State v. Winsor

• Decision Date: 24 September 1908
• Citation: 97 P. 446,50 Wash. 407
• Parties: STATE v. WINSOR.
• Court: Washington Supreme Court

97 P. 446

50 Wash. 407

STATE v. WINSOR.

Supreme Court of Washington

September 24, 1908

Appeal from Superior Court, Spokane County; E. H. Sullivan, Judge.

Demurrer to information against H. S. Winsor was sustained, and the proceeding was dismissed. The state appeals. Reversed and remanded.

Richard M. Barnhart, Donald F. Kizer, and George A. Lee, for the state.

Cullen & Dudley, for respondent.

FULLERTON J.

The Legislature of the state of Washington at its session in 1907 passed an act regulating and in certain cases prohibiting the traffic in cigarettes. The respondent was informed against by the prosecuting attorney of Spokane county for having violated the provisions of the act, and was brought before the superior court of that county to answer to the offense. On arraignment he demurred to the information on the ground that the act on which the information was founded was unconstitutional. The trial judge sustained this contention and entered a judgment dismissing the proceeding. The state appeals.

The act in question reads 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 substitutes for the same, and providing penalties for the violation thereof.

'Be it enacted by the Legislature of the state of Washington:

'Section 1. That it shall be unlawful for any person, by himself clerk, servant, employé 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; 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 ten dollars ($10) nor more than fifty dollars ($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, shall pay, upon conviction thereof, a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500), and the cost 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.

'Sec. 2. This act shall take effect September 1, 1907.'

Laws 1907, p. 293, c. 148.

The constitutionality of the act is assailed on the ground that its subject is not expressed in its title. Counsel argue that, while the act purports to contain both regulative and prohibitive provisions, it in fact contains prohibitive provisions only since the right of sale which it purports to exempt from the prohibitive provisions exists independent of state legislation, being matter of interstate commerce, which the state has no power either to prohibit or regulate, and that, the act being in effect prohibitive only, its title inasmuch as it indicates both regulative and prohibitive provisions, does not give fair notice of the contents of the body of the act, and is thus so far misleading and deceptive as to render the act void. But we cannot think the result contended for follows, even if we concede...