Chronicle & Gazette Pub. Co. Inc. v. Attorney Gen..

• Citation: 48 A.2d 478
• Parties: CHRONICLE & GAZETTE PUB. CO., INC., v. ATTORNEY GENERAL.
• Decision Date: 03 September 1946
• Court: Supreme Court of New Hampshire

48 A.2d 478

CHRONICLE & GAZETTE PUB. CO., INC.,

v.ATTORNEY GENERAL.

Supreme Court of New Hampshire.

June 27, 1946.

Rehearing Denied Sept. 3, 1946.

Transferred to Superior Court, Rochingham County; Wheeler, Judge.

Action by Chronicle & Gazette Publishing Company, Inc., against the Attorney General and others for a declaratory judgment regarding the constitutionality and applicability to plaintiff of Laws 1945, c. 185. The case was transferred without ruling.

Case discharged.

Petition, for a declaratory judgment (R.L. c. 370, § 20), to determine the constitutionality and the applicability to the plaintiff of Laws 1945, c. 185, ‘An act relating to political advertising,’ Section 2 of which provides: ‘No person or corporation, within the state, publishing a newspaper or other periodical or operating a radio station or network of stations shall receive for political advertising or for political broadcasts, a rate in excess of the rate or rates regularly charged by such person or corporation for commercial advertising or for commercial broadcasts of similar character and classification and no candidate or political committee shall pay for political advertising or broadcasts any rate or charge in excess of such rate or rates regularly charged.’

The plaintiff publishes the Portsmouth Herald in the City of Portsmouth and ‘is the publisher of the New Hampshire Gazette, established October 7, 1756, and the oldest newspaper in America.’ The defendants, other than the Attorney-General, are officials of the Portsmouth City Political Committees who inserted political advertisements in the plaintiff's paper. These defendants paid and the plaintiffs received for these advertisements at the rate of $3 per inch. The rates charged by the plaintiff for commercial advertising was $1.50 per inch, local rate, and $2 per inch, open rate. Laws 1945, c. 185, § 3, requires a schedule of rates ‘for commercial advertising’ to be filed with the Secretary of State, and the plaintiff filed the three above-mentioned rates as his schedule.

The questions of law raised by the plaintiff's petition were reserved and transferred without ruling by the Court (Wheeler, J.).

MARBLE, C. J., and JOHNSTON, J., dissenting.

Hughes & Burns and Walter A. Calderwood, all of Dover, for plaintiff.

Ernest R. D'Amours, Atty. Gen. (Gordon M. Tiffany, Law Asst., of Concord, on the brief), pro se.

Ralph G. McCarthy, of Portsmouth, for defendant Durell.

Certain other defendants, pro se, filed no briefs.

KENISON, Justice.

A petition for a declaratory judgment is particularly appropriate to determine the constitutionality of a statute when the parties desire and the public need requires a speedy determination of important public interests involved therein. Tirrell v. Johnston, 86 N.H. 530, 171 A. 641; Woolf v. Fuller, 87 N.H. 64, 174 A. 193, 94 A.L.R. 1067; Anderson, Declaratory Judgments (Supp.1946) 260.

The constitution of New Hampshire guarantees that the right to elect and be elected shall be free and equal. ‘All elections ought to be free, and every inhabitant of the state, having the proper qualifications, has equal right to elect, and be elected, into office * * *.’ Bill of Rights, Art. 11th. Pursuant to this constitutional mandate the Legislature, at an early date, enacted provisions to insure the purity of elections, R.L. c. 41. Subsequently there was enacted ‘An act to prevent corrupt practices at elections, and to regulate expenditures for political purposes and provide for the publicity thereof.’ Laws 1915, c. 169, which now appears in R.L. c. 42. This statute proceeded on the theory that an election was neither free nor equal if it was dishonest. Recent decisions of the Supreme Court of the United States indicate that the theory was valid and the objective constitutionally permissible, United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368; Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987, 151 A.L.R. 1110.

