I dissent. Since the various acts on the subject are referred to in the prevailing opinion as regulatory measures, I think it well to further notice them. In 1921 (Laws of Utah 1921, c. 145), the legislature passed an act making it unlawful to sell cigarettes and cigarette papers in the state, to advertise cigarettes or cigarette papers, for proprietors to permit minors to frequent their places of business while using tobacco, and forbidding any person to smoke in certain inclosed public places. By section 1 it thus was provided that it was a misdemeanor for any person, etc., "to barter, sell, keep for sale, furnish or give away, any cigarettes or cigarette papers," to any one. Section 2 forbade any person etc., "to write, print, publish or circulate in any newspaper, magazine, periodical or circular written, printed or published within the state of Utah, any advertisement of cigarettes or cigarette papers," and "to post, exhibit or publish on any street-sign, placard or billboard * * * any advertisement for cigarettes or cigarette papers." The prohibition of the sale or advertisement of tobacco related only to cigarettes and cigarette papers. By section 3 of the act it was made a misdemeanor for a proprietor of any place of business to knowingly permit minors under 21 years of age to frequent such place of business while in the act of using tobacco in anyform. By *Page 519 section 4 it was made a misdemeanor for any person to smoke cigars, cigarettes, or tobacco in any inclosed public place within the state, including dining rooms in hotels, restaurants, cafes, and cafeterias, on street cars, in railway passenger coaches, railway station waiting rooms, barber shops, and in state, county, and city buildings.
As indicated in the prevailing opinion, and as is common knowledge, the act forbidding the sale and use of cigarettes and cigarette papers and of smoking in some of the enumerated public places, such as restaurants, hotel dining rooms, and in some other public places, met with such general disapproval and was so openly disregarded that the next Legislature, Laws of Utah 1923, c. 52, repealed it, including the prohibition of the sale of cigarettes and cigarette papers, and in lieu thereof provided that it was unlawful for any person, etc., to "sell or offer for sale, cigarettes or cigarette papers in the State of Utah, without first having obtained a permit therefor," to be granted by boards of city commissioners, city councils, boards of trustees of towns, and boards of county commissioners in territory outside of any city or town. To obtain the permit and license to sell cigarettes and cigarette papers, the licensee was required to pay "an annual license fee," from $100 to $25, and a "tax" from one to two mills on each cigarette, one-half cent on a package of fifty cigarette papers, one cent on one hundred papers, and one-half cent for each fifty papers exceeding one hundred papers. Thus, on obtaining the permit and paying the annual license fee and the tax, the sale of cigarettes and cigarette papers was again made lawful and the traffic and business therein permitted to be carried on as any other lawful business. The act, however forbids any one from selling or furnishing tobacco of any kind to a minor under 21 years of age, which was but a re-enactment of section 8442, Comp. Laws Utah 1917, and in force in this state for many years. By the act it was further provided that it was unlawful for a proprietor of any place of business to knowingly permit minors under 21 years of age to frequent such *Page 520 place of business while in the act of using tobacco in any form, which was but a re-enactment of the provision in such particular of the Laws of 1921. However, at and in all other places a minor was and is at liberty to chew and smoke smoke tobacco in all its forms without restriction and under the same conditions that an adult is permitted to use tobacco.
With respect to the advertising or display of tobacco, including cigarettes, section 2 of the act of 1923 provided:
"Sec. 2. Advertising or Display of Tobacco, Cigarettes, etc. 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 cigarettes or 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 act also modified the provision of the Laws of 1921 as to smoking in inclosed public places, and since then and now smoking in restaurants, dining rooms of hotels, and in other enumerated inclosed public places, even in the inviolable sanctity of a barber shop, is permitted. It is thus seen that the main feature of the act of 1923 is a revenue measure, and whatever regulatory character it may have relates to the subject of advertising of tobacco.
A consideration of section 2 of the act of 1923 in such respect was before this court in the case of State v. SaltLake *Page 521 Tribune Pub. Co., 68 Utah 187, 249 P. 474, 48 A.L.R. 533. The case involved the right of the publishing company printing a newspaper in Utah and circulating therein and among the several states, to publish in its newspaper an advertisement of Lucky Strike Cigarettes. The act, as is seen, forbade such an advertisement. It was held unconstitutional as constituting an interference with the interstate commerce clause of the Federal Constitution. The court, however, expressly stated, that having reached such conclusion, it found it unnecessary to express an opinion and expressed none as to the validity of the act in other respects.
Thereafter Laws of Utah 1929, c. 92, the Legislature amended section 2 of the Laws of 1923. Chapter 92 is entitled, "Advertising Cigarettes and Tobacco." The enacting clause is, an act amending section 2, chap. 52, Laws of Utah 1923, "relating to the advertising, or display of tobacco, cigars, cigarettes and cigarette papers." The section as so amended and under which the defendant was prosecuted for advertising on a billboard "Chesterfield Cigarettes, They Satisfy," and which section the court below held unconstitutional, is as follows: "It shall be a misdemeanor for any person, company, or corporation, to display on any bill board, 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."
