191 P. 934 | Cal. | 1920
Lead Opinion
This is an appeal by R.C. Harbison, one of the contestants in the above-entitled matter, from a judgment in favor of the applicant, Basil W. Herman, to the effect that "The Daily Bulletin," published by said Herman, "is a newspaper of general circulation as that term is defined in Title V of the Political Code [sections 4458-4462] . . . and entitled to print publications, notices by publication, official advertising, or public or legal notices." The appeal is presented under the alternative method.
Respondent has drawn his petition in conformity with the provisions of section 4462. The material allegations of the petition are as follows: "That your petitioner, Basil W. Herman, at all times herein mentioned has been, and is now, the publisher of the said 'The Daily Bulletin,' a newspaper printed and published in the city of San Bernardino . . .; that the said 'The Daily Bulletin' at all the times herein mentioned has been, and is now, a newspaper published for the dissemination of local and telegraphic news and intelligence of a general character; that said newspaper at all the times herein mentioned has had, and now has, a bona fide subscription list of paying subscribers; that said newspaper was established on the 23rd day of June, 1916 . . .; that said newspaper has been established, printed, and published at regular intervals, every day except Sunday and legal holidays in the city of San Bernardino . . . for more than one year next preceding the filing of this petition, to wit, from June 23, 1916, to the present date, September 12, 1917; and that said newspaper is not now, nor has it ever been, devoted to the interests, or published for the entertainment or instruction of a particular class, profession, trade, calling, race, or denomination, or for any number of such classes, professions, trades, callings, races, or denominations." Separate contests to this petition were filed by the appellant and W.S. Conger and O.M. Cannon, respectively. *156 Each of the answers put in issue all of the material allegations of the petition.
Two contentions are made by respondent in his supplemental brief: (1) that "the provisions of section 4462 . . . furnish . . . an exclusive remedy for the setting aside of such a judgment as was rendered herein," and a fortiori there is no appeal; and (2) that "the appellant herein has no right to appeal because he is not 'aggrieved' by the judgment under section 938 of the Code of Civil Procedure."
1. The Code of Civil Procedure provides: "Section 22. An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense. Section 23. Every other remedy is a special proceeding." It was said in the case of In reCentral Irr. Dist.,
2. We shall next consider whether this court has jurisdiction to entertain an appeal in a special proceeding. The statute authorizing the proceeding does not provide for an appeal. Neither the former nor the present constitution has ever, in express terms, conferred upon the supreme court appellate jurisdiction in such cases. Appellate jurisdiction is, however, conferred by section 4 of article VI of the constitution upon the district courts of appeal. The decisions upon the question whether this court has appellate jurisdiction in special proceedings are not in complete accord. There are, on the one hand, Appeal of Houghton,
3. In support of the contention that the contestant Harbison has no right of appeal for the reason that he is not an "aggrieved" party, respondent argues that said contestant must show that if the judgment is allowed to stand he personally will suffer substantial loss before he is entitled to take an appeal. Section 4458 provides that all publications, notices by publication, and official advertising required by statute to be given or made by public officials shall be given or made only in newspapers of general circulation. Section 4459 specifies the minimum size of type that may be used in printing such publications or notices. Section 4460 defines "a newspaper of general circulation." Section 4461 prescribes a penalty for the violation by a public official of any of the provisions of the three preceding sections. Section 4462 authorizes a proceeding in the superior court whereby a newspaper may "have its standing as a newspaper of general circulation . . . ascertained and established." It is plain that the primary object of this legislation was to provide for adequate publicity for notices required by law to be published. This was sought to be accomplished by providing a method for determining whether publications claimed to be newspapers of general circulation are of the required standard. It is made a matter of concern to the general public. Section 4462 provides thatany person may appear and contest the petition to have the status of the newspaper established, and that the decision and judgment of the superior court may be vacated on the motion ofany person, whether a party to the original proceeding or not. It is not prescribed that the contestant shall have any pecuniary interest in the proceeding. Any person may appear and show that the newspaper in question is not a proper medium for the publication of legal notices because it does not present any or all of the essential attributes of "a newspaper of general circulation," as that term is defined in section 4460. It was said in the case of In re Marks,
