The opinion
Finley, J.
(concurring in the result) — One objective of the majority opinion is to provide a guide for the assistance of legislators in redrafting á valid, regulatory measure relative to crime comics, if they wish to do so. The objective recognizes — and attempts to do something constructive in correlating functions and actions of — the two independent, co-ordinate branches of the state government: the judicial and the legislative. I think this is highly desirable. However, in my judgment, the effect of the majority opinion considered as a whole is to preclude future attempts at regulation of comic books. Specifically, I have in mind the very practicable consideration that the opinion prohibits the legislature from regulating the distribution of comic books unless it also regulates the distribution of newspapers, which, incidentally, contain comic strips or comic sections. I am unwilling to go that far.
Normally, the courts, in considering the constitutionality of an enactment of the state legislature, give weight and effect to a presumption of law that such enactments are valid, and that the burden of proving otherwise rests upon the party asserting unconstitutionality. The majority opinion states that the judicial presumption of constitutionality does not apply when an enactment seeks to regulate a right guaranteed by the first amendment. I agree *788 that this proposition is well settled, currently, or a least for the present, by decisions of the United States supreme court. I also agree that, under the decisions, the fourteenth amendment makes the first amendment applicable to state action.
While, as indicated, I agree with the foregoing principles; nevertheless, I believe that the majority opinion errs in applying them in the instant case. It is the due process clause of the fourteenth amendment — not its equal protection clause — which picks up and makes the first amendment safeguards applicable to state action. A determination that a statute does or does not grant equal protection is completely distinct from a determination that a statute does or does not violate due process. I believe the majority opinion fails to note this distinction by holding that the presumption of constitutionality does not apply to the classification set up by the legislature in the comic book statute. If the statute is invalid on classification grounds— i.e., because (as stated by the majority opinion) it fails to grant constitutional equal protection to respondents— the particular invalidity is attributable exclusively to the fourteenth amendment itself (equal protection clause) and not because an application of the first amendment is brought into play by or through the due process clause of the fourteenth amendment. When a statute is attacked as violative of the equal protection clause, it makes no difference whether the legislature is classifying animals, cars, religion, or the press; the question is always the same: Is the classification reasonable?
It is only when state action is challenged as violative of first amendment rights as applied through the due process clause of the fourteenth amendment that the presumption of constitutionality is inapplicable. Such was the situation in the United States supreme court case which is quoted as authority by the majority. West Virginia State Board of Education v. Barnette, 319 U. S. 624 , 87 L. Ed. 1628 , 63 S. Ct. 1178 , 147 A. L. R. 674. In that case, the right concerned was the freedom of religion.
*789 I agree with the majority that certain sections of the comic book statute transgress rights guaranteed by the first amendment, and that, as to these, there is no presumption of constitutionality. However, if one section of a statute does not receive the benefit of the presumption of constitutionality, there is no reason to withhold or deny the benefit of the presumption as to other sections which are in no way related to the due process rights guaranteed by the first amendment.
For the reasons indicated, I believe the presumption of constitutionality applies in determining the question of whether the comic book statute grants equal protection of the laws. The problem then is the reasonableness of the classification established by the statute. In considering this, we could do well to bear in mind the following words of Justice Frankfurter in Tigner v. Texas (1940), 310 U. S. 141 , 84 L. Ed. 1124 , 60 S. Ct. 879 , 130 A. L. R. 1321:
“The equality at which the ‘equal protection’ clause aims is not a disembodied equality. The Fourteenth Amendment enjoins ‘the equal protection of the laws,’ and laws are not abstract propositions. They do not relate to abstract units A, B and C, but are expressions of policy arising out of specific difficulties, addressed to the attainment of specific ends by the use of specific remedies. The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.”
After studying the relationship between crime comics and juvenile delinquency, the legislature apparently concluded that the comic strips carried in newspapers were not the offenders. It then drafted a statute designed to reach the offenders. Grammar school students, adolescents, and even numerous adults who are addicted to the reading of comic books would have no difficulty in distinguishing between comic books, as such, and comic sections of a daily or weekly newspaper. It is my view that the classification as determined and fixed by the legislature is a reasonable one.
