State v. Packer Corporation

This is a prosecution by the state, commenced in the city court of Salt Lake City. The complaint charged the defendant with committing the crime of violating section 2, c. 145, Laws Utah 1921, as amended by chapter 52, Laws Utah 1923, and as amended by chapter 92, Laws Utah 1929, as follows:

"That the said Packer Corporation, at said time and place did display on a bill board owned and operated by the defendant, an advertisement of Chesterfield Cigarettes by displaying a representation of a package of Chesterfield Cigarettes with the words, ``Chesterfield Cigarettes, They Satisfy.' contrary to the provisions of the Statute," etc.

The defendant interposed general and special demurrers on the grounds, among others, that the facts stated in the complaint did not constitute a public offense, and that the statute upon which the complaint is based violates the provisions of article 1, § 1, of the Constitution of Utah, with respect to the inherent and inalienable right of defendant to acquire, possess, and protect its property, of article 1, § 7, with respect to deprivation of property without due process of law, of article 1, § 18, with respect to impairing the obligation of contracts, of article 1, § 24, relating to uniform operation of all laws of a general nature, and as being in conflict with article 1, § 8, of the Constitution of the United States, relating to interstate commerce, with article 1, § 10, respecting impairing of the obligations of contracts, with article 4, § 2, respecting the privileges and immunities of citizens in the several states, and the Fourteenth Amendment of the Constitution of the United States respecting the deprivation of property without due process of law, and/or respecting the denial to persons within the jurisdiction of the state of Utah of the equal protection of the laws.

In the city court the defendant was found guilty, but, upon appeal to the district court, the demurrer was sustained, and, the state refusing to amend, the action was dismissed. The state appeals.

The validity of the act is defended by the state upon the ground that it is a proper and legitimate exercise of the police power of the state, and that the act in no particular offends against any of the constitutional provisions of the state or of the United States.

The provision with respect to advertising cigarettes and tobacco on billboards is section 2, of chapter 52, Laws Utah 1923, as amended by chapter 68, Laws Utah 1925, and by chapter 92, Laws Utah 1929 (further amended by chapter 5, Laws Utah 1930 [Sp. Sess.], after this action was commenced, but which does not change the situation as to the particular question involved), which section 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."

The act of which this advertising feature is a part is for the regulation and restriction of the sale, use, and advertising of cigarettes and tobaccos, and includes the following:

(1) The licensing of cigarette dealers by cities, towns, and counties upon payment of a license fee.

(2) The imposition of a tax to be paid to the state upon all packages of cigarettes sold.

(3) Prohibiting the advertising of cigarettes and tobaccos on bill boards, placards, and in street cars.

(4) Prohibiting the sale or furnishing of cigarettes or tobaccos to minors under 21 years of age.

(5) Making it unlawful for proprietors of places of business to knowingly permit minors under 21 years of age to frequent such places while using tobacco in any form.

(6) Vesting power in the licensing authority to revoke the license of any dealer for violation of the act; no new license to be granted such dealer within two years after such revocation.

(7) Regulations with respect to the tax feature, looking to the collection of the stamp tax.

It is apparent from the act itself, as well as from the history of the legislation on the subject, that the purpose of the act was to regulate and restrict the sale and use of cigarettes and tobacco. In chapter 145, Laws Utah 1921, p. 390, the Legislature prohibited the sale of cigarettes and cigarette papers within the state and also prohibited 1, 2 smoking of tobacco in public places and the advertising of tobacco in any form. Because of the widespread use of cigarettes, the law was unpopular and difficult, if not impossible, of enforcement. The Legislature in 1923 repealed all but one section of the 1921 law, and enacted substantially the present law. It is evident the intent of the Legislature was a relaxation merely, and not an abandonment of its policy of restriction. As an incident and as a more efficient means of regulation, the act requires payment, of a license fee by dealers, and the payment of an excise tax on cigarettes. The fact that a considerable revenue is raised and paid into the public treasury does not itself indicate that the act was passed as a revenue measure, nor destroy its character as a regulatory act passed in the exercise of the police power, where the object is to control, regulate, and restrict, rather than to encourage, the traffic. 15 R.C.L. 288; 26 R.C.L. 17; Town of Phoebus v.Manhattan Social Club, 105 Va. 144, 52 S.E. 839. That the act is regulatory in its nature and purpose is shown by the fact that, in addition to the imposition of the stamp tax, it requires a license and payment of a license fee, prohibits sales to minors under 21, and smoking by minors in stores, shops, and other places, restricts the advertising of cigarettes and tobaccos, and grants power to the licensing power to revoke or refuse licenses in the event of violation of any of the provisions of the act.

