Raney v. County Commissioners

Offutt, J., delivered the opinion of the Court. Chapter 593 of the Acts of 1935 provides that “Every notice, report, return, schedule, list of delinquent taxpayers or any official publication whatsover, required by law to be published by any officer, official or officials of ■ Montgomery Counity, shall be published in two newspapers regarded as Montgomery County newspapers of general circulation in Montgomery County. Provided, however, that one of said newspapers shall have been printed and published in the 7th or 13th Election District, known as Suburban Montgomery County and the other newspaper shall have been printed and published in any Election District except the 7th and 13th, and that publication of said papers shall include the setting of type within Montgomery County for a period of at least four (4) consecutive years, immediately prior to the insertion of said notice, report, return, schedule, list of delinquent taxpayers or any official publication, etc.; and provided, further, that the Treasurer of Montgomery County shall select the papers in accordance with the provisions, of this act, in which the treasurer’s report shall be published.” Disregarding that statute, certain officials of Montgomery County caused to be published in the “Montgomery County Sentinel,” a newspaper printed in Ellicott City in Howard County, but published in Montgomery County, certain public notices, and the County Commissioners of Montgomery ¹⁸⁷ County are about to order that claims for such advertisements be paid out of the public funds of the county. To prevent that payment, Eleazar Ray, a citizen, resident, and taxpayer of Montgomery County, filed the bill of complaint in this case, in which he prayed (1) that the county commissioners be restrained from paying for any official publications in that newspaper; (2) that they be restrained from publishing or permitting the publication by “any official of Montgomery County” of official notices “required by law to be published as official publications” in it; and (3) that the Maryland Printing & Publishing Company, the publisher of the Montgomery County Sentinel, be enjoined from prosecuting any action or suit against the County Commissioners of Montgomery County for the payment from the public funds of said county of its claims for the publication of such “notices” inserted since May ,17th, 1935.

The defendants filed combined answers and demurrers, and after a hearing the court, without dealing with the demurrers, dismissed the bill. From that decree Ray, and Eugene J. C. Raney, who was allowed to intervene as a party plaintiff, appealed. The background of the case appears from the pleadings and stipulations to be this: The seventh and thirteenth election districts of Montgomery County include that part of the county which lies next to the District of Columbia and is suburban in character. The remaining thirteen election districts are more remote from the District and are mainly rural.

In those rural districts there are two county newspapers, one the Montgomery County Sentinel, which has been continuously published for about eighty years, has over 2,500 subscribers, is mailed from Rockville, but actually printed and made up at Ellicott City; the other, the Montgomery Independent, said to have a subscription list of about 708 subscribers, is printed and made up at Gaithersburg, but published at Rockville, both of which lie outside the seventh and thirteenth election districts. There is, of course, nothing which restricts the circulation of either paper to any par ¹⁸⁸ ticular part of the county, or even to the county or the state, except the extent of the demand for them; 'both are regarded as Montgomery County newspapers, although no stockholders of the Maryland Printing & Publishing Company reside in that county. From these facts, which are not in dispute, these consequences ensue. If notices which by law officials of Montgomery County are required to publish in a newspaper published outside of the seventh and thirteenth election districts may not be published in the Sentinel, then they can only be lawfully published in the Independent, for there is no other paper published in that territory; if published in that paper, they would be published upon its terms, and if for any reason it declined to publish them, they could not be published at all° as the act requires, in a newspaper published outside the suburban districts.

There may also be this further possible consequence, that the failure to publish them at all in that territory may, where such publication is required by law as a condition precedent to the validity of proceedings incident to the administration of such statutes as zoning, or tax laws, prevent the efficient administration of such laws. The theory upon which the bill was filed is that chapter 593 of the Acts of 1935 is a valid legislative enactment, that the Montgomery County Sentinel is not, within the meaning of the act, “published” in that part of Montgomery County lying outside of the seventh and thirteenth election districts, that payment for the publication of official notices, required to be published in that area, issued by Montgomery County officials, in that paper, would be an unlawful diversion of public funds, which may at the suit of a taxpayer be restrained by a court of equity. The theory of the defendants is that the act is unconstitutional and void, because it creates a monopoly, because it deals specially with matters covered by a public general law, and because it is unreasonable. These in their order.

A monopoly, as the term is ordinarily understood in ¹⁸⁹ constitutional law, is a privilege or power to command and control traffic in some commodity, or the operation of a trade or business, to the exclusion of others, who, but for that power or privilege, would be at liberty to engage therein. State v. Duluth Board of Trade, 107 Minn. 506 , 121 N.W. 395 ; State v. Central Lumber Co., 24 S.D. 136 , 123 N.W. 504 ; Standard Oil Co. v. United States, 221 U.S. 1 , 31 S.Ct. 502 , 55 L.Ed. 619 . It may arise from a grant or franchise from the sovereign or individuals. Words and Phrases, First, Second, Third and Fourth Series; Webster’s’ New Internal.

