38 Neb. 835 | Neb. | 1894
This is a proceeding in error to reverse the judgment of the district court of Douglas county affirming an order of the board of fire and police commissioners of the city of Omaha granting a saloon license to defendant in error. In December, 1892, Friedrieka Pinzenseham'filed with the secretary of the board of fire and police commissioners of the city of Omaha a petition, signed by the requisite number of qualified petitioners, praying a license to sell intoxicating liquors in said city during the year 1893. Notice of the application in due form was published in all of the daily editions of the Omaha Daily World-Herald, from the 15th day of December, 1892, to the 28th day of the same month. Edward Rosewater filed with said board a remonstrance against the issuing of a licence to defendant in error, on two grounds: First, that the notice of said application was not published in the newspaper having the largest circulation in Douglas county; second, that at the time said notice was published in the World-Herald the applicant knew said paper did not have the largest circulation in said county. On the 12th day of January, 1893, a hearing was had upon the remonstrance, before the board of fire and police commissioners, and upon consideration of the testimony adduced it was ordered by said board that the remonstrance be overruled, that the applicant’s bond be approved, and that a license be granted. The remonstrator prosecuted error to the district court, where the decision of the board was sustained.
Section 2174 of the Consolidated Statutes (sec. 2, ch. 50, Comp. Stats.), relating to notice of applications for liquor licenses, provides that “ no action shall be taken upon said
In State v. South Omaha, 33 Neb., 876, it was decided that a notice of an application for a license to sell intoxiealing liquors must be published for two weeks, in each issue of the paper. Where the paper containing the notice is a daily, the notice must be published daily; but in case the paper having the largest circulation in the county is published weekly, the notice must be published therein in every issue of jsuch paper for two weeks. In the case at bar, no question is made as to the form of the notice, nor is it claimed that the notice was not inserted for the requisite length of time, but it is insisted by the remonstrator that the newspaper selected was not a proper one, for the reason that the World-Herald does not have as large a circulation in Douglas county as the Omaha Bee. This is the main
Does the evidence in the case disclose that the notice in question was not published in compliance with the provisions of the statute above quoted, relating to such notices? Upon the hearing before the board of fire and police commissioners there were introduced in evidence, over the objection of the applicant, the record of a resolution adopted by said board on the 30th day of October, 1892, requesting the publishers of the several newspapers in Douglas county to furnish the board with a sworn statement of the number of subscribers each had in the county, to the various editions, during the period beginning August 1, 1892, and ending October 31, 1892; also the record of the following proceedings of the board at their meeting held on November 14, 1892:
*839 “ The secretary presented affidavits of circulation from the Omaha World-Herald and from the Omaha Bee as follows, to-wit: From William H. Dox, city circulator of the
“Resolved, That the board finds from the affidavits filed' by the World-Herald and from the affidavits filed by the Bee, that the Bee is the newspaper having the largest circulation in the county of Douglas, the two papers above mentioned being the only two newspapers which have filed any evidence of circulation.”
The foregoing action of the board was had prior to the time Pinzenscham filed her petition for a license. We are unable to find any provision of statute, and our attention has not been called to any such by counsel, which makes it the duty of a license board to take testimony and determine in advance of the filing of an application for a license, which paper published in the county has the largest circulation therein. The action of the board, therefore, was not binding upon the applicant, nor was the same admissible for the purpose of showing which paper, the Omaha Bee or the World-Herald, had the larger circulation. We do not understand that counsel for plaintiff in error claims that the foregoing record of the proceedings of the board was competent evidence on the question of circulation, or that the
The determination of the question of fact, namely, which of the two papers had the larger circulation, involves the consideration of. the evidence. Upon the hearing of the remonstrance, testimony was introduced for the purpose of establishing that the notice was not published in the newspaper contemplated by the statute.
W. H. Dox, being called as a witness for the remonstrator, testified that he was an employe of the publisher of the World-Herald; that the average daily circulation of the World-Herald in Douglas county, for the months of August and September, 1892, was 10,112; that during the month of October of that year it was between ten and eleven thousand; that during a portion of the months named there were three editions of the paper, viz., morning, noon, and evening, and for the remainder of the time there were but two; that the figures given by the witness covered all the editions, including the paper issued on Sunday.