4. During the oral argument here the point was suggested by one of the justices whether the provisions of section 4462 were not an invasion of the powers of the judiciary by the legislative branch of the government. This question had not been raised by the parties. It was adjudged by the court that " 'The Daily Bulletin' . . . is a newspaper of general circulation as that term is defined in section 4460 . . . and is entitled to print publications, notices by publication, official advertising, public or legal notices." *160
In answer to the above suggestion appellant, in his reply to the supplemental brief of respondent, filed after the oral argument, takes this position: "We believe the judgment rendered in the proceeding at bar does not conflict with any constitutional provision, if it is construed to be conclusive and binding only on the date rendered and on the publication of notices theretofore published in said paper. . . . This judgment, if allowed to stand, undoubtedly validates any and all legal publications being made in 'The Bulletin' the date the judgment was rendered. As to the validity of notices published after said date we submit the judgment as rendered would have no force whatever. If, however, the legislature contemplated validating the publication of notices made after such judgment is rendered and until it is vacated, modified or set aside under . . . section 4462, then we respectfully submit that the portion of the section wherein it is declared 'but all publications made in such newspaper during the period it was adjudged to be a newspaper of general circulation shall be held to be valid and sufficient,' is an invasion by the legislature of the province of the courts, and is, therefore, unconstitutional. This portion of the section, is, in effect, a legislative declaration, without a hearing, of the truth of facts that may or may not exist, viz., that at any and all times after the judgment is rendered establishing a newspaper as one of general circulation until such judgment is vacated, said newspaper possesses all the requirements set forth in section 4460 as necessary to be proved in order to be declared a newspaper of general circulation." The respondent has not answered this contention. The question whether a valid judgment rendered in such a proceeding is conclusive or prima facie
evidence of the status of the newspaper involved when, in a future action, the sufficiency of the publication of notice or process in said newspaper is controverted, cannot arise here. The point made by appellant presents only an abstract proposition which we do not deem necessary or proper to consider. The rule on this point is thus stated in 12 Corpus Juris, 780: "The constitutionality of a statute will not be determined in any case, unless such determination is necessary in order to determine the merits of the suit in which the constitutionality of such statute has been drawn in question. . . . Where that portion of a statute *161
which is involved in controversy is constitutional and complete in itself, the court will not consider a question as to the constitutionality of another portion of the statute. . . . The question of the constitutionality of the statute will be determined only with reference to the parties who are before the court." (See, also, In re Daniels,
5. Appellant contends that: "The evidence is insufficient to justify or sustain the finding . . . because: said 'Bulletin,' 1. Does not disseminate local or telegraphic news and intelligence of a general character. 2. Has not a bona fide subscription list of paying subscribers. 3. Is published for the entertainment and instruction of particular classes, professions, trades, and callings." *162
Section 4460 provides in part: "A newspaper of general circulation is a newspaper published for the dissemination of local or telegraphic news and intelligence of a general character, having a bona fide subscription list of paying subscribers. . . . A newspaper devoted to the interests, or published for the entertainment or instruction of a particular class, profession, trade, calling, race, or denomination, or for any number of such classes, professions, trades, callings, races, or demominations when the avowed purpose is to entertain or instruct such classes, is not a newspaper of general circulation."
[5] Under section 4462 it is for the superior court to determine from the evidence whether a publication is a newspaper of general circulation as that term is defined in section 4460. This determination of the evidence is conclusive on appeal unless it shall appear, as matter of law, that it is insufficient to support the findings. The trial court has found "that all the allegations of petitioner's petition are true."
