People ex rel. Berlizheimer v. Busse

Mr. Chief Justice Hand delivered the opinion of the court: It is clear, we think, under a proper title the legislature has the right, under the exercise of its police power, to pass an act prohibiting the sale of cigarettes. It is, however, apparent that it has not the power to prohibit the sale of cigarettes under the title of an act which only provides for the regulation of the sale of cigarettes, and if it were clear that section 1 of said act was intended to absolutely prohibit the sale of cigarettes we should have no hesitation in holding that the act, in so far as it attempted to absolutely prohibit the sale of cigarettes, was broader than its title and the act was unconstitutional and void. We think, however, when the act is read as a whole it is apparent that it does not prohibit, absolutely, the sale of cigarettes, but only the sale of cigarettes which contain substances deleterious to health, and that it was not intended, by section 1 of the act, to absolutely prohibit the sale of cigarettes which contained only pure tobacco, and that section 1 of the act applies only to cigarettes which contain substances deleterious to health, which would include cigarettes made of tobacco which was deleterious to health by reason of being impregnated with drugs or otherwise. The relator averred in the petition that he desired a license to sell cigarettes which were manufactured only from pure tobacco, and the ordinance of the city of Chicago authorized a license to issue for the sale of cigarettes of that quality. We think, therefore, that the trial court did not err in awarding to the relator the writ of mandamus. The judgment of the superior court will be affirmed. Judgment affirmed.