By the amendment it is seen that it is unlawful to advertise tobacco in any form, including cigarettes, or any substitute thereof, on any billboard, street car sign, or placard, *Page 522 etc., but is lawful, without restriction, to advertise all kinds of tobacco, including cigarettes and cigarette papers, in any newspaper, magazine, or periodical, printed or circulated wholly within the state or among the several states.
It is the validity of that provision which here is drawn in question. The question is not to be set aside or displaced by interjecting another thought to be more easily or readily disposed of. It is not now the question as to what the Legislature in the legitimate exercise of the police power may do with respect to prohibiting, regulating, or controlling the manufacture, sale, traffic, or use of tobacco. It is enough now to know that no such legislation of the state has been attempted. It is time enough to express an opinion concerning it when that is done. The question thus is not what the Legislature in such respect may do, but What has it done? Hence the cited cases in the prevailing opinion as I think are not applicable. None of them uphold such kind of legislation as is here involved and drawn in question. And it in effect is conceded that the cited cases in the prevailing opinion have no direct application to the question in hand.
If the act is valid, and it thus is unlawful to advertise cigarettes on a billboard, then, too is it unlawful to advertise on a billboard cigars or any other form of tobacco. That engaging in the business of selling and dealing in tobacco including cigarettes is a lawful pursuit is not disputed. Attempt was made by the act of 1921 to prevent the sale of cigarettes. But that act was repealed in 1923, and since then, as presently will be noticed, it is just as lawful to sell cigarettes as it is to sell any other form of tobacco. That advertisement of a lawful business is legitimate and requisite to successfully carry it on and is a necessary incident thereto may also not well be disputed. If a business is legitimate and permitted to be carried on by legislative sanction, I do not well see by what authority the Legislature may prevent proper and legitimate advertisement of it, any more than it may prevent the making of contracts in connection with or in relation to the business. Here the Legislature *Page 523 has said that the only permissible method of advertising tobacco is in newspapers, magazines, and periodicals not only published and circulated among the several states, but also those published and circulated wholly within the state, and wherein may be displayed all kinds of alluring and attractive advertisements thereof. Nor are advertisements of tobacco forbidden by radio or by distribution of handbills or circulars on the street or from door to door of households nor by any other method, except by billboards and other similar displays. Such permitted methods of advertisements of tobacco are not regarded as inimical to public health, morals, or general welfare; but when the modest advertisement, "Chesterfield Cigarettes, They Satisfy," is displayed on a billboard, it is feared that the morals or health of the youths of the state are likely to be injuriously affected, and the youths caused or induced to procure tobacco and cigarettes, but for which kind of advertisement they would not be able or are less likely to procure them.
It is argued that the act of 1923 is regulatory and indicates a general policy of the state to restrict the sale and use of tobacco, especially of cigarettes. A careful, even a cursory, reading of the act shows that it is and was intended to be a mere revenue measure. By the act no tax or license is imposed nor is any permit required to sell or to engage in the business of selling or dealing in tobacco in any form, except cigarettes. But the requirement of an annual license fee of from $100 to $25, and a tax on each cigarette and on cigarette papers, to sell cigarettes and cigarette papers, clearly is a revenue and not a police measure. The general rule is, and as stated in 37 C.J. 170, that, where a fee is exacted primarily for revenue purposes, and payment of it gives the right to carry on a business or occupation without the performance of any more conditions, it is not a license fee, but a tax imposed, regardless of the name by which it may be called. The business or sale of the commodity which is the subject of the license and tax being itself lawful and sanctioned, the permit *Page 524 granted is but a convenient method of assessing and collecting the tax. 1 Cooley on Taxation (4th Ed.) 407; Royal v. State ofVirginia, 116 U.S. 572, 6 S.Ct. 510, 29 L.Ed. 735;Waters-Pierce Oil Company v. City of Hot Springs,85 Ark. 509, 109 S.W. 293, 16 L.R.A. (N.S.) 1035; City of Portland v.Portland Gas Coke Company, 80 Or. 194, 150 P. 273, 156 P. 1070; Ex parte Mayes, 64 Okla. 260, 167 P. 749; State ex rel.Wyatt v. Ashbrook, 154 Mo. 375, 55 S.W. 627, 48 L.R.A. 265, 77 Am. St. Rep. 765. And to that effect is the case of Matthews v.Jensen, 21 Utah 207, 61 P. 303, and the recent case of BestFoods, Inc., v. Christensen (Utah) 285 P. 1001 where numerous cases are referred to in support thereof.
When thus the permit is had and the socalled license fee and tax paid, the business of selling cigarettes and cigarette papers is just as lawful and with just as much legal sanction, as is the selling of any other form of tobacco. By the act the business itself in no particular is regulated. It does not even pretend to have any such purpose. There is no language in the act from which such a purpose may even be inferred or implied. It does not regulate or control anything, nor pretend to do so. As to that, it may here be said as was said by the court in the case of Ex parte Mayes, 64 Okla. 260, 167 P. 749, 750, that "the statute does not purport to have in mind a regulation. It imposes no conditions and contains no restrictions for the carrying on of the business; neither does it attempt to regulate or control those lawfully engaging in the business. Its primary and indeed only, purpose, is to authorize the collection of a tax."
