Opinion
5-20-1957
Petition of HERALD PUBLISHING COMPANY, a California corporation, to Have the Standing of 'Lynwood Herald American' As a Newspaper of General Circulation as Defined in Section 6000 of the Government Code of California, Ascertained and Established (two cases). HERALD PUBLISHING COMPANY, a California corporation, Petitioner and Appellant, v. CALIFORNIA NEWSPAPER PUBLISHERS ASSOCIATION, Inc., a California corporation, Contestant and Respondent (two cases).* Civ. 22183, 22184.
Butler & Hegner, James G. Butler, Los Angeles, for appellant. Robert F. Tyler, Los Angeles, for respondent.
Petition of HERALD PUBLISHING COMPANY, a California corporation, to Have the Standing of 'Lynwood Herald American' As a Newspaper of General Circulation as Defined in Section 6000 of the Government Code of California, Ascertained and Established (two cases).
HERALD PUBLISHING COMPANY, a California corporation, Petitioner and Appellant,
v.
CALIFORNIA NEWSPAPER PUBLISHERS ASSOCIATION, Inc., a California corporation, Contestant and Respondent (two cases).*
May 20, 1957.
Rehearing Granted June 17, 1957.
For Opinion on Rehearing see 313 P.2d 584.
Butler & Hegner, James G. Butler, Los Angeles, for appellant.
Robert F. Tyler, Los Angeles, for respondent.
MOORE, Presiding Justice.
Appellant Herald Publishing Company is the owner and publisher of the newspapers 'Lynwood Herald American' and 'Lakewood Herald American,' together with six companion newspapers. Pursuant to the provisions of section 6000 et seq. of the Government Code, appellant filed separate petitions seeking to have the Lynwood and Lakewood papers each declared a newspaper of general circulation. The petitions are identical. The petition for the Lakewood Herald American proceeds to allege that the publication has a bona fide subscription list of paying subscribers in Los Angeles County and in the area known as Lakewood; that it has been printed and published including typesetting and impressing type at regular intervals for, at least, one year preceding the date of the filing of this petition in Los Angeles County, and in the City of Compton. That for more than one year last past said newspaper has been published as a bi-weekly newspaper on Thursday and Sunday of each calendar week; that it is not now nor has it ever been devoted to the interest of or published for the entertainment or instruction of a particular class, profession, trade, calling, race or denomination. That it is a newspaper of general circulation published for the dissemination of local and telegraphic news, and intelligence of a general character in Los Angeles County; that the business address of said newspaper is 5084 Faculty Avenue, Lakewood, California. The petition closes with the prayer that the court make its order ascertaining and establishing the Lakewood Herald American as a bi-weekly newspaper of general circulation, as defined in section 6000 of the Government Code, in and for the County of Los Angeles and the State of California and in the Lakewood area and that it is qualified to publish legal notices or publications including all official advertising required by the Charter and Ordinances of said County and the Codes and General Laws of California.
In each case respondent filed an answer consisting of a general denial and several separate defenses. The only one of such defenses that is material to these appeals is as follows: 'That said newspaper is not issued or published from the same town or city within which it is printed as required by Section 6004.5 of the Government Code.'
The cases having been consolidated for trial, it was found that all the allegations necessary to comply with section 6000, such as bona fide subscription lists and the dissemination of local news and intelligence of a general character in the County of Los Angeles were true. But it was determined also that each paper was printed wholly within the City of Compton and published in the respective cities of Lynwood and Lakewood; that because of this, the newspapers were not both printed and published within one and the same town or city as 'required by Sections 6004 and 6004.5 of the Government Code.' Judgments were entered denying the petitions, and these appeals, consolidated for hearing in this court, followed.
Appellant contends that (1) each petitioner has established that it is a newspaper of general circulation published for the dissemination of local and telegraphic news in the County of Los Angeles under the ruling of In re Christensen, 104 Cal.App.2d 375, 231 P.2d 152; (2) section 6004.5 is violative of both the state and federal constitutions, and (3) there is evidence that petitioners come within the provisions of section 6004.5 of the Government Code.
