Post Printing & Publishing Co. v. Brewster

• Decision Date: 08 December 1917
• Docket Number: 209-N.
• Citation: 246 F. 321
• Parties: POST PRINTING & PUBLISHING CO. v. BREWSTER, Attorney General of Kansas, et al.
• Court: U.S. District Court — District of Kansas

246 F. 321

POST PRINTING & PUBLISHING CO. v. BREWSTER, Attorney General of Kansas, et al.

No. 209-N.

United States District Court, D. Kansas, First Division.

December 8, 1917

Frank M. Lowe, of Chicago, Ill., for plaintiff.

S. M Brewster, S. N. Hawkes, and J. L. Hunt, all of Topeka, Kan for defendant.

POLLOCK District Judge.

Plaintiff a Missouri corporation, engaged in the business of printing and publishing a newspaper in the city of Kansas City, state of Missouri, brings this suit to restrain defendants, as officers of the state of Kansas, from enforcing against it its agents, servants, and employes, the provisions of section 2, chapter 166, Laws of Kansas 1917, which reads as follows:

'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 bill board, or in any package of merchandise, store window, show case, or any other public place within the state of Kansas.'

The allegations of the petition concerning the threatened acts of defendants sought by plaintiff to be restrained in this suit are, in substance and so far as here material, as follows: Plaintiff is the owner and publisher of said the Kansas City Post; is engaged in the business of receiving for hire advertisements to be published in its said newspaper. Among such advertisements it has for a long time had, and now has, contracts made with manufacturers of cigars and cigarettes, by which contracts this plaintiff is bound to publish in the various editions of its newspaper advertisements about and concerning cigars and cigarettes. That said contracts for such cigarette advertisements now in force amount to more than $40,000 per year. That plaintiff has in the state of Kansas many thousand subscribers for its daily newspaper, the Kansas City Post, and that said newspaper is delivered by it to its various subscribers and readers in the state of Kansas by means of the United States postal service, railway express companies, and by carriers, who, as agents of plaintiff, deliver it to the various homes of said newspaper subscribers in the cities and towns of Kansas, and that said newspaper is also sold by newsboys or agents of plaintiff on the streets of the cities in the state of Kansas and by news dealers who are agents of plaintiff, various hotels, drug stores, and other places of business in the cities of Kansas, and by newsboys on railway trains in the state of Kansas, who are agents of plaintiff; and your petitioner respectfully contends that under the law it has a right to do so. That defendant Hon. S. M. Brewster, as Attorney General of the state of Kansas, has advised, notified, and warned the plaintiff herein that he will, through the power vested by the laws of Kansas in his office as Attorney General, cause the arrest of all persons anywhere found in the state of Kansas selling or distributing said the Kansas City Post, if said newspaper so sold or distributed contains a cigarette advertisement, etc.

A restraining order was granted plaintiff on the filing of its petition, which defendants now move to vacate and to end this suit by a motion to dismiss for want of equity, which motion now stands submitted for decision on briefs filed and arguments presented.

If I read aright, the contentions of plaintiff, as made by and under its second amended petition, against which the motion of defendants to dismiss is leveled, are these: (1) That the legislative act quoted above was leveled by the law-making power, not against the printers and publishers of newspapers, but against those who sought to advertise the business of vending, giving away, or disposing of cigarettes through the medium of newspaper advertisements, or in other manner, in this state; hence, the threatened acts of defendants as alleged, if done against plaintiff and its business as a newspaper, should be enjoined. (2) If a contrary view of the true construction of the act be taken, the plaintiff is not and never has engaged in the business of printing or publishing a newspaper within this state; hence, in so far as such printing and publishing of its papers in a foreign state is concerned, it is quite beyond the jurisdiction and power of the state to prohibit or punish the advertisement of cigarettes therein. However, as it does, through the medium of interstate commerce channels, cause its printed newspapers to be carried into this state and to be here delivered to its customers through the medium of its agents and servants so engaged, the attempted and threatened enforcement of said act against such interstate commerce business by the officials of the state is an unwarranted interference with plaintiff's rights under the commerce clause of the national Constitution, and, so considered, the act is unconstitutional and void.

On the contrary, it is the insistence of defendants: (1) The act is directed as well against any person or corporation engaged in the business of printing, editing, or publishing a newspaper containing cigarette advertisements as it is against the business of any one engaged in selling, distributing, or otherwise disposing of cigarettes within the territorial boundaries of this state. (2) That the business of the plaintiff, as alleged in its petition, of carrying its publications into this state from the state of Missouri and here disposing of the same in the manner alleged, is not interstate commerce of such nature as to be beyond the power of the state to prohibit and punish, if said publications contain any advertisement of cigarettes, contrary to and in violation of said act.

Coming now to a consideration of the act itself, in order to determine therefrom the purpose and intent of the law-making power, it may be said: The title of the act is found to read as follows:

'An act to prohibit barter, sale, giving away, or advertisement of cigarettes or cigarette papers, or any disguise or subterfuge of either of these, and to prohibit the sale or giving away to minors of cigars, cigarettes, cigarette papers, tobacco or tobacco materials of any form, and repealing sections 3805, 3806, and 3807 of the General Statutes of Kansas of 1915.'

Section 1 of the act reads as follows:

'It shall be unlawful for any person, company or corporation to barter, sell or give away any cigarettes or cigarette papers, or any disguise or subterfuge of either of these, or to have any cigarettes or cigarette papers in or about any store or other place for barter, sale or free distribution. If, upon what seems to be reasonable evidence any person, company or corporation is suspected of having in his or its possession any cigarettes or cigarette papers intended to be offered for barter, sale or free distribution, then, upon the sworn complaint of any citizen of the state of Kansas, specifying fully as to the alleged facts in the case, any officer authorized to make arrests may search the premises of such person, company or corporation and may confiscate any cigarettes or cigarette papers so found. The possession of such cigarette materials shall be considered prima facie evidence of a direct violation of this act.'

From which it appears to have been the obvious legislative intent to prohibit absolutely and forever the barter, sale, gift, or other disposition of cigarettes in any form or manner whatsoever within this state. To accomplish this so-called beneficial result the law-making power thought it proper and necessary to prohibit and punish any one who within the state should by any writing, sign, or other means advertise the sale, gift, or other disposition of the nefarious article,...