We thus are brought back to the proposition, and to the real question in hand, as to whether it was competent for the Legislature in the exercise of the police power, to curtail or prevent advertisements of a commodity of a lawful business, especially to forbid advertisements by a particular method not itself obnoxious or inimical to public morals or general welfare, and at the same time permit ad libitum *Page 525 all sorts of alluring and attractive advertisements of the same article or commodity by various other methods. Let it be assumed that where in the legitimate exercise of the police power the manufacture or sale of, or traffic in, an article or commodity, or the carrying on of a business, has been prohibited, it also is within the police power to prohibit or prevent advertisements of such commodities or business. But, as is seen, that is not the situation here. The Legislature has not prevented nor did it attempt to prevent the advertisement of tobacco. The prohibitions go merely to the particular method or medium of advertisement, advertisements on billboards, etc. The medium or method of billboard advertisement, as is common knowledge, has become general and without any legislative restriction of the state is permitted and is extensively employed as to advertisements of all other kinds of articles and commodities of merchandise. Not anything is made to appear or even suggested that displaying advertisements on billboards is obnoxious or inimical to public morals or public welfare, any more than is the publication and circulation of the same kind of advertisement in a newspaper, magazine or periodical or by any other method. If the one is obnoxious and inimical to public morals, etc., so would it seem must also be the other.
The law is well settled that the operation of a statute must be determined from the natural and legal effect of the language employed, and whether the statute is or is not repugnant to constitutional provisions, either state or federal, must be determined from its natural effect when put in operation and not from its proclaimed or asserted purpose. What is meant by, and when an act may be upheld on the theory of police power, is well stated in 22 Am. Eng. Ency. of Law 938 as follows:
"In order that a statute or ordinance may be sustained as an exercise of the police power, the courts must be able to see (1) that the enactment has for its object the prevention of some offense or manifest evil for the preservation of the public health, safety, morals or general welfare, and (2) that there is some clear, real and substantial connection between the assumed purpose of the enactment and the *Page 526 actual provisions thereof, and that the latter do in some plain, appreciable manner tend towards the accomplishment of the object for which the power is exercised. The police power cannot be used as a cloak for the invasion of personal rights or private property, neither can it be exercised for private purposes or for the exclusive benefit of particular individuals or classes."
The propositions also are well put in 6 R.C.L. 237 that,
"In order to sustain legislative interference by virtue of the police power, under either a statute or a municipal ordinance, it is necessary that the act should have some reasonable relation to the subjects included in such power, and the law must tend, in a degree that is perceptible and clear, toward the preservation of the public welfare, or toward the prevention of some offense or manifest evil, or to the furtherance of some object within the scope of the police power. The mere assertion by the legislature that a statute relates to the public health, safety or welfare does not in itself bring that statute within the police power of a state; for there must be obvious and real connection between the actual provisions of a police regulation and its avowed purpose, and the regulation adopted must be reasonably adapted to accomplish the end sought to be attained. One application of the familiar rule that the validity of an act is to be determined by its practical operation and effect and not by its title or declared purpose is that a constitutional right cannot be abridged by legislation under the guise of police regulation; since the Legislature has no power, under the guise of police regulations, to invade arbitrarily the personal rights and personal liberty of the individual citizen, or arbitrarily to interfere with private business, or impose unusual and unnecssary restrictions upon lawful occupations, or to invade property rights."
To the same effect also is 12 C.J. 929. Many cases, both federal and state, are cited which fully support the texts. Special reference, however, may be made to the cases of Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937, 3 Ann. Cas. 1133; State ex rel. v. Ashbrook, 154 Mo. 375,55 S.W. 627, 48 L.R.A. 265, 77 Am. St. Rep. 765; and State v. Redmon,134 Wis. 89, 114 N.W. 137, 14 L.R.A. (N.S.) 229, 126 Am. St. Rep. 1003, 15 Ann. Cas. 408.
Just as well is it settled that however broad and comprehensive the police power of the state may be, the exercise of the power nevertheless is not without limitations, and *Page 527 that the Legislature in the exercise of the power may not transgress or infringe upon either state of federal constitutional provisions. Logan City v. Public UtilitiesComm., 72 U. 536, 271 P. 961; Sol Block Griff v. Schwartz,27 Utah 387, 76 P. 22; 12 C.J. 928, 6 R.C.L. 195.
So, too, is it well settled that whether the police power has been exercised within proper limitations, whether or not the act is a reasonable exercise thereof, whether a particular measure is designed to further some governmental function and bears some reasonable, obvious, or direct relation to the purpose sought to be accomplished, are all judicial questions. 6 R.C.L. 242, and cases there cited.