We shall first consider the character of the matter contained in the paper. The publisher testified, practically in the language of the statute, that "the paper is published for the dissemination of local and telegraphic news and intelligence of a general character." It is to be noted that the statute refers to local or telegraphic news. [6] Both local and telegraphic news are not required, but there must be one or the other and
intelligence of a general character. (In re Green,
The second contention of appellant is that "The Daily Bulletin" has not "a bona fide subscription list of paying subscribers." The statute itself does not specify how many subscribers there must be, but does require a "bona fide" list thereof. [9] It seems to us that the term as used in this connection, means a real, actual, genuine subscription list which shall contain only the names of those who are in good faith paying regularly for their subscriptions. On this question the court said in the Green case: "As to whether it is such a newspaper is manifestly a matter of substance and not merely of size; and that it is of general circulation must depend largely upon the diversity of its subscribers rather than upon mere numbers." But it is urged, in the brief filed in behalf of the California Press Association as amicus curiae,
that "the words 'bona fide' . . . mean that the subscription list shall cover a sufficient number of persons in a city or county to constitute an adequate medium for public advertising." (Italics ours.) [10] Here, as we have observed, the legislature has not specified the number of subscribers required, and we must assume that it meant that the words "bonafide" were to be taken "according to their common acceptation." (Quigley v. Gorham,
In our opinion the paper is, in the language of the statute, "a newspaper devoted to the interests" and "published for the entertainment and instruction of a particular class . . . . It is true that, as has been shown, the paper circulated in ten cities and towns, scattered through three counties, and among at least ten "professions, trades, and callings," but it appears to us that it was published chiefly to meet the needs of persons and concerns specially interested in information of an official nature, and that the other contents of the paper were merely incidental to this object. It may also have been the purpose of the paper to lay a foundation for recognition under the statute.
In view of our conclusion that the paper was not published for the dissemination of news or intelligence of a general character, and that it was published for a particular class, it must be held that the finding is not supported by the evidence.
Judgment reversed.
Wilbur, J., Lennon, J., and Olney, J., concurred.
Concurrence Opinion
I concur in the judgment on the ground that the evidence shows that "The Daily Bulletin" was not, at the time in question, a newspaper of general circulation published for the dissemination of news and intelligence of a general character.
I am not certain that the main opinion purports to determine that a judgment given under section 4462 of the *166 Political Code declaring a particular newspaper to be a newspaper of general circulation is binding and conclusive as to the character of the newspaper as of the time it is given. It is my opinion that in any other action or proceeding in which personal or property rights of persons not parties to the proceeding under section 4462 are involved, the judgment given in a proceeding under that section is of no force or value whatsoever. This question, however, does not appear to be raised by this appeal.
As to the other matters discussed, several of them are admittedly not involved in the question presented. I do not desire to express any opinion upon any of them. It is to be hoped that in the future the legislatures will refrain from such futile enactments.
Dissenting Opinion
I have no disposition to question the correctness of the conclusion of the court that in view of the facts shown by the record the publication here involved did not fully measure up to the requirements of our statutory definition of the term "newspaper of general circulation." However, I do not desire to here express any definite conclusion on that question, as I think it should be held that the "decision and judgment" of a superior court in the proceeding authorized by section 4462 of the Political Code is not reviewable on appeal. To my mind the matter is confided entirely and finally to the superior court of the county in which the paper is published, with the result that, in so far as the legislature had the power to so provide, any notice, etc., published in a paper decided by such superior court to be a newspaper of general circulation, while such decision remains unrevoked by the superior court, must be held, wherever assailed, to have been published in a newspaper of general circulation. I think the manifest purpose of the section was to enable a paper about which some doubt might exist, as to being in fact a newspaper of general circulation, to obtain a certificate of standing, as it were, from the superior court of its county, which would have the effect of validating all publications therein while such certificate remained unrevoked, in so far as any legal requirement of publication in a newspaper of general circulation is concerned. Whether the legislature had the power to give such effect to the superior *167 court certificate of standing is another question which is not here involved and which cannot here be effectively decided. Being of the opinion that the intent of the section was to leave the whole matter in the hands of the superior court, and that no right of appeal from the "decision and judgment" given by such court was contemplated, I cannot concur in the judgment of reversal, and think the appeal should be dismissed as being from a non-appealable judgment or order.