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STATE LAWS PROHIBITING INTRASTATE ADVERTISING VALID
The States in the exercise of their police power have prohibited certain forms of advertising and regulated others.
The United States Supreme Court in the case of Packer ('orp. v. Utah (1932) (285 U. S. 105, 76 L. Ed. 643), upheld a statute of the State of Utah prohibiting billboard advertising of tobacco products. In that case the Court quoted with approval the language of the State Supreme Court, saying :
*Moreover, as the State court has shown, there is a difference which justifies the classification between display advertising and that in periodicals or newspapers: 'Billboards, streecar signs, and placards and such are in a class by themselves. They are wholly intrastate, and the restrictions apply without discrimination to all in the same class. Advertisements of this sort are constantly before the eyes of observers on the streets and in streetcars to be seen without the exercise of choice or volition on their part. Other forms of advertising are ordinarily seen as a matter of choice on the part of the observer. The young people as well as the adults have those 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 one who is to see and read the advertisement. The radio can be turned off, but not so the billboards or streetcar placard. These distinctions clearly place this kind of advertisement in a position to be classified so that regulations or prohibitions may be imposed upon all within the class. This is impossible with respect to newspapers and magazines.'
The legislature may recognize degrees of evil and adapt its legislation accordingly."
Similarly, in Fifth Ave. Coach Co. v. City of New York (1911) (211 U. S. 466, 55 L. Ed. 815), the Court sustained an ordinance of the city of New York prohibiting advertising on the outside of motorbuses.
Other illustrations of laws prohibiting or regulating various forms of advertising which have been upheld are:
Maryland: Regulating advertising by physicians (Diris 1. Stati, 37 A (2) 880).
Maryland : Advertising to perform marriage ceremonies (itute v. Clay, 37 A (2) 821).
Wisconsin : Law prohibiting advertising of eye-glass prices (Retholtz v. Johnson, 17 N. W. (2) 590.
Ohio: Ordinance prohibiting advertising of eye-glass prices (City of Springfield' v. Hurst, 56 N. E. (2) 185, 144 Oh. St. 49).
New Hampshire: Fixing rates for political advertising (Chronicle and Gazette Publishing Co. v. Attorney General, 48 A (2) 478).
California : Ordinance prohibiting advertising of fortune telling by psychic power. In re Weddenburn (151 P. (2) 889).
New Yorks Prohibiting advertising signs in public parks ( People 1. Sterling, 45 N. Y. S. (2) 39). The only exception to this holding has been in those instances in which the State law undertook to bring within the prohibition forms of advertising which were subject to the paramount power of Congress to regulate commerce and Congress had not acted, as in these cases involving cigarettes :
State of Utah v. Salt Lake Tribune Pub. Co. (1926) (249 Pac, 474, 48 A. L. R. 552).
Little v. Smith (1927) (124 Kan. 100, 257 Pac. 959).
STATE LAWS PROHIBITING LIQUOR ADVERTISING UPHELD
In Delameter v. South Dakota (1907) (205 U. S. 724), the Court held that by virtue of the Wilson Act of August 8, 1890, making liquor subject to State law upon arrival within the State, the annual license charge imposed by the State of South Dakota upon the business of selling or offering for sale of liquors within the State by any traveling salesman who solicited orders in quantities of not less than 5 gallons, was valid and not repugnant to the commerce clause of the Federal Constitution as imposing a burden on interstate commerce.
Since the Wilson Act and the decision in the Delameter case, State laws prohibiting the advertising of liquor have been uniformly upheld, even those in which the advertisement appearing in the State's publications may have originated without the State. See:
State v. J. P. Bass Pub. Co. (1908) (104 Me. 288, 20 L. R. A. (N. S.) 4.5. 71 Atl. 894).
State pu rel. Black v. Delaye (1915) (193 Ala. 500, L. R. A. 1915 E 640, 68 So. 993).
Advertiser Co. v. State (193 Ala. 418, 69 So. 501).
State cu rel. Western State Cupitul Co. (1909) (24 Okla. 252, 103 Pac. 1021).
State v. Davis (1915) (77 W. Va. 271, L. R. A. 1917 C 639, 87 S. E. 262).
THE MANUFACTURE AND SALE OF LIQUORS IS NOT ONE OF THE INHERENT RIGHTS OF
In Bartemeyer v. State of Iowa (1874) (18 Wall. 121, 21 L. Ed. 92.9) the Supreme Court in sustaining the validity of the prohibition law of Iowa declared:
"We think that the right to sell intoxicating liquors, insofar as such a right exists, is not one of the rights growing out of cit zenship of the United States which is protected against State action hy the fourteenth amendment."