Such propositions may not and are not disputed, but here are shaded and minimized and not given proper force or effect. Timely observations were made by Mr. Justice Marshall in State v.Redmon, supra. Among other things he says:
"Doubtless the fathers of the Constitution foresaw the likelihood and danger of the security of personal rights, which the fundamental law was intended to firmly entrench with the judiciary as its efficient defender, being jeopardized at times by excessive regulation of the ordinary affairs of life. * * * The idea is found expressed now and then, that the police power is something not dealth with or affected by the Constitution, at least in any marked degree, which is a mistake hardly excusable. The error suggested here and there, that the police power is `a sovereign power in the state, to be exercised by the Legislature, which is outside, and in a sense above, the Constitution (Donnelly v. Decker, 58 Wis. 461, 17 N.W. 389, 46 Am. Rep. 637), and that a police regulation which is clearly a violation of express constitutional inhibition is legitimate, subject to a judicial test as to reasonableness * * * (Tiedeman, State and Federal Control, § 3), or that no police regulation, not condemned by some express constitutional prohibition, is illegitimate, or that legislation not so condemned is legitimate if the law-making power so wills, though it violates some fundamental principles of justice, or that the reasonableness of a police regulation, and whether it unjustly deprives the citizen of natural rights, is wholly of legislative concern (Hedderich v. State, 101 Ind. 564, 1 N.E. 47, 51 Am. Rep. 768), and others of a similar character now and then found in legal opinions and text-books, are highly misleading' and have been distinctly discarded by this court. State ex rel. Milwaukee Medical College v. Chittenden [127 Wis. 468, *Page 528 107 N.W. 500], supra. * * * `If it were true that all police regulations are legitimate which are reasonable, and all are reasonable which the Legislature so wills, the Constitution as to very much of the field of civil government would be of no use whatever. The contrary has been the rule without any legitimate question since Marbury v. Madison, 1 Cranch, 137, 2 L.Ed. 60.' * * * The idea that all legislation is within the police power which the law-making authority determines to be so, and that all which might be within such power is within it if the Legislature so determines is, as we have seen, a heresy, and one which was repudiated sufficient for all time by the early decision, heretofore referred to, in Marbury v. Madison, supra, the American classic which first and conclusively defined the general character of the constitutional limitations and the relations of the Legislature and the judiciary thereto and to each other. The doctrine there laid down more than a century ago in the unanswerable logic of Chief Justice Marshall has never been departed from, except accidently, inconsiderately or ignorantly."
In Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 297,31 L.Ed. 205, Mr. Justice Harlan said:
"The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty, indeed, are under a solemn duty, to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution."
In the case of Ex parte Jentzsch, 112 Cal. 468, 44 P. 803,804, 32 L.R.A. 664, the California court, among other things, said:
"So, while the police power is one whose proper use makes most potently for good, in its undefined scope and inordinate exercise lurks no small danger to the republic; for the difficulty which is experienced in defining its just limits and bounds affords a temptation to the legislature to encroach upon the rights of citizens with experimental laws none the less dangerous because well meant."
In the case of Boyd v. U.S., 116 U.S. 616, 6 S.Ct. 524,535, 29 L.Ed. 746, Mr. Justice Bradley said: *Page 529
"Constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the rights, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis."
The claim made by the state and adopted in the prevailing opinion in effect is that since the sale of tobacco to a minor under 21 years is prohibited, the act in question forbidding advertisements of tobacco on billboards is a legitimate exercise of the police power as tending to prevent or lessen sales of tobacco to minors, especially cigarettes, and to prevent or lessen the use of tobacco by minors as well as by adults; that is to say, as is claimed, preventing advertisements of tobacco on billboards, in street cars or on placards, will cause or induce dealers not to sell or furnish tobacco to minors, cause or induce minors not to buy or use tobacco, and will lessen the use thereof by both minors and adults, and that an advertisement of tobacco on billboards, etc., will suggest to minors and to adults a desire to use tobacco which otherwise would not be suggested to them if such advertisements were not permitted on billboards, and that advertisements of tobacco, including cigarettes, in newspapers, magazines, and periodicals or by other permitted methods of advertisements thereof have no such tendency. In other words, as is claimed, to protect the youth of the state against the use of tobacco and to prevent or lessen the use thereof by adults as well, the Legislature permitted ad libitum all kinds of alluring and attractive advertisements of tobacco in newspapers, magazines, and periodicals, whether printed and circulated wholly within the state, or among the several states, and permitted all other methods of advertisements of tobacco, except on billboards, street cars, placards, or on other objects of display. And on such theory is the claim made that the section of the statute under consideration and forbidding advertisements *Page 530 of tobacco on billboards, etc., has for its object the prevention of a manifest evil and the preservation of public health, morals, and general welfare, and bears a real and direct relation between such purpose of the enactment and the accomplishment of the claimed and asserted object or end. To support that, the state cites numerous authorities.