A police regulation presupposes a condition which, unless restricted, guarded, and controlled, will operate to public disadvantage. The courts have held, without 3 exception, that the state, in the exercise of the police power, may license, tax, and regulate the sale and use of cigarettes and tobacco and may go so far as to prohibit the traffic entirely.

In Gundling v. Chicago, 176 Ill. 340, 52 N.E. 44, 48 L.R.A. 230, it was held that an ordinance regulating the sale of tobacco in one of its forms, i.e., cigarettes, was a health and welfare measure within the exercise of the police power. This case was affirmed on appeal to the United States Supreme Court in 177 U.S. 183, 20 S.Ct. 633, 636, 44 L.Ed. 725, wherein it was said:

"The amount of the fee is fixed by the common council for the privilege of doing business, and the text of the ordinance and the amount of the fee therein named would seem to indicate that it is both a means adopted for the easier regulation of the business and a tax in the nature of an excise imposed upon the privilege of doing it. In either case the state has power to make the exaction, and its exercise by the city under state authority violates no provision of the Federal Constitution. * * *

"It is not a valid objection to the ordinance that it partakes of both the character of a regulation and also that of an excise or privilege tax. The business is more easily subjected to the operation of the power to regulate where a license is imposed for following the same, while the revenue obtained on account of the license is none the less legal because the ordinance which authorized it fulfills the two functions, one a regulating and the other a revenue function. So long as the state law authorizes both regulation and taxation, it is enough, and the enforcement of the ordinance violates no provision of the Federal Constitution."

In Austin v. State, 101 Tenn. 563, 48 S.W. 305, 50 L.R.A. 478, 70 Am. St. Rep. 703, the court held that cigarettes are not a legitimate article of commerce. This case went to the Supreme Court of the United States, and that court, while holding that the cigarette was a legitimate article of interstate commerce, also held that it was, however, to the same extent as intoxicating liquors, subject to regulation under the police power of the state. The court said:

"Cigarettes do not seem until recently to have attracted the attention of the public as more injurious than other forms of tobacco; nor are we now prepared to take judicial notice of any special injury resulting from their use or to indorse the opinion of the supreme court of Tennessee that ``they are inherently bad and bad only.' At the same time we should be shutting our eyes to what is constantly passing before them were we to affect an ignorance of the fact that a belief in their deleterious effects, particularly upon young people, has become very general, and that communications are constantly finding their way into the public press denouncing their use as fraught with great danger to the youth of both sexes. Without undertaking to affirm or deny their evil effects, we think it within the province of the Legislature to say how far they may be sold, or to prohibit their sale entirely, after they have been taken from the original packages or have left the hands of the importer, provided no discrimination be used as against such as are imported from other states, and there be no reason to doubt that the act in question is designed for the protection of the public health."

Austin v. Tennessee, 179 U.S. 343, 21 S.Ct. 132, 134,45 L.Ed. 224.

In State v. Olson, 26 N.D. 304, 144 N.W. 661, 666, L.R.A. 1918B, 975, an act prohibiting traffic in snuff was sustained. The court said:

"There is a wide difference in the attitude of the courts towards statutes which restrict that which is harmful and those which restrict that which is harmless. The courts can certainly take judicial notice that the use of tobacco in any form is uncleanly, and that its excessive use is injurious. They can take judicial notice of the fact that its use by the young is especially so. Tobacco, in short, is under the ban."

In State v. Nossaman, 107 Kan. 715, 193 P. 347, 347, 20 A.L.R. 921, wherein the Kansas act prohibiting the barter, sale, or giving away of cigarettes was sustained, the court said:

"For a number of years there has been a well-settled opinion that the use of cigarettes especially by persons of immature years was harmful, and the courts have recognized that they were deleterious in their effects. Their sale and use have been regulated and prohibited by legislative bodies, and these measures have been upheld as a proper exercise of the police power."

