Rast v. Van Deman & Lewis Co., 240 U.S. 342 (1916)

Mr. Justice McKenna,

after stating the case as above, delivered the opinion of the court.

It was determined that the bill set forth grounds of equitable relief; that the condition of complainants’ businesses and of the property engaged in them was such that the statute, if exerted against complainants and their property, would produce irreparable injury, citing Ex parte Young, 209 U. S. 123; Dobbins v. Los Angeles, 195 U. S. 223; Davis & Farnum Mfg. Co. v. Los Angeles, 189 U. S. 207. We concur in this view.

Passing on the constitutional questions involved, the

court was of opinion that the statute violated the Fourteenth Amendment and considered it unnecessary to decide whether there was ah interference with interstate commerce.

It is not entirely clear upon what clause of the Fourteenth Amendment the court rested its judgment. The* equality clause was selected- for special comment. After stating the limitation upon legislation and the power of classification, the court proceeds to say: “Is there a just basis for the classification attempted in this section [§ 35] of the act? Merchants, etc., all pay a tax according to the value of the stock carried by each, but if they sell goods for which coupons, etc., are given by themselves or others, then they must pay this additiohal tax for each place of business in each and every county in which said business is conducted, or carried on. And if goods are offered for sale with which coupons are given, redeemable by persons other than the seller, then this tax must be paid by him for each of said lines of goods.

“We can see no just basis for such classification. It is an arbitrary selection of one merchant for the imposition of a ‘greater burden’ than that imposed on others in the same calling and condition.”

But the court went farther and declared that “the use of coupons, etc., was an entirely legitimate method of advertising” and that such had been the ruling in state cases which were cited. And excluding the application of cases. adduced by defendants to sustain the statute as an exercise of the police power of the State, the court said: “As before pointed out, this coupon business is legitimate, in no way affecting the health or morals of the community.”

Though it is not clear, as we have said, certainly not explicit in. the opinion of the court, whether it decided the due process clause as well as the equal protection clause of the Fourteenth Amendment was violated by the statute,

we may assume that the Violation of both was decided. It may be that the court thought that even though the use of coupons was a legitimate method of advertising, and not. affecting the health or morals of the community, it was nevertheless within the power of 'the- State to license if the statute were free from discrimination, or. it may, be that the court considered that the two grounds interlocked and were dependent upon the same reasoning. However, the two grounds may be, indeed must be, taken'into consideration as they are submitted for decision.

The ground of discrimination, simply- and separated from the other attacks upon the statute, does not present much difficulty. The difference between a business where coupons are used, even regarding their úse as a means of advertising, and a business where they are not used,, is pronounced. Complainants are at pains to display it. The legislation which regards the difference,is not. arbitrary within the rulings of the cases. It is established that a distinction in legislation is not arbitrary, if any state.of facts reasonably can be conceived that would sustain it, an.d the existence of that state of facts at the time the law was enacted must be assumed. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78. It makes no difference that the facts may be disputed or their effect opposed by argument and opinion of serious strength. It is not within the competency of the courts to arbitrate in such contrariety. Chi., Burl. & Quincy R. R. v. McGuire, 219 U. S. 549; German Alliance Ins. Co. v. Kansas, 233 U. S. 389, 413, 414; Price v. Illinois, 238 U. S. 446, 452.

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. Eubank v. Richmond, 226 U. S. 137, 142; Sligh v. Kirkwood, 237 U. S. 52, 59. And, we repeat, “it may make discriminations if founded on distinctions that we cannot pronounce unreasonable and purely arbitrary;” Quong

Wing v. Kirkendall, 223 U. S. 59, 62, and the cases cited above.

Of course, ah element to be considered is the authority of the legislature over the subject-matter, and this will best be examined in considering the contentions of complainants under the due process clause. Preceding that) however, are the contentions based on the commerce clause and the sanction which the Constitution gives to the integrity of contracts.

First, as pertinent to our discussion, are the specific schemes at which, it is said, the statute is directed, and we adopt, complainants’ description of them. . The first is “where the Florida merchant issues his own coupon, certificate or cash register receipt and himself makes payment or redemption of the same, sometimes by the delivery of some valuable article of merchandise, sometimes by the payment of cash or allowance of credit on account of purchases, being in the nature of a discount, or for or on account of a certain amount having been purchased of the merchant by the customer.” In.a word, it is a case where the Florida merchant issues his own coupons and redeems them.

