The facts constituting the alleged crime, as set forth in the' information, are in brief that the defendant, upon the sale by him to one Jenness of a pocket-book, also gave to the latter a coupon or order which entitled the holder to receive from another party some other article of value. It may be assumed in favor of the state that it was understood by Jenness, when he purchased the pocket-book, that as a part of the transaction, and as an inducement thereto, he was to receive, and in fact did receive, from the defendant, a coupon authorizing him to demand of and obtain from a third party other property than the article bought of the defendant. This transaction on the part of the defendant, it is claimed, constituted a crime by virtue of sections 1 and 2, chapter 60, Laws 1899. Section 1 of the statute is as follows: “No person or company shall, in the sale, exchange, or disposition of any property, give or deliver in connection therewith or in consideration of said sale, exchange, or disposition, any stamp, coupon, or other device which entitles the purchaser or receiver of said property, or any other person, to demand or receive from any person or company other than the person making-said sale, exchange, or disposition, any other property than that actually sold or exchanged; and no person or company other than the person so selling or disposing- of property shall deliver any goods, wares, or merchandise upon the presentation of such stamp, *33 coupon or other device.” Section 2 provides that “any person or company who violates any provision of the foregoing section shall for each offence be punished by fine of not less than twenty nor more than five hundred dollars.” That the facts alleged in the information state a crime within the literal meaning of the statute may be conceded. The defence is that the statute is unconstitutional and void.
While it may be difficult to define exactly or concretely the constitutional limitations upon the legislature in the exercise of its regulating or police power, it is futile to argue that none exist. It has been so long and so universally recognized and established that the legislature does not possess unlimited power in the enactment of statutes affecting private rights, that discussion of the subject at this late day assumes only academic interest. In the practical administration of justice it can be of little, if any, utility. “All men have certain natural, essential, and inherent rights, among which are the . . . acquiring, possessing, and protecting property.” Bill of Rights, art. 2. “ This is not silence, nor rant and declamation, nor advice and exhortation ; it is an express declaration of the private right of proprietorship. It is attached to the constitutional grant of governmental powers, as a limitation of the grant, a declaration of a right not surrendered to society. Whether it be called a declaration of the reserved right, or a reservation of the right, or a guaranty of it, or a prohibition of the violation of it, is immaterial. It is a reservation that makes the right a constitutional one. It is a guaranty of the plaintiff’s natural and common-law right to own property. ... As the broadest, literal sense of this reservation is qualified by the constitutional grant of legislative powers (including the powers of police, taxation, and eminent domain), so that grant is qualified by this reservation, as well as by other guaranties and prohibitions set forth in the bill of rights. If the general reservation of the rights of life, liberty, and property were not qualified by the grant of legislative power, individual rights would be absolute, and the constitution would contradict itself. If the grant of ‘supreme legislative power ’ were not qualified by any constitutional provisions, that power would be unlimited.” Doe, J., in Orr v. Quimby, 54 N. H. 590, 616, 617.
“ The general court is the legislative department of the state government, and has under the constitution an ample grant of legislative power; the extent of the power is, however, limited, not only by the express prohibitions of the constitution, but by the nature itself of the power granted; and to be valid and binding, the act of the legislature must be within the general scope of legislative authority. The power delegated by the constitution *34 ‘to make and ordain all manner of reasonable and wholesome orders, laws,’ etc., confers no authority to make an order or law in plain violation of the fundamental principles of natural justice, though the act may not be prohibited by any express limitation in- the constitution.” East Kingston v. Towle, 48 N. H. 57, 59. “The right of acquiring and possessing property is constitutionally reserved.” State v. Express Co., 60 N. H. 219, 251.
“ But even the police power, comprehensive as it admittedly is, has its limitations; and in this state, at least, it is subordinate to the equality of privilege and of burden secured by the bill of rights and guaranteed by the constitution in clearly expressed provisions which mean just what they declare.” State v. Jackman, 69 N. H. 318, 331, 332. “The right of acquiring property and the rights of life and liberty, which the second article of the bill puts together in a class of rights there described as natural, essential and inherent, are secured for all men.” Opinion of the Justices, 66 N. H. 629, 631; Aldrich v. Wright, 53 N. H. 398, 399, 400.