In the case of Christensen, supra, the 'San Pablo Reporter' was circulated in the City of San Pablo, but printed in the cities of Richmond, Rodeo and Concord, all within Contra Costa County. It was held that the 'San Pablo Reporter' was a newspaper of general circulation in and for the County of Contra Costa. That decision was published May 22, 1951. Section 6004.5 was added by the Statutes of 1951, chapter 937. It was approved by the Governor on June 9, 1951, and became effective September 22, 1951. Section 2 of the chaptered bill reads: 'This act is declaratory of the existing law and does not make a substantive change therein.'
Appellant argues that the existing law at the time of the enactment of section 6004.5 was that expressed in the Christensen case, supra, and therefore it controls, and petitioners are entitled to be declared newspapers of general circulation for the County of Los Angeles.
Respondent contends that section 6004.5 was enacted to settle and clarify an existing controversy (between In re Monrovia Post, 199 Cal. 263, 248 P. 1017, and In re Christensen, 104 Cal.App.2d 375, 231 P.2d 152), and to set forth exactly what the Legislature had determined the law always had been. Respondent also urges section 6004.5 is only an amplification of section 6004.
But it is not necessary to resolve the issue thus projected by the litigants. It is alleged and it was also stipulated that certain evidence is true. Such proof establishes that the petitioning newspapers are 'both printed and published in one and the same town or city,' to wit, the City of Compton. This is sufficient compliance with section 6004.5.
That such conclusion is correct appears from the proceedings below. The matters came on for hearing on January 23, 1956, when after due evidence and arguments, they were submitted. On March 8, 1956, the court made its minute order finding in favor of respondent, directed that it submit findings and judgment in accordance with memorandum of decision on file. On March 29, 1956, appellant filed objections to the proposed findings and conclusions, indicating that appellant is moving to set aside the submission and reopen the case for the taking of additional evidence. On April 2, 1956, the court made the following minute order: 'Petitioner's motion to reopen granted and matter is continued for oral argument to April 16, 1956 at 10:00 a. m.'
The reporter's transcript of the proceedings of April 2 shows the following: After the court granted the motion to reopen, counsel for appellant indicated his desire to introduce evidence that both the petitioning papers had paying subscribers in Compton and that much of the advertising material and news items that appeared in the Lynwood Herald American also appeared in the Compton Herald American. Whereupon counsel for respondent stated that if that was the type of evidence to be introduced, he would be willing to stipulate to its introduction. It was then stipulated that in the consolidated cases both the Lynwood Herald American and the Lakewood Herald American have a subscription and distribution within the City of Compton of approximately forty to fifty paying subscribers, and that there was certain news matter and advertising which appeared in all three papers.
It thus appears that by virtue of respondent's stipulation, there was uncontradicted evidence before the court that both petitioning newspapers had 40 to 50 paying subscribers in Compton and, to that extent at least, both were printed and published in the same city, as required by section 6004.5. The significance of section 6004.5 has not been previously determined by the appellate courts. Neither do the statutes set any minimum number of subscribers as constituting a 'bona fide subscription list of paying subscribes' but the latter subject has been considered in several decisions.
In the case of In re Johnson, 1935, 4 Cal.App.2d 308, 40 P.2d 836, this court, without expressing its own opinion as to the efficacy of such a paper as a notice-carrying publication, held that the evidence sustained the finding and judgment that the petitioning newspaper qualified as one of general circulation. The only question considered was the matter of the bona fide subscription list. The newspaper had approximately 200 on its subscription list and 150 paying subscribers, 90 per cent of which paid circulation was within the San Fernando Valley section of the City of Los Angeles and 10 per cent outside the city. It was held that the petitioner was a newspaper of general circulation, printed, published and distributed in the City of Los Angeles.
The mere fact that a newspaper had a circulation of only about 180 in a city of 16,000 souls did not, of itself, exclude it from qualifying as a newspaper of general circulation. Baldwin v. Brown, 193 Cal. 345, 352, 224 P. 462. Where the statute itself does not specify how many subscribers there must be, but merely requires a 'bona fide' list thereof, the term 'list' used in this connection means an actual, genuine subscription list which shall contain the names of only those who are in good faith paying regularly for their subscriptions. In re Herman, 183 Cal. 153, 164, 191 P. 934. Whether a newspaper is one of general circulation is a matter of substance and not merely of size. In order to find it one of general circulation, the court must depend largely upon the diversity of its subscribers rather than upon the mere numbers. In re Green, 21 Cal.App. 138, 142, 144, 131 P. 91.
