State v. Salt Lake Tribune Pub. Co.

• Decision Date: 17 September 1926
• Docket Number: 4389
• Citation: 68 Utah 187,249 P. 474
• Court: Utah Supreme Court
• Parties: STATE v. SALT LAKE TRIBUNE PUB. CO

249 P. 474

68 Utah 187

STATE v. SALT LAKE TRIBUNE PUB. CO

No. 4389

Supreme Court of Utah

September 17, 1926

Appeal from District Court, Third District, Salt Lake County; W. S Marks, Judge.

The Salt Lake Tribune Publishing Company was convicted of violating Laws 1921, c. 145, § 2, as amended by Laws 1923, c. 52, and it appeals.

Reversed, and defendant discharged.

Dey Hoppaugh & Mark and Marioneau & Hogan, all of Salt Lake City for appellant.

Harvey H. Cluff, Atty Gen., and L. A. Miner, Asst. Atty. Gen., for the State.

APPELLANT'S POINTS

The statute here involved is unconstitutional and void in this;-- that it creates an unreasonable burden upon Interstate Commerce, in violation of Article 1, Section 8, Chapter 3, of the Constitution of the United States. Post Printing & Publishing Company v. Brewster, 246 F. 321; Wolf Packing Company v. Industrial Court, 262 U.S. 522.

The advertisement contracted for and purchased by the American Tobacco Company is no more nor less than the transmission of information concerning its wares. It is in and of itself commerce. Commerce is not merely traffic in concrete articles of merchandise,-- the sale of soap,--the purchase of hardware. Commerce includes the transmission of information and communication in its broadest sense. Telegrams, telephone messages, letters, circulars, magazines, newspapers,--all of these are but mediums for conveying information, and constitute commerce within its recognized legal significance. Commerce is intercourse in its broadest sense. Post Printing & Publishing Company v. Brewster, 246 F. 321; Western U. Telegraph Company v. Pendleton, 122 U.S. 347; 7 S.Ct. 1126; 30 L.Ed. 1187; International T. Company v. Pigg, 217 U.S. 91; 30 S.Ct. 481; 54 L.Ed. 678; 27 L. R. A. (N. S.) 493; 18 Ann. Cas. 1103; Butler Bros. Shoe Company v. U.S. Rubber Company, 156 F. 1; 84 C.C.A. 167; Preston v. Finley (C. C.) 72 F. 850; Welton v. State of Missouri, 91 U.S. 280; 23 L.Ed. 347; County of Mobile v. Kimball, 102 U.S. 702; 26 L.Ed. 238; McCall v. California, 136 U.S. 104; 10 S.Ct. 881; 34 L.Ed. 391; International Text Book Company v. Gillespie, 129 S.W. 923; International Text Book Company v. Peterson, 113 N.W. 730.

The buying of a product within a state for transmission to another state constitutes interstate commerce. Lemke v. Farmers' Grain Company, 258 U.S. 50; Shafer v. Farmers' Grain Company, 268 U.S. 189; U. S. v. E. C. Knight Company,, 156 U.S. 1.

Congress alone has the right to regulate the sale of cigarettes in Interstate Commerce. The cases which deal with the right of the state to forbid advertising of intoxicating liquor before and after the "Wilson Act" are directly in point. State of Maine v. Bass, 20 L. R. A. (N. S.) 495; 71 A. 894; Delamater v. South Dakota, 205 U.S. 93.

Liberty of the press and the privilege of free speech are common rights. Neither is absolute, but both imply liberty of expression, except where harm may follow. Cooley on Constitutional Limitations (5th Ed.) 521.

The statute is an arbitrary and unreasonable infringement of personal property rights, and an unwarranted oppressive interference with the liberty of contract, and is in violation of the fourteenth Amendment to the Constitution of the United States.

To support the Act upon any claimed exercise of police power of the state, there must be some direct relation between the object sought to be accomplished and the legislation enacted. Lochner v. New York, 198 U.S. 45; Kansas City Gas Company v. Kansas City, 198 F. 500; Hume v. Laurel Hill Cemetery Company, 142 F. 552; People v. Weiner, L. R. A. 1916C, 775; Goldman v. Crowther, 128 A. 50; Ex Parte Hall (Cal.), 195 P. 975; Krumgold v. Mayor Jersey City, 130 A. 635, 636.

In buying advertising space and in selling its cigarettes, the business of the American Tobacco Company was solely and undeniably interstate commerce Regardless, therefore, of any intrastate business which might be imagined to be carried on by others, as to the contract and transactions between the Salt Lake Tribune and the American Tobacco Company here involved the law may not prohibit the carrying out of such contracts, and the law is unconstitutional. Star Chronicle Pub. Co. v. United Press Ass'n, 204 F. 217; City of Pueblo v. Lukins, 164 P. 1164; Norfolk, Etc., R. R. Co. v. Pennsylvania, 136 U.S. 114; 10 S.Ct. 958; 34 L.Ed. 394; State v. Eckenrode, 127 N.W. 56.

