Chronicle & Gazette Publishing Co. v. Attorney General

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,88 N.H. 497-499.

The State cannot by mere legislative fiat convert a private business into a public utility (Producers c. Co. v. Commission, 251 U.S. 228, 230, 231; 43 Am. Jur. 574), and it is generally held that the publication and sale of newspapers is a private enterprise not affected with a public interest. Journal c. Co. v. Company, 286 Fed. 111, 113; In re Wohl, 50 F.2d 254,257; Shuck v. Herald, 215 Iowa 1276, 1281; Commonwealth v. Company,249 Mass. 477; Philadelphia Record Co. v. Company, 305 Pa. 372; Mack v. Costello, 32 S.D. 511. See, also, Snyder, "Freedom of the Press — Personal Liberty or Personal Property, "20 B. U. Law Rev. 1, 21.

"Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. 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, 291 U.S. 502, 523, 537.

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, 86 N.H. 597, 598; Woolf v. Fuller, 87 N.H. 64, 68; State v. Paille, 90 N.H. 347, 352; State v. Moore, 91 N.H. 16, 22; and cases cited.

Section 9, as originally enacted, was section 10 of chapter 169 of the Laws of 1915, entitled "An act to prevent corrupt practices at elections and to regulate expenditures for political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,249 Mass. 477, 482), and the editorial scrutiny of "copy" submitted by a candidate for office, in order to insure its freedom from defamatory matter, may entail more labor than that required in the case of ordinary commercial advertisements.

The statute prescribes no method for determining whether the commercial rate it arbitrarily fixes as adequate for the service rendered political advertisers is reasonable. There is no presumption that it is. Sharon Herald Co. v. County, 132 Pa. Super. 245, 251. See Commonwealth v. Company, supra.

JOHNSTON, J., concurred in the foregoing opinion.