Merrick v. N.W. Halsey Co., 242 U.S. 568, 37 S.Ct. 227,61 L.Ed. 498, and Hall v. Geiger-Jones Co., 242 U.S. 539,37 S.Ct. 217, 61 L.Ed. 480, L.R.A. 1917F, 514, Ann. Cas. 1917C, 643, cases involving the validity of the so-called blue sky law regulating sales and dealings in corporate stocks and other securities to protect investors against fraud, etc.; In re FredOberg, 21 Or. 406, 28 P. 130, 14 L.R.A. 577, involving the validity of a statute providing that no officer or seaman of a sea-going vessel or ship should be arrested or imprisoned for debt, which act applied to all sailors of sea-going vessels or ships and entitled all under the same circumstances and conditions to enjoy the granted privilege and immunity; SoonHing v. Crowley, 113 U.S. 703, 5 S.Ct. 730, 28 L.Ed. 1145, involving the validity of an ordinance prohibiting washing and ironing in public laundries and washhouses within restricted territorial limits, from 10 o'clock at night to 6 o'clock in the morning, being an ordinance adopted to regulate the establishment and maintenance of public laundries and washhouses, to make inspections by health officers and boards of fire wardens as to conditions with respect to stoves, drying apparatus, and appliances for heating smoothing irons, so as to guard against dangers to surrounding property from fire, and to inspect premises in which it is proposed to carry on the business;Halter v. Nebraska, 205 U.S. 34, 27 S.Ct. 419, 51 L.Ed. 696, 10 Ann. Cas. 525, where the validity of a statute was upheld preventing desecrations of the flag of the United States and the use of the flag for advertising purposes, etc., the doing of which things, said the court, discredited and cheapened the flag in the estimation of the public and defeated the maintenance of it as an *Page 531 emblem of national power and national honor; N.Y., N.H. H.R.R. v. New York, 165 U.S. 628, 17 S.Ct. 418, 41 L.Ed. 853, involving a statute regulating the heating of steam passenger cars and directing guards to be placed on railroad bridges and approaches thereto; Powell v. Pennsylvania, 127 U.S. 678,8 S.Ct. 992, 1257, 32 L.Ed. 253, involving an act regulating the manufacture and sale of products in imitation of butter and cheese and preventing adulterations of butter, cheese, and other dairy products; Fischer v. St. Louis, 194 U.S. 367,24 S.Ct. 673, 48 L.Ed. 1018, involving a municipal ordinance prohibiting the erection of any barn or cow stable within the city limits without permission from the municipal authorities and prescribing conditions and circumstances under which such a permit may be had; Lieberman v. Van De Carr, 199 U.S. 552, 26 S.Ct. 144,50 L.Ed. 305, involving an ordinance regulating the sale and distribution of milk in the city of New York under the supervision of and upon conditions imposed by the Public Board of Health; Munn v. Illinois, 94 U.S. 113, 24 L.Ed. 77; Budd v.New York, 143 U.S. 517, 12 S.Ct. 468, 36 L.Ed. 247; Brass v.Stoeser, 153 U.S. 391, 14 S.Ct. 857, 38 L.Ed. 757; and W.W.Cargill Co. v. Minnesota, 180 U.S. 452, 21 S.Ct. 423,45 L.Ed. 619; cases involving acts regulating public warehouses and warehousing and inspecting, weighing, and handling of grain, etc.; Whyte v. City of Sacramento, 65 Cal.App. 534,224 P. 1008, involving an ordinance relating to the use of trucks over a certain weight on streets in designated districts; and Mack v.Westbrook, 148 Ga. 690, 98 S.E. 339, involving an act providing for the condemnation of vehicles and other conveyances used on public or private highways in conveying liquors and intoxicating beverages, the sale or possession of which was by law prohibited.
In all such cases the ordinance or act in question was upheld as a proper and legitimate exercise of the police power and not as transgressing any constitutional provision. Many of them relate to matters of mere regulation. Hundreds of other cases could be cited where similar rulings *Page 532 were made. But in all the cited cases the ordinance or act called in question, by the natural and legal effect of its language, had for its object the prevention of some offense or evil, or the preservation of public health or public morals or general welfare, and had on obvious, or real, or direct relation to, and in some plain, definite, and tangible degree tended toward, the accomplishment of the object or purpose for which the police power was exercised.
Because such a relation was so shown in such cases, it does not follow that an obvious or direct relation also is shown in the case in hand, or in other cases of different facts or enactments. Every decision or opinion is dependent upon the facts upon which it is founded and must be considered in view, of, and may not without reference to them be indiscriminately applied to cases of dissimilar facts or enactments. As has been seen, the operation of the statute must be determined from the natural and legal effect of the language employed and whether the act as a police measure is designed to further some governmental function and as to whether it bears some real or direct relation to the purpose sought to be accomplished, are as the text and cases teach judicial questions. Here no such relation from the language or operation of the act appears.