We refer to these cases, not that they decide the question before us as to the validity of restrictions on advertising, but because they show that tobacco and cigarettes are classed by the courts as agencies harmful to health and welfare, and are subject to restriction, control, and regulation within the exercise of the police power.

It is well settled in this state, as elsewhere, that the courts will not declare a statute unconstitutional unless it clearly and manifestly violates some provision of the Constitution of the state or of the United States. Every presumption must be indulged in favor of the constitutionality of an act, and every reasonable doubt resolved in favor of its validity. Utah State Fair Ass'n v. Green, 68 Utah 251,249 P. 1016. The whole burden lies on him who denies the constitutionality of a legislative enactment. Brown v. 4-8Maryland, 12 Wheat. 436, 6 L.Ed. 678. If by any fair interpretation of the statute the legislation can be upheld, it is the duty of this court to sustain it, even though judges may view the act as inopportune or unwise; and it is not within the province of the judiciary to question the wisdom or the motives of the Legislature in the enactment of a statute. Utah State FairAss'n v. Green, supra. The provision in question was regularly passed by the Legislature and approved by the Governor. The presumption should be and is in favor of validity. It must be assumed that the legislative department, whose members pledged themselves by oath to support the Constitution, has not lightly disregarded that pledge. The act must be upheald and enforced unless it manifestly bears no relation to public health, morals, welfare, or other legitimate object of the police power, or, if it does bear such relation, unless it is a plain invasion of constitutional rights.

The scope of the police power is briefly defined, and the function of Legislatures and courts with relation thereto well stated by Mr. Justice Marshall in State v. Redmon,134 Wis. 89, 114 N.W. 137, 140, 14 L.R.A. (N.S.) 229, 126 Am. St. Rep. 1003, 15 Ann. Cas. 408, as follows:

"Many attempts have been made to define police power. There is good reason to say that the multitude of such attempts with the many variations in phrasing the matter have not added very much to the simple expression, that it is the power to make all laws which in contemplation of the Constitution promote the public welfare. That both defines the power and states the limitations upon its exercise, it being understood that it is a judicial function to determine the proper subject to be dealt with, and that it is a legislative function, primarily, to determine the manner of dealing therewith, but ultimately a judicial one to determine whether such manner of dealing so passes the boundaries of reason as to overstep some constitutional limitation, express or implied."

The rule as to judicial interference with legislative enactment pursuant to the police power is stated as follows in 6 R.C.L. 242:

"In order to sustain legislation under the police power the courts must be able to see that its operation tends in some degree to prevent some offense or evil, or to preserve public health, morals, safety and welfare; and if a statute discloses no such purpose and has no real or substantial relation to these objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts so to adjudge; and thereby give effect to the constitution. Only in cases, however, where the legislature exceeds its powers, will the courts interfere or set up their judgment against that of the legislature. Where an act has a real and substantial relation to the police power, then no matter how unreasonable nor how unwise the measure itself may be, it is not for the judicial tribunals to avoid or vacate it upon constitutional grounds, nor will the courts assume to determine whether the measures are wise, or the best that might have been adopted; or whether such laws are invalid on the ground of inexpediency, or whether they bear any real or substantial relation to the public welfare."

The traffic in and use of cigarettes and tobacco being a proper subject to be dealt with by the Legislature, it is a legislative function primarily to determine the manner in which and extent to which it will deal with such subject-matter.State v. Redmon, supra. The Legislature has, as a part of its program of regulation, prohibited the advertising of cigarettes and tobaccos on billboards and other 9 placards in street cars and elsewhere. As was said by Mr. Justice Stone, speaking for a unanimous court in StandardOil Co. v. Marysville, 279 U.S. 582, at page 585,49 S.Ct. 430, 73 L.Ed. 856:

"We need not labor the point, long settled, that, where legislative action is within the scope of the police power, fairly debatable questions as to its reasonableness, wisdom, and propriety are not for the determination of courts, but for that of the legislative body on which rests the duty and responsibility of decision."

Had the sale of cigarettes been prohibited entirely, there could be no serious question but that the advertising of them, at least by local agencies, could be lawfully prohibited. Solomon v. Cleveland, 26 Ohio App. 19, 159 N.E. 121.

