U.S. Supreme Court PACKER CORPORATION v. STATE OF UTAH, 285 U.S. 105 (1932)

[Page 285 U.S. 105, 108]

It by Liggett & Myers Tobacco Company, a foreign corporation. The defendant claimed that the statute violates several provisions of the Federal Constitution; the objections were overruled; and the defendant was convicted and sentenced. On the authority of its recent decision in State v. Packer Corporation, 297 P. 1013, the highest court of the state affirmed the judgment of the trial court. 2 P.(2d) 114. The case is here on appeal under section 237(a) of the Judicial Code as amended by the Act of February 13, 1925, c. 229, 43 Stat. 937, 28 USCA 344(a).

It is not denied that the state may, under the police power, regulate the business of selling tobacco products, compare Gundling v. Chicago, 177 U.S. 183, 188, 20 S. Ct. 633; Austin v. Tennessee, 179 U.S. 343, 348, 21 S. Ct. 132; and the advertising connected therewith, compare Rast v. Van Deman & Lewis Co., 240 U. S. R. A. 1917A, 421, Ann. Cas. 1917B, 455; Tanner R. A. 1917A, 421, Ann.Cas. 1917B, 455; Tanner v. Little, 240 U.S. 369, 384, 385 S., 36 S. Ct. 379. The claim is that because of its peculiar provisions the statute violates the Federal Constitution.

First. The contention mainly urged is that the statute violates the equal protection clause of the Fourteenth Amendment; that in discriminating between the display by appellant of tobacco advertisements upon billboards and the display by others of such advertisements in newspapers, magazines, or periodicals, it makes an arbitrary classification. The history of the legislation shows that the charge is unfounded. In Utah no one may sell cigarettes or cigarette papers without a license. [Footnote 1] Since 1890, it has been the persistent policy, first of the territory and then of the state, to prevent the use of tobacco by minors, and to discourage its use by adults. Giving tobacco to a minor, as well as selling it, is a misdemeanor. [Footnote 2]

[Page 285 U.S. 105, 109]

So is permitting a minor to frequent any place of business while in the act of using tobacco in any form. [Footnote 3] Mere possession of tobacco by the minor is made a crime. [Footnote 4] And smoking by any one in any inclosed public place ( except a public smoking room designated as such by a conspicuous sign at or near the enterance) is a misdemeanor. [Footnote 5] In 1921, the Legislature enacted a general prohibition of the sale or giving away of cigarettes or cigarette papers to any person, and of their advertisement in any form. Laws of Utah 1921, c. 145, 1, 2. After two years, however, the plan of absolute prohibition of sale was abandoned in favor of a license system. Laws of Utah 1923, c. 52, 1. But the provision against advertisements was retained, broadened to include tobacco in most other forms. In 1926, this statute was held void under the commerce clause, as applied to an advertisement of cigarettes manufactured in another state, inserted in a Utah newspaper which circulated in other states. State v. Salt Lake Tribune Publishing Co., 68 Utah, 187, 249 P. 474, 48 A. L. R. 553. Thereupon the Legislature, unwilling to abandon altogether its declared policy, amended the law by striking out the provision which prohibited advertising in newspapers and periodicals. The classification alleged to be arbitrary was made in order to comply with the requirement of the Federal Constitution as interpreted and applied by the highest court of the state. Action by a state taken to observe one prohibition of the Constitution does not entail the violation of another. J. E. Raley & Brothers v. Richardson, 264 U.S. 157, 160, 44 S. Ct. 256; Des Moines National Bank v. Fairweather, 263 U.S. 103, 116, 117 S., 44 S. Ct. 23. Compare Dolley

[Page 285 U.S. 105, 110]

v. Abilene Nat. Bank (C. C. A.) 179 F. 461, 463, 464, 32 L. R. A. (N. S.) 1065. It is a reasonable ground of classification that the state has power to legislate with respect to persons in certain situations and not with respect to those in a different one. [Footnote 6] Compare Williams v. Walsh, 222 U.S. 415, 420, 32 S. Ct. 137.

[Page 285 U.S. 105, 112]

defendant's contention would be to hold that the posters, because of their origin, were entitled to permanent immunity from the exercise of State regulatory power. The Federal Constitution does not so require. Compare Mutual Film Corporation v. Industrial Commission, 236 U.S. 230, 240, 241 S., 35 S. Ct. 387, Ann. Cas. 1916C, 296. So far as the articles advertised are concerned, the solicitation of the advertisements, it may be assumed, is directed toward intrastate sales. Compare Di Santo v. Pennsylvania, , 47 S. Ct. 267. Whatever may be the limitations upon the power of the state to regulate solicitation and advertisement incident to an exclusively interstate business, the commerce clause interposes no barrier to its effective control of advertising essentially local. Compare Jell-O Co. v. Landes (C. C. A.) 20 F.(2d) 120, 121; International Text-Book Co. v. District of Columbia, 35 App. D. C. 307, 311, 312.

Affirmed. Footnotes

Footnote 1 Laws of Utah, 1921, c. 145, 1, as amended, Laws of 1923, c. 52, 1, Laws of 1925, c. 68, Laws of 1930 (Sp. Sess.) c. 5, 1.

Footnote 2 Laws of Utah, 1890, c. 65, 1, as amended, Laws of 1911, c. 51, Laws of 1930, c. 5, 1(k).

Footnote 3 Laws of Utah, 1921, c. 145, 3. See Laws of 1923, c. 52, 1.

Footnote 4 Laws of Utah, 1903, c. 135, as amended, Laws of 1911, c. 51, Laws of 1913, c. 59.

Footnote 5 Laws of Utah, 1921, c. 145, 4, as amended, Laws of 1923, c. 52, 4.

Footnote 6 A contention was made in argument that the state had not in fact acted upon this basis of classification, since the statute makes no distinction as to newspapers and magazines circulating solely in intrastate commerce. But the record does not indicate the existence of any such publications. Moreover, the administrative difficulties of any effort to make the applicability of the statute depend upon the character of the circulation of a particular newspaper or magazine would be such as to justify the exclusion of the entire class.