Hall v. City of Milwaukee, 115 Wis. 479

Hall v. City of Milwaukee

115 Wis. 479 | Wis. | 1902

Dodge, J.

While the findings of fact, of which the substance is given in the foregoing statement, are perhaps in no respect wholly unsupported by evidence, they are at least capable of conveying a somewhat exaggerated conception both of the information and news of interest to the general public contained in the Daily Reporter, and the extent to which it circulates generally among professional and business men. We need not, however, devote space to the detail of such facts. The general result is the same, namely, that the Reporter addresses itself to special fields of circulation and of news, and is, of course, widely different, both in contents and circulation, from the great daily newspapers, as they are known to the general public. It is, in brief, what its name indicates, a law and business reporter, reaching but a few hundred out of the hundreds of thousands of population of Milwaukee, and yet it cannot be said to fail of compliance with most of the recognized legal definitions of a “newspaper,” among which are: Rap. & L. Law Diet.: “A periodical publication containing intelligence of passing events.” Black, Law Diet.: “A publication in numbers, consisting commonly of single sheets, and published at short and stated intervals, conveying intelligence of passing events.” Am. Ency. Diet.: “A printed paper published at intervals, . . . containing intelligence of past, current, or coming events, and, at the option of the conductors, presenting also expressions of opinion by editorial and other contributors, and business announcements and advertising.” 21 Am. & Eng. Ency. of Law (2d ed.) 533: “A publication issued at regular stated intervals, containing, among other things, the current news, or the news of the day.” Other definitions, but to substantially the same effect, will be found in the opinions of courts hereafter to be cited.

Doubtless the term “newspaper,” used in different surroundings, may have different meanings, and, could we approach the question as res nova, we confess to be strongly in-*484dined to tlie view that the object of the Milwaukee charter requiring publications of its ordinances, notices, etc., was to obtain so much of publicity as to1 require a medium of publication broader and more comprehensive than the one now before us; but we discover in that legislation another purpose, much more carefully guarded, and which we cannot but believe to have been a dominant one, namely, that of withholding from the council of Milwaukee anything of discretion or favoritism in the selection of the medium in which such publications should be made. The legislature might, as it did in providing for the publication of summons, require the newspaper to be selected in discretion as that most likely to give information. It might have placed a minimum limit upon the quantum of circulation, or required selection of the paper offering lowest price per 1,000 circulated. It might, indeed, have drawn a line as to the contents of the paper which would have excluded merely trade or professional journals. But it did none of these things. It required that the publications should be had merely in that newspaper which would make the lowest price. Hence, in the nature of tilings, the dominant-purpose could not have been to secure the widest publication; for, necessarily, the price must be largely affected by the number of papers circulated. It costs more to supply the paper for, and to print and distribute, 30,000 newspapers, than it does 5,000; also the space is salable to advertisers for more. So- no one of business sense could expect that, other tilings being equal, a paper with the former circulation would offer to publish these ordinances and notices as cheaply as one of the latter. Hence we derive the inference, above stated, that the purpose to accorn- ' plish the widest publicity was subordinate to that of restraining the council from discretion or favoritism, and requiring it to adopt the medium according to the price offered, so long as that medium, fell within the definition of the word “newspaper,” even without the qualification imposed in many stat*485utes that it should be of general circulation; and that this latter purpose so dominated in the mind of the legislature as to require the selection of even such a sheet as the Ee-porter, if it is -within the recognized meaning of the word “newspaper.” If such was the legislative intent, it 'is not for the court to- weigh or consider the wisdom or otherwise of the legislation. For that we are not responsible. If it is unwise, the legislature had a right to make it so> and has at all times a right to change it.

