State v. Olson, 144 N.W. 661

State v. Olson

144 N.W. 661 | N.D. | 1913

Beuce, J.

(after stating the facts as above). The first contention of appellant is that the information “does not show the commission of any offense in this, that the statute under which the information is drawn is void because it violates the section of the North Dakota Constitution, and also the provision of the 14-th Amendment of the Federal Constitution, inhibiting unequal legislation by the state in this, that it arbitrarily excludes from the markets of this state, and prohibits the importation, manufacture, sale, and use of, tobacco in some forms, and permits it in others, there being no reasonable grounds for the discrimination between the forms prohibited and those permitted.” It is claimed that police regulations must reach and affect eqitally all persons and objects in the class to which they apply, and that there is no sound basis for a classification in which snuff is placed separate and *319apart from tobacco in other forms. It is argued, and the evidence no doubt tends to show,-that the effect of snuff is communicated to the system through the mucous membranes, and that the same is true of chewing tobaccos generally, and of those excluded from the provisions of the act. It is also claimed, and the evidence no doubt tends to show, that fermentation tends to destroy the nicotine, and that snuff which has been thoroughly fermented contains less of that commodity than ordinary tobacco, and that on this account it is less harmful.

There is a wide difference in the attitude of the courts toward 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. We realize, of course, that the Supreme Court of the United States refused in the case of Austin v. Tennessee, 179 U. S. 343, 45 L. ed. 224, 21 Sup. Ct. Rep. 132, to hold that tobacco was so much a nuisance as not to be a legitimate subject of interstate commerce. In the case, however, if fully upheld, the supreme court of Tennessee, in holding that it was within the power of the state to absolutely prohibit the sale of cigarettes within its borders when once the original package had been broken, even though the Supreme Court of the nation itself refused to take judicial notice that tobacco in the form of cigarettes was more noxious than in any other form. “Cigarettes,” the court said, “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 *320left the bands of the importer, provided no discrimination be used as against sucb 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. . . . There is doubtless fair ground for dispute as to whether the use of cigarettes is not hurtful to the community, and therefore it would be competent for a state, with reference to its own people, to declare, under penalties, that cigarettes should not be manufactured within its limits. No one could say that such legislation trenched upon the liberty of the citizen by preventing him from pursuing a lawful business.” We do not believe that we have to inquire strictly into the motives or reasons which actuated the legislature. We can only set aside a statute of this kind if we cannot possibly see any reasonable necessity for its enactment; that is to say, no possible and reasonable reference to the public health or morality or to the real public good. • Is not the very fact that snuff is generally used by holding it between the lip and the gum without mastication, or by plastering it upon the gums, a valid reason for the legislature condemning it, while leaving ordinary chewing tobacco alone? We believe that we can take judicial notice of the fact that many contend that the use of snuff between the lip and the gum has a tendency to paralyze the nerves of that portion of the face. We certainly can take cognizance of the fact that the schoolboy can secretly use tobacco in the form of snuff, when he would be liable to be detected in any other form of use. One who chews or masticates tobacco can be easily detected in the process. One of the strongest arguments, indeed, in favor of the crusade against the cigarette, is that cigarettes are easily and cheaply obtained, and that the boy is liable to be tempted by that fact, and that the use of tobacco will thus be increased. The same argument is certainly applicable in the case of snuff which is used, not in the nose, upon the gums or between the lip and the gum. So, too, we can-be blind to the general fear that drugs and opium are, and that drugs and opium certainly can be, easily mingled with snuff, and per-less readily detected than in other forms of tobacco.

