State v. Lowry

• Decision Date: 26 April 1906
• Docket Number: 20,719,20,646
• Citation: 77 N.E. 728,166 Ind. 372
• Parties: The State v. Lowry. Lewis v. The State
• Court: Indiana Supreme Court

77 N.E. 728

166 Ind. 372

The State v. Lowry.

Lewis v. The State

Nos. 20,719, 20,646

Supreme Court of Indiana

April 26, 1906

No 20,719. From Criminal Court of Marion County (34,819); James M. Leathers, Special Judge. No. 20,646. From Madison Circuit Court; John F. McClure, Judge.

Prosecutions by the State of Indiana against William H. Lowry and John M Lewis. From judgments acquitting Lowry and convicting Lewis the State and Lewis, respectively, appeal. Not sustained.

Reversed.

Charles W. Miller, Attorney-General, C. C. Hadley, L. G. Rothschild and W. C. Geake, for the State.

Taylor, Woods & Willson, for appellee Lowry.

Leslie Kinnard, B. R. Call and Taylor, Woods & Willson, for appellant Lewis.

Gillett, C. J. Montgomery, J. concurs in result in No. 20,719 but dissents in No. 20,646.

OPINION

Gillett, C. J.

The defendants below, Lowry and Lewis, were respectively charged with violating an act of the General Assembly, approved February 28, 1905, known as the anti-cigarette law. Acts 1905, p. 82. Although the cases are wholly unrelated in their facts, the law questions involved are such that the appeals may advantageously be considered together.

In the first of said cases it appears that Lowry caused 1,000 cigarettes to be shipped to him, for his personal use, by a dealer in Louisville, Kentucky. The shipment was made by the Adams Express Company, a common carrier of goods for hire by express. The cigarettes were packed twenty in a box, each box had a United States revenue stamp thereon, and, in lots of twenty-five, these boxes were enclosed in packages or cartons, and the latter, in turn, were wrapped together in a strong paper and securely tied. This package was opened by Lowry upon its receipt, and from time to time, between May 8, 1906, and the institution of the prosecution, he smoked such cigarettes. It further appeared that Lowry, at the time in question, was forty years of age, in nowise engaged in the purchase, sale or distribution of cigarettes, and that the cigarettes he shipped into the State were not intended for sale, or to be given away, to any person or persons.

As to the prosecution against Lewis, it merely appears that at the time of his arrest he was smoking a cigarette, and that he had at that time upon his person a box containing five cigarettes. There is no contention that he was a dealer, that he had such cigarettes in his possession for the purpose of sale or gift, that he acquired them unlawfully, or that he was a minor. The case may therefore be assumed to have been that of a man smoking a cigarette, and having in his possession a few cigarettes intended for his own consumption.

The title and body of the enactment under which said prosecutions were had (Acts 1905, p. 82) are as follows: "An act to regulate and in certain cases to prohibit the manufacture, sale, keeping, keeping for sale, owning, or giving away of cigarettes, cigarette paper, cigarette wrappers and other substitute for the same, providing penalties for the violation thereof, and repealing all laws in conflict therewith. Section 1. Be it enacted by the General Assembly of the State of Indiana, That it shall be unlawful for any person, by himself, clerk, servant, employe or agent, directly or indirectly, upon any pretense or by any device, to manufacture, sell, exchange, barter, dispose of or give away, or keep for sale, any cigarettes, cigarette paper or cigarette wrappers, or any paper made or prepared for the purpose of being filled with tobacco for smoking; or keep or own, or be in any way concerned, engaged or employed in owning or keeping any such cigarettes, cigarette paper or wrappers, and any person for violation of the same shall be guilty of a misdemeanor, and upon conviction shall, for the first offense pay a fine of not less than $ 25 nor more than $ 50 and cost of prosecution, and stand committed to the county jail until such costs are paid; and for the second and each subsequent offense he shall pay, upon conviction thereof, a fine of not less than $ 100 nor more than $ 500 and the costs of prosecution, or be imprisoned in the county jail not to exceed six months: Provided, that the provisions hereof shall not apply to the sales of jobbers doing an interstate business with customers outside the State." § 2216 Burns 1905.