In dealing with the subject, the Legislature did not see fit to go further and impose more or other restrictions upon the traffic, nor to prohibit it entirely as it might have done, nor to prohibit all and every sort and kind of 10-11 advertising. The reason it did not prohibit other kinds of advertising will be discussed hereafter in this opinion. Police laws need not necessarily be omnibus in character, and it is permissible to legislate against one form of evil, even though other and similar evils have not been condemned. State v.Olson, supra; State v. Nossaman, supra. It was said by the Supreme Court of the United States in Miller v. Wilson,236 U.S. 373, 35 S.Ct. 342, 59 L.Ed. 628, L.R.A. 1915F, 829:

"The legislature is free to recognize degrees of harm and may confine its restrictions to those classes where it deems the need is greatest, and if the law hits an evil where it is most felt the prohibition need not be all embracing."

In Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 11,60 L.Ed. 131, L.R.A. 1916D, 545, Ann. Cas. 1917B, 283, the court said:

"We have frequently said that the legislature may recognize degrees of evil and adapt its legislation accordingly (St. Louis Consol. Coal Co. v. Illinois, 185 U.S. 203, 207, 22 S.Ct. 616,46 L.Ed. 872, 875; McLean v. Arkansas, 211 U.S. 539, 551,29 S.Ct. 206, 53 L.Ed. 315, 321; Miller v. Wilson, 236 U.S. 373, 384,35 S.Ct. 342, 59 L.Ed. 628, 632, L.R.A. 1915F, 829); but underlying the classification is the authority to deal with that at whichthe legislation is aimed." (Italics added.)

Advertising is a form of soliciting. State v. J.P. BassPub. Co., 104 Me. 288, 71 A. 894, 20 L.R.A. (N.S.) 495. We see no reason why the state which may prohibit or limit the sale of this article, may not also limit or restrict the solicitation of the sale, especially 12-13 where, as here, it has prohibited the sale to minors. Such solicitation by advertisement is for the purpose of increasing the demand for and use of tobacco. These advertisements do not appeal alone to the class of persons who may lawfully purchase and use cigarettes and tobacco; they are general in their nature, and appeal to all classes and ages of our population. It is inconsistent to say that the Legislature may lawfully prohibit the sale of tobacco to minors of both sexes, but is without power to place any restriction on the solicitation of such persons by advertisements. Laws have been enacted in almost every state in the union prohibiting the sale of tobacco or some of its manufactured forms to minors, but, notwithstanding the enactment of these laws and the attempt to enforce them, the tobacco habit has made great inroads into the youth of the country. The reason would seem quite plain. Manufacturers and dealers have been left free to appeal to the boys and girls as well as adults with most alluring and attractive cigarette and tobacco advertisements, with the result that these laws have become largely ineffective. It is almost useless to pass laws prohibiting the sale of tobacco to minors, and at the same time make no attempt to restrict the solicitation of these same minors by all kinds of alluring and attractive advertisements. The recruits into the ranks of the smokers come largely from the boys and girls rather than from people of maturity. The prohibiting of billboard and other placard advertising has a direct bearing and relation to the object of the act in attempting to prevent the sale to and use of cigarettes and tobacco by minors. The Legislature could well have concluded that the kind and amount of advertising done by the tobacco manufacturers and dealers has amounted to a campaign of propaganda for the purpose of inducing the youth of the community to become users of tobacco in its various forms. We think it clearly within the power of the Legislature, when it undertook to combat or diminish the evil of smoking among young people, to not only prohibit the sale of these products to minors, but also to strike at a most effective and insidious method of inducement habitually used to lure the youth into the use of these products by prohibiting the advertising of cigarettes and tobacco on billboards, placards, and in street cars.

