OPINION OF THE JUSTICES TO THE SENATE., 226 Mass. 613

A statute in effect prohibiting the use of trading stamps, no matter by whom they were to be redeemed, would be unconstitutional, and a statute, which should declare trading stamps redeemable by the vendor alone to be legal and those redeemable by any one other than the vendor to be illegal, likewise would be unconstitutional.

The justices of the Supreme Judicial Court in answering questions under c. 3, art. 2 of the Constitution are bound to follow a decision of this court made in a case between party and party in a matter where this court had final jurisdiction, and such a decision can be overruled only by another decision made between party and party after argument and where the rights of all can be guarded fully.

The following order was passed by the Senate on April 2, 1917, and on April 6, 1917, was transmitted to the Justices of the Supreme Judicial Court. On April 23, 1917, the Justices returned the answer which is subjoined.

Whereas, There is pending in the General Court a certain measure, accompanied by bill printed as House, No. 665, a copy whereof is submitted herewith, wherein the sale or distribution of trading stamps, coupons or similar devices is prohibited under certain conditions; and

Whereas, At the session of the General Court in the year nineteen hundred and sixteen a certain bill entitled an Act to prohibit the sale or distribution of trading stamps, coupons or similar devices, a copy of which is herewith submitted, was passed to be enacted by both branches of the General Court but was returned to the House of Representatives by His Excellency the Governor, with his objections thereto in writing, on June 2, 1916, and there failed to pass; and

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Whereas, In his objections to the bill, His Excellency the Governor stated that in his opinion the proper proceeding would have been to require the opinion of the justices as to the constitutionality of the proposed legislation; and

Whereas, The latter bill contained provisions similar to those contained in the bill accompanying the petition now before the General Court; therefore be it

Ordered , That the Senate require the opinion of the Justices of the Supreme Judicial Court upon the following important questions of law: First. Is it within the constitutional power of the General Court to enact legislation limiting the giving of or dealing in stamps or other similar devices in which any person other than the vendor or vendee of the merchandise sold has an interest by contract arrangement or otherwise, or is subjected to a liability by the delivery thereof?

Second. Are the provisions of House Bill No. 665 constitutional?

Third. Would an act containing the provisions of the bill returned to the House by His Excellency the Governor in 1916, and referred to above, be constitutional if enacted?

Fourth. Would the provisions of said House Bill No. 665 or those of the other bill referred to above be constitutional if these bills were changed so as to make the provisions thereof apply to stamps or other devices issued directly by the vendor to the vendee and redeemable by the vendor in cash or as a credit or rebate upon the price of articles purchased or to be purchased from the same vendor? House Bill No. 665, referred to above, was as follows:

An Act to Prohibit the Sale or Distribution of Trading Stamps, Coupons, or Similar Devices.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

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of merchandise sold. This section shall apply to a device which entitles the holder thereof when such device is presented alone or in connection with others, to a cash premium or property premium furnished directly or indirectly by any one other than the vendor of the article or merchandise sold, but shall not apply to stamps, coupons or similar devices issued by the vendor directly to the purchaser in which no one other than the vendor and purchaser has any interest and which are redeemable directly by the vendor in this Commonwealth either in cash or as a credit or rebate upon the price of articles or merchandise purchased or to be purchased by the same vendee from the same vendor within this Commonwealth.

Section 2. A violation of this act shall be a misdemeanor, and shall be punished by a fine of not less than ten nor more than one hundred dollars.

Section 3. This act shall take effect on the first day of January, nineteen hundred and seventeen.

The following is a copy of a bill in the files of the House of Representatives, referred to above, which was returned by His Excellency the Governor to the House, in which branch it originated, in 1916, with his objections thereto in writing, and which failed to pass in that branch.