Nor does the fact that the legislature made an exception in favor “that ordinary plug, fine cut, or long cut chewing tobacco, as now commonly known to the trade of this state,” render the statute unconstitutional. The modern trend of authority is certainly in favor *321of tbe proposition that police laws need not necessarily be omnibus in tbeir character, and that it is permissible to legislate against one form of evil even though many other and similar evils have not been condemned. “It may often happen,” says the Supreme Court of the United States in Cotting v. Kansas City Stock Yards Co. (Cotting v. Godard) 183 U. S. 111, 46 L. ed. 109, 22 Sup. Ct. Rep. 43, “that some classes are subjected to regulations, and some individuals are burdened with obligations, which do not rest upon other classes or other individuals not similarly situated. License taxes are imposed upon certain classes of business while others are exempt. It would practically defeat legislation if it was laid down as a rule that a statute was necessarily adjudged invalid if it did net bring all within its scope, or subject all to the same burdens. It would strip the legislature of its inherent power to determine generally what is for the general interests, which Interests may often be promoted by certain regulations affecting one class which do not affect another, certain burdens imposed on one which do not rest upon another.” A beginning must be made somewhere. It is not necessary that we should condemn all vice in order that any reformation shall be made. Would anyone say that a statute would be void for class legislation which should prohibit the use of whisky, but at the same time contain no prohibition against the use of beer? No criminal should be allowed to complain or to escape punishment because someone else is more of a criminal or more dangerous to society than he; nor should any product which is injurious to fhe community escape regulation and condemnation because there are others equally injurious which are not at the same time regulated or forbidden. There is, in fact, no vested right or interest in that which is a nuisance, or the use of which is injurious to the public weal. Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613, 42 L. ed 878, 18 Sup. Ct. Rep. 488; Mugler v. Kansas, 123 U. S. 623, 31 L. ed. 205, 8 Sup. Ct. Rep. 273; Kidd v. Pearson, 128 U. S. 1, 32 L. ed. 346, 2 Inters. Com. Rep. 232, 9 Sup. Ct. Rep. 6; 23 Cyc. 77. So, too, is it not perfectly reasonable for the legislature to say that in its opinion it is better to make a beginning and to enact a law which can be uniformly enforced, rather than a more sweeping one which could not be; for it to say, in short, that it will begin with snuff, and then later on, if It chooses, extend the condemnation throughout the whole range, of *322tobacco ? It can and has done this in the case of cigarettes. See State v. Austin, 101 Tenn. 563, 50 L.R.A. 478, 70 Am. St. Rep. 703, 48 S. W. 305; Austin v. Tennessee, 179 U. S. 343, 45 L. ed. 224, 21 Sup. Ct. Rep. 132. Why can it not do it in the case of snuff? It is true that “ordinary plug, fine cut, or long cut chewing tobacco, as now commonly known to the trade of this state,” has many characteristics in common with snuff and with Right Out. It may, however, also be that the legislature may have said that they knew these products and could watch them, but that they did not desire the entry of any more similar products into the state which would add to the common vice or require further supervision, especially a product which, on account of its fineness, could be more easily drugged and more easily concealed, and whose intended use was absorption, and not mastication.

We do not think that there is any merit in the contention that the title of the act refers merely to snuff, and that Right Cut is, at the most, merely a substitute for snuff; that the contention of the appellant is largely that it is a substitute for Copenhagen, and that even Copenhagen is not snuff. The brief of counsel for appellant contains a long and extremely interesting history of snuff and of its manufacture, and from this we may deduce the fact that for a long time, in order that an article might be deemed snuff, it was necessary that it should have been powdered or pulverized and fermented, and intended to be taken in the nose. We have before us, however, a definition of snuff in the statute, and though the word “snuff” alone is used in the title, and not snuff “as defined by this statute,” we believe that any court, in construing the meaning of words in a statute, should give to those words the meaning that is given to them in its own jurisdiction, even though their meaning in the world at large may be different. The Englishman, for instance, would never give to the word “tugs” the meaning that we give, but would call them “traces.” When we speak of “lines” in connection with harness, we use the word in the place of the English word “reins.” The words, it is true, are now to be found in the dictionaries, but they did not appear in the dictionaries in the sense in which we use them until quite recently. Dictionaries do not give to words their meaning. The meaning of most of our words were given by usage long before dictionaries were ever heard of. All that the dictionary does is to chronicle that which has been done. They are added *323to and different meanings are given to tbe same word as tbe word comes to be used in a different sense. Tbis is true even of tbe word “snuff.” Webster and Worcester, it is true, speak only of its use in tbe nose, but tbe Standard Dictionary also speaks of tbe use upon tbe gums. Though, too, counsel for appellant also insists upon tbe prerequisite of fermentation, no mention is made of tbis element in Worcester’s, Webster’s, or tbe Century Dictionaries, but in tbe Standard alone. There even only “slight fermentation” is spoken of. We realize, of course, that the Encyclopedia Americana, tbe Encyclopedia Britannica, and Werner’s Test-Book in Tobacco speak of this fermentation, but what we seek to emphasize is that tbe dictionaries and encyclopedias do not create words or processes or give to them their meaning. They chronicle merely, and must of necessity be constantly corrected and added to. Tbe use, however, must precede tbe chronicling. In North Dakota tbe word “snuff” has a well-established meaning in tbe popular mind, and is used in tbe sense of tbe definition that is given in tbe statute. Tbe manufacturers of tbe tobacco in tbe case at bar must have been aware of tbe fact, for it is a matter not merely of proof in tbe record before us, but of common notoriety, that for many years they put upon tbe market a product called “Copenhagen” and labeled it “snuff,” though it was intended to be used, and tbe overwhelming majority of its users used it, upon tbe gums and between tbe lips and tbe gums, and not in tbe nose. We bold, therefore, and we believe, that there is enough of state sovereignty still left in America for us to bold that no matter bow tbe word “snuff” may be limited in its meaning in other jurisdictions, in North Dakota it embraces tobacco which is intended to be used upon tbe gums as well as tobacco that is intended to be used in tbe nose.