In Boston Beer Co. v. Jass. (1878) (97 U. S. 23, 24 L. Ed. 989), the Court held that the charter of the Boston Beer Co. granted in 1828 with the franchise of manufacturing malt liquors in Boston did not contain any contract the obligation of which was impaired by the prohibitory law of Massachusetts passed in 1869, and as aga inst the contention that it was violative of the fourteenth amendment, said:
"Biit there is another question in the case, which, as it seems to us, is equally decisive.
*The plaintiff in error was incorporated 'for the purpose of manufacturing malt liquors in all their varieties,' it is true, and the right to manufacture, undoubtedly as the plaintiff's counsel contends, included the incidental right to dispose of the liquors manufactured. But although this right or capacity was thus granted in the most unqualified form, it cannot be construed as conferring any greater or more sacred right than any citizen bad to manufacture malt liqnor; nor as exempting the corporation from any control therein to which a citizen would be subject, if the interest of the community should require it. If the public safety or the public morals require the discontinuance of any manufacture or traffic, the hand of the legislature cannot be stayed from providing for its discontinuance, by any incidental inconvenience which individuals or corporations may suffer. All rights are hold subject to the police power of the State."
In Foster v. Kansas (1884) (112 U. S. 206, 28 L. Ed. 697), the Court said that the question as to the constitutional power of a State to prohibit the manufacture and sale of intoxicating liquor was no longer an open one in this court.
In Mugler v. Kansas (1887) (123 U. S. 623. 31 L. Ed. 205), in upholding the validity of the prohibition law of the State of Kansas and denying the right of compensation to those engaged in the business, the Court declared :
"So far from such a regulation having no relation to the general end sought to be accomplished. the entire scheme of prohibition, as embodied in the constitution and laws of Kansas, might fail, if the right of each citizen to manufacture intoxicating liquors for his own use as a beverage were recognized. Such a right does not inhere in citizenship. Nor can it be said that Government interferes with or impairs anyone's constitutional rights of liberty or of property, when it determines that the manufacture and sale of intoxicating drinks, for general or individual use, as a beverage, are, or may become, hurtful to society, and constitute, therefore, a business in which no one may lawfully engage."
In Crowley v. Christinnson (1890) (137 U. S. 86, 34 L. Ed. 620), in upholding the authority of the city of San Francisco to exact a license as a condition of eng:ging in the liquor business, Mr. Justice Fields declared :
“There is no inherent right in a citizen to thus sell intoxicating liquors by retail; it is not a privilege of a citizen of the State or of a citizen of the United States. As it is a business attended with danger to the community, it may, as alreally said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils. The manner and extent of regulation rest in the discretion of the governing authority."
In Giozza v. Tiernan (1893) (148 U. S. 657, 37 L. Ed. 599), the Court sustained the conviction of a person charged with violating a statute of the State of Texas which required that before a license to sell liquors should be granted the applicant should give bond in the sum of $500 conditioned that he would not sell spirituous, vinous or malt liquors to any person after having been notified in writing through the sheriff or other peace officer, or by the wife, mother, daughter, or sister of such person not to sell to such person, and provided that suit on the bond might be brought at the instance of any person so notifying and aggrieved by the violation of such condition. It was insisted that the act denied equal protection of the law and deprived of property without due process of law. The court said:
“The privileges and immunities of citizens of the United States are privileges and immunities arising out of the nature and essential character of the National Government, and granted or secured by the Constitution of the United States, and the right to sell intoxicating liquors is not one of the rights growing out of such citizenship."
The effect of the foregoing decisions was to establish the principle that engaging in the manufacture and sale of liquoi's was a privilege and not a right; that those who entered the business did so with the knowledge of its status and' of the fact that the legislative body might at any time, in the exercise of its discretion as to what measures were most appropriate for the public welfare, prohibit the business and that without compensating for investments made.
The question of the power of the State to prohibit possession of liquor for personal use was not decided until 1917 in the case of Crane v. Campbell (245 U. S. 304, 62 L. Ed. 304), in which the Court said:
"It must now be regarded as settled that, on account of their well-known noxious qualities and the extraordinary evils shown by experience commonly to be consequent upon their use, a State has power absolutely to prohibit manufacture, gift, purchase, sale, or transportation of intoxicating liquors within its borders without violating the guaranties of the fourteenth amendment.
“As the State has the power above indicated to prohibit, it may adopt such measures as are reasonably appropriate or needful to render exercise of that power effective.
And considering the notorious difficulties always attendant upon efforts to suppress traffic in liquors, we are unable to say that the challenged inbibition of their possession was arbitrary and unreasonable or without proper relation to the legitimate legislative purpose.
