A statute of Utah forbids the advertising of cigarettes and
other tobacco products on billboards, street car signs, and
placards, but does not apply to advertising in newspapers and
periodicals, this exemption having been introduced to avoid
conflict with the commerce clause of the Federal Constitution as
construed by the state's highest court. A billboard company was
convicted for displaying a poster advertising a brand of
cigarettes. Both poster and cigarettes were manufactured outside of
the state and shipped into it by a foreign corporation, and the
advertising was done under contract with an agency in another
state. It was conceded that the regulation of the local sale and
advertising of tobacco products was within the police power of the
state.
Held:
1. The amendment exempting advertising in newspapers and
periodicals to avoid conflict with the commerce clause, did not
produce a discrimination violative of the equal protection clause
of the Fourteenth Amendment. P.
285 U. S.
108.
2. 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. P.
285 U. S.
110.
3. The discrimination between billboard and newspaper
advertising was not an arbitrary classification. The legislature
may recognize degrees of evil, and adapt its legislation
accordingly.
Id.
Page 285 U. S. 106
4. In making it illegal to carry out the contract under which
the advertising was being done, the statute does not violate the
due process clause of the Fourteenth Amendment, since the subject
of the legislation was within the police power of the state. P.
285 U. S.
111.
5. In preventing the display, for intrastate advertising, of
posters shipped in from another state, the statute does not impose
an unreasonable restraint upon interstate commerce.
Id.
78 Utah 177, 2 P.2d 114, affirmed.
Appeal from a judgment affirming a conviction for displaying a
billboard poster advertising cigarettes.
Page 285 U. S. 107
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
Section 2, of chapter 145, Laws of Utah 1921, as amended by
chapter 52, § 2, Laws of 1923, and c. 92, Laws of 1929,
provides:
"It shall be a misdemeanor for any person, company, or
corporation to display on any billboard, street car sign, street
car, placard, or on any other object or place of display, any
advertisement of cigarettes, cigarette papers, cigars, chewing
tobacco, or smoking tobacco, or any disguise or substitute of
either, except that a dealer in cigarettes, cigarette papers,
tobacco, or cigars or their substitutes, may have a sign on the
front of his place of business stating that he is a dealer in such
articles, provided that nothing herein shall be construed to
prohibit the advertising of cigarettes, cigarette papers, chewing
tobacco, smoking tobacco, or any disguise or substitute of either
in any newspaper, magazine, or periodical printed or circulating in
the State of Utah."
The Packer Corporation, a Delaware corporation engaged in
billboard advertising and authorized to do business in Utah, was
prosecuted under this statute for displaying a large poster
advertising Chesterfield cigarettes on a billboard owned by it and
located in Salt Lake City. The poster was displayed pursuant to a
general contract for advertising Chesterfield cigarettes, made by
the defendant with an advertising agency in the State of Ohio. Both
the poster and the cigarettes advertised were manufactured without
the State of Utah and were shipped into
Page 285 U. S. 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 § 237(a) of the Judicial Code as amended by
the Act of February 13, 1925, c. 229, 43 Stat. 937.
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,
177 U. S. 188;
Austin v. Tennessee, 179 U. S. 343,
179 U. S. 348,
and the advertising connected therewith,
compare Rast v. Van
Deman & Lewis Co., 240 U. S. 342,
240 U. S.
364-365;
Tanner v. Little, 240 U.
S. 369,
240 U. S.
384-385. 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. 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 anyone in any inclosed public place (except a public
smoking room designated as such by a conspicuous sign at or near
the entrance) 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. 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 &
Bros. v. Richardson, 264 U. S. 157,
264 U. S. 160;
Des Moines National Bank v. Fairweather, 263 U.
S. 103,
263 U. S.
116-117.
Compare Dolley
Page 285 U. S. 110
v. Abilene Nat. Bank, 179 F. 461, 463, 464. 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,
222 U. S.
420.
Moreover, as the state court has shown, there is a difference
which justifies the classification between display advertising and
that in periodicals or newspapers:
"Billboards, streetcar signs, and placards and such are in a
class by themselves. They are wholly intrastate, and the
restrictions apply without discrimination to all in the same class.
Advertisements of this sort are constantly before the eyes of
observers on the streets and in streetcars to be seen without the
exercise of choice or volition on their part. Other forms of
advertising are ordinarily seen as a matter of choice on the part
of the observer. The young people as well as the adults have the
message of the billboard thrust upon them by all the arts and
devices that skill can produce. In the case of newspapers and
magazines, there must be some seeking by the one who is to see and
read the advertisement. The radio can be turned off, but not so the
billboard or streetcar placard. These distinctions clearly place
this kind of advertisement in a position to be classified so that
regulations or prohibitions may be imposed upon all within the
class. This is impossible with respect to newspapers or
magazines."
297 P. 1013, 1019. The legislature may recognize degrees of evil
and adapt its legislation accordingly.
Page 285 U. S. 111
Miller v. Wilson, 236 U. S. 373,
236 U. S. 384;
Truax v. Raich, 239 U. S. 33,
239 U. S.
43.
Second. The defendant contends that to make it illegal
to carry out the contract under which the advertisement was
displayed takes its property without due process of law because it
arbitrarily curtails liberty of contract. The contention is without
merit. The law deals confessedly with a subject within the scope of
the police power. No facts are brought to our attention which
establish either that the evil aimed at does not exist or that the
statutory remedy is inappropriate.
O'Gorman & Young v.
Hartford Fire Insurance Co., 282 U. S. 251,
282 U. S. 257;
Hardware Dealers Mutual Fire Insurance Co. v. Glidden Co.,
284 U. S. 151.
Third. The defendant contends also that the statute
imposes an unreasonable restraint upon interstate commerce because
it prevents the display on billboards of posters shipped from
another state. It does not appear from the record that the
defendant is the owner of the posters. Its interest is merely in
its billboards located in the state, upon which it displays
advertisements for which it is paid. So far as the posters are
concerned, assuming them to be articles of commerce,
compare
Charles A. Ramsay Co. v. Associated Bill Posters, 260 U.
S. 501,
260 U. S. 511,
the statute is aimed not at their importation, but at their use
when affixed to billboards permanently located in the state.
Compare Browning v. City of Waycross, 233 U. S.
16,
233 U. S. 22-23;
General Railway Signal Co. v. Virginia, 246 U.
S. 500,
246 U. S. 510.
The prohibition is nondiscriminatory, applying regardless of the
origin of the poster. Its operation is wholly intrastate, beginning
after the interstate movement of the poster has ceased.
Compare
Hygrade Provision Co. v. Sherman, 266 U.
S. 497,
266 U. S. 503;
Hebe Co. v. Shaw, 248 U. S. 297,
248 U. S. 304.
See also Corn Products Refining Co. v. Eddy, 249 U.
S. 427,
249 U. S. 433.
To sustain the
Page 285 U. S. 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 Corp. v. Industrial
Commission, 236 U. S. 230,
236 U. S.
240-241. 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, 273 U. S. 34.
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, 20 F.2d 120, 121;
International
Text-Book Co. v. District of Columbia, 35 App.D.C. 307, 311,
312.
Affirmed.
[
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 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.