State v. Olson

• Decision Date: 29 November 1913
• Docket Number: 81912
• Court: North Dakota Supreme Court

144 N.W. 661

26 N.D. 304

STATE OF NORTH DAKOTA v. C. J. OLSON

No. 81912

Supreme Court of North Dakota

November 29, 1913

Appeal from the District Court of Stark County, Crawford, J.

Defendant was convicted of violating the provisions of chapter 271 of the Laws of 1913, relating to the sale of snuff, and appeals.

Affirmed.

Engerud Holt, & Frame, for appellant.

The provisions of § 61 of the North Dakota Constitution are mandatory, and an act of the legislature is valid only to the extent that it is confined to the scope of its title. Divet v. Richland County, 8 N.D. 65, 76 N.W. 993; Richard v. Stark County, 8 N.D. 392, 79 N.W. 863; Folsom v. Kilbourne, 5 N.D. 405, 67 N.W. 291; Northwestern Mfg. Co. v. Chambers, 58 Mich. 381, 55 Am. Rep. 693, 25 N.W. 372; Fidelity Ins. Trust & S.D. Co v. Shenandoah Valley R. Co. 86 Va. 1, 19 Am. St. Rep 858, 9 S.E. 759; Lacey v. Palmer, 93 Va. 163, 31 L.R.A. 822 57 Am. St. Rep. 795, 24 S.E. 930.

The use of the word "substitute" (for snuff) in the title to the act is too vague and indefinite for application or enforcement. It means no more than, "and so forth," and is not sufficiently and specifically related to the subject to render its meaning, and make its application, clear. Lacey v. Palmer, supra; State v. Arnold, 140 Ind. 628, 38 N.E. 820; Glenn v. Lynn, 89 Ala. 608, 7 So. 924; Fishkill v. Fishkill & B. Pl. Road Co. 22 Barb. 634; Ryerson v. Utley, 16 Mich. 269; St. Louis v. Tiefel, 42 Mo. 578; Johnston v. Spicer, 107 N.Y. 185, 13 N.E. 753; 26 Am. & Eng. Enc. Law, 2d ed. 656; Bishop, Statutory Crimes, §§ 3, 41; Hilburn v. St. Paul, M. & M. R. Co. 23 Mont. 241, 58 P. 551, 811; State ex rel. Wyatt v. Ashbrook, 154 Mo. 375, 48 L.R.A. 265, 77 Am. St. Rep. 765, 55 S.W. 627; State v. Excelsior Springs Light, Power, Heat & Water Co. 212 Mo. 101, 126 Am. St. Rep. 563, 110 S.W. 1079.

The statements of the witnesses as to what snuff is are in accord with the dictionaries and word authorities. Webster's Dict.; Century Dict.; Standard Dict.; 14 Enc. American; 26 Enc. Britannica, 11th ed. 1040; Werner, Tobacco, pp. 68, 69.

These various articles mentioned in the statute are made the same way, of the same substance, used for the same purpose, and with like effect. Therefore the exclusion of "Right Cut" is an unwarranted discrimination. Edmunds v. Herbrandson, 2 N.D. 271, 14 L.R.A. 725, 50 N.W. 970; State ex rel. Richards v. Hammer, 42 N.J.L. 439; Re Connolly, 17 N.D. 546, 117 N.W. 946; Plummer v. Borsheim, 8 N.D. 565, 80 N.W. 690; Vermont Loan & T. Co. v. Whithed, 2 N.D. 82, 49 N.W. 318; Gulf, C. & S. F. R. Co. v. Ellis, 165 U.S. 154, 41 L.Ed. 667, 17 S.Ct. 255; Yick Wo v. Hopkins, 118 U.S. 356, 30 L.Ed. 220, 6 S.Ct. 1064.

The act is unconstitutional as denying the equal protection of the law, and as class legislation. Connolly v. Union Sewer Pipe Co. 184 U.S. 556, 46 L.Ed. 688, 22 S.Ct. 431; State v. Santee, 111 Iowa 1, 53 L.R.A. 763, 82 Am. St. Rep. 489, 82 N.W. 445; Janesville v. Carpenter, 77 Wis. 288, 8 L.R.A. 808, 20 Am. St. Rep. 123, 46 N.W. 128; State v. Hinman, 65 N.H. 103, 23 Am. St. Rep. 22, 18 A. 194.

No arbitrary distinction between different kinds or classes of business can be sustained, the condition being otherwise similar. State ex rel. McCue v. Ramsay County, 48 Minn. 236, 31 Am. St. Rep. 651, 51 N.W. 112; Beleal v. Northern P. R. Co. 15 N.D. 318, 108 N.W. 33, 20 Am. Neg. Rep. 453; State ex rel. Mitchell v. Mayo, 15 N.D. 327, 108 N.W. 36; Re Connolly, 17 N.D. 546, 117 N.W. 946; State v. Mitchell, 97 Me. 66, 94 Am. St. Rep. 481, 53 A. 887; State v. Cudahy Packing Co. 33 Mont. 179, 114 Am. St. Rep. 804, 82 P. 833, 8 Ann. Cas. 717; Chicago, M. & St. P. R. Co. v. Westby, 47 L.R.A. (N.S.) 97, 102 C. C. A. 65, 178 F. 619; Connolly v. Union Sewer Pipe Co. 184 U.S. 540, 46 L.Ed. 679, 22 S.Ct. 431; Spraigue v. Thompson, 118 U.S. 90, 30 L.Ed. 115, 6 S.Ct. 988; United States v. Reese, 92 U.S. 214, 23 L.Ed. 563; Pollock v. Farmers' Loan & T. Co. 158 U.S. 601, 39 L.Ed. 1108, 15 S.Ct. 912.