G. M. Hitchcock, business manager of the TP'orld-Herald, testified that generally four editions of his paper are published daily, namely, “Early Mail” edition, so called for the Burlington flyer, Morning World-Herald, Noon World-Herald, and Evening World-Herald; that subscribers of the morning and evening editions are rarely the same, probably twenty-five duplicates; that the noon edition is not sent to subscribers, but is sold by news-boys. Witness
N. P. Feil, business manager of the Omaha Bee, testified that during the months of August, September, October, November, and December, 1892, there were three editions daily, except Sunday, known as Morning World-Herald, Noon World-Herald, and Evening World-Herald; that the average daily circulation of the Omaha Evening Bee, for August, September, and October, 1892, six days in the week, excepting Sunday, on which no evening edition is published, was 8,144, which is exclusive of returned papers from news-stands, or railroad papers delivered in Omaha; that the average circulation of the Evening Bee for December of the same year was 8,151, and for November, 8,308. Witness further stated that in giving these figures he relied upon a memorandum made from the books of the Bee, and that he could not remember the circulation without refreshing his recollection from the books or a memorandum. The board also ruled that witness should not state the circulation of the Morning Bee.
F. M. Youngs, foreman of the press-room of the Omaha Bee, testified that the number of Evening Bees printed daily during December, 1892, was between ten and eleven thousand, of which number about seventy-six or seventy-eight hundred were delivered daily to Mr. Williams, the lessee of the city circulation of the paper; that from 250 to 350 Evening Bees are delivered by witness daily to the news-boys; that the usual speed of a Potter press is 9,000 per hour; that the publishers of the World-Herald have a Potter press, and also a Hoe press.
William Nichol, helper in the press-room of the Bee, testified that he was familiar with the speed newspapers are printed on a Potter or web perfecting press, the same
James Ryan testified that it requires about an hour to print the evening edition of the World-Herald.
Edward Rosewater, president of the Bee Publishing Company, testified that he had examine.d the books and found that the circulation of the Nee was larger in November than in October; that the circulation of the Evening Bee was greater by one hundred in December than it was in October. Witness declined to give the circulation of the Morning Bee, but stated that “whenever Mr. Hitchcock will come and tell how many papers they print in the morning, I will tell ours.”
There is considerable more testimony in' the record, but the foregoing is believed to be a fair synopsis of that portion relating to the circulation of the two papers. It will be noticed that the evidence in the case is not of the most conclusive or satisfactory character. Instead of the books, which show the circulation of the Bee and World-Herald respectively, being produced on the trial and introduced in evidence, witnesses were permitted to state what it is claimed appears on the face of the books. On the one side the witnesses refused to divulge the circulation of each edition of the World-Herald, while those for the remonstrator declined to give the circulation of the Morning Bee. The books themselves were the best evidence of their contents, yet they were not required to be produced, nor was any attempt made to compel the witnesses on either side to answer many pertinent and proper questions put to them. Doubtless, this arose from the belief that the license board
It appears from the proofs in the case that defendant in error’s notice was inserted in all of the editions of the World-Herald, and that the aggregate daily circulation in Douglas county of all of said editions at the time was between 10,000 and 11,000. The Evening Bee likewise had at the time of the. publication a circulation in the county of 8,150. The contention of the remonstrator is, and we are asked to so decide, that each edition of the World-Herald is a separate and distinct newspaper. A newspaper, in the usual popular acceptation of the word, is a publication issued at regular stated intervals, containing, among other things, the current news, or the news of the day. (16 Am. & Eng. Ency. of Law, 490.) In contemplation of the statute relating to the publication of notices of applications for liquor licenses, the newspaper in which such notices are to be published must not only be one having bona fide subscribers, but the publication must have the largest circulation in the county. By this we do not mean that the circulation is to be determined alone by the number of subscribers residing in the county, but from the subscription list and average bona fide sales of the paper in the county, combined. A paper which is not distributed to subscribers, but is merely sold to news-boys and newsdealers for distribution, is not such a publication as the law requires notices like the one in question shall be inserted in. (Scammon v. City of Chicago, 40 Ill., 146.)
Counsel for plaintiff in error cites the case of Hull v. Chicago, B. & Q. R. Co., 21 Neb., 371, as sustaining his contention that the several daily editions of the World-Herald do not constitute one newspaper. In that case, no
It is said in the brief of remonstrator “ that the Morning World-Herald and Evening World-Herald contain different articles and news items.” This may be true as a matter of fact, but there is absolutely no proof in the record to show whether the matter contained in the various editions is the same or unlike. If there is such evidence, we have failed to discover it. True, each edition was issued by the same publisher and each was sent to a different set of subscribers, from which we might conjecture, perhaps, that the several editions did not constitute one newspaper; yet these facts alone are not sufficient to justify us in so holding. Whether or not the several editions of a daily paper are separate and distinct publications is a question of fact to be determined from the proof, in the first instance, by tlie license board. If the matter published in each edition of a daily paper is not substantially the same, and each edition has a different heading or name, and is sent to different subscribers, it would be quite clear that the combined circulation of all cannot be counted, for the purpose of ascertaining the newspaper in which notices like the one in question should be published.
Affirmed.