144 P. 1193 | Or. | 1914
delivered tbe opinion of the court.
This is a suit by the plaintiff, as a taxpayer of Multnomah County, against the defendants as the legally constituted, qualified and acting board of county commissioners of said county, to enjoin the issuance of $250,000 worth of bonds proposed to be issued by the defendants as officers of Multnomah County, to aid in the construction of a certain interstate bridge and the approaches thereto, across the Columbia River, on a line from Portland, to Vancouver, Washington. These bonds constitute a part of an issue of $1,250,000 in bonds, authorized to be issued for the purpose indicated, by the people of Multnomah County, Oregon, at an election held November 4, 1913, under the provisions of Chapter 349 of the General Laws of Oregon for 1913. The validity of said Chapter 349 of the General Laws for 1913, and the election held thereunder, by which the issuance of $1,250,000 in bonds was authorized, has already been before this court in the case of Stoppenback v. Multnomah County, 71 Or. 493 (142 Pac. 832), and said act of the legislature was therein held to be constitutional and the election thereunder was declared to be valid. It is alleged in plaintiff’s complaint and admitted by defendants’ demurrer that the bonding committee, by a resolution passed at a meeting on October 15,1914, directed the county clerk to invite proposals, by public advertisement in the manner provided by law, for the sale of $250,000 of bonds,
“No bonds authorized by this act shall be sold for less than par or for anything but cash. All bids to purchase bonds must be sealed and accompanied by certified check for 5 per cent of the amount of the bid and the bonding committee may reject any and all bids. Said committee shall advertise in one newspaper in the county, if there be one, and in one leading newspaper in Portland, Oregon, and in one leading financial newspaper in New York City for two weeks before any sale of bonds, the fact of such sale, inviting bids therefor and stating such facts as will interest prospective purchasers; for example, the date and place of sale, the terms of sale, the character of the bonds, the amount, interest and denomination thereof, the fact that all bids must be accompanied by a certified check for 5 per cent of the amount of the bid, that any and all bids may be rejected, that the bonds may be sold only for cash, not below par, and to the highest bidder and such other facts as may in the judgment of said committee procure the most advantageous sale of said bonds.”
The bonding committee was required to advertise for tivo weeks before any sale of bonds in certain kinds of newspapers. The plaintiff’s contention is set forth in his brief as follows:
“By the terms of Section 17, Chapter 349, Laws of 1913, it is required that the bonding committee shall advertise for two weeks before any sale of bonds. It is the contention of appellant herein that the requirement that the notice ‘shall’ be advertised ‘for two weeks’ is mandatory upon the bonding committee, and is jurisdictional to the valid issuance of any bonds. Appellant does not contest the sufficiency of the publication of that notice inserted in the ‘Pacific Banker’ of Portland, Oregon, because it appears that the notice was published in all issues of that paper between Oc*100 tober 24, 1914, and November 7, 1914, both inclusive. But appellant earnestly contends that the defendants, having chosen two daily papers for the publication of their notice of sale, have not complied with the law by inserting the notice in only one issue per week therein. And this defect is vital to a valid publication.
The plaintiff admits that the publication of the no-' tice in the “Pacific Banker” of Portland was proper, as it is a weekly paper and the notice was published in all issues of that paper during the two weeks period; but he insists that the publication of the notice in the “Evening Telegram” of Portland and the “Daily Bond Buyer” of New York were insufficient, because said papers are published daily, and said notice was published in each of them only three times. The plaintiff contends that the notice should have been published in every issue of said daily papers for the period of two weeks. The statute cited supra, requires the notice to be published for a period of two weeks before the sale of the bonds. ‘ ‘ Two weeks, ’ ’ within the meaning of this statute, comprises 14 successive days, and this statute requires the publication of the notice for that period of time. It does not require it to be published for three weeks or 21 days; but the publication for a longer period than that required by the statute does not vitiate the publication. This statute does not require that either of the newspapers in which the notices are required to be published be a daily. It does not say how frequently the papers should be published; but as the notice is required to be published for a period of two weeks, it is evident that a publication at least once a week for that period of time was intended. Each of the three papers mentioned in the statute is required to be a newspaper and one of then is required to be a leading newspaper of the City of
In his Law Dictionary (2 ed.), page 816, Mr. Black defines a newspaper thus:
“According to the usage of the commercial world, a newspaper is defined to be a publication in numbers, consisting commonly of single sheets, and published at short and stated intervals, conveying intelligence of passing events.”
If the legislature had intended that the notices .required by said act to be published should be published daily or in a daily paper, it would have so stated in the act. The only requirement, except as to the characters and places of publication of the papers, is that the committee shall advertise “for two weeks before any sale of bonds.”
