Herald Pub. Co. v. Bill

• Decision Date: 11 January 1955
• Citation: 111 A.2d 4,142 Conn. 53
• Court: Connecticut Supreme Court
• Parties: HERALD PUBLISHING COMPANY v. Albert S. BILL, State's Attorney. Supreme Court of Errors of Connecticut

Page 4

111 A.2d 4

142 Conn. 53

HERALD PUBLISHING COMPANY v. Albert S. BILL, State's Attorney.

Supreme Court of Errors of Connecticut.

Jan. 11, 1955.

Cyril Coleman, Hartford, with whom were John F. Downes, New Britain, and, on the brief, William E. Glynn, Hartford, for plaintiff.

Albert S. Bill, State's Atty., Hartford, pro se, with whom, on the brief, was Douglass B. Wright, Asst. State's Atty., Hartford.

Before BALDWIN, O'SULLIVAN, WYNNE, DALY and PYAN ^*, JJ.

BALDWIN, Associate Justice.

This action for a declaratory judgment is brought by the plaintiff, a newspaper publisher, against the defendant, the state's attorney for Hartford County. It has been reserved to this court on an agreed statement of facts. The plaintiff, a Connecticut corporation located in New Britain, is engaged in publishing a daily newspaper, 'The New Britain Herald,' for circulation in New Britain and the adjoining towns. The L & L Super Food Stores is a corporation selling food products at wholesale and retail in two stores operated by it in New Britain. It will be referred to hereinafter as the corporation. From time to time the corporation purchases space in the plaintiff's newspaper to advertise its products. It submitted certain advertising copy ¹ to the plaintiff for publication and advised the plaintiff that it desired to have the advertisement published in connection with the seventeenth anniversary of its doing business in New Britain and that it proposed to submit similar advertisements for publication in the future, particularly during the celebration of its business anniversaries. The plaintiff is ready and willing to accept and publish the advertising copy but has refrained from doing so because it has been advised that publication might involve the risk of criminal prosecution. The question upon which the advice of this court is sought is whether the acceptance and publication of this and similar advertising would constitute a violation of §§ 8667, 8668, 8669 and 8670 of the General Statutes, relating to lotteries, and § 8876, relating to conspiracy.

The proposed advertisement announces 102 free prizes. The first and second prizes are manufactured articles, of substantial value, having recognized trade names. The remaining 100 prizes are not described. The advertisement invites members of the public generally to either of the two stores operated by the corporation in New Britain, each person to receive a card at the door. The recipient is required to record his name and address upon the card and to deposit it in a box in the store. On the day stated in the advertisement, and at one of its stores, the corporation will choose the winners of the prizes by what is described as a 'drawing,' presumably a selection, by chance, from the total number of names deposited in the box, of the names of those who are to receive the prizes. It is not necessary that any recipient of a card purchase anything at the store or be present at the 'drawing.' The obvious purpose of the plan is to induce members of the public to visit the corporation's stores so that they may thereby become acquainted with the stores' location and the goods displayed for sale. In short, the purpose of the advertisement is to attract prospective customers. That, in itself, is a legitimate end. The question is whether the plan for attracting customers is one forbidden by our statutes.

Before we consider the case on its merits, it is necessary to dispose of a question of jurisdiction. The state's attorney claims that General Statutes, Cum.Sup.1953, § 2352c, which empowers the Superior Court and the Court of Common Pleas to render declaratory judgments, confers no jurisdiction upon these courts to render such a judgment with respect to liability under the criminal statutes. Our declaratory judgment act and the rules of court adopted under it, Practice Book, §§ 276-280 have been said to be extremely broad and liberal in their provisions. Connecticut Savings Bank v. First National Bank & Trust Co., 133 Conn. 403, 409, 51 A.2d 907; McGee v. Dunnigan, 138 Conn. 263, 266, 83 A.2d 491. In Sage-Allen Co. v. Wheeler, 119 Conn. 667, 673, 179 A. 195, 98 A.L.R. 897, an action asking for a declaratory judgment, we considered the validity of a regulation of the state board of optometry as it applied to an optometrist who was practicing in a department store. In Tileston v. Ullman, 129 Conn. 84, 26 A.2d 582, we passed upon the question of the construction and constitutionality of a statute relating to contraceptives, in an action for a declaratory judgment brought by a physician. Upon the petition of a plaintiff liquor dealer, we construed the state liquor laws in relation to certain votes taken with reference to local option for the sale of intoxicating liquors, in Bania v. New Hartford, 138 Conn. 172, 83 A.2d 165. In these three cases the question was whether the specific statutes would be interpreted in such a manner as to impose penalties, criminal and otherwise, upon the plaintiffs if they pursued certain proposed courses of action. The line of distinction in actions for a declaratory judgment as to criminal liability is between cases concerning statutes which prohibit an act malum in se and cases involving conduct which is malum prohibitum. Where the statute prohibits an act malum in se, there usually can be no serious doubt as to what course of conduct is proscribed. On the other hand, a statute imposing a criminal penalty may affect the course of business activity in such a way as to make some conduct malum prohibitum and yet arouse genuine doubt as to what the statute permits and what it prohibits. Such a situation poses a question of law. Borchard, Declaratory Judgments (2d Ed.) pp. 1020, 1021; 2 Anderson, Declaratory Judgments (2d Ed.) § 624; New York Foreign Trade Zone Operators, Inc., v. State Liquor Authority, 285 N.Y. 272, 277, 34 N.E.2d 316.