R.L. c. 42 entitled ‘Political Expenditures, Advertising, and Contributions' places maximum limits on political expenditures, provides for publicity thereof, and prohibits other forms of ‘corrupt practices' in order to make elections free, equal and honest, Coutremarsh v. Metcalf, 87 N.H. 127, 131, 132, 175 A. 173. Section 9 of this chapter prohibited any candidate or committee from paying newspapers any rate for political advertisements in excess of what was regularly charged by such newspaper ‘for commercial advertising occupying the same space and position and running the same length of time.’ Violation of this section was considered a corrupt practice under Section 16 of the same chapter. Laws 1945 c. 185, § 2, amended Section 9 by making it equally a corrupt practice for a newspaper to receive a rate ‘in excess of the rate or rates regularly charged * * * for commercial advertising * * * of similar character and classification. * * *’

In considering the constitutionality of R.L. c. 42, § 9, as amended by Laws 1945, c. 185, certain well-established doctrines will be applied. First, ‘It has always been the practice in this jurisdiction to follow the universally accepted doctrine that the constitutionality of an act passed by the coordinate branch of the government is to be presumed. It will not be declared to be invalid except up on unescapable grounds.’ Musgrove v. Parker, 84 N.H. 550, 551, 153 A. 320, 321. See also Havens v. Attorney-General, 91 N.H. 115, 121, 14 A.2d 636. Secondly, this Court is not to compete with the Legislature in matters of opinion ‘upon points of right, reason and expediency.’ State v. Moore, 91 N.H. 16, 21, 13 A.2d 143, 147. Thirdly, ‘a distinction in legislation is not arbitrary, if any state of facts reasonably can be conceived that will sustain it, and the existence of that state of facts at the time the law was enacted must be assumed.’ State v. Moore, supra, 91 N.H. 22, 13 A.2d 147.

Counsel have not cited and research has not disclosed any case ‘on all fours.’ It is contended that the statute is arbitrary and lacks a rational basis in establishing the commercial advertising rate as a maximum rate for political advertising. In the absence of any case in point, we turn to laws elsewhere to determine if this statute is unique. A random selection indicates that the rates for political advertising in newspapers or by radio stations are limited by various methods and standards. Utah prohibits a political advertising rate which exceeds ‘the regular rate charged by [newspapers].’ Utah Code Anno.1943, 25-13-27. Mississippi confines political advertising rates to the ‘usual and ordinary rates.’ Miss.Code Anno.1942, § 3176. Texas prohibits such rates in excess of ‘regular advertising rates.’ Vernon's Texas Statutes 1936, Penal Code, Art. 211. North Dakota provides that ‘no newspaper in this state shall charge more than the legal rates for the publication of legal notices.’ N.D.Code 1943, 46-0505. Minnesota confines political advertising rates to ‘regular advertising rates,’ or requires a statement of the amount paid in dollars and cents. Minn.Statutes 1941 §§ 211.03, 211.05. The constitutionality of these statutes appear to have been unchallenged or assumed. Engelbert v. Tuttle, 185 Minn. 608, 242 N.W. 425.

The statutes cited above prove that various states regulate political advertising and that the standard for a maximum or uniform rate is not dissimilar to that employed by our statute. ‘Laws expressly relating to political advertising have been found in more than four-fifths of the states. A survey of legislation in this category reveals that it is predominately regulatory in character.’ Roper, State Advertising Legislation (U. S. Dept. of Commerce, 1945) 14.

It is argued that the statute is discriminatory as applied to newspapers since it does not regulate political advertising by and in automotive equipment, aircraft and transportation systems, nor such advertising by job printers or billboard advertisers. It is sufficient answer to this argument that ‘the state is not bound to cover the whole field of possible abuses.’ Welch Co. v. State, 89 N.H. 428, 432, 199 A. 886, 889, 120 A.L.R. 282. So far as we know the Legislature may have concluded that political advertising in aircraft and transportation systems and other similar mediums was not so extensive or presented the problems involved in newspaper and radio advertising. The proposition that the Legislature must regulate all or none is not accepted. We do not know the factual considerations upon which the Legislature made its determination but it is not to be assumed to be unreasonable if it can be supported on any reasonable basis. Merely because some political advertising might be done by a peripatetic popcorn vendor or some other transportation medium, human or mechanical, does not make the statute discriminatory.

Insofar as advertising by job printers and billboard advertisers is concerned, the Legislature may well have determined either that the regulation was not needed or the evils therein could not be regulated in the same manner as newspapers and radio stations. In short, the Legislature may regulate the major portion of any given problem within its police power without being required in so doing to control other minor and collateral evils connected therewith. ‘The legislature is entitled to hit the evil that exists.’ Queen-side Hills Realty Co. v. Saxl, April 22, 1946, 66 S.Ct. 850, 852. So far as it is disclosed from the record or can be ascertained by judicial notice, the Legislature had a reasonable basis for including newspapers and radio stations and excluding other advertising media in its regulation of political advertising. Any contrary conclusion is entirely without support in this record. We cannot say that the statute is arbitrary, discriminatory or lacking a rational basis.

Plaintiff's right of freedom of contract is not unconstitutionally invaded by this legislation. Commonwealth v. Boston Transcript...