Nor is there any merit in the contention that Right Cut is a substitute for snuff or Copenhagen, and that tbe title of tbe act only uses tbe word “snuff.” We believe that it is just as much a snuff as is Copenhagen; but even if it were a substitute, that tbe title of tbe act is broad enough to include it. A title which evinces tbe intention to prohibit the sale of an article is, we believe, broad enough to prohibit tbe sale of a substitute for that article, when that substitute is open to tbe same objection as the principal article itself. Section 2 does nothing more than to exclude from its provisions chewing tobacco as *324commonly known to tbe trade. We are quite satisfied that Right Cut was not chewing tobacco, but snuff.

In answer to the proposition that “if the act be construed without reference to its title, and it should be accordingly held that it is operative to all tobaccos except those named in the provisions, then it is unconstitutional in its entirety, and the whole act must fail,” we hold, in short, that the title of the act should be used in the construction thereof, not as adding to the act, but as a means of determining the legislative intent, and that the act is an anti-snuff act. We hold that as the term is used in North Dakota, both Copenhagen and Right Cut are snuffs, while the tobaccos excepted from the provisions of the act are not. Some of them, it is true, come close to the line, but that line is and must be drawn largely upon the basis of fineness and dryness, and it-must be drawn somewhere. It is undisputed that both Right Cut and Copenhagen are drier and finer than the tobaccos excepted. It is also undisputed, and the evidence tends to show, that they were both intended to be used in the same way, that is to say, upon the gums and between the lip and the gums, and that such use is not the ordinary, and we might say necessary, use of even the finest of the other tobaccos mentioned. We can take judicial notice of the fact that it was the use upon the gums and between the lip and the gums that was condemned hy popular sentiment in North Dakota. We are not prepared to say, therefore, that the legislature drew the line at the wrong place; neither can we agree with counsel for appellant in his statement that “if Right Cut be construed as being under the ban of the act, that the court by such a construction would in effect make the proviso read thus: ‘Provided, however, that Right Cut chewing tobacco, manufactured by Weyman-Bruton Company, shall be included in this definition, but ordinary plug, fine cuts, and long cuts shall not be so included.’ ” This court knows nothing of the firm of Weyman-Bruton Company, nor did the legislature. It does know, however, of the pernicious effects of the use of snuff. What we hold is not that all other fine cuts shall be excluded, but only those fine cuts which are not cut so fine or otherwise manufactured so that their natural use is upon the gums and between the lip and the gums, and which use involves not mastication, hut absorption. When any manufactured tobacco comes physically and chemically within the class of Copenhagen or Right *325Cut, it is condemned by tbe statute, no matter by whom manufactured. We bold, in short, that fine cut “chewing” tobacco is generally excluded, but that fine cut “snuff” is not. Counsel does not quote the language of the exception correctly in his illustration. It is “ordinary plug, fine cut, or long cut chewing tobacco,” and not “ordinary plug, fine cuts, and long cuts.” In the statute the words “snuff” and “chewing tobacco” are both used and antithesised. They must have been intended to have had different meanings.