The act in question (Laws of 1955, chapter 282, § 3 (4), pp. 1231, 1232) defines comic books as follows:
*790 “. . . any book, magazine or pamphlet, sold or distributed for profit, a major part of which consists of drawings depicting or telling a story of a real or fanciful event or series of events, with a substantial number of said drawings setting forth the spoken words of the characters with pointers, or brackets, or enclosures, or by such other means as will plainly indicate the character speaking such words: Provided, however, That no comic section of any regularly published daily or weekly newspaper shall be deemed to be a ‘comic book’ for the purpose of this act; ...” (Italics mine.)
It is clear to me that even without the proviso the act does not cover or attempt to regulate comic sections of newspapers for the simple reason that only a page or two— i.e., only a minor portion of newspapers — is devoted to comic strips. To me it seems anomalous that the addition of a gratuitous proviso by the legislature should be responsible for this court holding the act involved unconstitutional as an infringement of the equal protection clause.
As authority that the statutory classification under consideration is unreasonable, the majority refer to a recent United States supreme court case. Morey v. Doud (1957), 354 U. S. 457 , 1 L. Ed. (2d) 1485, 77 S. Ct. 1344 . Therein, the supreme court invalidated a statute which purported to regulate all companies issuing money orders, but exempted one named company. I fail to see the similarity between a statute exempting a named company in its regulation of all companies issuing money orders and the statute before us, which exempts comic strips and comic sections in newspapers from its regulation of comic books.
It seems to me that the opinions in Mabee v. White Plains Publishing Co. (1946), 327 U. S. 178 , 90 L. Ed. 607 , 66 S. Ct. 511 , and Oklahoma Press Publishing Co. v. Walling (1946), 327 U. S. 186 , 90 L. Ed. 614 , 66 S. Ct. 494 , 166 A. L. R. 531, offer better or at least more convincing criteria as to how the United States supreme court would resolve the classification problem involved in the case at bar. The aforementioned cases concern the constitutionality of a classification which applies the fair labor standards act to certain seg *791 ments of the press and exempts others. In the course of the opinion in the Mabee case, the court said:
“Respondent argues that to bring it under the Act, while the small weeklies or semi-weeklies are exempt by reason of § 13(a) (8), is to sanction a discrimination against the daily papers in violation of the principles announced in Grosjean v. American Press Co., 297 U. S. 233 . Volume of circulation, frequency of issue, and area of distribution are said to be an improper basis of classification. Moreover, it is said that the Act lays a direct burden on the press in violation of the First Amendment. The Grosjean case is not in point here. There the press was singled out for special taxation and the tax was graduated in accordance with volume of circulation. No such vice inheres in this legislation. As the press has business aspects, it has no special immunity from laws applicable to business in general. . . . [citation] And the exemption of small weeklies and semi-weeklies is not a ‘deliberate and calculated device’ to penalize a certain group of newspapers. . . . [citation] As we have seen, it was inserted to put those papers more on a parity with other small town enterprises. . . . [citation] The Fifth Amendment does not require full and uniform exercise of the commerce power. Congress may weigh relative needs and restrict the application of a legislative policy to less than the entire field. . . . [citation] ”
It is clear to me that the legislature, in passing the statute under consideration, weighed the relative needs and restricted the application of the law to the areas which required regulation. If the Congress of the United States can validly exempt weekly and semiweekly newspapers from a statute which otherwise applies to newspapers, then I see no reason why the Washington state legislature may not exempt newspapers and their comic strips from legislation designed to regulate comic books.
The question is not whether we personally think comic strips in newspapers should have been included; rather, it is whether the legislature had a reasonable basis for exempting them. I fail to find any evidence of a “deliberate and calculated device” to. penalize a certain segment of the publishing industry. Mabee v. White Plains Publishing Co., supra.
*792 The majority opinion points out “that newspapers might print or publish anything found in any comic book without being subject to the restrictions imposed.” That is not the question. We are only concerned with whether the legislature could reasonably conclude that newspapers do not in fact publish the same things that are found in many comic books.
