Austin v. State

Decision Date22 December 1898
CourtTennessee Supreme Court

Appeal from circuit court, Monroe county; J. G. Parks, Judge.

W. B Austin was convicted of selling cigarettes, and he appeals. Affirmed.

Welcker & Parker and Harrison & Cutton, for appellant.

G. W Pickle, Atty. Gen., for the State.


W. B Austin prosecutes this appeal in error from the judgment of the circuit court of Monroe county, whereby he was sentenced to pay a fine of $50 and costs of suit, for unlawfully selling cigarettes. He admits the sale, but denies that it was unlawful. Austin, who was a citizen and merchant of Monroe county, Tenn., purchased from the American Tobacco Company, a New Jersey corporation, at its factory in Durham, N. C., a lot of cigarettes in packages of 10 cigarettes each, which it shipped thence, by express, to him at his place of business in this state; and there he sold one of these packages without breaking, to W. G. Brown, an adult citizen of the same county. The statute under which the conviction was had unconditionally prohibits all sales of cigarettes, whether manufactured in this state or elsewhere. It provides "that it shall be a misdemeanor for any person, firm, or corporation to sell, offer to sell, or to bring into the state for the purpose of selling, giving away, or otherwise disposing of, any cigarettes, cigarette paper, or substitute for the same; and a violation of any of the provisions of this act shall be a misdemeanor, punishable by a fine of not less than fifty dollars." Acts 1897, c. 30, § 1. Austin concedes that his sale to Brown was clearly within the prohibition of this act; yet he says it was lawful nevertheless. The substance of his contention is that his sale was of an imported, commercial article in the original package, and that the statutory prohibition, as applied to such a sale, is obnoxious to the commerce clause of the federal constitution, and therefore null and void. In considering this contention, we raise two vital inquiries,--whether or not cigarettes are legitimate articles of commerce, and whether or not the sale shown in this case was of an "original package," in the true commercial sense.

1. Are cigarettes legitimate articles of commerce? We think they are not, because wholly noxious and deleterious to health. Their use is always harmful, never beneficial. They possess no virtue, but are inherently bad, and bad only. They find no true commendation for merit or usefulness in any sphere. On the contrary, they are widely condemned as pernicious altogether. Beyond question, their every tendency is towards the impairment of physical health and mental vigor. There is no proof in the record as to the character of cigarettes; yet their character is so well and so generally known to be that stated above that the courts are authorized to take judicial cognizance of the fact. No particular proof is required in regard to those facts, which, by human observation and experience, have become well and generally known to be true ( Schollenberger v. Pennsylvania, 171 U.S. 1, 18 S.Ct. 757; 1 Greenl. Ev.§ 6; 1 Whart. Ev. § 282; 1 Jones, Ev. §§ 129, 134; Lanfear v. Mestier, 18 La. Ann. 497, 89 Am. Dec. 658, and note 693; State v. Goyette, 11 R.I. 592; Watson v. State, 55 Ala. 158); nor is it essential that they shall have been formally recorded in written history or science to entitle courts to take judicial notice of them. Boullemet v. State, 28 Ala. 83; 12 Am. & Eng. Enc. Law, 199. It is a part of the history of the organization of the volunteer army in the United States during the present year that large numbers of men, otherwise capable, had rendered themselves unfit for service by the use of cigarettes, and that, among the applicants who were addicted to the use of cigarettes, more were rejected by examining physicians on account of disabilities thus caused than for any other, and, perhaps, every other, reason. It is also a part of the unwritten history of the legislation in question that it was based upon and brought to passage by the firm conviction in the minds of legislators and of the public that cigarettes are wholly noxious and deleterious. The enactment was made upon this idea, and alone for the protection of the people of the state from an unmitigated evil. Such being the nature of cigarettes, they cannot be legitimate articles of commerce, and, consequently, are not within the provision of the federal constitution (article 1, § 8, cl. 3), in relation to the regulation by congress of commerce with foreign nations, and among the several states, and with the Indian tribes. Only those things which are in fact commodities in some true sense, and, as such, are proper things for importation and use, can be legitimate articles of commerce, and within the scope of the constitutional provision invoked by the defendant in this case. Regulation of traffic in things not suited for commerce was not by that provision delegated to congress.