Diet.; Standard Dictionary; Oxford Dictionary; 41 C.J. 82. A necessary ingredient of any concept of the idea implied by the term is the suppression of competition, and ordinarily it involves restraint of that freedom or liberty of engaging in commerce or trade which the citizen enjoys as of common right (Id.; Wright v. State, 88 Md. 436, 443 , 41 A. 795 ), and may be distinguished from forestalling, that is, securing control of commodities on the way to market, regrating, securing control of commodities after they have reached the market, and engrossing, the act of an individual in securing possession generally of necessaries with a view of controlling the market with an intention of reselling at a higher price, although they all involve the common element of controlling the traffic to obtain an artificially enhanced price through the elimination of competition. A monopoly is something more than a mere privilege to carry on a trade or business or to deal in a specified commodity; it is an exclusive privilege which prevents others from engaging therein, either generally or in a specified place. 19 R.C.L. 7. In this case, the Maryland Printing & Publishing Company is engaged in the business of publishing a newspaper in Montgomery County.

The statute neither prevents the continued operation of its business, nor confers upon any other person or persons the exclusive privilege of operating a similar business in that territory or in any part thereof. What it does do is to prescribe conditions which in effect make one paper ineligible as a ¹⁹⁰ medium for the publication, of certain notices by officials of Montgomery County, but which do not disqualify another newspaper, which complies with the prescribed conditions, from acting as a medium for such publications. Since there is but one paper qualified to publish the notices, and as the notices are required by law to be published in a newspaper, the effect of the statute is to create a privilege, special in the sense that no one but that paper can enjoy it. The question then is whether such a privilege is a monopoly within the meaning of the Maryland Constitution.

Article 41 of the Maryland Declaration of Rights declares that “monopolies are odious, contrary to the spirit of a free government and the principles of commerce, and ought not to be suffered.” Apart from that declaration, the instrument contains no denunciation of special privileges, except such as may be implied from the form of government which it erects. But when the democratic nature of that government, and the care and foresight exercised, in the formulation of that instrument, to safeguard the citizen in the enjoyment of privileges and immunities which were regarded as of common right, are considered, it is manifest that its people never intended that so highly important a right as that of equality before the law should be without protection. So that when the meaning to be given the word “monopoly,” as used in article 41, is considered, great weight is to be given to the fact that but for that article the Constitution affords to the citizen no express protection against special and oppressive privileges. The word itself ordinarily connotes a privilege connected with commerce in commodities because, historically, it was more often used to describe a condition which resulted from an exclusive privilege to engage in such commerce, but it has long had a broader meaning, more in harmony with the spirit of the Constitution, and, in determining the sense in which it is used in that instrument, it should be given that meaning, that its general intent may be served, rather than thwarted or confined by any narrow or over nice construction. ¹⁹¹ One of the meanings given the word in the Oxford Dictionary is the “Exclusive possession, control, or exercise of something,” “the condition of having no competitor in the sale of some commodity, or in the exercise of some trade or business.” And in Webster’s New International Dictionary this very comprehensive and excellent definition is found: “The exclusive right, privilege, or power of selling or purchasing a given commodity or service in a given market; exclusive control of the supply of any commodity or service in a given market; hence, often, in popular use, any such control of a commodity, service or traffic in a given market as enables the one having such control to raise the price of a commodity or service materially above the price fixed by free, competition.

At the common law the term monopoly was specifically applied to an exclusive privilege of trade created by state grant or charter, and the term is still sometimes so used. Exclusive control of traffic constitutes a monopoly in the economic sense, whether acquired by state grants (as in case of patents or copyright, which are statutory exceptions to the common law rule making monopolies illegal), by control of sources of supply (as in case of mines), by engrossing an article (as in case of cornering the market, by combination or concert of action, or by any other means.)” In the Oxford Dictionary numerous examples taken from ancient and modern literature are given which illustrate the application of the word in its broader sense, that of the exclusive possession or control of something. The judicial construction of the word has in the main followed the definition given by the lexicographers. As the result of the examination of a variety of cases, it is said in 19 R. C. L. 7 to mean “the sole power of dealing in an article, or doing a specified thing, either generally or in a specified place.” In Guthrie Daily Leader v. Cameron, 3 Okl. 677 , 41 P. 635, 639 , the territorial legislature adopted a statute directing that all the state printing should be done ,by the State Capital Printing Company.

The constitutionality of the act was challenged, and the court held that it created a monopoly, which it ¹⁹² defined as “an exclusive privilege not enjoyed by others,” which, while elliptical, was