The second is “where the manufacturer or shipper outside of the State of Florida, in some other State of the Union, inserts such coupons or certificates in packages of his goods which he ships to Florida, and the ultimate purchaser or consumer takes such coupons or certificates from such packages and returns them to such manufacturer tor shipper in such State outside of Florida, who gives a premium for them arid sends such premium or proceeds' of redemption to such ultimate purchaser or consumer in Florida who has forwarded to him such coupons or certificates.” The merchandise so shipped into Florida is kept in stock by the merchants of the State and the coupons, etc., are delivered upon the sale of the merchandise to their customers, who-have them.redeemed in the.

manner described. That is, the coupons are redeemed by the person who originally issues'them;, the coupons, however, to repeat, being delivered by the Florida merchant as a part of the transaction between him and the purchaser from him at retail.

The third is “where the manufacturer or shipper in a State other than Florida inserts in the packages of his goods which he ships to Florida such coupons or certificates which are taken from the packages by the ultimate purchaser or consumer in Florida and sent to some company or agency in some State of the United States outside .of the State of Florida other than the manufacturer or shipper of the. goods, to be redeemed or paid, and the premium or proceeds thereof is returned by such company or agency,to the person in Florida who has sent such coupons or certificates.” This differs from the other two cases in that a premium company or agency other than the manufacturer or shipper himself is used for the redemption or payment of the coupons or certificates. But here again the Florida merchant is a factor because it is in completion of the sale by him at retail that the coupons are delivered to the purchasers.

, We are careful, by much repetition, to show the difference between the cases, to distinguish between the premium systems, and to show, as urged by counsel, that this case is not concerned with a license tax upon a trading stamp business pure and simple, a license upon companies engaged in such business being provided, by another section of the statute.1

It is well here to observe, to avoid, misunderstanding, that the redemption in the first scheme is “sometimes by the payment of cash or allowance of credit on account of

purchases„ or for or on account of a certain amount having been purchased of the merchant by the customer.” We are not concerned with a statute directed solely at such method of. redemption or a business so confined. The Florida statute imposes its license tax on coupons, etc., “redeemable in premiums.” And therefore, whether any other method of redemption — be it by giving a discount or an allowance of credit simply — would be amenable to objection we express no opinion. In all of the schemes other methods of redemption are used and are attempted to be justified.

With this comment we may say that all of. the 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, something of value given other than it; and even as to the second and third schemes, the transactions are only executed through the purchase at retail. In other words, they are not designed for or executed through a sale of the original package of importation but in the packages of retail and sale to the individual purchaser and consumer. This fixes their character as transactions within the State and not as transactions in interstate commerce, and this is conceded as to the first scheme; it is true as to the second and third schemes. All of the schemes have their influence and effect within the State. Nor is such influence and effect changed or lessened "by the redemption of the tokens outside of the State.

The transactions, therefore, are not in interstate commerce. The sales, as. we have said, are not in the packages of .that commerce, they are essentially local, sales, schemes consummated by such sales, and it is upon them and on account of their effect that the statute has imposed its license tax, and not .upon the shipment into the State nor their disposition in the packages of importation. Of course, there is shipment to Florida merchants but

for the disposition of the merchandise in retail trade. The schemes contemplate such disposition and are executed by it. Detach the importations from the retail sale, consider only the transportation to the State of merchandise in its original package, being sold therein in such package, and there may, indeed, be interstate commerce; but so' detached and so considered the importations are left without purpose, the schemes without execution. Indeed, complainants contend for. the right hot only of importations in the original package containing the coupons but the disposition of the - goods and coupons through the retail merchant. This, we repeat, has no protection in the commerce clause.

Nor is the regulation of the statute prohibited by ; § 3394, Rev. Stat'. as amended in 1897 (July 24, c. 11, § 10, 30 Stdt. 151, 206) and 1902 (July 1, c. 1371, §2, 32 Stat. 714, 715). Section 3394 provides for a tax on cigars and cigarettes. .By the amendment of 1897 it was forbidden, to pack in, attach to or connect with any package of tobacco or cigarettes anything but the wrappers, and it was futher provided that there should not be affixed to, or branded, stamped, marked, written or printed upon the packages or their contents any promise or. offer of, or any order or certificate for, any gift, prize, premium, payment,. or reward. This provision upset the practice of manufacturers and was attacked on the ground that it was beyond the power -of Congress under the Constitution to enact, the prohibited practice being a method of advertising. The provision was sustained. Felsenhead v. United States, 186 U. S. 126, affirming 103 Fed. Rep. 453. In 1902 the paragraph containing the provision was amended so as to forbid the. enclosure or attachment to the packages of “any paper, certificate', or instrument purporting to be or representing a .ticket,. chance, share or interest in, or dependent upon the event- of a lottery,

or any indecent or immoral picture, representation, print or words.”