It in effect is argued that the subject-matter of the act relates to the sale, use, and advertisement of tobacco, including cigarettes, and to restrict the sale and use of tobacco. The argument, as I think, is not supported by the act, as a reading of it will clearly show. By it the sale of tobacco to minors is prohibited. But there is no restriction or regulation whatever as to carrying on the business of selling or dealing in or of using tobacco. True, a license fee and tax is exacted to sell cigarettes and cigarette papers, but that, as hase been seen, is for revenue and not for regulation of the business or in carrying it on, and from which the state derives an annual revenue of $200,000 or more. Upon paying the tax and obtaining the permit a dealer is as free to sell *Page 533 cigarettes to adults as he is to sell tobacco in all other forms, without any restriction of regulation whatever, and to the same extent that he is privileged to sell and deal in any other commodity or article of merchandise. And, further, as has been seen, the act does not forbid advertisements of tobacco including cigarettes. And since selling and dealing in tobacco is a lawful business and the use of tobacco, not even by minors, restricted or forbidden, and since advertising is a necessary incident to carrying on the business, it would seem somewhat anomalous legislation, if the Legislature had attempted to forbid all advertisements of tobacco. What the Legislature did is to permit advertisements of all kinds of tobacco, including cigarettes, except on billboards and on other similar objects of display. What it thus did is to strike at and banish billboard and other similar methods of advertisements, in no sense and not claimed to be an obnoxious or improper method of advertising, while permitting without restriction advertisements of tobacco by all other methods.
It also is argued that advertisements on billboards are attractive and tend to increase sales of the commodity so advertised. Let it be assumed such advertisements are attractive and increase sales of the commodity advertised. Such is the purpose of all advertisements by calling attention to the article or commodity advertised, its description and quality, and place where it may be had. Certainly the Legislature may not require one merchant or dealer in a lawful commodity or business to hide his advertisement under a bushel, while others are permitted to display them on the housetop. A method of advertisement, not obnoxious in and of itself, is not to be banished because it may be an attractive and effectual method. Further, the prohibition to advertise on billboards does not apply to all persons. It applies only to those engaged in selling or dealing in tobacco, a business as lawful as any other business. It applies to no one else engaged in any other kind of business. As well say that all those engaged in the automobile business may not advertise *Page 534 their business on billboards while all other kinds of business may be so advertised.
It also is argued that the use of tobacco is by some regarded as injurious to health. But the Legislature has not as yet forbidden the sale or use of it. Some may regard the sale and use of Coca-Cola or of tea or of coffee injurious to health. Until the Legislature forbids or restricts the sale or use of them, I do not well see how it may declare that any of these may not be advertised on billboards, while permitting them to be advertised by all other methods, and at the same time permit all other articles or commodities of merchandise of a lawful business to be advertised on billboards.
Because the Legislature may not control advertisements in newspapers, magazines, and periodicals circulating among the several states, it is asserted such restriction does not prevent it from forbidding advertisements on billboards wholly within the state. In the first place the act permits advertisements of tobacco in newspapers, magazines, and periodicals, not only those circulating among the several states, but also those printed and circulated wholly within the state. In the next place, the suggestion is not unlike what a noted humorist once said, that if one is unable to "lick" another who had given offense, then flog his child, or throw a stone at his dog across the street. If it be incompetent for the Legislature to forbid advertisements in newspapers, magazines, and periodicals, then I do not well see on what theory it may forbid advertisements by some other legitimate method not itself obnoxious or inimical to public morals or general welfare, without creating and unwarranted discrimination, and denying equal rights and privileges, and especially when the method is forbidden only as to a particular commodity or article of merchandise of a lawful business and at the same time permitted as to all other articles or commodities of merchandise. In other words, if one method of advertising in the state by citizens outside the state is required and granted, then it is difficult to see on what theory citizens of the state may be denied another method or methods of advertising in no sense obnoxious to public morals or general welfare, *Page 535 and equally legitimate and proper as the method granted to and permitted by citizens outside the state, without denying citizens within the state, not as to mere form, but as to substance and essence, the same rights and privileges granted to citizens outside the state.
Then, further, I do not see, nor in what way it is even indirectly shown that, since it is unlawful for any one to sell or furnish tobacco in any form to a minor, wherein an advertisement of tobacco displayed on a billboard will more readily enable a minor to obtain or use tobacco, or by preventing such method of advertisements will render it more difficult for him to obtain it, or protect him against the use of it, when at the same time all sorts of alluring and attractive advertisements of tobacco may be and are had in newspapers, magazines, or periodicals, and by all other methods of advertisements.
