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 the owner and publisher of a daily newspaper at Salt Lake City, Utah, known and designated as the Salt Lake Tribune, engaged in the business of receiving and publishing for hire advertisements to be published in its said newspaper, including among said advertisements, advertisements of cigars, cigarettes, and tobacco shipped and transported to and through the several states and territories of the United States and foreign nations, other than the states, territories, and foreign nations in which said articles were produced or manufactured. That the defendant for a long time prior and at the times stated in the complaint herein and ever since has many thousand suscribers in the states of Utah, Idaho, Montana, Colorado, Wyoming, Nebraska, Iowa, Indiana, Illinois, Nevada, California, Oregon, and Washington, and the other states, territories and foreign nations other than the several states and territories of the United States and in foreign nations. That the said newspaper was at all of said times and it still is sold and delivered by defendant to its various subscribers and readers in the said several states by means of the United States postal service, railway express companies, and by carriers, who, as agents of defendant, deliver it to the various homes of said newspaper subscribers, and that the said newspaper is also sold by newsboys or agents of defendant on the streets of the cities of the several states, and by newspaper dealers who are agents of defendant, various hotels, drug stores, and other places of business in the cities of the said several states, and by newsboys on railway trains passing to and through the said cities of the said several states.
“ (2) That the American Tobacco Company is a corporation created and existing under the laws of the state of New Jersey, and as a large and important part of its business it is there engaged in interstate
and foreign trade and commerce of the United States in the manufacture and sale of tobacco and cigarettes, and in shipping, transporting, and selling the same from the place of manufacture, in the original packages as manufactured, to and through the several states and territories of the United States and foreign nations, other than the states in which said articles were and are produced or manufactured. That among its advertisements the defendant, at the times stated in the complaint herein, and for a long time prior thereto had contracts with, and undertook for hire to publish for, the said American Tobacco Company the advertisements set forth in the complaint, of the Lucky Strike cigarette, which advertisement was on Friday, October 2, 1925, published in the regular daily issue of the Salt Lake Tribune, published and printed by the said defendant company, which said newspaper was published and circulated as a subject of commerce and shipped, transported, sold and delivered as hereinbefore stated to purchasers, subscribers, and readers in the state of Utah, and to subscribers, readers, and purchasers in the several states and territories of the United States and in foreign nations; the same being transported to and through, and sold and delivered in several states and territories of the United States and in foreign nations, other than the state of Utah in which said daily newspaper is printed.”
Chapter 52, aforesaid, provides:
“It shall be unlawful for any person, firm or corporation to barter, sell or offer for sale, cigarettes or cigarette papers in the state of Utah, without first having obtained a permit therefor, which said permit may be granted and issued by the board of city commissioners of any city of the first or second class, the city council of any city of the third class, the board of trustees of any town, or the board of county commissioners in any territory outside of any city or town. Said permit shall be in force and effect for one year from and after the date of issuance, unless sooner revoked, and shall be granted only to a person, firm or corporation owning or operating the place from which such sales are to be made, which place shall be within the territorial limits of the body granting such permit. * * *
“No permit sail be issued until the applicant therefor shall have filed with the city recorder, or clerk of the body issuing said permit, a bond to be approved by the board of county commissioners, board of city commissioners, or city council, as the case may be, which said bond shall be payable to the city, town or county issuing such permit, for the benefit of all parties interested, and shall be in the amount of five hundred ($500.00) dollars and conditioned upon the faithful observance of all the provisions of this act, and for the payment of all damages that may result from the unlawful sale of cigarettes or
cigarette papers. Said bond shall be signed by the obligor as the principal and by a surety company authorized to do business in this state. * * *
“Any person who shall furnish to any minor under twenty-one years of age, by gift, sale or otherwise, any cigarette or cigarette paper or wrapper, or any paper made or prepared for the purpose of making cigarettes, or any tobacco of any kind whatsoever, shall be guilty of a misdemeanor, and shall be punished by fine of not less than twenty-five ($25.00) dollars, nor more than two hundred ninety-nine ($299.00) dollars, or by imprisonment in the county jail not exceeding six (6) months, or by both such fine and imprisonment.”
Upon the facts and the provisions of law aforesaid, the district court found the defendant guilty and entered judgment that it be required to pay a fine of $100.
The defendant appeals from the judgment and insists that the same is erroneous and should be reversed for the following reasons: (1) That the statute upon which the conviction is based violates the provisions of article 1, § 8, par. 3, of the Constitution of the United States, relating to interstate commerce; and, (2) that the statute under which the defendant was convicted “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.”