In the case at bar, there is such diversity. In Finding II the trial court determined: 'That it is true that said newspaper has a bona fide subscription list of paying subscribers in the County of Los Angeles * * * and in the area known as Lakewood.' It appears from the stipulation that there is a substantial number of paying subscribers in Compton as well as in Lakewood or in Lynwood.
Appellant has consistently demanded only an adjudication that the Lynwood and Lakewood Heralds are newspapers of general circulation in the County of Los Angeles. In effect, appellant concedes that they do not qualify as newspapers of general circulation for the respective cities of Lakewood and Lynwood. Each paper knows that it is not both printed and published in its own city. In other words, if section 6004.5 is to be given a reasonable interpretation, the papers are not eligible for the publication of purely local legal advertisements, such as local ordinances, because they are not both printed and published in their respective cities.
It is apparently the position of respondent that in order to comply with section 6004.5, any newspaper that is printed in a town or city must be published only in such town or city. Obviously, this was not the intention of the Legislature. If this were true, even the Los Angeles Times, printed and published in Los Angeles but circulated throughout the entire state, would not qualify as a newspaper of general circulation. Respondent states: 'The mere fact that the Los Angeles Times has subscribers in Nevada doesn't change the fact that it is published in the City of Los Angeles.' True, but would respondent say also that because of the Nevada subscribers, the Los Angeles Times is also published in Nevada? Obviously not, yet this is the effect of the finding that the papers were published in Lynwood and Lakewood.
The error in this position arises out of failure to differentiate between 'publish' and 'circulate.' Section 6004 states that for a newspaper to be 'published' it shall have been issued from the place where it is printed and sold to or circulated among the people and its subscribers. The statute requires both issuance from the printing plant and circulation among the subscribers. To use an example, when newspapers come off the press of the Los Angeles Times and are bundled and placed on the Times
truck, there has been an 'issuance.' But if the trucks immediately deposit the papers in the city incinerator, there has been no 'publishing' because there had been no 'circulation' among the people or delivery to the subscribers. Conversely, if the truck should deposit the papers with the Times' distributor in Beaumont and if they should be delivered to the subscribers there, then there would have been 'circulation.' But the Times' papers would not have been 'published' in Beaumont because the
y were not both printed and issued in Beaumont.
Similarly in the case at bar, the finding that the petitioning papers were 'published' in Lakewood and in Lynwood is erroneous within thelanguage of section 6004 because they were not 'issued' from printing presses located in Lakewood and in Lynwood. Since both issuance from the place where printed and circulation are required by section 6004, it is clear that the act of 'publishing' can be accomplished in only one place, the place where the printing is accomplished.
But section 6004.5 says that for a newspaper to qualify as one of general circulation, it must be both printed and published in the same city or town. If this section is to be given any meaning at all in the light of section 6004, it must be construed to mean that there must be both printing and 'circulation' in the same city or town.
In the case at bar, there is stipulated evidence that the Lakewood Herald American and the Lynwood Herald American were not only printed and issued in Compton, but also 'circulated' to subscribers in Compton. It follows that both these papers were 'published' in Compton within the meaning of section 6004. They were therefore both printed and published in the same city within the meaning of section 6004.5, and are qualified to be declared newspapers of general circulation in the County of Los Angeles.
Both parties have extensively argued the constitutionality of section 6004.5. In view of our conclusion that appellant newspapers have complied with the provisions of that section, we pretermit the constitutional question.
The judgments are reversed with instruction to the trial court to amend its findings in accordance with the views herein expressed and to enter judgments accordingly.
ASHBURN, J., and RICHARDS, Justice pro tem., concur. --------------- * Opinion vacated 313 P.2d 584. 1 Government Code, § 6000: 'A 'newspaper of general circulation' is a newspaper published for the dissemination of local or telegraphic news and intelligence of a general character, which has a bona fide subscription list of paying subscribers, and has been established, printed and published at regular intervals in the State, county, or city where publication, notice by publication, or official advertising is to be given or made for at least one year preceding the date of the publication, notice or advertisement.' 2 Government Code, § 6004: 'For a newspaper to be 'published,' it shall have been issued from the place where it is printed and sold to or circulated among the people and its subscribers during the whole of the one year period.' Government Code, § 6004.5: 'In order to qualify as a newspaper of general circulation the newspaper, if either printed or published in a town or city, shall be both printed and published in one and the same town or city.'