State v. Nossaman

• Decision Date: 06 November 1920
• Docket Number: 22,993
• Citation: 193 P. 347,107 Kan. 715
• Parties: THE STATE OF KANSAS, Appellee, v. EARL A. NOSSAMAN, Appellant
• Court: Kansas Supreme Court

193 P. 347

107 Kan. 715

THE STATE OF KANSAS, Appellee, v. EARL A. NOSSAMAN, Appellant

No. 22,993

Supreme Court of Kansas

November 6, 1920

Decided July, 1920

Appeal from Harper district court; GEORGE L. HAY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Statute Forbidding Sale of Cigarettes Constitutional--Within Police Power of State. 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.

2. SAME--Possession of Cigarettes as Evidence. The provision making the possession of cigarettes and cigarette papers prima facie evidence of the selling and keeping for sale of the prohibited articles is not a denial of due process of law.

3. SAME--Several Unlawful Sales in Evidence--State not Required to Elect. Held further, that under the evidence there was no error in refusing to require the county attorney to elect upon which sales made by the defendant he would rely for a conviction.

4. SAME--Verdict Supported by Evidence. The evidence is held to be sufficient to support the verdict of the jury.

E. C Wilcox, of Anthony, for the appellant.

Richard J. Hopkins, attorney-general, and Vernon Day, county attorney, for the appellee.

OPINION

JOHNSTON, C. J.:

The defendant appeals from a decision adjudging him to be guilty of violating certain provisions of chapter 166 of the Laws of 1917, prohibiting the barter, sale or giving away of cigarettes or cigarette papers and also the keeping and having them for barter, sale and free distribution.

The information charged the making of twelve separate sales to a number of persons, and in the thirteenth count he was charged with keeping cigarettes and cigarette papers for barter, sale and free distribution. The jury found him guilty of separate sales under seven of the counts and also guilty under the thirteenth count for the keeping of the prohibited articles, but found him not guilty under three of the counts charging sales.

The defendant contends that the act under which he was convicted denies to him the equal protection of the laws and deprives him of liberty and property without due process of law in violation of the fourteenth amendment of the constitution of the United States.

In substance the first section of the act makes it unlawful to barter, sell or give away cigarettes or cigarette papers and also to keep them in a store or other place for barter, sale or free distribution. It provides that upon proper complaint there may be a search for and a seizure and confiscation of such articles if found. It contains the added provision that the possession of the prohibited article shall be considered prima facie evidence of a violation of the act.

The second section declares it to be unlawful to advertise cigarettes or cigarette papers offered for sale in any newspaper, periodical or circular or upon any street, sign, placard, billboard, or in any package, store, window, show case or any other public place.

The third section makes it unlawful to sell or give away cigarettes or cigarette papers or tobacco to anyone under twenty-one years of age, and likewise makes it unlawful for the proprietor of any place of business to permit minors to frequent such place while in the act of using tobacco in any form.

The fourth section provides that a violation of the preceding sections shall be a misdemeanor punishable by a fine of not less than $ 25 nor more than $ 100 for each offense.

The defendant bases his claim of invalidity upon the ground that the act prohibits the sale of tobacco in one form and permits its sale in other forms and that the classification so made is arbitrary and unreasonable. For a number of years there has been a well-settled opinion that the use of cigarettes, especially by persons of immature years, was harmful, and the courts have recognized that they were deleterious in their effects. Their sale and use have been regulated and prohibited by legislative bodies, and these measures have been upheld as a proper exercise of the police power. An ordinance of the city of Chicago provided that only licensed persons of good character and reputation could sell cigarettes and that none could be sold within a prescribed distance of a schoolhouse. A license fee of considerable amount was required to be paid, and, besides, the licensee was required to give a bond that he would obey the laws. A person convicted of violating the ordinance challenged the validity of the regulation, insisting that the ordinance and judgment operated to deprive him of liberty and property, thereby violating the federal constitution. Among other claims it was urged that the singling out of one form of manufactured tobacco for regulation without applying the same regulation to other forms in which tobacco may be used was an invalid exercise of power. The court overruled the objection and held that the measure did not violate any principle of the federal constitution. In deciding the case it was said:

"It being well known that young persons of weak and immature minds are more liable to use tobacco in the form of cigarettes than in any other form, a legislative body may properly provide for the regulation and sale of that article in the form in which it is likely to be most deleterious and injurious, and may restrict the sales of that particular form of tobacco. Paragraph 66 before quoted expressly authorizes the adoption of ordinances necessary to police power, and paragraph 78 is an express authorization of the city council to make all regulations necessary or expedient for the promotion of health or the suppression of disease. Under these two provisions express authority is granted the municipality to pass all ordinances or requirements tending to promote the public health, morals, security, comfort and welfare of the community. Such legislation is included within the provision authorizing the enactment of police regulations. The most important of police powers is that of caring for the health of the community, and that is inherent in a municipality, and may be exercised whether expressly granted or not, because the preservation of the health of the public is indispensable to the existence of the municipal corporation." (Gundling v. City of Chicago, 176 Ill. 340, 348, 52 N.E. 44.)

The case was taken on appeal to the United States supreme court where the judgment was affirmed, that court holding that the regulation of the sale of cigarettes was a question for the state to determine for itself and was not a violation of any provision of the United States constitution. (Gundling v. Chicago, 177 U.S. 183, 44 L.Ed. 725, 20 S.Ct. 633).

A statute of Tennessee provided that the sale of cigarettes, cigarette papers or substitutes for the same or the bringing of these articles into the state for the purpose of selling or giving them away, was a misdemeanor punishable by a fine of $ 50. W. B. Austin, who purchased packages of cigarettes from a dealer in another state and sold a package to a customer in his place of business in Tennessee, was convicted. He contended that the act was beyond the power of the state legislature and violated the Federal constitution. In treating the question whether cigarettes as shipped in packages were articles of commerce, subject to state control and prohibition, the supreme court of Tennessee said:

"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 very tendency is toward 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...