In the case at bar, an old and reputable newspaper publisher seeks the advice of the court regarding the effect of certain criminal statutes on a proposed course of conduct in its advertising business. There seems to be no limit to the variety of advertising programs. The dilemma of the plaintiff is understandable, and it should not be forced to endure a criminal prosecution in order to enable the courts to resolve the question. The fears of the state's attorney that this case may provide a precedent which will interfere with the administration of justice in criminal cases are unfounded. The courts have a wide discretion under the rules to leave the parties to seek redress by a form of procedure other than an action for a declaratory judgment. Practice Book § 277(c); Stamford v. Connecticut Light & Power Co., 18 Conn.Sup. 110, 112; Updegraff v. Attorney General, 298 Mich. 48, 52, 298 N.W. 400, 135 A.L.R. 931; Bryarly v. State, 232 Ind. 47, 50, 111 N.E.2d 277; Johnson City v. Caplan, 194 Tenn. 496, 498, 253 S.W.2d 725. The state's attorney argues that he represents the people of the state of Connecticut in Hartford County only and that a declaratory judgment can conclude only the parties to the litigation. It is inconceivable, however, that other state's attorneys and prosecuting authorities in this state will fail to accede to the decision of this court in this case. Spector Motor Service, Inc. v. Walsh, 135 Conn. 37, 41, 61 A.2d 89. Actions for a declaratory judgment have been entertained in other courts where jurisdiction has been questioned because criminal statutes were involved. Currin v. Wallace, 306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441; Kitt v. Chicago, 415 Ill. 246, 112 N.E.2d 607; Ostrander v. Linn, 237 Iowa 694, 22 N.W.2d 223; Harrodsburg v. Southern Ry. Co., 278 Ky. 10, 128 S.W.2d 233; Rogers v. Commonwealth, 266 Ky. 679, 99 S.W.2d 781; Dill v. Hamilton, 137 Neb. 723, 291 N.W. 62, 129 A.L.R. 743; Erwin Billiard Parlor v. Buckner, 156 Tenn. 278, 300 S.W. 565; Acme Finance Co. v. Huse, 192 Wash. 96, 73 P.2d 341, 114 A.L.R. 1345. The claim of lack of jurisdiction is dismissed.

At the beginning of the discussion of the merits of the case, we point out that the state's attorney concedes that only §§ 8876 and 8667 are involved. The question turns upon the interpretation to be placed upon the latter statute, which reads as follows: 'Sec. 8667. Lotteries prohibited. Any person who shall set up any lottery to raise and collect money or for the sale of any property or shall, by any kind of hazard, sell or dispose of any kind of property or set up a notification to induce people to bring and deposit property to be disposed of in any such manner or to risk their money or credit for the purpose of any such sale or disposition, shall be fined not more than one hundred dollars or imprisoned not more than one year.' We considered this statute in State v. Dorau, 124 Conn. 160, 198 A. 573, and held that the operation of a so-called bank night at a motion picture theater came within its prohibitions. In that case the defendant operator of the theater argued that to constitute a lottery three elements must be present: a prize, a chance, and a price. A-118 Rec. & Briefs 356. It has been repeatedly so held in other jurisdictions. Federal Communications Commission v. American Broadcasting Co., 347 U.S. 284, 290, 74 S.Ct. 593, 98 L.Ed. 699; State v. Eames, 87 N.H. 477, 478, 183 A. 590; State v. Hundling, 220 Iowa 1369, 1371, 264 N.W. 608, 103 A.L.R. 861; Commonwealth v. Wall, 295 Mass. 70, 72, 3 N.E.2d 28. In the Dorau case, supra, 124 Conn. 165, 198 A. 573, we examined the history of § 8667 (then Rev.1930, § 6332) from its origin in 1728 through its subsequent amendments until it took substantially its present form in the Revision of 1875, p. 516, § 4. Minor changes in wording appeared in § 6332, Rev.1930, and the penalty provision was altered slightly in § 1399, Rev.1902, but these changes do not affect the substance of the statute. We pointed out, in the Dorau case, supra, 124 Conn. 168, 198 A. 576, that the statute ...