We cannot, however, consider the significance of the word ■“newspaper,” even in this legislation, as an entirely new and original question; for, while this court is not definitely committed on the subject, the word has so many times received ■construction by courts of other states under circumstances so closely approximating those now present that we cannot properly refuse consideration to the force of such decisions, which, upon examination, prove to be overwhelmingly in favor of the inclusion of such a paper as this Eepo-rter within the legal term “newspaper.” Those at least tending in that -direction are the ¡following: Lynch v. Durfee, 101 Mich. 171, 59 N. W. 409; Lynn v. Allen, 145 Ind. 584, 44 N. E. 646; Kerr v. Hitt, 15 Ill. 51; Hernandez v. Drake, 81 Ill. 34; Maass v. Hess, 140 Ill. 516, 29 N. E. 881; Railton v. Laudor, 126 Ill. 219, 18 N. E. 555; Pentzel v. Squire, 161 Ill. 346, 43 N. E. 1064; Kellogg v. Carrico, 47 Mo. 157; Benkendorf v. Vincenz, 52 Mo. 441; Kingman v. Waugh, 139 Mo. 360, 40 S. W. 884; Hull v. King, 38 Minn. 349, 37 N. W. 792; Norton v. Duluth, 54 Minn. 281, 56 N. W. 80; Hanscom v. Meyer, 60 Neb. 68, 82 N. W. 114; Turney v. Blomstrom, 62 Neb. 616, 87 N. W. 339; Hurt v. Cooper, 63 Tex. 362, 367; Meyer v. Opperman, 76 Tex. 105, 109, 13 S. W. 174; Williams v. Colwell (Sup.) 43 N. Y. Supp. 720; Bigalke v. Bigalke, 19 Ohio Cir. Ct. Rep. 331; 4 Op. Atty. Gen. U. S. p. 10.

The only decisions tending to exclude special or clahs jour*486nals from designation of newspapers for purpose of statutory-publication are Beecher v. Stephens, 25 Minn. 146; In re Charter Application, 11 Phila. 200; Crowell v. Parker, 22 R. I. 51, 46 Atl. 35. Beecher v. Stephens bald the Northwestern Reporter not a newspaper. That publication is so well known to the profession that we hardly need to suggest its distinction from such papers as this before us. The Northwestern does not purport to publish news, but the opinions of various courts. It is a compilation of decisions of courts. In In re Charter Application the publication was required by law to be in “two newspapers of general circulation,” and it was held that the Legal Intelligencer, mainly confined to the legal profession, did not satisfy that requirement. Crowell v. Parker was a publication of notice of sale under a power contained in a mortgage requiring publication in a public newspaper. The court held that the Real Estate and Rental Guide would not satisfy that contract requirement, mainly for the reason that the publication clause in this mortgage had been in use for many years, and had always been understood and construed by practice to require publication in the ordinary general newspaper, and that the instance before the court was the first one known of an attempt to publish in a trade or special journal. The court, therefore, considered many of the decisions hereinabove cited as not applicable.

With the exception of the three cases last referred to-, the decisions above cited all tend to the inclusion of special trade, commercial, religious, or scientific journals within the designation “newspaper,” where used in statutes regulating publication of either municipal or legal notices. The courts of Illinois, Indiana, Michigan, Missouri, Nebraska, New York, and Ohio have so decided in favor of legal publications addressing themselves especially to lawyers, and devoting their columns primarily and mainly to the publication of events transpiring in courts, on markets, or amongst convey-*487ancers. Many, if not most, of the legal journals considered bore very close resemblance to> that now before ns, the distinctions being wholly in detail or in degree, and in no respect in principle. Other publications have also been included; such, for example, as one confined principally to news of corporations, known as the Rational Corporation Reporter, a daily mercantile reporter, religious weeklies, and others special both in their circulation and matter. From this overwhelming array of judicial opinion we cannot avoid the conclusion that a publication is deemed a newspaper in the legal sense although it does not attempt to publish all the news. Indeed, it may probably be said that hardly any, even of our broadest daily journals, do publish all the events transpiring. Matters will be found in one which are not in another; sometimes by accident, more often by reason of the system or policy of the journal itself. The difference is only in degree between such papers and those which, of definite policy, confine themselves mainly to those events which are of special interest to a limited class, thus bringing that particular phase of the news more conveniently before the class so interested in it. When this field is once entered, the difficulty of drawing any scientific line is obvious, and we cannot believe that the legislature intended to pass over to the common council discretion to say that, because one paper did not publish fully certain complexions of political news, or of sectarian and religious news, or adequate description of sporting events, or otherwise limited its field of news, it should be excluded from the rank of competing newspapers. On the contrary, we are convinced that the charter provision in question can only be enforced by giving to the word under discussion therein the meaning which has been given to it by courts all over the country, and thus holding that the Daily Reporter is a newspaper within its terms; that, its bid being the lowest, the council had no discretion or power to accept any other bid; and that the attempted contract set forth in *488tiie complaint in this action, founded upon such other and higher bid, was prohibited, so that the city should be enjoined, at the suit of a taxpayer, from subjecting the city treasury to any liability thereon. That is the substance and effect of the judgment appealed from, which, therefore, should not be disturbed.

By the Gourt. — Judgment affirmed.