The suggestion that advertisements on billboards are more readily seen or "forced" on public attention than advertisements in newspapers, magazines, or periodicals or that the one is thrust on the public while the other to be seen must be sought for, and for such reason the one method is more effectual and impressive than the other or others, is, as I think, without merit, and is refuted by common knowledge and observation that numerous newspapers, magazines, and periodicals of all kinds carrying in prominent and conspicuous places all sorts of richly designed and attractive and alluring advertisements of tobacco and displayed in attractive colors and pictures, find their way in about every household in the state and are or may be seen and noticed by about every member of the family able to read, and many of them distributed and delivered by minors. That billboard advertisements may be regarded as more attractive and effectual than advertisements in newspapers and magazines, or by radio, no doubt would stoutly be disputed by newspaper and magazine publishers and by radio advertisers. Though billboard advertisements may be regarded as attractive and effectual methods of advertising, yet, since such *Page 536 method is not obnoxious or inimical to public morals or general welfare, that does not justify banishing billboard advertisements of an article or commodity of merchandise of a lawful business. Nor do I see any basis for the contention that permitting advertisements of tobacco on billboards tends to induce dealers or others, in violation of the statute forbidding it, to sell or furnish tobacco to minors, or that preventing such method of advertising tends to restrain or prevent minors from obtaining or using tobacco. At least such a relation or connection in no sense is obvious or direct, and at most is but extremely remote. If it be thought wise and necessary to prohibit or restrain a minor from the use of tobacco, or to protect him against its use, let some proper legislation be had which by some direct or appropriate manner tends to accomplish such end or purpose, and not by banishing billboard advertisements of tobacco, while at the same time permitting all sorts of advertisements thereof by all kinds of other methods.
We have a statute which forbids a minor under a prescribed age from operating a motor vehicle on a public highway or thoroughfare. In some jurisdictions dealers and others are also forbidden from selling or intrusting a motor vehicle to a minor under a prescribed age and which knowingly is to be used and operated by the minor on a public street or thoroughfare. In such case it may not successfully be asserted that it is competent for the Legislature to forbid advertisements of automobiles on billboards while at the same time permitting all sorts of advertisements of them in newspapers, magazines, and periodicals, on the theory that preventing advertisements on billboards tends to prevent a minor under the prescribed age from operating a motor vehicle on a public street or thoroughfare or others from instrusting a motor vehicle to him. No one would contend that, yet in principle the presence of any real, direct, or obvious relation between the thing prevented and the claimed object sought to be accomplished is as wanting in the one case as in the other. In each the asserted relation has neither *Page 537 substance nor even shadow to support it, and is based on mere fancy and vagary. Nor may the analogy be denied on the theory that in the one the subject, the use of tobacco, may be regarded as pernicious and injurious, while in the other, a motor vehicle is not itself harmful or dangerous or fraught with evil consequences. While a motor vehicle may not in and of itself be so regarded, yet, in the hands of a youth or other immature or inexperienced person operating it, a motor vehicle on a public street or thoroughfare is highly dangerous and a menace, not only to such a person operating it, but also to the safety of the public; and on such theory minors under a prescribed age by legislative enactments are forbidden operating motor vehicles on public streets.
But further as to this. Selling tobacco in all its forms including cigarettes to adults without restriction is lawful and expressly permitted by legislative sanction. Since a dealer may thus lawfully engage therein, he, by proper advertisement, may make known the kind and quality of his goods and the place where they may be had. To deny him that right is in effect, or to a large extent, to deny him the benefit or enjoyment of the property right granted him of carrying on the business permitted to be carried on by him. Why should he thus be deprived by proper advertising from making known to those who without restriction may lawfully purchase and use them, the kind and quality of his goods and the place where they may be had, because the method not harmful or obnoxious in and of itself and chosen by him is attractive and effectual and tends to increase his business? The question may not be answered by the assertion that the use of tobacco by some is thought to be a public evil and a menace to public health and morals, for such an answer or claim is completely refuted by the legislative act itself which permits all kinds of methods of advertisement of tobacco and prevents none, except on billboards and other similar objects of display, and by the legislative will of the state legalizing and permitting the sale of tobacco in all *Page 538 forms to adults, and without restriction permitting the use of it by them as well as by minors, except that a proprietor may not permit a minor to frequent his place of business while the minoris in the act of using tobacco in any form.
I thus see no obvious or real or direct relation or connection between the assumed or asserted purpose of section 2 of the act and the provisions thereof, or wherein the latter in any plain or appreciable manner tends towards the accomplishment of the object for which it is claimed the police power was exercised, preventing advertisements of tobacco on billboards.
In Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625,67 L.Ed. 1042, 29 A.L.R. 1446; Bartels v. Iowa, 262 U.S. 404 S.Ct. 628, 67 L.Ed. 1047, and in Bohning v. Ohio, 262 U.S. 404,43 S.Ct. 628, 67 L.Ed. 1047, the validity of statutes forbidding the teaching of modern foreign languages in educational institutions was called in question and where thereunder teachers were proceeded against for teaching the German language in such institutions. The state courts held the acts constitutional on the theory that teaching such languages, especially the German language, tended to inculcate in the minds of the youth systems or principles of government hostile or inapplicable to our institutions and before the youth had been sufficiently taught the principles of our own government, and tended to inculcate ideas and sentiments foreign to the best interests of our country; that, as the English language is the prevailing and national language of this country, no other language, or subject not in the English language, should be taught, and that to do so was inimical to civic development and public good. The acts, by the Supreme Court of the United States, were held unconstitutional and as having no such asserted relation or any real or obvious relation to anything within the legitimate scope of the police power.
