335a, but at the same time in terms prohibits twenty dollars, and receives a check or stamp which the issuing of trading stamps to any person en- entitles him to receive from C a pair of shoes worth gaged in business if accompanied with a promise two dollars, a hat worth two dollars, or a pair of that he will give to the person presenting to him gloves worth two dollars. It is true that A has not such stamps, money or anything of value without seen these articles at the time of purchasing the receiving from such person the value thereof, and clothes, but, as he knows that he is to receive one also prohibits one engaged in business from dis- of the articles mentioned, as he may elect, we cantributing such stamps. The prohibitive part of not see that there is anything so uncertain about section 335a aims at the practice of issuing trading the transaction as to appeal to the gambling instamps that are to be redeemed by any person other stinct. At any rate, it does not in any real sense than the merchant who distributes them, or the partake of the nature of a lottery; it is simply one manufacturer of the packages of goods sold. Just of the infinite variety of devices which are resorted what there is in the thing prohibited, differing from to by trades people in these days of sharp competithe thing expressly authorized that makes it inimical tion to promote the sale of their goods.” 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 prices in the attempt to undersell each other, or for boundary limit to the collection of the stamps, and two competing railway lines to sell tickets at half nothing in the arrangement preventing holders of price in the attempt of each to get an advantage small lots of stamps from combining with others

over the other, yet, probably, no one would claim to make a sufficient number for redemption. The that such competition could be prohibited by law. transaction is not a species of lottery, and does not

Bargain sales' and 'bargain counters' may be appeal to the gambling instinct. (People v. Gillson, demoralizing to business, but probably no 109 N. Y. 389; Commonwealth v. Sisson, 178 Mass. would claim that they can be abolished by law. 578; Ex parte McKenna, 126 Cal. 429; State v. The invention of labor-saving machinery may be Dalton (R. I.), 48 L. R. A. 775).

said to demoralize business, and so may numerous Section 384P is not included in the articles of other modern innovations in manufacturing and the Penal Code relating either to "lotteries " or industrial pursuits whereby old methods have to be “ gambling.” The mere fact that the stamps are abandoned and new ones adopted. But whatever redeemable by an agent of the principal or by a demoralization results therefrom is incidental to third person does not seem to affect the transaction that principle of evolution which is everywhere so far as public safety and the general welfare of manifest in the mercantile and industrial, as well the community is concerned, or make it differ as in the physical world. The great law of comfrom the transaction declared to be within the pro- petition invites and promotes this sort of demoralihibition of the Constitution by the Gillson case zation, and the remedy for one who is injured by it (Brannon on Fourteenth Amendment, 309). The lies not in legislation, but in being able to keep court in the case of State v. Dalton (supra), in dis- pace with the changed, if not always improved, cussing this question, say: “ It is to be observed methods." that the act does not prohibit the vendor himself If the giving and redeeming of trading stamps from giving or throwing in,' as it is sometimes is at any time so conducted as to be, in fact, a lot. termed in common parlance, some other article in tery or a gambling scheme, it can be punished under addition to that sold, but only prohibits the seller the provisions of the Penal Code relating to lotfrom giving anything in the nature of a check or teries and gambling as the same are therein fully order upon some other person, which shall entitle defined and the acts as so defined prohibited. the holder thereof to obtain from such other person The section of the Code under which the relator

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