We are quite satisfied that the evidence in the case at bar justifies the conclusion at which we have arrived. When passing upon the validity of the statute as a whole, however, and in seeking to determine what does or does not come within the meaning of the word “snuff,” and in considering the necessity of prohibiting the sale of tobacco which is finely cut or ground and dried in order that the same may be taken into the mouth and absorbed, even if not into the nose, or its adaptation to either or both uses, we are not necessarily confined to the evidence in the case, or to the verdict of the jury thereon. The courts can and should take judicial notice of those facts which may be judicially noticed, that is, facts of common notoriety and knowledge, and above all they should recognize the prerogatives of the legislature as well as their own. “The constitutional right to use property without regulation is plain,” says the supreme court of Michigan in People v. Smith, 108 Mich. 521, 532, 32 L.R.A. 853, 62 Am. St. Rep. 715, 66 N. W. 382, “unless the public welfare requires its regulation. If the public welfare does require it, the right must yield to the public exigency. And it is upon this question of necessity that the third question depends. All, then, seems to be embraced in the question of necessity. Unless the emery wheel is dangerous to health, there is no necessity, and consequently no power, to regulate it. Unless the blower is a reasonable and proper regulation, it is not a necessary one. Who shall decide the question, and by what rule? Shall it be the legislature or the courts ? And if the latter, is it to be determined by the evidence in the case that happens to be first brought, or by some other rule? Does it become a question of fact to be submitted to the jury or decided by the court? Of all the devices known to human tribunals, the jury stands pre-eminent in its ability to determine cases in direct violation of and contrary to law, without impairing the bind-*326mg force of tbe law as a rule of future action. We have known of instances where the question of the constitutionality of acts, as applied to the particular case on trial, has been made to depend upon the finding of the jury upon the facts in the case. But there is a manifest absurdity in allowing any tribunal, either court or jury, to determine from testimony in the case the question of the constitutionality of the law. Whether this law invades the rights of all the persons using-emery wheels in' the state is a serious question. If it is a necessary regulation, the law should be sustained, but if an unjust law, it should be annulled. The first case presented might show by the opinions of many witnesses that the use of the dry emery wheel is almost necessarily fatal to the operative, while the next might show exactly the opposite state of facts. Manifestly, then, the decision could not settle the question for other parties, or the fate of the law would depend upon the character of the case first presented to the court of last resort, which would have no means of ascertaining whether it was a collusive case or not, or whether the weight of evidence was in accord with the truth. It would seem, then, that the questions of danger and reasonableness must be determined in another way. The legislature, in determining upon the passage of the law, may make investigations which the courts cannot. As a rule, the members (collectively) may be expected to acquire more technical and experimental knowledge of such matters than any court can be supposed to possess, both as to the dangers to be guarded against and the means of prevention of injury to be applied; and hence, while under our institutions the validity of laws must be finally passed upon by the courts, all presumptions should be in favor of the validity of legislative action. If the courts find the plain provisions of the Constitution violated, or if it can be said that the act is not within the rule of necessity in view of facts of which judicial notice may be taken, then the act must fall; otherwise it should stand. Applying this test, we think the law constitutional, and the judgment is therefore affirmed.” See also Wenham v. State, 65 Neb. 394, 58 L.R.A. 825, 91 N. W. 421.

So, too, conceding, as we must concede, that the use of tobacco in any form is to a greater or less degree harmful, can this court interpose its judgment and discretion and theory on an ultimate question of fact and public policy against that of the legislative body, which comes di*327rectly from tbe people, is in close touch with industry and the ordinary activities of life, and has the opportunity of a thorough investigation by means of committees and research? See Wenham v. State, supra. The testimony produced upon the trial shows conclusively that the percentage of moisture in Eight Out and in what is called Copenhagen snuff is almost the same, in fact, that there is about 7 per cent less moisture in Eight Out than in Copenhagen, and that the amount of nicotine' is about the same. It is shown also that the moisture in ordinary tobacco is much greater and that the nicotine is less. The argument is made by counsel for appellant that snuff, if properly prepared, is fermented, and that the fermentation destroys much of the nicotine. It is argued that there was no process of fermentation to any extent used in relation to the Eight Cut, and a two-horned argument is made that in the first place neither Copenhagen nor Eight Cut are snuff, as they are not intended to be used in the nose, and in the second place that fermentation to a greater or less extent neutralizes the injurious effect of the nicotine. The real fact of the case is that whether Copenhagen is snuff or not in the technical sense of the word, it has been lhbeled as snuff by its manufacturers for many years, and is universally spoken of as such throughout the Northwest. Both Copenhagen and Eight Cut are fully covered by the definition of snuff in the statute, being “intended to be taken by the mouth or nose.” As compared with other forms of tobacco, they contain but little moisture. They are the finest cut or ground of all of the brands of tobacco covered by the statute and in use in North Dakota. They are capable of being used in the nose, being cut fine and being dried. Their natural and ordinary and intended use is that they shall be used in the mouth, but not masticated. Tobacco made in, and intended to be used in, such form is, both under the definition of the statute and in universal acceptation in the Northwest, snuff. The manufacturers, in short, have through many years called such tobacco snuff, and now solemnly come before us and tell us that through such years they have been defrauding and misleading the people.