It is apparent the Legislature believed that in the use, sale, and advertising of cigarettes and tobacco there were evils inimical to the public welfare which required regulation and restriction. In Rast v. Van Deman, 240 U.S. 342,36 S.Ct. 370, 374, 60 L.Ed. 679, L.R.A. 1917A, 421, Ann. Cas. 1917B, 455, it is said:

"It is the duty and function of the legislature to discern and correct evils, and by evils we do not mean some definite injury, but obstacles to a greater public welfare. Eubank v. Richmond,226 U.S. 137, 142, 57 L.Ed. 156, 158, 42 L.R.A. (N.S.) 1123,33 S.Ct. 76, Ann. Cas. 1914B, 192; Sligh v. Kirkwood, 237 U.S. 52,59 L.Ed. 835, 837, 35 S.Ct. 501. And, we repeat, ``it may make discriminations if founded on distinctions that we cannot pronounce unreasonable and purely arbitrary.' Quong Wing v. Kirkendall, 223 U.S. 59, 62, 56 L.Ed. 350, 351, 32 S.Ct. 192, and the cases cited above."

In Armour Co. v. North Dakota, 240 U.S. 510,36 S.Ct. 440, 441, 60 L.Ed. 771, Ann. Cas. 1916D, 548, Mr. Justice McKenna, speaking for the unanimous court, gave expression to views which are pertinent here. A statute requiring that lard sold in packages be in packages of certain sizes was assailed as offending against the equal protection clauses of the Fourteenth Amendment of the Constitution and also on other grounds. The State Supreme Court in its opinion had said:

"The expert who drafted the law, the legislature who passed it, and the governor who approved it, all thought necessity existed for such a measure. If we did not agree with all those, we might well hesitate to say that there was absolutely no doubt upon the question, but in fact a majority of this court believes the law not only reasonable, but necessary, and this belief is founded upon the evidence in this case and upon facts of which this court can take judicial cognizance."

After quoting the above from the state court, Mr. Justice McKenna says:

"The court, by these remarks, expressed the test of a judicial review of legislation enacted in the exercise of the police power, and in view of very recent decisions it is hardly necessary to enlarge upon it. We said but a few days ago that if a belief of evils is not arbitrary, we cannot measure their extent against the estimate of the legislature, and there is no impeachment of such estimate in differences of opinion, however strongly sustained. And by evils, it was said, there was not necessarily meant some definite injury, but obstacles to a greater public welfare. Nor do the courts have to be sure of the precise reasons for the legislation, or certainly know them, or be convinced of the wisdom or adequacy of the laws. Rast v. Van Deman L. Co.; Tanner v. Little, 240 U.S. 342, 60 L.Ed. 691,36 S.Ct. 379."

We are not unmindful that the complaint in this case describes the advertisement complained of as merely representing a package of Chesterfield cigarettes with the words "Chesterfield Cigarettes, They Satisfy." We would, however, be derelict in our duty, in passing upon the validity of 14 this enactment, if we fail to see what every seeing person may see, or refuse to know what every person in the community does know. One cannot walk or ride along a public street or highway without being continually attracted by artistic and fascinating billboard advertisements featuring beautiful girls and handsome young men calling attention to the alleged virtues of the various brands of cigarettes and smoking tobacco.

It is claimed by respondent that there is an unjust discrimination in the law, in that only advertising by billboards, street car signs, and placards are prohibited, while advertising by newspapers, magazines, and radio are permitted. Most of the advertising in magazines, newspapers, and by radio is involved in interstate commerce and cannot be reached by state regulation. State v. Salt Lake Tribune Pub. Co., 68 Utah 187,249 P. 474, 48 A.L.R. 553. Section 2, Chapter 52 Laws Utah 1923, made unlawful the advertising of tobacco in its various forms in newspapers, magazines, and pamphlets as well 15 as on billboards and street car signs and placards. The provisions of this act, so far as applicable to newspapers circulating in several states, was by this court in State v. Salt Lake Tribune Pub. Co., supra, held invalid as an undue interference with interstate commerce. Thereafter the section was amended by Laws Utah 1929, c. 92, so as to make its restrictions applicable only to advertisements by billboards, placards, and street car signs. It has been held that an act which prohibits local newspapers printed and circulated within the state from advertising tobacco, while permitting the circulation within the state of newspapers printed outside the state, is violative of constitutional provisions. Little v. Smith, 124 Kan. 237, 257 P. 959, 57 A.L.R. 100. Here, however, there is no such discrimination. Billboards, street car 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 street cars to be seen without the exercise of choice or volition on their part. Other forms of advertising are ordinarily seen as a matter of 16 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 street car 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. The classification therefore is not arbitrary or unreasonable, and, when made, there is no legal reason why the classification cannot be sustained as within legislative power.