Let it be granted that this provision permitted the enclosure in the package of tobacco of tokens of the character with which this case is concerned. It goes no farther nor does it purport to go farther. It does not attempt to protect and enforce the permission to the retail sales of packages in the State. It might not legally have such effect if attempted; and such attempt will not lightly be inferred. Savage v. Jones, 225 U. S. 501; Standard Food Co. v. Wright, 225 U. S. 540. The statute of Florida does riot seek to control the interstate transportation of the packages, it controls only their sale in. the State through the retail merchant, or, it may be, directly to the individual consumer for the purpose described, and in both cases for the ultimate redemption of the tokens delivered with the sale.

McDermott v. Wisconsin, 228 U. S. 115, is. not applicable. There Congress, for the effective execution of the Food and Drugs Act, defined what the “package” of commerce should be, and necessarily any law- which conflicted with it was void. In the case at bar there is no such definition. . There is only permission to insert ifi the package whatever the manufacturer of tobacco may choose, with a single exception. There..is no compulsion of use, and omission to avail of the permission has no effect upon the purpose of Congress in the enactment of the revenue laws which provide for the packing of tobacco products.

The contract clause of the Constitution is also unavailable to complainants.. The statute must be held to have prospective operation. Sales completed before its enactment are unaffected by it. We say “sales completed,” and by this we mean those in which the right of redemption according to some of the schemes has accrued as distinguished from' what is alleged in the bill as “the

understanding and expectation” arising from one or more sales that complainants would continue to sell to such' purchasers other articles so that they might be able to accumulate tokens and use them. It cannot be said that there is an obligation to continue sales or an obligation to continue purchases. Besides, as the business is subject to regulation the contracts made in its conduct are subject to such regulation. Louis. & Nash. R. R. v. Mottley, 219 U. S. 467, and N. Y. Central R. R. v. Gray, 239 U. S. 583.

Having disposed of the other contentions of complainants, we are brought to a consideration of the question whether the statute of Florida offends the due process clause-of the Fourteenth Amendment of the Constitution. In other words, does the statute interfere with the business liberty of complainants? Is it an illegal meddling with a lawful calling and a deprivation of freedom of contract? This is the contention, and it is attempted to be supported by the assertion that the schemes detailed in the bill are but a method of advertising and, as, such, mere allurements to customers, not detrimental in any way to the public health and morals, nor obstructive of the public welfare; but are a means of enterprise, mere incidents of the businesses of complainants and as beneficial to their customers as to them. And besides that they aré but a method of giving discount, practically in some instances a rebate upon the price, and in others an equivalent gift of some article that may attract the choice of the purchaser, the choice being free and the article of definite utility and value.

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 188Q and

repeated from time to time until the statute in controversy was passed in 1913.1 In such differences between judicial and legislative opinion where should the choice be? That necessarily depends upon what reasoning judicial opinion was based. We appreciate the seriousness of the situation. Regarding the number of the cases only, they constitute a body of authority from which there might well be hesitation to dissent except upon clear compulsion.

The foundation of all of them is that the schemes detailed are based on an inviolable right, that they are but the exercise of a personal liberty secured by the Constitution of the United States and distinguished from other lawful exercise of business contracts and activity by a method of advertising and lawful inducements to an increased custom and that in them there is no element of chance or anything detrimental to the public welfare. But there may be partial or total dispute of the propositions. And it can be urged that the reasoning upon which they are based regards the mere mechanism of the schemes alone and does not give enough force to their influence upon conduct and habit, not enough to their insidious potentialities. As to all of which not courts but legislatures may be the best judges and, it may be, the conclusive judges.

This may be illustrated. A lottery of itself is. not wrong, may be fairer, having less of overreaching in it, than many of the commercial • transactions that the ’ Constitution protects'. All participants in it have an equal chance; there is no admonishing caveat of one against the other. And at one time it was lawful. It came to be condemned by experience of its evil influence and effects. It is trite to say that practices harmless of themselves may, from

circumstances, become the source of evil or may have evil tendency. Murphy v. California, 225 U. S. 623.

But no refinement of reason is necessary to demonstrate the broad power of the legislature over the transactions of men. There are many lawful restrictions upon liberty of contract ¿nd business. It would be an endless task to cite cases in demonstration, and that the supplementing of the sale of one article by a token given and to be redeemed in some other article has accompaniments and effects beyond mere advertising the allegations of the bill and the argument of counsel establish. . Advertising is merely identification and description, apprising of quality, and place. It has no other object than fo draw attention to the'article to be sold, and the acquisition of the article to be sold constitutes the only inducement to its purchase. The matter is simple, single in purpose and motive; its consequences are well defined, there being nothing ulterior; it is the practice of old and familiar transactions and has sufficed for their success.