Taking up the Lowry appeal first, the question arises whether a keeping or owning of cigarettes, in an unopened, original package (as that term is used in the law), is in violation of the statute. This question must be determined for two reasons: (1) Because the lawfulness of Lowry's act up to that point is involved; (2) because a determination of that question in his favor would raise a presumption that the words "keep" and "own" were not used in the sense contended for by the Attorney-General. The question as to the lawfulness of interstate commerce in cigarettes was taken out of the pale of controversy by the decision in Austin v. Tennessee (1900), 179 U.S. 343, 21 S.Ct. 132, 45 L.Ed. 224. It was there said: "Whatever product has from time immemorial been recognized by custom or law as a fit subject for barter or sale, particularly if its manufacture has been made the subject of federal regulation and taxation, must, we think, be recognized as a legitimate article of commerce although it may to a certain extent be within the police power of the states. Of this class of cases is tobacco. From the first settlement of the colony of Virginia to the present day tobacco has been one of the most profitable and important products of agriculture and commerce, and while its effects may be injurious to some, its extensive use over practically the entire globe is a remarkable tribute to its popularity and value. We are clearly of opinion that it cannot be classed with diseased cattle or meats, decayed fruit, or other articles, the use of which is a menace to the health of the entire community. Congress, too, has recognized tobacco in its various forms as a legitimate article of commerce by requiring licenses to be taken for its manufacture and sale, imposing a revenue tax upon each package of cigarettes put upon the market, and by making express regulations for their manufacture and sale, their exportation and importation. Cigarettes are but one of the numerous manufactures of tobacco, and we cannot take judicial notice of the fact that it is more noxious in this form than in any other. Whatever might be our individual views as to its deleterious tendencies, we cannot hold that any article which congress recognizes in so many ways is not a legitimate article of commerce."

It was said in Lyng v. Michigan (1890), 135 U.S. 161, 166, 10 S.Ct. 725, 34 L.Ed. 150: "The power cannot be conceded to a state to exclude, directly or indirectly, the subjects of interstate commerce, or, by the imposition of burdens thereon, to regulate such commerce, without congressional permission. The same rule that applies to the sugar of Louisiana, the cotton of South Carolina, the wines of California, the hops of Washington, the tobacco of Maryland and Connecticut, or the products, natural or manufactured, of any state, applies to all commodities in which a right of traffic exists, recognized by the laws of congress, the decisions of courts and the usages of the commercial world. It devolves on congress to indicate such exceptions as in its judgment a wise discretion may demand under particular circumstances." It has been well said that commerce among the states is a unit, and in respect to that commerce this is one country, and we are one people.

Some of the statements of the court in Leisy v. Hardin (1890), 135 U.S. 100, 10 S.Ct. 681, 34 L.Ed. 128, wherein the right was recognized to ship intoxicating liquor into a prohibition state and to sell such liquor therein, in original packages, led to the enactment by congress of what is known as the Wilson act, wherein it is provided that all fermented, distilled or other intoxicating liquors transported into any state or territory, or remaining therein, for use, consumption, sale or storage, shall, upon arrival, be subject to the operation and effect of laws enacted by the state or territory in the exercise of its police powers to the same extent as if said liquors had been produced in such state or territory. 26 Stat., p. 313, c. 728. We refer to this enactment as explanatory of some of the cases which we shall hereafter consider.

The states are not prohibited from enacting reasonable laws under the police powers, relative to interstate commerce, provided that such laws are local in their character and only incidently affect such commerce, but as the regulation of the transportation of goods from one state into another is a matter which is national in its character, the silence of congress is equivalent to a declaration that such commerce shall be free. Brown v. Maryland (1827), 12 Wheat. *419, 6 L.Ed. 678; Leisy v. Hardin, supra; Western Union Tel. Co. v. James (1896), 162 U.S. 650, 16 S.Ct. 934, 40 L.Ed. 1105. These two classes of powers--the authority of the Nation over interstate commerce and the control of the state over persons and things within its borders--often clash, and in noway can this commerce be kept free from burdensome restrictions except by the enforcement of the national authority to the extent that is necessary to protect it. It was said by Mr. Justice Catron, in License Cases (1847), 5 How. 504, 600, 12 L.Ed. 256, relative to the effect of according to the states a power to regulate such commerce while within their borders: "Upon this theory, the power to regulate commerce, instead of being paramount over the subject, would become subordinate to the state police power; for it is obvious that the power to determine the articles which may...