So far as interstate commerce is concerned the sale of cigarettes in the original package is in every state a lawful business, and until Congress has passed an act giving to the state the right to prohibit or restrict,--(such as the Wilson Act),--the seller has the right to sell, and by the same token he has the right to offer his wares. State of Maine v. Bass, 20 L. R. A. (N. S.) 495; Delamater v. South Dakota, 205 U.S. 93.

RESPONDENT'S POINTS

The statute in this case is but a part of the legislation of this state upon the subject matter of the sale of cigarettes and is to be construed so far as its language will fairly and reasonably allow in harmony with what appears from that legislation to be the legislative policy and purpose.

The prohibition of the sale or offering for sale of cigarettes and the advertising of cigarettes and cigarette papers as contained in the statute hereinbefore referred to is only a means to an end, the end sought for is a prevention, or at least the diminution of smoking of cigarettes by the people of this state. The legislation upon the subject, including the statute in question, should be construed to further that end. State v. Nossaman, 107 Kan. 715; Gundling v. City of Chicago, 176 Ill. 340, 348; Gundling v. Chicago, 177 U.S. 183; Austin v. State, 101 Tenn. 563, 566; Austin v. Tennessee, 179 U.S. 343, 348; Brown v. Maryland, 12 Wheaton 436; Sinking Fund Cases, 99 U.S. 718. See Cooley Con. Lim. 6th Ed. 710.

Whenever it is necessary for the protection and preservation of health, morals and property of the citizens of the state, distinguishing between what are public laws and private laws, the provisions of the Federal Constitution forbidding a state to pass a law impairing the obligation of a contract cannot be invoked to uphold a law or right which are detrimental to the health, to the morality, to the safety, to the comfort or to the well-being of such citizens. See Woolen v. Thorton, Vol. 1, The Law of Intoxicating Liquors, p. 99.

See Schollenberger v. Pennsylvania, 171 U.S. 16; Powell v. Pennsylvania, 176 U.S. 678.

FRICK, J. GIDEON, C. J., and THURMAN and CHERRY, JJ., STRAUP, J., concurring.

OPINION

FRICK, J.

The defendant was convicted of having violated the provisions of section 2, c. 145, Laws Utah 1921, as amended by chapter 52, Laws Utah 1923. In view of the importance of the case, we here insert the section in full. It reads:

"It shall be a misdemeanor for any person, company or corporation to write, print, publish, or circulate in any newspaper, magazine, periodical or circular, written, printed or published within the state of Utah, or any street sign, placard, or billboard, street car, package of merchandise other than the merchandise licensed in this act, or any other place of display, any advertisement of cigarette papers, cigars, chewing tobacco or smoking tobacco or any disguise or substitute of either of these except that a dealer in tobacco and cigars may have a sign on the front of his place of business stating that he is dealing in such articles, and excepting further that cigars, chewing tobacco and smoking tobacco may be advertised in any newspaper published within the state of Utah, provided, however, that nothing herein shall be so construed as to permit advertising of cigarettes in any manner.

"Nor shall any cigarettes or cigarette papers, or any advertisement thereof, be displayed in any store window, in the state of Utah, provided however, that nothing in this section contained shall be construed so as to prohibit the display of tobacco and the advertisements thereof other than cigarettes and the advertisements thereof, in store windows."

The advertisement published by the defendant, and which the district court found constituted a violation of said section 2, reads as follows:

"Lucky Strike is the only cigarette out of over 200 brands with a definite and distinctive reason for its unique flavor. That's BECAUSE IT'S TOASTED.

"Toasting is a costly process--but it brings out the hidden flavors of the world's finest tobaccos. A final refinement that adds to your pleasure.

"There are countless cigarettes on the market--we've counted over 200 brands. Yet only one offers that rare toasted flavor. There's only one Lucky Strike--only one with such a distinctive charm. Because IT'S TOASTED--a reason millions can't resist."

In addition to other jurisdictional facts, the following agreed statement of facts was submitted to the district court, to wit:

"It is hereby stipulated and agreed between the state of Utah and the Salt Lake Tribune Publishing Company that, as part of the record in the above-entitled cause, the following facts may be treated as part of said record as though incorporated in the complaint herein, and that the cause may be submitted on demurrer with the following facts conceded, as though the complaint were amended and such facts were included in the complaint, and that in the trial, the ruling of the court upon the demurrer, and in the judgment entered, the facts hereinafter stated may be assumed and are conceded and treated as though the complaint formally set forth said facts, viz.:

"(1) That at the time stated in the complaint herein and for a long time prior thereto the Salt Lake Tribune Publishing Company was and it still is a corporation organized under the Laws of the state of Utah, and...