The schemes- of complainants have no such directness . and effect. 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 it hence 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 such, 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 make. Certainly in the first instance, and, as we have seen, its judgment is not impeached by urging against it a difference of. opinion. Chic., Burl. & Quincy R. R. v. McGuire and German Alliance Ins. Co. v. Kansas, supra. 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, 126, 127. See also Munn v. Illinois, 94 U. S. 113,132.

But it may be said that judicial opinion cannot be controlled by legislative opinion of what are fundamental rights. This is freely conceded; it is the very essence of constitutional law, but its recognition does not determine supremacy in any given instance. “While the courts must exercise a judgment of their own, it by no means is true that every law is void which may seem to the judges who pass upon it' excessive, unsuited to its ostensible end, or based upon conceptions of morality with which they disagree. Considerable latitude must be allowed for differences of view as well as for possible peculiar conditions which this court can know but imperfectly, if at all. Otherwise a constitution, instead of embodying only relatively fundamental rules of right, as generally understood by all English-speaking communities, would become the partisan of a particular set of ethical or economical opinions, which by no means are held semper ubique et ah omnibus.” Otis v. Parker, 187 U. S. 606, 608, 609.

That case illustrated the reach of the power of government to protect or promote the general welfare. It sustained a provision of the constitution of. the State of California which made void all contracts for the sale of the stock of corporations on margin of to be delivered at a future day. The practice had been common, its evil was disputed. It was attempted to be justified by argument very much like those advanced in the case at bar, but this court decided that the legislative judgment was controlling.

Even more pertinent, in illustration of the power of the States as unaffected by the Fourteenth Amendment is Central Lumber Co. v. South Dakota, 226 U. S. 157. A statute of the State was sustained which provided that any one engaged in the manufacture, production ór dis

tribution of any commodity in general use, who should intentionally, for the purpose of destroying the competition of any. regular, established dealer, discriminate between different places by selling such commodity at a lower rate in one place than such person charged in another, after equalizing the distance from the point of production, should be guilty of a crime. Freedom of conduct was restricted by the statute which had its incentive in trade advantages. It was the judgment of the legislature that such practice was an impediment to the public welfare. ■ The legislative judgment was sustained against the attack, among others, that the law was an infringement of freedom, of conduct and contract.

In Keokee Coke Co. v. Taylor, 234 U. S. 224, the company issued scrip payable in merchandise only from its store as- an advance of monthly wages in payment of labor performed. A statute of the State (West Virginia) prohibited the issue of any order for the payment of labor unless it was redeemable .in money. The statute was assailed on the ground that it interfered with the freedom of contract. It will be observed that there was a consideration for the order payable in merchandise; it was a payment in advance, and hence it was asserted that the statute was an injury to the employees and employers. There were elements in the transactions of apparent advantage to both and it would seem to have been within the liberty of both to contract upon an estimate of the value of that advantage. It was deemed an evil by the legislature and this court sustained its judgment.

In Erie R. R. v. Williams, 233 U. S. 685, a law of the State of New York required railroad companies to pay their employés semi-monthly and prohibited them from making contracts which should vary the time of payment. The law was sustained mainly upon the ground that it was an amendment of. the charter of the corporation, but the extent of the police power was adverted to and the com

petency of the legislature exercising that power to enact the legislation, The incentive of the legislation was the benefit which accrued to the employees by the period of payment. The public welfare was deemed to be promoted by it.

Other cases might be cited and, it may be, of more pertinent application, which, from their number and instances, would seem to have uttered the last necessary word upon the power of the legislature to regulate conduct and contracts and in the exercise of the power to classify objects, upon its conception of the public welfare, the right of review to be exerted by the courts only when the legislation is unreasonable or purely arbitrary.

Complainants allege that the license tax which the statute imposes is of prohibitory character and assert that they are exercising inviolable rights and privileges which the excess of the tax prevents in violation of the Fourteenth Amendment; they contend that hence the statute is invalid.

It is not certain from the allegations of the bill that the tax is of the asserted character, but granting it to be so we have shown that the business schemes described in the bill are not protected from regulation or prohibition by the Constitution of the United States. Lawton v. Steele, 152 U. S. 133; Booth v. Illinois, 184 U. S. 425; Otis v. Parker, 187 U. S. 606; see also Dobbins v. Los Angeles, 195 U. S. 223, 238; Murphy v. California, 225 U. S. 623; Postal Telegraph Co. v. Charleston, 153 U. S. 692, 699; McCray v. United States, 195 U. S. 27; Kehrer v. Stewart, 197 U. S. 60; Hammond Packing Co. v. Montana, 233 U. S. 331.

The contention that the statute intimidates against a contest of its legality by the severity of its penalties and is therefore unconstitutional on that ground within the ruling in Ex parte Young, 209 U. S. 123, is not justified.