(concurring). This is a habeas corpus case. The defendant has been arrested and held for a violation of the recent Trading Stamp Act (Laws 1917, chap. 238). It is a petty kindergarten case which should have been heard and decided in two hours, and yet by the unwise indulgence of the court, six distinguished counselors wore permitted to talk the case for two whole days.
The act declared it a misdemeanor for any person or corporation (without a license) to use or furnish any person for use in the sale of .any merchandise, any stamps, coupons, certificates, or cards which shall •entitle the purchaser to procure from any person any merchandise free of charge or for less than the retail market price.
The complaint charges that contrary to the statute defendant did wilfully and unlawfully furnish to one Victor J. Baldwin, a merchant, for use by him and as evidence of a cash discount to customers making cash payments for merchandise, certain green stamps, coupons, or vouchors commonly known as “trading stamps” redeemable in cash by Sperry, Hutchinson, & Company at a purported face value of 1 mill each. The stamps are redeemable in cash, and not otherwise by Sperry, Hutchinson, & Company.
From the complaint it appears the face value of a trading stamp is *3851 mill, and the stamps are sold to the dealer in lots of not less than five pads. Each pad contains 5,000 stamps and the dealer pays for the same $15, which is 3 mills for each stamp. The stamps are given out by the local dealer as a discount to cash purchasers, and are redeemed in cash only at the face value of 1 mill for each stamp or 1 cent for ten stamps. But when stamps are presented in trading stamp books and in lots of 1,000, there is paid for the lot $2 in cash, or 2 mills for each stamp. Eor a book of stamps containing five pads the dealer pays $75, and at the very most the cash redemption is $50. Of course many of the stamps are lost and never presented for redemption, so we allow the stamp dealer a clear profit of 50 per cent.
What fools we mortals be! Of course the business is deceptive and pernicious, but it is not within the prohibition of our statute because the redemption is in cash, and not in merchandise. In Wisconsin a similar act has recently been well considered and the act was sustained by good reason and authority. Trading Stamp Cases, 166 Wis. 613, 166 N. W. 55, Ann. Cas. 1918D, 707. There the act prohibited the use of trading stamps redeemable in any goods, wares, merchandise, or anything of value, but our statute is different. It does not prohibit the use of trading stamps redeemable in cash or “in anything of value.”
In Wisconsin there was printed on the back of each stamp the following:
Subject to the notice in our green trading stamp book this stamp will be redeemed by us in merchandise or cash. It is our property, and not transferable except as stated in such notice.
[Signed] Sperry & Hutchinson Company.
On the trading stamps in question there is printed in microscopic letters, the following:
Subject to the notice in our green stamp book this stamp will be redeemed by us in cash. It is our property and not transferable except as stated in such notice.
[Signed] Sperry & Hutchinson Company.
You will note the word “merchandise” is omitted from our stamps, and it is not made an offense to use trading stamps redeemable in cash. *386Manifestly the statute forbids only the sale of trading stamps which are redeemable in merchandise, and hence, the complaint does not state a cause of action, and for that reason the defendant must be discharged. The whole argument has turned on the constitutional validity of the act, but that becomes only a moot question, as the complaint does not charge a sale of stamps redeemable in merchandise. Defendant must be discharged.