48 A.2d 478 | N.H. | 1946
Lead Opinion
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,
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,
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,
In considering the constitutionality of R. L., c. 42, s. 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 invalid except on unescapable grounds." Musgrove v. Parker,
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 rate." Miss. Code Anno. (1942) s. 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 newspapers in the 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) ss. 211.03, 211.05. The constitutionality of these statutes appear to have been unchallenged or assumed. Engelbert v. Tuttle,
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 *152 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,
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." Queenside Hills Realty Co. v. Saxl, 328 U.S. decided April 22, 1946. 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 Co.,
It cannot be successfully argued that freedom of the press is abridged. We do not have here a statute imposing a license tax on newspapers as in Grosjean v. American Press Co.,
Concededly the plaintiff is not a public utility so that its rates may be regulated generally and therefore it cannot be compelled to accept political advertising. 87 A.L.R. 979. But it does not follow that because newspapers are not public utilities that they are immune from regulation. Newspapers, like other businesses, are subject to the police power. The view which once prevailed that a business is not subject to regulation unless affected with a public interest was considerably impaired in Nebbia v. New York,
The validity of the statute is attacked on the grounds that it does not set up an ascertainable standard of guilt. We conclude that the statute is as certain and definite as others heretofore upheld as constitutionally permissible. See United States v. Wurzbach,
Although it is not necessary to support the conclusion in this case on historical grounds (cf. Attorney-General v. Morin,
It is concluded that the Legislature has the authority to regulate the abuse of political advertising as a corrupt practice. 69 A.L.R. 377; Commonwealth v. Evans (Pa.Super.),
The plaintiff's rate for political advertising was in excess of any rate for any kind of commercial advertising and is prohibited by the statute. The plaintiff cannot avoid the statute by filing a higher political rate of three dollars per inch under a commercial rate of one dollar and a half or two dollars per inch. The plaintiff is subject to the provisions of Laws 1945, c. 185.
Case discharged.
MARBLE, C. J., and JOHNSTON, J., dissented: the others concurred.
Dissenting Opinion
The legislative power to fix the rates which a business enterprise may charge is restricted to businesses clothed with a public interest or to commercial activities which concern the public health, safety, morals, or general welfare. See Cooley, Constitutional Limitations (7th ed.), 870-877; Black, Constitutional Law (3d ed.), 412-414; Opinion of the Justices,
The State cannot by mere legislative fiat convert a private business into a public utility (Producers c. Co. v. Commission,
"Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. *155
The general rule is that both shall be free of governmental interference. But neither property rights nor contract rights are absolute; . . . a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose." Nebbia v. New York,
If, however, that legislation bears no substantial relation to a proper legislative purpose or is either arbitrary or discriminatory, it contravenes both the Fifth and the Fourteenth Amendments to the Federal Constitution as well as Articles 2 and 12 of our own Bill of Rights. Opinion of the Justices,
Section 9, as originally enacted, was section 10 of chapter 169 of the Laws of 1915, entitled "An act to prevent corrupt practices at elections and to regulate expenditures for political purposes and provide for the publicity thereof." The section merely limited the sum which any candidate for public office might pay for newspaper advertising, but did not seek (as does Laws, 1945, c. 185, s. 2) to limit the rates which a newspaper may charge.
A corrupt act is an act done with an intent to give some advantage inconsistent with official duty and the rights of others. It includes bribery, but is more comprehensive. Bouvier's Law Dictionary (Baldwin's Century ed.), p. 239. There is much which indicates that the real purpose of chapter 185 is to secure to candidates an economical means of advertising rather than to guard against the remote chance that a candidate may "bribe" a newspaper proprietor to reject all political advertising except his own. The doubt on this subject need not be resolved, however, for, even if it be conceded that chapter 185 bears some relation to the prevention of corrupt practices, the statute must be held invalid because of its arbitrary features.
Judicial notice may properly be taken of the fact that political advertising, though extensive, is temporary. Moreover, the statute affords no protection to publishers of political advertisements against liability for libelous statements contained therein (see Commonwealth v. Company,
The statute prescribes no method for determining whether the commercial rate it arbitrarily fixes as adequate for the service rendered *156
political advertisers is reasonable. There is no presumption that it is. Sharon Herald Co. v. County,
JOHNSTON, J., concurred in the foregoing opinion.