In State v. Seattle Taxicab & Transfer Co. (1916), 90 Wash. 416 , 156 Pac. 837 , this court considered a statute which made it unlawful to transport passengers for hire in first-class cities without obtaining a permit; that act contained a proviso, as follows:
“ ‘That the provisions of this act shall not apply to carriers of U. S. Mail.’ ”
In holding that this proviso did not render the act void under the equal protection clause, the court said:
“Nor does the fact that carriers of the United States mails are exempted from the provision of the act render it void. These perform a service sufficiently differentiated from the ordinary carrier of passengers as to form a class of themselves, and legislation affecting other classes of carriers is not of necessity required to include them. The situation suggested in the appellant’s brief, namely, that of a large corporation obtaining a contract to carry the mails and thus monopolizing the jitney traffic in a city, because not subject to the burden of the act, is hardly possible of consummation. The act is not capable of a construction which would permit the owner of a vehicle who has a contract to carry the mails to run it promiscuously over the streets of the city in the carriage of passengers when not engaged in the prosecution of his contract. As we view the act, such an owner can carry passengers without a violation of the provisions of the act only while actually transporting the mails over a route most convenient between the mail stations, otherwise he will fall within its provisions.”
Similarly, in the instant case the act does not permit newspapers to distribute comic books without a license; and the proviso does not purport to grant such rights to newspapers.
If the majority opinion is not intended to convey the implication that the proviso grants to newspapers the privilege *793 of distributing comic books without a license, I believe its ratio decidendi to be even more tenuous.
It seems to me the following cases are much more analogous to the case at bar than are the authorities cited in the majority opinion.
In State v. McFarland (1910), 60 Wash. 98 , 110 Pac. 792 , the court considered a statute providing for inspection of hotels containing more than ten rooms. The statute was held valid. The decision of the court clearly recognized that the legislature, in promulgating regulatory statutes, must draw a line between what is to be included within a classification and what is to be excluded, and the court determined that the placing of all hotels of ten or more rooms within the regulated classification was reasonable and not arbitrary.
In the statute before us, the legislature has defined comic books as:
"... any book, magazine or pamphlet, sold or distributed for profit, a major part of which consists of drawings depicting or telling a story of a real or fanciful event or series of events, with a substantial number of said drawings setting forth the spoken words of the characters with pointers, or brackets, or enclosures, or by such other means as will plainly indicate the character speaking such words: . . . ” (Italics mine.)
The operative words of inclusion and exclusion are contained in the phrase “a major part of which.” I think the resulting legislative classification is sufficiently definite to avoid the “void for vagueness rule,” and that it is manifestly as reasonable as the classification in the hotel regulation statute which was held valid in the MacFarland case, supra.
In Austin v. Seattle (1934), 176 Wash. 654 , 30 P. (2d) 646 , 93 A. L. R. 203, a city excise tax on persons and businesses lending money on chattel mortgages exempted national banking associations. The court said:
“We see nothing in the classification here attacked which smacks of arbitrary action, capriciousness or constructive fraud. The class or classes here designated may be broadly designated as those engaged in the business of making *794 chattel loans, and it is a matter of common knowledge, of which we take judicial notice, that those making chattel loans, are, in very many important particulars, doing a distinctively different sort of business than that which is usual and customary in commercial banking and other forms of money loaning not covered by the ordinance.”
To use the language above quoted, it is a matter of common knowledge that newspapers are doing a distinctively different sort of business from that done by dealers in comic books.
Other cases could be set out and discussed to further substantiate my disagreement with the majority; however, to do so would unduly expand this opinion.
In the instances cited in the majority opinion, the legislature attempted to allow certain persons to do the identical act which was prohibited to others. That is quite a different thing from what the legislature has done in the statute under consideration — and from what the legislature did in the several cases I have discussed. In the latter cases, as in the instant case, the legislature has segregated the businesses covered into classes and has regulated or not regulated the particular classes as it found necessary.
I am unwilling to say that a newspaper is the same thing as a comic book. And I do not think it unreasonable for the legislature to come to this rather obvious conclusion and to find a different set of laws necessary to regulate the comic book business from that necessary to regulate the newspaper business.
For the reasons indicated, I do not agree with the majority view that the statute violates the equal protection clause of the fourteenth amendment. In all other respects, I do agree with the majority and concur in the result reached in this case.
Hill, C. J., Ott, and Hunter, JJ., concur with Finley, J.