The limited power of the legislature in matters relating, or purporting to relate, to the general public welfare, has always been recognized and vindicated by judicial action. The rights of “ enjoying and defending life and liberty, acquiring, possessing, and protecting property, and, in a word, of seeking and obtaining happiness ” (Bill of Rights, art. 2), have been deemed to be not only in a certain broad and undefined sense “natural, essential, and inherent rights,” but also • in a practical sense enforceable rights. That the framers of the constitution did not concretely define these terms is no evidence that they were not intended to have an effective legal meaning. Nor is the broad grant of legislative powers contained in article 5 of the Form of Government, by which the legislature is authorized “ to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions, and instructions,” independent of, or unlimited by, the reserved rights of citizenship mentioned in article 2 of the bill of rights. The true view is that both of these provisions of the fundamental law are to be considered together as interdependent, the one qualifying and limiting the other; otherwise it would result that due effect could not be given to both at the same time. Neither is supreme in a sense that would deprive the other of its effectiveness as a part of the fundamental law.
The fourteenth amendment to the constitution of the United States provides that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the' United States; nor,shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” *35 The essential rights of citizenship under a republican form of government, declared in the second article of our bill of rights, are not increased or rendered more stable and secure by this provision of the federal constitution. “An enactment obnoxious to this provision of the national constitution is in New Hampshire no more ineffective than it would be in its absence.” State v. Pen noyer, 65 N. H. 113, 115. And as the defendant is fully protected in the exercise of all his essential rights of acquiring and possessing property by the constitution of this state, it is unnecessary to consider whether a similar guaranty might be discovered in the fourteenth amendment of the federal constitution.
The statute in question is prohibitive. It makes it a crime for one to carry on a legitimate business in a manner not before supposed to be illegal or improper. It deprives the citizen of a means of acquiring and possessing property, which previously he bad possessed as of right; and such invasion and deprivation of private right can only be justified, if at all, by proper legislative action in the exercise of the police power. “No proposition is now more firmly settled than that it is one of the fundamental rights and privileges of every American citizen to adopt and follow such lawful industrial pursuit, not injurious to the community, as he may see fit.”
People
v.
Marx,
“ The courts are not bound by mere forms, nor are they to be misled by mere pretences. They are at liberty — -indeed, are under a solemn duty — to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the funda
*36
mental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution.”
Mugler
v. Kansas,
“ While it is the general province of the legislature to determine what laws and regulations are needed to protect the public health, comfort, and safety, courts must be able to say, upon a perusal of the enactment, that- there is some fair and reasonable connection between it and the ends above mentioned. Unless-such relation exists, an enactment cannot be upheld as an exercise of the police power.”
People
v. Warden,
The act under which this prosecution was instituted cannot be-sustained as a valid exercise of the police power, or as a legislative-regulation for the general welfare, unless it can be so construed as to relate to fraudulent and deceptive schemes in the sale of property by the use of a “ stamp, coupon, or other device which entitles the purchaser or receiver of said property to demand or receive from any person or company other than the person making-said sale, exchange, or disposition, any other property than that actually sold or exchanged,” or unless it relates to such transactions attended with some element of chance sufficiently alluring to-appeal to the gambling propensity. See
Commonwealth
v.
Emerson,
In State v. Dalton, 22 R. I. 77, this precise question was presented, and the court say (p. 85): “ The act, as we construe it, prohibits a person from selling a given article, and at the same time, and as a part of the transaction, giving to the purchaser a stamp, coupon, or other device which will entitle him to receive from some third person some other well defined article in addition to the one sold. This is equivalent to declaring that it is illegal for a man to give away one article as a premium to the buyer for having purchased another; for, as already intimated, it can make no possible difference that the article given away with the sale is delivered to the purchaser by a third person instead of the seller himself. We think it is clear that such a prohibition is an unwarranted interference with the individual liberty which is guaranteed to every citizen, both by our state constitution and also by the fourteenth amendment to the constitution of the United States.” On page 87 the court further say: “ But it is further argued in support of the statute that the scheme aimed at is one which is demoralizing to legitimate business, and hence within the police power of the state to prohibit. ... In this connection it is pertinent to observe that it is not enough to warrant the state in absolutely prohibiting a given business, that it is conducted by methods which do not meet with general approval. There must be something in the methods employed which renders it injurious to the public in some one of the ways before mentioned, in order to warrant the state in interfering therewith. Nor is it enough to bring a given business within the prohibitory power of the state, that it is so conducted as to seriously interfere with or even destroy the business of others.”
The foregoing case, which presents a careful examination of the subject, is followed in
State
v. Dodge,
In
People
v.