In 17 Ency. Pl. & Pr., page 98, it is said:
“It is generally held that where a notice is required to be published for a certain number of weeks, publication once a week for that number of successive weeks is sufficient. ’ ’
The point contended for by the plaintiff is that, inasmuch as the committee published said notice in two daily papers it was incumbent on them to publish it in every issue of those papers for the period of two weeks. He admits that publication once a week for the period of two weeks would have been sufficient, if it had been done in weekly newspapers having the required qualifications, but he insists that, inasmuch as two of the papers selected by the committee were dailies, the notice should have been run in every issue of those papers during the two weeks period. "We are
In Commonwealth v. Allen, 203 Mass. 529, 530 (89 N. E. 918), a statute was invoked that required a certain regulation to be advertised for at least two weeks in two or more newspapers published in Boston, and the Supreme Court of Massachusetts, commenting thereon, says inter alia:
‘•The regulation in question was duly passed and advertised in Boston newspapers as follows: In the ‘Transcript’ and ‘Globe’ from December 15, 1908, to December 29, 1908, inclusive, except on the two Sundays * * and on Christmas in the ‘Transcript’; and in the ‘Herald’ from December 22, 1908, to January 4, 1909, inclusive, except on the Sundays of December 27 and January 3. The ‘Globe’ and ‘Herald’ issue Sunday editions, but the ‘Transcript’ does not, and the exceptions do not show whether it was published on Christmas, 1908. The point relied on by the defendant is that the regulation was not published as required by the statute. He contends that an advertisement for at least 14 consecutive days, including Sundays and holidays, will alone satisfy the terms of the statute. * * But an examination of the statutory phrase quoted*103 from the section we are considering in the light of other statutes and the decisions of this court makes it clear that it is not susceptible of the construction urged by the defendant. In Bachelor v. Bachelor, 1 Mass. 256, an order of the notice to be published ‘three weeks successively’ was held to have been complied with if printed once a week in a newspaper issued semi-weekly. Statutes of 1863, Chapter 107, Section 2, required a notice to be published ‘for two weeks successively’ in a newspaper in Springfield. A publication in a daily newspaper two days in each week was held to be a compliance with the statute: Brewer v. Springfield, 97 Mass. 152. General Statutes, Chapter 19, Section 14, provided that rules as to carriages must be published ‘at least one week in some newspaper.’ Such rules adopted by the board of aldermen of Boston were held to be legal by publication once in several Boston papers: Commonwealth v. Matthews, 122 Mass. 60. The validity of tax sales under statutes requiring an advertisement for ‘three weeks’ * * has never been questioned because made only once in each week. * * All that the present statute requires is such an advertisement in two weeks as may be reasonable notice to the people. It is conceivable that a publication in weekly newspapers or once a week in daily newspapers of sufficient circulation and public regard might be a compliance with the law. Clearly the advertisement here assailed was sufficient.”
In Bachelor v. Bachelor, 1 Mass. 256, the statute relied on required a notice for the sale of real estate to be published in a newspaper “three weeks successively.” The notice was published in a paper issued semi-weekly, on June 30th, July 7th, and July 11th. It was published three times in a semi-weekly paper, and it was contended that it had not been published three weeks successively; but the court held that the law had been substantially complied with.
In Brewer v. Springfield, 97 Mass. 152, the facts were that, a statute required a notice to be published
In Knox County v. Ninth National Bank, 147 U. S. 91 (37 L. Ed. 93, 13 Sup. Ct. Rep. 267), a part of the syllabus is:
“An order of court, directing a notice of an election which was to take place in 34 days to be given by publication in a designated newspaper for five weeks, must be construed to mean a publication in each of the five weeks.”
We conclude that the rule prevailing in Massachusetts is a better one than that in vogue in Nebraska. In Nebraska, it is held that where a notice is required to be published for a stated number of weeks, its publication once a week for the required period is a compliance with the statute, if it is published in a weekly newspaper, but that, if it is published in a daily paper, it must be published in every issue of that paper during the specified period. If a weekly newspaper has 10,000 subscribers, and a daily paper has that number, other things being equal, we presume that the publication of a notice in the daily paper would impart notice to about as many persons as publication thereof in the weekly paper would.
In the larger cities, the leading dailies have more subscribers and reach more people than the weekly press do, we believe. As a vehicle for giving publicity to a proposed sale of bonds, it seems to us that one publication in a leading daily paper is as effective as one publication in a leading weekly. ■ In this matter, the statute requires the publication of the notice “for two weeks before any sale of bonds” in one newspaper in the county where the bonds are to be issued, and ip
We conclude that the notice, given as stated supra, was a compliance with the said statute, and that the defendants have a right to issue and sell said bonds, and that the plaintiff’s complaint does not state facts sufficient to constitute a cause of suit. The demurrer to the said complaint is therefore sustained, and the suit is dismissed and the decree of the court below is affirmed. Affirmed.