"We further think it clearly follows from our numerous decisions upholding prohibition legislation that the right to hold intoxicating liquors for personal use is not one of those fundamental privileges of a citizen of the United States which no State may abridge."
In Barbour v. Georgia (1919) (249 U. S. 454, 63 L. Ed. 704), the Court had left open the question whether the prohibition against possession could be made to apply to liquors acquired before the law went into effect. This question was decided by the Court in 1925 in Samuels v. McCurdy (267 U. S. 188, 69 L. Ed 568), in which the Court upheld the right of Georgia to prohibit possession of liquor acquired before the law went into effect without compensating the owner thereof. The Court said:
“For many years, everyone who has made or stored liquor has known that it was a kind of property which, because of its possible vicious uses, miglıl be denied by the State the character and attributes as such; that legislation calculated to suppress its use in the interest of public health and morality was lawful and possible; and this without compensation.”
THE FIFTH AMENDMENT IMPOSES NO GREATER LIMITATION UPON THE FEDERAL GOVERN
MENT TO REGULATE LIQUORS THAN THE FOURTEENTH AMENDMENT DOES UPON THE STATES
The fourteenth amendment declares:
“No State shall make or enforce any law which shall abridge the privileges or immunities of the citizen of the United States, nor shall any State deprive any person of life, liberty, or property without due 'process of law, nor deny to any person within its jurisdiction the equal protection of the laws."
This is a limitation upon the States. The fifth amendment imposing a similar limitation upon the power of Congress declares :
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any eriminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
It is now well settled by the decisions of the Supreme Court that the fifth amendment imposes no greater limitation upon the Federal Government than the Fourteenth amendment imposes upon the States. This was held with respect to intoxicating liquors in the case of Hamilton v. Kentucky Distilleries & Warehouse Co. (251 U. S. 146, 64 L. Ed. 194), in which the Court sustained the power
of Congress to prohibit the liquor traffic in the exercise of its war powers and to do so without compensation to those engaged in the business for their loss. The Court there declared :
“That the United States lacks the police power, and that this was reserved to the States by the tenth amendment, is true. But it is none the less true that when the United States exerts any of the powers conferred upon it by the Constitution, no valid objection can be based upon the fact that such exercise may be attended by the same incidents which attend the exercise by a State of its police power, or that it may tend to accomplish a similar purpose.
But the fifth amendment imposes in this respect no greater limitation upon the national power than does the fourteenth amendment upon State power. If the nature and conditions of a restriction upon the use or disposition of property are such that a State could under the police power, impose consistently with the fourteenth amendment without making compensation, then the United States may for a permitted purpose impose a like restriction consistently with the fifth amendment without making compensation; for prohibition of the liquor traffic is conceded to be an appropriate means of increasing our war efficiency."
The Court has recently reaffirmed this principle in the case of United States v. Carolene Products Co. (1938) (304 U. S. 145, 82 L. Ed. 1234), in which it sustained the Filled Milk Act of March 4, 1923. It prohibits the shipment in interstate commerce of skimmed milk combined with any fat or oil other than milk fat so as to resemble milk or cream. The Court said:
"Such regulation is not a forbidden invasion of State power either because its motive or its consequence is to restrict the use of articles of commeree within the States of destination, and is not prohibited unless by the due-process clause of the fifth amendment. And it is no objection to the exertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the States.
The prohibition of the shipment of filled milk in interstate commerce is a permissible regulation of commerce, subject only to the restrictions of the fifth amendment.
“Second, the prohibition of shipment of appellee's product in interstate commerce does not infringe the fifth amendment."
In upholding the Webb-Kenyon Act of March 1, 1913, which removed the interstate-commerce protection from intoxicating liquors shipped into any State when intended by any person interested therein to be received, possessed, sold, or used in violation of the law of the State, as against the contention that it illegally delegated to the States the determination whether liquors were to be recognized as a commodity in interstate commerce, the Court said (James Clark Distilling Co. v. Western Maryland R. Co. (1917) (242 U. S. 310, 61 L. Ed. 326)):
"It is not in the slightest degree disputed that if Congress had prohibited the shipment of all intoxicants in the channels of interstate commerce, and therefore had prevented all movement between the several States, such action would have been lawful because within the power to regulate which the Constitution conferred.
The issue, therefore, is not one of an absence of authority to accomplish in substance a more extended result than that brought about by the Webb-Kenyon law, but of a want of power to reach the result accomplished because of the method resorted to for that purpose. This is certain since the sole claim is that the act was not within the power given to Congress to regulate because it submitted liquors to the control of the States by subjecting interstate commerce in such liquors to present and future State prohibitions, and hence, in the nature of things, was wanting in uniformity. Let us test the contentions by reason and authority.