An Act to Prohibit the Sale or Distribution of Trading Stamps, Coupons, or Similar Devices.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

Section 1. No person, firm or corporation shall, in connection with the sale of any article or any merchandise whatsoever, sell, give or deliver any trading stamps, coupons or similar devices, whether such trading stamps, coupons or similar devices are or are not attached to or form a part of the article or package of merchandise sold, which will entitle the holder thereof when presented alone or in connection with others, to a cash or property premium. This act shall not apply to stamps, coupons or similar devices issued by the vendor directly to the vendee in which no one other than the vendor and vendee has any interest and which are redeemable directly by the vendor in this Commonwealth either in cash or as a credit or rebate upon the price of articles or

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merchandise purchased or to be purchased from the same vendor within this Commonwealth.

Section 2. Any violation of this act shall be punished by a fine of not less than ten or more than one hundred dollars.

Section 3. This act shall take effect on the first day of January, nineteen hundred and seventeen.

To the Honorable Senate of the Commonwealth of Massachusetts:

We, the Justices of the Supreme Judicial Court, answer the questions submitted by your order adopted on the second day of April, 1917, copy of which is hereto annexed, as follows:

In 1911 the Justices were asked their opinion on the question whether a bill in effect forbidding the use of trading stamps, no matter by whom they were to be redeemed, would be constitutional. The answer was in the negative. Opinion of the Justices, 208 Mass. 607. That opinion was in accord with the almost uniform current of authority as shown by decisions in numerous States where the question had arisen. We see no reason to change the opinion there expressed. The two proposed acts, upon which our opinion now is asked, declare trading stamps redeemable by the vendor alone, to be legal, and those redeemable by any one other than the vendor, to be illegal. The question now asked of us in view of Opinion of the Justices, 208 Mass. 607, in substance is whether such a distinction can be made. We are of opinion that no such distinction can be made under the Constitution. That question is concluded in the negative by the plain implications of Commonwealth v. Sisson, 178 Mass. 578.

By St. 1884, c. 277, the vendor of any property was prohibited from representing that anything other than the specific subject of sale was to be in any way connected with the transaction. By St. 1898, c. 576, the provisions of the earlier act were made applicable specifically to the giving by the vendor of any trading stamp or other device to the purchaser which should entitle him to receive from any person other than the vendor any other property than that actually the subject of the sale and to the honoring of any such trading stamp or other device by any person other than the vendor. The fair inference from the decision in Commonwealth v. Sisson, 178 Mass. 578, read in connection with Commonwealth v. Emerson, 165 Mass. 146, where the earlier

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statute was construed, is that no such distinction can be made and that such a prohibition of the use of trading stamps is not within the power of the General Court. The same inference is to be drawn from O'Keeffe v. Somerville, 190 Mass. 110. These decisions were constructions of the Constitution of Massachusetts although reference was made in one or more also to the Federal Constitution.

Since these decisions, the Supreme Court of the United States has determined in Rast v. Van Deman & Lewis Co. 240 U. S. 342, Tanner v. Little, 240 U. S. 369, Pitney v. Washington, 240 U. S. 387, that statutes in essence like those referred to in the questions do not conflict with the provisions of the Fourteenth Amendment of the Constitution of the United States. But the question whether a statute is in conflict with the provisions of the Constitution of this Commonwealth is a question upon which the decision of the Supreme Judicial Court of this Commonwealth is final. It is established also that in answering questions submitted to them under c. 3, art. 2 of the Constitution, the Justices of this court are bound by the decisions of the court upon matters respecting which that court is the final authority. It is not open to the Justices in answering questions submitted to them under the Constitution to attempt to overrule a decision made by the court in a cause between party and party or to speculate upon the correctness of such a decision. If such a decision is to be overruled, it can be only after argument in another cause between party and party, where the rights of all can be fully guarded. It cannot be overturned by an advisory opinion of the Justices given without the benefit of argument. Without intimating that there is ground to question our decisions, it is enough to say that we are bound by them.

We construe all of the questions as applying to the two bills presented therewith and answer them all in the negative.

Arthur P. Rugg.

William Caleb Loring.

Henry K. Braley.

Charles A. De Courcy.

John C. Crosby.

Edward P. Pierce.

James B. Carroll.