Every state has the right, under its reserved police power, to prohibit the importation and sale of all articles inherently unworthy of commerce, and unfit for the use of its people. Indeed, an active duty rests upon the legislative branch of the state government to enact appropriate laws for the protection of the public against the hurtful influences of such articles; and, in the discharge of that important duty, the members of the legislature must be allowed to act in accordance with the dictates of their own best judgment. This does not mean, however, that the state legislature may override congressional legislation on the subject, or that the state has the paramount right to determine what is, and what is not, a legitimate article of interstate or international commerce. The reverse is true. Congress has the superior right in the determination of that question, and its decision, when made, is controlling. But if the question arises in the state in advance of congressional action, as in the present instance, the state legislature may and should act according to its own deliberate view of the matter; and its action, when taken, is and should be conclusive, until congress shall have given some adverse expression on the same subject. We are mindful of the rule that the silence of congress in relation to articles confessedly suited for commerce is to be taken as legally equivalent to its declaration that the transportation of those articles into the states shall be free and unrestricted. Mobile Co. v. Kimball, 102 U.S. 691; Robbins v. Taxing Dist., 120 U.S. 492, 7 S.Ct. 592; Leisy v. Hardin, 135 U.S. 100, 10 S.Ct. 681; State v. Scott, 98 Tenn. 260, 39 S.W. 1. But congressional nonaction upon the antecedent question as to whether or not other articles are suited for commerce is not tantamount to an affirmation by that body that they are so. Articles of the former class are already within the domain of congressional regulation; while those of the latter class are as yet beyond that domain and within control of the states, and, from the nature of the case, must remain so, unless and until affirmatively determined by higher authority to be worthy of commerce, and thereby transferred to the other class.

The right of a state to protect its people, in their comfort health, and safety, against the importation and sale of noncommercial articles, has long been recognized, and never questioned, by the supreme court of the United States. License Cases, 5 How. 504; Bowman v. Railroad Co., 125 U.S. 465, 8 S.Ct. 689, 1062; Railroad Co. v. Husen, 95 U.S. 465; Leisy v. Hardin, 135 U.S. 100, 10 S.Ct. 681; Plumley v. Com., 155 U.S. 461, 15 S.Ct. 154; Collins v. New Hampshire, 171 U.S. 30, 18 S.Ct. 768; Schollenberger v. Pennsylvania, 171 U.S. 1, 18 S.Ct. 757. In the License Cases, 5 How. 600, Mr. Justice Catron observed that what belongs to commerce is within the jurisdiction of the United States, and that what does not belong to commerce is within the jurisdiction of the state, and by the state may be excluded from introduction. The statute of Pennsylvania impeached in the Schollenberger Case, 171 U.S. 1, 18 S.Ct. 757, was adjudged a violation of the commerce clause of the federal constitution, because it prohibited the importation and sale of pure oleomargarine. In the course of his opinion in that case, Mr. Justice Peckham attached controlling importance to the fact that pure oleomargarine, as contradistinguished from that which was adulterated, was a wholesome article of food, and had been recognized by congress as a commodity suitable for commerce, and, in recognition of the state's right to exclude the adulterated article, said: "The bad article may be prohibited, but not the pure and healthy one." In Plumley's Case, 155 U.S. 467, 15 S.Ct. 154, it was said, in effect, by the court, speaking through Mr. Justice Harlan, that deceptive discoloration or adulteration of imported oleomargarine removed it from the domain of congressional regulation, and subjected it to unconditional exclusion by state law. The New Hampshire enactment involved in the Collins Case, 171 U.S. 30, 18 S.Ct. 768, provided for the exclusion of all oleomargarine not of a pink color. It was held to be involved, for the reason that it virtually excluded pure oleomargarine, which was never naturally pink in color, and which was a proper and well-recognized commercial commodity. The case of Leisy v. Hardin, 135 U.S. 100, 10 S.Ct. 681, is the one most urged upon our attention by counsel for Austin. That case, however, like all the others, recognized the right of the state, under its police power, to prevent the introduction of noncommercial articles among its people. Mr. Chief Justice Fuller distinctly places the court's decision upon the ground that the commodities whose...

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