Nor can we say that the legislature created a purely fictitious classification in distinguishing forms of tobacco such as Copenhagen and Eight Cut from “that ordinary plug, fine cut, or long cut chewing tobacco as now commonly known to the trade of this state.” It is ad*328mitted by all parties that Right Cut and Copenhagen were and are the finest cut of all the tobaccos and the driest; that as such they were not intended to be chewed as the term is ordinarily used. They were to be retained in the mouth merely, and gradually absorbed, and were not intended to be masticated. Aside from the question of secrecy and the possibility of stimulating a wide-spread habit among minors which would be difficult of detection by their parents, there is much in the evidence to show, and the legislature may reasonably have inferred, that such use of tobacco and such forms of tobacco were more injurious than those connected with the kinds excluded from the operation of the act. There is evidence, in short, and common experience reinforces the evidence, that he who masticates tobacco expectorates a large portion of it, and that his expectoration is freest when the nicotine is the strongest; in other words, that he expectorates the most freely when the tobacco is moist and is first placed in his mouth, and that when he has drawn from it the nicotine and the residue is a mere pulp, he expectorates but little. In such a process, therefore, much of the nicotine is expelled. In the case of the use of snuff, however, under the lip or smeared upon the gums, there is little or no expectoration, and practically all of the nicotine ultimately enters the system. It is argued, of course, that saliva is necessary for digestion, and that a habit is injurious which causes much expectoration. It is therefore argued that chewing tobacco is more injurious than the use as snuff. The argument, however, works both ways, and is not conclusive. It is admitted that a flow of saliva is necessary to digestion, and that such does not arise without mastication. Even, therefore, if it be true that in chewing saliva is expelled, it is also true that it is mingled with the tobacco that is swallowed and in a measure neutralizes it. In the case of snuff, however, whei’e there is little or no mastication, and therefore little or no saliva, the tobacco is absorbed without being neutralized by the saliva. The proof, as we have before shown, also tends to show that the nicotine absorbed is greater in the case of snuff than in that of chewing tobacco. At any rate, all of these matters were for the legislature to pass upon. There were two methods of using tobacco before them. They evidently seemed to think that one was more injurious to the general public than the other. We are not prepared to oppose our judgment to theirs, nor are we prepared to say that the classification made is not a reasonable one. *329Austin v. State, 101 Tenn. 563, 50 L.R.A. 478, 70 Am. St. Rep. 703, 48 S. W. 305; Austin v. Tennessee, 179 U. S. 343, 45 L. ed. 224, 21 Sup. Ct. Rep. 132; Wenham v. State, 65 Neb. 394, 58 L.R.A. 825, 91 N. W. 421; Powell v. Pennsylvania, 127 U. S. 678, 32 L. ed. 253, 8 Sup. Ct. Rep. 992, 1257; Gundling v. Chicago, 177 U. S. 183, 44 L. ed. 725, 20 Sup. Ct. Rep. 633, 176 Ill. 340, 48 L.R.A. 230, 52 N. E. 44; Holden v. Hardy, 169 U. S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383; 60 Cent. L. J. 428; People v. Lochner, 73 App. Div. 120, 76 N. Y. Supp. 396, 177 N. Y. 145, 101 Am. St. Rep. 773, 69 N. E. 373; People v. Bellet, 99 Mich. 151, 22 L.R.A. 696, 41 Am. St. Rep. 589, 57 N. W. 1009; People v. Smith, 108 Mich. 527, 32 L.R.A. 853, 62 Am. St. Rep. 715, 66 N. W. 382; State v. Nichols, 28 Wash. 628, 69 Pac. 372; People v. Havnor, 149 N. Y. 195, 31 L.R.A. 689, 52 Am. St. Rep. 707, 43 N. E. 541; Ex parte Northrup, 41 Or. 489, 69 Pac. 445.

The judgment of the District Court is affirmed.