J. P. Cain, State's Attorney, Andrew Miller, Attorney General, and Alfred Zuger and John Carmody, Assistant Attorneys General, for the State.

The numerous pure food and health laws passed by the legislatures of other states have been universally sustained by the courts. Austin v. State, 101 Tenn. 563, 50 L.R.A. 478, 70 Am. St. Rep. 703, 48 S.W. 305, 179 U.S. 343, 45 L.Ed. 224, 21 S.Ct. 132.

The prohibition law of this state against the sale of intoxicating liquors, or "substitutes" therefor, has been sustained. State v. Fargo Bottling Works, 19 N.D. 396, 26 L.R.A.(N.S.) 872, 124 N.W. 387; Pennell v. State, 141 Wis. 35, 123 N.W. 115; Sawyer v. Botti, 147 Iowa 453, 27 L.R.A.(N.S.) 1007, 124 N.W. 787.

The act in question is no broader than is its title, and violates no provision of our Constitution. State ex rel. Kol v. North Dakota Children's Home Soc. 10 N.D. 493, 88 N.W. 273.

OPINION

Statement

BRUCE J.

The defendant appeals from a judgment of the district court of Stark county, finding him guilty of violating chapter 271 of the Laws of 1913, which is familiarly known as the "anti snuff act." The statute under which the defendant was prosecuted and convicted reads in part as follows: "An Act to Prohibit the Importation, Manufacture, Distribution, Transportation, or Sale of Snuff, or Any Substitute Therefor, and Providing a Penalty Therefor, and to Repeal Chapter 277 of the Session Laws of North Dakota of 1911. Be it enacted by the legislative assembly of the state of North Dakota: Sec. 1. (Sale of snuff prohibited.) It shall be unlawful for any person, firm, or corporation to import, manufacture, distribute, or to give away any snuff or any substitute therefor, under whatever name called, and as defined in this act. Sec. 2. (Snuff defined.) For the purpose of this act, snuff is defined as any tobacco that has been fermented or dried or flavored or pulverized or cut or scented or otherwise treated, or any substitute therefor or imitation thereof, intended to be taken by the mouth or nose; Provided, however, that ordinary plug, fine cut, or long cut chewing tobacco, as now commonly known to the trade of this state, shall not be included in such definition." The specific offense charged in the information was that the defendant sold "Four 1-oz. packages or boxes labeled 'Right Cut Chewing Tobacco,' and containing, as said Olson then and there knew, tobacco that had been fermented, flavored, pulverized, cut, scented, or otherwise treated, and intended to be taken by the nose or mouth, said tobacco so prepared and so sold as aforesaid being then and there snuff, and intended to be used as snuff, the same not being ordinary plug, fine cut, or long cut chewing tobacco, as commonly known to the trade of this state."

The points on which a reversal is sought are summarized as follows:

(1) The act as a whole is unconstitutional as unwarranted discrimination.

(2) The act, when properly construed, applies to snuff, and snuff only, and does not apply to substitutes for snuff.

(3) "Right Cut" is not a snuff, or a substitute for a snuff.

(4) To exclude "Right Cut" from the markets of North Dakota, while permitting the sale of other chewing tobaccos, would be a denial of the equal protection of the law, and would therefore be unconstitutional.

(5) If the act be construed without reference to the title, and free rein given to the language of the definition, then we have a case of class legislation, which can be cured only by avoiding the act as a whole.

One witness, a merchant, testifies that he has handled snuff until January or February, 1913; that the acceptation and meaning of the word "snuff" as used in his trade is a chewing tobacco in little round boxes; that they would take a pinch of it and chew it, put in their mouth, sometimes rub it in their gums; that it requires no mastication, and that other tobaccos require some chewing, as he understands it that he handled, previous to July 1st, 1913, a large amount of Copenhagen snuff; that he had customers show him what they said was Right Cut chewing tobacco, that looked like Copenhagen, and ask him to get it for them; that they wanted him to get it in the place of the snuff that he had been selling them, Copenhagen; said that they could use it in place of snuff; that his manager ordered some Right Cut; that he was familiar with Copenhagen; that his familiarity with snuff and tobacco would lead him to think that Right Cut was a good substitute for Copenhagen; that when he used the word "snuff" he meant Copenhagen as sold in these little round boxes, dark heavy snuff used for chewing; that he didn't mean nasal snuff; that he wasn't an expert, and testified from his general knowledge as a merchant in handling tobacco for some fifteen years; that several of his customers got Right Cut chewing tobacco right there in town; that he didn't recollect whether they ordered a second time from him; that the ones who bothered him the most were the men working on his building; that he was putting up a building in addition to the store, and they were snuff users, and he guessed they ran out of snuff; his brother said he ordered it for them; that it would seem that a user of snuff could get along with Lorillard's Dark Shorts, that he couldn't tell whether it could be substituted for snuff; that it smelled as though it might be used as a substitute for snuff; that it didn't appear to be as fine; it don't seem powdered as Right Cut; that his reason for thinking that Right Cut could be used as a substitute for snuff was what his customers told him; that about a dozen customers told him that, a dozen out of about four hundred; that they were men that he was well acquainted with; that he thinks the rest of the snuff users went without snuff, took other forms...