In support of defendant’s first proposition it cites and relies upon the following, among other cases:
Post Printing & Publishing Co. v. Brewster
(D. C.) 246 F. 321;
Star-Chronicle Publishing Co. v. United Press Ass’n,
204 F. 217, 122 C. C. A. 489;
Schollenberger v. Pennsylvania,
171 U. S. 16, 18 S. Ct. 757, 43 L. Ed. 49;
Western Union Tel. Co. v. Pendleton,
122 U. S. 347, 7 S. Ct. 1126, 30 L. Ed. 1187;
International T. Co. 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 Co. v. United States Rubber Co.,
156 F. 1, 84 C. C. A. 167;
Preston v. Finley
(C. C.) 72 F. 850;
International Text-Book Co. v. Gillespie,
229 Mo. 397, 129 S. W. 923;
International Text Book Co. v. Peterson,
133 Wis. 302, 113
N. W. 730,14, Ann. Cas. 965;
Lemke v. Farmers’ Grain Co.,
258 U. S. 50, 42 S. Ct. 244, 66 L. Ed. 458.
It is not deemed necessary to cite further cases, since the foregoing sufficiently illustrate the principles relied on by the defendant.
It is clearly held in several of the foregoing cases that the publication of a newspaper which circulates in different states of the Union, as stipulated in the instant case, constitutes interstate commerce and is protected by the so-called interstate commerce clause of the federal Constitution. Indeed, counsel for the state do not seriously contend to the contrary. It will therefore be assumed, for the purposes of this decision, that in publishing and circulating the Salt Lake Tribune the defendant was engaged in interstate commerce.
By referring to the decision in the case of
Post Printing & Publishing Company v. Brewster,
supra, it will be seen that the stipulated facts regarding the advertisement that was published in the paper circulated by the Post Printing & Publishing Company was in legal effect the same as the advertisement published by the defendant in the Salt Lake Tribune. True, the paper in that case which contained the advertisement was published in the state of Missouri. The paper, however, was circulated in the state of Kansas, in which state the advertisement there in question was contrary to the provisions of a statute similar to ours. The court held that the circulation of the paper in the state of Kansas, although published in the state of Missouri, constituted interstate commerce and was protected by the interstate commerce clause of the federal Constitution. True it is that it was there said that the sale of cigarettes was lawful in Missouri, where the paper was published. So is the sale of cigarettes lawful in the state where the Salt Lake Tribune is published. The sale of cigarettes is regulated, but in case the dealer therein complies with the provisions of our statute all sales that are made in compliance with the provisions of the statute are lawful. What is said in
Post Printing & Publishing Co. v. Brewster,
respecting the power of the state to control or protect the sale of cigarettes and the right to publish advertisements, is applicable to the case at bar. In view of that, we take the liberty of quoting copiously from the opinion in the case, as follows:
“The sale of cigarettes in the state of Missouri, where the newspapers of plaintiff are published, is a lawful business, and the transmission by plaintiff of the intelligence where and on what terms cigarettes may be purchased by its subscribers, by way of advertisements inserted in such newspaper, is perfectly legitimate and proper. Further, it must be regarded as settled the sale of cigarettes in a foreign state to a citizen of this state, and their carriage from said foreign state into this state and hereby delivered in original packages in consummation of such sale made in a foreign state, is legitimate interstate commerce, which is beyond the power of the Legislature of this state to prohibit or unduly restrict or burden.
Austin v. Tenn.,
179 U. S. 343, 21 S. Ct. 132, 45 L. Ed. 224;
State v. Lowry,
166 Ind. 372, 77 N. E. 728, 4 L. R. A. (N. S.) 528, 9 Ann. Cas. 350. In other words, while the business of bartering, selling, or in any other manner disposing of cigarettes in this state, or the business of advertising in any manner by any one within this state of the business of selling or disposing of cigarettes, is by the act in question properly prohibited, yet by reason of the exclusive control of Congress over interstate commerce it must, I think, be held, as the conduct of interstate commerce in cigarettes may not by a state be prohibited or unreasonably burdened, it follows of necessity, the business of advertising such interstate commerce business, which advertising itself not only is a form of interstate commerce, but further adheres in the very conduct of the interstate cigarette business itself, is also beyond the power of the state to prohibit or make criminal and punish, and this for the reason it cannot be thought possible to make the advertisement of a lawful business unlawful and punishable as a crime.