In George v. City of Portland, 114 Or. 418, 235 P. 681, 39 A.L.R. 341, the case involved an ordinance which provided *Page 539 that no license to engage in a soft drink business should be issued to any person not a citizen of the United States. It was there urged that the purpose of the ordinance was to further the enforcement of laws prohibiting traffic in alcoholic and intoxicating liquors. The Supreme Court of the state in effect held that no such purpose was real or obvious, that nonintoxicating beverages had not been outlawed, and that the right to contract concerning them and to buy, sell, and possess them was within the protection of constitutional provisions which were infringed upon by an unreasonable and unwarranted exercise of the police power. Cases are in great number involving a variety of subjects where enactments were held invalid because there was no direct or real relation between the means employed and the object or purpose sought to be accomplished within the scope of the exercise of the police power.
The principles announced in Lochner v. New York, supra, may here again be noticed, that mere assertions that a subject relates though but in a remote degree to the scope of the police power, does not render the enactment valid, and that the act must have a more direct relation, as a means to an end, and that the end itself must be appropriate and legitimate, before an act can be held to be valid which interferes with the general right of an individual to be free in his person and in his power to contract and in his enjoyment of property and property rights.
In the case of Little v. Smith, 124 Kan. 237, 257 P. 959,961, 57 A.L.R. 100, the court had under consideration a statute which made it unlawful to advertise cigarettes or cigarette papers in a newspaper or other periodical "published, offered for sale or for free distribution within the state of Kansas," or to advertise cigarettes or cigarette papers on any street sign or billboard or otherwise. In holding the act invalid, the court with respect thereto among other things said:
"While the police power is wide in its scope and gives the Legislature broad power to enact laws to promote the health, morals, *Page 540 security, and welfare of the people, and, further, that a large discretion is vested in it to determine for itself what is deleterious to health, morals, or is inimical to public welfare, it cannot under the guise of the police power enact unequal, unreasonable, and oppressive legislation or that which is in violation of the fundamental law. The statute in question supplanted and repealed one prohibiting the sale and disposal of cigarettes and which had been theretofore held valid. The later act authorized the sale of these except as to minors. This act treats cigarettes as articles of commerce, and it is essentially an act to raise revenue. It is competent for the Legislature to include in an act provisions for regulation as well as for raising revenue, if its provisions do not violate constitutional limitations. It is readily apparent that the dominant theory of the act is to provide revenue. It is stated and seems to be conceded that the revenue raised under the act will amount to at least $1,000,000 each year. Having legalized the sale of cigarettes, thus making them articles of commerce, can the Legislature restrict the making of contracts for advertising which operates unequally as between publishers engaged in that business? It is conceded that the act is ineffective as against publishers outside of the state, whose newspapers and publications have a much larger circulation than those issued by the plaintiffs and other publishers within the state. Because of this condition it may well be doubted whether the restriction as to advertising can have any appreciable effect in preventing sales to minors, where outside publications which go into almost every household carry full-page advertisements of cigarettes, or whether the restriction on local publishers contributes in any substantial degree towards accomplishing the avowed purpose of promoting the public welfare. A statute restraining the liberties and property rights of citizens cannot be upheld unless it has a real relation to its object and the regulation reasonably adapted to accomplish the end sought to be attained. Marbury v. Madison, 1 Cranch, 137, 2 L.Ed. 60. Whether the act is open to that objection need not be determined, but it is clear that in its operation it is unequal and obviously discriminatory. Here we have an act which in its operation permits publishers on one side of the state line to contract for advertising articles of commerce, but prohibits publishers on the other side of the state line from making like contracts. We think it offends the constitutional provision that `the citizens of each state shall be entitled to all privileges and immunities of citizens of the several states.' Section 2, art. 4, federal Constitution. It is obnoxious also to the due process clause of the Fourteenth Amendment of that Constitution and to the other clause that no state shall deny any person within its jurisdiction the equal protection of the law." *Page 541
For the same, if not for stronger reasons should the act here be held an infringement on such constitutional rights and as being discriminatory, since the act forbids a particular, proper, and lawful method or medium of advertising of a lawful business and of a lawful article of trade, while permitting the same kind of advertisement in newspapers, magazines, and periodicals, and by the same method or medium of billboard advertising permitting all kinds of advertisements of all other kinds of articles or commodities of merchandise or commerce, thereby withholding and denying rights and privileges of citizens of the state which are granted to other citizens both within and outside the state, and denying to citizens within the jurisdiction of the state equal protection of the law.
Thus, since tobacco has not been outlawed, and to engage in buying and selling it is a lawful business, and since advertisement thereof is a necessary incident thereto, an act, preventing advertisement of tobacco by a particular and lawful method or medium, not itself obnoxious or harmful, while permitting advertisements of all other articles of merchandise by the same method, and permitting tobacco in all its forms to be advertised by all other methods, except by billboards, etc., is an unreasonable and arbitrary exercise of the police power, creates an unwarranted discrimination, abridges the right to contract concerning a lawful business and the right to acquire, possess, and enjoy property, in effect amounts to a deprivation of property without due process of law, and is a denial of the equal protection of the law and of privileges and immunities of citizens safeguarded and protected by constitutional provisions.
I think the judgment of the court below should therefore be affirmed.