“We can see no reason for saying that although Congress, in view of the nature and character of intoxicants, had a power to forbid their movement in interstate commerce, it has not the authority to so deal with the subject as to establish a regulation (which is what was done by the Webb-Kenyon law) making it impossible for one State to violate the prohibitions of the laws of another through the channels of interstate commerce.
"The fact that regulations of liquor have been upheld in numberless instances which would have been repugnant to the great guaranties but for the enlarged right possessed by Government to regulate liquor has never, that we are aware of, been taken as affording the basis for the thought that Government might exert an enlarged power as to subjects to which, under the constitutional guaranties, such enlarged power could not be applied. In other words, the exceptional nature of the subject here regulated is the basis upon which the exceptional power exerted must rest, and affords no ground for any fear that such power may be constitutionally extended to things which it may not, consistently with the guaranties of the Constitution, embrace."
UNDER THE TWENTY-FIRST AMENDMENT THE MANUFACTURE AND SALE OF LIQUORS IS
STILL A PRIVILEGE TO BE GRANTED OR WITH HELD BY THE STATES IN THE EXERCISE OF THEIR POLICE POWER
The twenty-first amendment did two things: It repealed the eighteenth amendment providing for national prohibition, and it left to the States in the exercise of their police power the determination of legislative policy with respect to sale, nonsale, or conditions of sale. This section, standing alone, would have restored exactly the same constitutional status which existed before the adoption of national constitutional prohibition.
The second change was made with respect to liquors in interstate commerce. The second section of the amendment provided :
"The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”
This provision has now been interpreted by the Supreme Court of the United States in the following cases :
Premier-Pabst Sales Co. v. Grosscup ((1936) 298 U. S. 226, 80 L. Ed. 1155).
State Board of Equalization 1. Young's Market Co. ((1936) 299 U. S. 59, 81 L, Ed. 39).
Mahoney v. Jos. Triner Corp. ((1938) 304 U. S. 401, 82 L. Ed. 1425).
Indianapolis Brewing Co. v. Liquor Control Commission of Michigan ((1939), 305 U. S. 391, 83 L. Ed. 243).
Finch v. McKittrick (305 U. S. 395, 83 L. Ed. 246 (1939)).
Johnson v. Yellow Cab Transit Co. (320 U. S. 731, 88 L. Ed. 432 (1944) ). As construed by the Court, this section of the amendment grants to the States complete autonomy to fix the conditions upon which liquors may be imported into the State for delivery or use therein, and the States may now exact license fees for the privilege of importation, may exclude either conditionally or entirely liquor manufactured in other States, or pass retaliatory legislation against States which discriminate against its domestic liquors.
STATUS OF LIQUOR IN INTERSTATE COMMERCE DIFFERENT FROM OTHER COMMODITIES
Another effect of the amendment was to impose a limitation upon the constitutional power of Congress (either through failure to act or by positive legislation, to authorize the introduction of liquors into a State for delivery or use therein in violation of State policy. In this respect it placed intoxicating liquors under the commerce clause in a different constitutional category from other commodities. The privilege of engaging in the liquor business is still subject to the police power of the States and its interstate aspects are subject to congressional regulation subject to the above limitation.
The adoption of the twenty-first amendment gave to the liquor traffic no added right to engage in the business beyond the mere privilege which it enjoyed before the adoption of the eighteenth amendment. It is still subject to the police regulation of the States and to the now added constitutional authority of the State to regulate importations for use within the State. This principle was held in decisions by the Supreme Court construing the amendment. Thus in PremierPabst Sales Co. v. Grosscup (1936), (298 U. S. 226, 80 L. Ed. 1155), the Court said in discussing the effect of a license issued by the State of Pennsylvania :
“For even if a license was valid when issued, the States had power to terminate it. Mugler v. Kansas (123 U. S. 623, 31 L. Ed. 205, 8 S. Ct. 273), and as we construe the act of 1935, it did so."
More recently, in Mahoney V. Jos. Triner Corp. (1938) (304 U. S. 401, 82 L. Ed., 1425), the Court declared :
"The fact that the Joseph Triner Corporation had, when the statute was passed, a valid license and a stock of liquors in Minnesota imported under it, is immaterial. Independently of the twenty-first amendment, the State had power to terminate the license (Mugler v. Kansas (123 U. S. 623, 31 L. Ed. 205, H. S. Ct. 273) ; Premier-Pab Sales Co. v. Grosscup (298 U. S. 226, 80 L. Ed. 1156, 56 S. Ct. 754))."