Lyng v. Michigan,
135 U. S. 161, 10 S. Ct. 725, 34 L. Ed. 150;
Crutcher v. Kentucky,
141 U. S. 47, 11 S. Ct. 851, 35 L. Ed. 649;
In re Bahrer,
140 U. S. 545, 11 S. Ct. 865, 35 [35] L. Ed. 572.”
While the state of Utah could perhaps entirely prohibit the sale of cigarettes, in so far as the sales are not protected by the interstate commerce clause of the federal Constitution, yet, as already pointed out, Utah merely regulates the sale of cigarettes as it regulates the sale of many other ar-
tides of merchandise. All sales of cigarettes which are made in compliance with the provisions of our statute are lawful. If it is lawful, therefore, to deal in and to sell cigarettes, why is it not lawful to inform those who may legally purchase an article where they may do so? It may be true that the state within its police power may, as a matter of regulation, seek to minimize the sale of an article the use of which it may deem injurious to the public health; and if it may do that, it may perhaps, regulate or prohibit the advertisement of such an article. Where, however, as is the case here, the article in question is an article of commerce which is protected by the interstate commerce clause of the federal Constitution, ft may well be doubted whether the state can interefere with the sale of an article which is so protected. The conclusion therefore seems irresistible that, in view that the advertisement published by the Salt Lake Tribune in and of itself constitutes interstate commerce with which the state of Utah could not interfere, and further that the article likewise was protected both by the laws of Utah permitting its sale and to the extent that the article was shipped into the state in original packages was also protected from interference by the state, the defendant was clearly within its legal rights in publishing the advertisement, and that the statute in question constitutes an undue interference with interstate commerce and therefore cannot be upheld.
It is insisted by the Attorney General that the supposed protection we have just stated does not apply in this case. In support of that contention he cites and relies upon the following authorities:
State v. Bass Publishing Company,
104 Me. 288, 71 A. 894, 20 L. R. A. (N. S.) 495;
Delamater v. South Dakota,
205 U. S. 93, 27 S. Ct. 447, 51 L. Ed. 724, 10 Ann. Cas. 733;
Austin v. State,
101 Tenn. 563, 48 S. W. 305, 50 L. R. A. 478, 70 Am. St. Rep. 703;
Austin v. Tennessee,
179 U. S. 343, 21 S. Ct. 132, 45 L. Ed. 224;
State of Kansas v. Nossaman,
107, Kan. 715, 193 P. 347, 20 A. L. R. 921;
Gundling v. Chicago,
176 Ill. 340, 52 N. E. 44, 48 L. R. A.
230, affirmed in 177 U. S. 183, 20 S. Ct. 633, 44 L. Ed. 725. The Attorney General insists that in
State v. Bass Publishing Company
and in
Dalamater v. South Dakota,
supra, it was held that the states have the power to prohibit the advertisement of articles the sale of which is lawfully prohibited by the statute. A mere cursory examination of the decisions in those cases will demonstrate that they have no application where the facts and circumstances are like those in the case at bar. In the cases referred to, it was held that the state had the power to prohibit the advertisement of intoxicating liquors and to punish the offender. The decisions are, however, squarely based upon the so-called Wilson Act (U. S. Comp. St. § 8738). In those cases the power of the state to prohibit the advertisement of intoxicating liquors was upheld, for the reason that the Wilson Act expressly withdrew intoxicating liquors from the protection of the interstate commerce clause of the federal Constitution. Intoxicating liquors, therefore, since the passage of the Wilson Act, are no longer protected as articles of commerce, and hence the states have complete control respecting the disposition, sale, and advertisement of intoxicating liquors. As pointed out, however, by the Supreme Court of the United States, in
Austin v. Tennessee,
supra, such is not the case with tobacco and cigarettes. Tobacco and cigarettes still constitute articles of commerce and are protected by the interstate commerce clause of the federal Constitution, the same as all other articles of interstate commerce. The state may therefore not interfere with the sale of tobacco and cigarettes, where such sales constitute interstate commerce.
It is contended, however, that the sales made by the local dealers in cigarettes in Utah do not constitute interstate commerce and hence are not protected by the Interstate Commerce Act. But we are not dealing with the local sales of cigarettes nor with the local dealers in cigarettes. It is expressly stipulated that the American Tobacco Company is a coroporation of the state of New Jersey and that the advertisement in question was published pursuant to a contract en
tered into between the company and the defendant. Under the ruling of the United States Supreme Court all sales by that company which were made in original packages are protected by the Interstate Commerce Act (U. S. Comp. St. § 8568 et seq.). Moreover, as we have seen, the publication of the advertisement itself constitutes interstate commerce and hence is also protected by that act. It seems reasonably clear to the mind of the writer that the cases relied on by the Attorney General not only do not support his contention, but, in view of the facts and circumstances, go far to support the contention of the defendant herein, namely, that it was clearly within its legal rights in publishing the advertisement in question. To hold otherwise we must hold that cigarettes, like intoxicating liquors, do not constitute articles of commerce and hence are not protected by the Interstate Commerce Act. Such manifestly is not the law.
In view of the foregoing we feel constrained to hold, and do hold, that section 2, of chapter 145, Laws Utah 1921, as amended by chapter 52, Laws Utah 1923, cannot be enforced against the contract in question in this case.
In view of the conclusions reached upon the first proposition, it is not necessary to pass upon the second one relied on by the defendant, and we express no opinion as to that.
The judgment of the district court is reversed and annulled, and the defendant discharged.
GIDEON, C. J., and THURMAN and CHERRY, JJ., concur.