Gillson,
If it is assumed that the testimony of the witnesses for the state, which is contained in the case, is true, it would not prove or authorize any inference that the business as thus carried on was injurious to the public. All suspicion of the existence of the element of a lottery is removed from the transaction by the virtual finding that the articles given as prizes or premiums on presentation of the coupons were on exhibition at the store of the third party. There was nothing to prevent the purchaser of the pocket-book from ascertaining in the first instance what article or articles he would obtain by virtue of the coupons to be given him by the defendant. . And if he saw fit to purchase the pocket-book without deciding or knowing what premium he would select, it was his privilege to do so; his ignorance in this regard was not a condition of his contract with the defendant. That the element of chance might be introduced into the scheme, so that the purchaser could not know what he was to receive, but would be obliged to leave the selection of the premium to be determined by other means than his free choice (State v. Clarke, 33 N. H. 329, 335), is the assumption of pure speculation as a fact, upon which to predicate the validity of the statute. Most commercial transactions may be so conducted as to involve the element of chance to a pernicious degree. But this possibility alone would not justify the legislature in prohibiting any useful occupation it might select, or preclude the court from declaring the act unconstitutional. There is no presumption that men in business affairs will cheat, deceive, and defraud their customers. The evil effects of a business enterprise, when they exist, as a legal proposition are ascertained from its logical, or necessary, or usual results — not *39 from the fact that unscrupulous men may resort thereto for improper or illegitimate purposes.
The argument is advanced in behalf of the prosecution, that the ultimate effect of the existence of trading-stamp companies is the imposition of a compulsory, unnecessary, and useless tax upon the entire community, and hence is detrimental to the welfare and prosperity of the public. It may be that the strict, logical reasoning of political economy supports that conclusion, though it might not meet with universal acceptance. But however that may be, it is equally true that other methods of commercial enterprise, in the ultimate analysis, would turn out to be expensive to all and useful to few or none, entailing a public burden attended with no public benefit. If all merchants, for instance, expended a proportionally equal amount in advertising their wrares in the newspapers and in other ways, the argument would not be difficult to establish the proposition that the business of advertising results in a useless and compulsory tax upon the community at large, and ought to be prohibited for that reason. If it necessarily results from the trading-stamp business that all retail merchants must eventually patronize the stamp companies, or go out of business, the same logic would authorize the conclusion that all traders must advertise their business, and that, in that event, the entire public would be subject to a large expense without deriving any benefit therefrom. But it is safe to assume that no court would long entertain the proposition that a statute prohibiting the advertiser’s business was a valid exercise of the police power. The business against which the statute is aimed “is simply one of the infinite variety of devices which are resorted to by tradespeople, in these days of sharp competition, to promote the sale of their goods.” State v. Dalton, supra. “ It does not differ from the ordinary business, except in the method of advertising and in lawful trade inducements. It is true that this method of doing business may enable a trader to do more business than he otherwise would, and more than his competitor across the street, who does not choose to incur the expense incident to this method of advertising and increasing his business; but this furnishes no reason for prohibiting the business.” State v. Dodge, supra.
The case of Lansburgh v. District of Columbia, 11 App. D. C. 512, is not in point. The decision seems to be based upon facts, tending to show a lottery in the manner the stamp business was there conducted, which do not exist in this case, and cannot be judicially found to exist as a matter of speculation or inference» The case of Humes v. Fort Smith, 93 Fed. Rep. 857, which adopts the reasoning in Dansburgh v. District of Columbia, relates to a regulation, not the prohibition, of the stamp business.
*40 The reasoning of the courts in the cases cited, in which the validity of statutes similar to the one involved in this case has been passed upon, and in which a similar question has been presented, seems to be conclusive in showing that the power sought to be exercised does not fall within the constitutional police power of the legislature. Considering the apparent object of the statute, ascertained by construing its language in the light of all competent evidence, the court is unable to discover how it promotes the public welfare as a police regulation. Indeed, the title of the act does not indicate such a purpose. It is denominated “ An act to prevent the use of trading-stamps, coupons, and other devices on the sale or exchange of property.” In the absence of sufficient evidence that it is a police regulation, it cannot be judicially declared to possess that character; and if it is not under the constitution an exercise of the police power, it finds no justification in that instrument, and is rendered invalid by the second article of the bill of rights. Whether its invalidity might be placed on other constitutional grounds, it is unnecessary to inquire.
In reaching this result, the court does not undertake to pass upon the reasonableness of the statute. If it appeared to have such connection with, or relation to, matters of public morals and safety as would bring it within the constitutional limits of the police power, vested in the legislative department, the question of its reasonableness as a means to an end, or of its policy or desirability, would not be a question for judicial determination.
State
v. Jackson, 71 N. H. 552, 554. That power is vested in the legislature, and is not subject to revision by the courts. If it is assumed that the statute in question is valid as an exercise of the police power, whether it is a wise statute under existing circumstances, whether the evil sought to be corrected should be suppressed in the manner proposed, and whether public policy sanctions or requires such legislation, are matters upon which the court could not hold the statute unconstitutional.
Commonwealth
v. Alger,
Exception sustained: information quashed.