The subject-matter of the act, that is, the use, sale and advertising of cigarettes and tobaccos, is one upon which the Legislature has a lawful right to exercise its power. In making classifications the power of 17 legislation over the subject-matter is of vital importance. This was discussed in Tanner v. Little,240 U.S. 369, 36 S.Ct. 379, 383, 60 L.Ed. 691, wherein advertising by means of trading stamps was distinguished from other forms of advertising, wherein it was said, after citing illustrations of lawful classifications:

"Those were instances (and others might be cited) of the regulation of conduct and the restriction of its freedom, it being the conception of the legislature that the regulation and restriction were in the interest of the public welfare. Those classifications were sustained as legal; being within the power of the legislature over the subject-matter, and having proper bases of community.

"But the classification which was sustained in St. Louis Coal Co. v. Illinois, 185 U.S. 203, 46 L.Ed. 872, 22 S.Ct. 616, was condemned in Truax v. Raich, 239 U.S. 33, 60 L.Ed. 131,36 S.Ct. 7 [L.R.A. 1916D, 545, Ann. Cas. 1917B, 283]. The statute in the latter case required employers of more than five workers at any one time to employ not less than 80 per cent. qualified electors or native-born citizens of the United States or of some subdivision of such. The statute was held void because there was no authority to deal with that at which the legislation was aimed. And this is important to be kept in mind. If there is no such authority, a classification, however logical, appropriate, or scientific, will not be sustained; if such authority exist, a classification may be deficient in those attributes, may be harsh and oppressive, and yet be within the power of the legislature. This has been declared many times. Let us apply the test to the case at bar. Let it be granted that the ``premium system' is a method of advertising; can there not be differences in advertising which may be subject to differences in legislation? Can there not be advertising at places or at times or in kind or effect subversive of public order or convenience? Fifth Ave. Coach Co. v. New York, 221 U.S. 467, 55 L.Ed. 815, 31 S.Ct. 709; Com. v. McCafferty, 145 Mass. 384, 14 No. E. 451."

It is true as urged by respondent that the classification, to be valid, "must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly 18 circumstanced shall be treated alike." Royster GuanoCo. v. Virginia, 253 U.S. 412, 40 S.Ct. 560, 561, 64 L.Ed. 989. The classification here made is one which meets this requirement. Certainly all persons similarly situated are treated alike, since the law applies equally to all engaged in billboard advertising. From what has been said heretofore, it must be apparent that the "ground of difference" bears a "fair and substantial relation to the object of legislation."

It is possible that advertisements in newspapers and magazines may be equally attractive and alluring and are probably equally effective. Opinions may differ as to the respective effectiveness of one form of advertising compared with another. Advertisements on a billboard, placard, or street car are wholly intrastate, and may be reached by state legislative action, while advertisements in newspapers and magazines are or may be in interstate commerce, and cannot for that reason be controlled by the state. After this court had declared unconstitutional the act prohibiting advertising of cigarettes in newspapers having a circulation beyond the state lines as an interference with interstate commerce, the Legislature enacted the present provision going, as it believed, as far as it had lawful power to go in the direction of curbing the advertisements of tobacco, and to prevent the act from being in direct conflict with the law as announced by the courts (State v. Salt Lake Tribune Pub. Co., supra; Little v. Smith, supra), exempted from the operation of the act the advertising of such articles in newspapers, magazines, and periodicals printed or circulating in the state.

We conclude that the statute in question was enacted within the lawful exercise of legislative power in the interest of public health, morals, and welfare, because the advertising of cigarettes and tobacco has a relation, real and substantial, to the public welfare, that the belief of evils sought to be reached by legislation was not arbitrary, but such 19, 20 evils were obstacles to a greater public welfare. There is no deprivation of due process of law, nor a denial of equal protection of the laws; the classification adopted by the Legislature is not without good reason, so that all similarly circumstanced are treated alike. Such restrictions upon the use of property and the right to contract will be sustained where imposed in the interest of the welfare of the whole people. It is not for us to set up our views as to the wisdom or effectiveness of such legislation. The responsibility for determining the policy of the state in such matters is upon the legislative department.

The judgment of the district court is reversed.

CHERRY, C.J., and EPHRAIM HANSON, J., concur.