Little v. Smith

• Decision Date: 09 July 1927
• Docket Number: 27,845
• Citation: 257 P. 959,124 Kan. 237
• Parties: O. W. LITTLE et al., Appellants, v. WILLIAM A. SMITH, Attorney-general, et al., Appellees
• Court: Kansas Supreme Court

257 P. 959

124 Kan. 237

O. W. LITTLE et al., Appellants, v. WILLIAM A. SMITH, Attorney-general, et al., Appellees

No. 27,845

Supreme Court of Kansas

July 9, 1927

Decided July, 1927.

Appeal from Shawnee district court, division No. 2; GEORGE H WHITCOMB, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

CIGARETTES--Prohibiting Advertising in Newspapers--Interference With Interstate Commerce and Constitutional Guarantees. Section 18 of "An act relating to cigarettes and other forms of tobacco; levying a tax for the sale thereof; and repealing sections 21-2201, 21-2202, 21-2203, 21-2204 and 21-2205 of the Revised Statutes of Kansas for 1923" (Laws of 1927, ch. 171), which prohibits the advertising of cigarettes, or cigarette papers, in any newspaper or periodical published in Kansas, is an undue interference with interstate commerce, is unjustly discriminatory and is a denial of personal and property rights guaranteed by the federal constitution and is therefore unconstitutional and void.

Charles B. Griffith and Al F. Williams, both of Topeka, for the appellants.

William A. Smith, attorney-general, Ray H. Calihan, Leon W. Lundblade, assistant attorneys-general, Paul H. Heinz, county attorney, and Edward Rooney, assistant county attorney, for the appellees.

OPINION

JOHNSTON, C. J.:

This action is brought under the declaratory judgment statute to obtain an interpretation of "An act relating to cigarettes and other forms of tobacco; levying a tax for the sale thereof; and repealing sections 21-2201, 21-2202, 21-2203, 21-2204 and 21-2205 of the Revised Statutes of Kansas for 1923," and particularly a declaration and determination as to the validity of section 18 of that act. The district court held the statute to be valid and from its judgment the plaintiffs appeal.

It is conceded that there is an actual controversy between the parties and no jurisdictional or procedural questions are raised.

The act provides for the issuance of permits to make sales of cigarettes and cigarette papers upon the payment of prescribed license fees. It also imposes a tax on all packages and booklets of those articles upon which stamps are to be procured and placed, denoting the tax thereof; and the stamps are to be canceled prior to the sale, removal or consumption of the articles under such regulation as the treasurer of state shall prescribe. Penalties are prescribed for sales made without licenses, or without the payment of the tax or without having stamps duly attached and canceled. There is a provision making it unlawful to sell or give away to minors cigarettes, cigarette papers, cigars or tobacco, and it is also made unlawful for proprietors of any place of business to permit minors to frequent such places of business while in the act of using tobacco in any form, and in an amendment of the original act penalties are prescribed for violation of these provisions. (Laws 1927, ch. 172.) The provision relating to advertisements, the validity of which is challenged in this action, is section 18 of the act, and is as follows:

"SEC. 18. Cigarette advertisements. It shall be unlawful for any person, company or corporation to advertise cigarettes or cigarette papers, or any disguise or subterfuge of either of these, in any circular, newspaper or other periodical published, offered for sale or for free distribution within the state of Kansas. It shall also be unlawful for any person, company or corporation to advertise cigarettes or cigarette papers on any street sign, placard or billboard; or in any package of merchandise, store window, show case, or any other public place within the state of Kansas."

The plaintiffs, who are partners doing business under the firm name of The Alma Enterprise, bring this action in behalf of themselves and of the Kansas Press Association, engaged in publishing approximately 175 newspapers in Kansas, and in the printing of circulars and window cards, alleging that they have a large interstate circulation of their newspapers; that the manufacturers of cigarettes and cigarette papers outside of Kansas, engaged in shipping their products into Kansas in original packages, are selling them through advertising agencies located outside of this state, and that they had made offers to plaintiffs to publish in their papers advertisements of cigarettes and cigarette papers, but that they are forbidden to publish such advertisements under the section quoted, while newspapers in Kansas City, Springfield, Joplin and St. Joseph, Mo., Lincoln, Neb., Denver, Colo., and a large number of other publications and magazines having a large circulation in the state of Kansas, are publishing such advertisements, and are immune from punishment, while the Kansas newspapers are forbidden to publish them.

Plaintiffs contend that the restriction of section 18 transcends the constitutional limitations and infringes on the right of contract, on property rights, on the freedom of the press, places an unreasonable burden upon interstate commerce and offends the fourteenth amendment of the federal constitution.

The defendants insist that the constitutional objections advanced are groundless and unavailing, in that the statute is a proper exercise of the police power of the state, since it is designed and tends to promote the public health, morals, security, comfort and general welfare of the people of the state.

It must be conceded that it is competent and within the power of the legislature to regulate and even prohibit the sale of cigarettes within the state. In State v. Nossaman, 107 Kan. 715, 193 P. 347, it was decided that--

"The act (Laws 1917, ch. 166) prohibiting and prescribing penalties for bartering, selling or the giving away of cigarettes or cigarette papers and the keeping of them for barter, sale or free distribution is within the police power of the state and does not violate any of the principles of the fourteenth amendment to the constitution of the United States."

This view is upheld in Gundling v. Chicago, 177 U.S. 183, 44 L.Ed. 725, 20 S.Ct. 633, and in Austin v. Tennessee, 179 U.S. 343, 45 L.Ed. 224, 21 S.Ct. 132. To be valid, however, this conceded power must be exercised with due regard to constitutional limitations, and if an act is so framed as to violate the due process clause of the federal constitution, if it arbitrarily and unreasonably interferes with or destroys personal or property rights of a citizen, or unduly restricts or burdens interstate commerce, it cannot be upheld. It will be seen in the Gundling case cited that the supreme court, after upholding a city ordinance regulating the sale of cigarettes, stated that the power conferred on a city officer did not vest in him the arbitrary right to refuse or grant a license in violation of the fourteenth amendment of the constitution, either in regard to the clause requiring due process of law or in that requiring equal protection of the laws, and in holding that regulation of a trade or business was within the police power of the state, and within the authority of the state to determine, but the court added that their determinations would be upheld "unless the regulations are so utterly unreasonable and extravagant in their nature and purpose that the property and personal rights of the citizen are unnecessarily, and in a manner wholly arbitrary, interfered with or destroyed without due process of law," etc. (p. 188.)

In the Austin case, upholding the exercise of the police power, the court quoted from Yick Wo v. Hopkins, 118 U.S. 356, 373, 30 L.Ed. 220, 6 S.Ct. 1064, in which it was said:

"'Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.'" (p. 350.)

While the police power is wide in its scope and gives the legislature broad power to enact laws to promote the health morals, security and welfare of the people, and further, that a large discretion is vested in it to determine for itself what is deleterious to health, morals or is inimical to public welfare, it cannot under the guise of the police power enact unequal, unreasonable and oppressive legislat...