51 Wash. 667, 99 P. 1040 TIMES PRINTING CO. V. STAR PUBLISHING


CO. (S. Ct. 1909).

           THE TIMES PRINTING COMPANY, Respondent,
                               vs.
THE STAR PUBLISHING COMPANY, Appellant, THE CITY OF SEATTLE
                     et al., Defendants

                          No. 7855
                SUPREME COURT OF WASHINGTON
                    
51 Wash. 667, 99 P. 1040
                    February 24, 1909, Decided

                              
Appeal from a judgment of the superior court for King county,
Kennan, J., entered October 13, 1908, upon findings in favor of
the plaintiff, after a trial before the court without a jury, in
an action to enjoin the letting of a contract for city printing.

NEWSPAPERS -- WHAT CONSTITUTES -- CONTENTS. The noon edition of a
newspaper, of eight pages, 18 inches by 23, issued regularly
every day, containing telegraphic, sporting, political and
theatrical news, advertisements and editorials, with an average
daily circulation of over one thousand copies, sold on the
street, without a subscription list at the time of submitting its
bid, is a newspaper, in contemplation of our statutes relating to
city printing.
EVIDENCE -- JUDICIAL NOTICE -- POPULATION. The court will take
judicial notice of the population of its cities as shown by a
pamphlet issued under the auspices of the state, and of the
approximate increase since the date of such issue.
NEWSPAPERS -- WHAT CONSTITUTES -- GENERAL CIRCULATION. A
newspaper published in a city having a population of 275,000,
having an average daily circulation of 1,000 copies, sold on the
street, and a subscription list of 360, at the time of the
acceptance of its bid, but with no circulation in the residence
districts and rarely seen in business or professional offices, is
not a newspaper of general circulation, within the meaning of
charter provisions requiring city printing to be let to such
papers; and the city is properly enjoined from entering into a
contract for public printing awarded by the city council to such
a paper (FULLERTON and CHADWICK, JJ., dissenting).


Ballinger, Ronald, Battle & Tennant (C. J. France, of counsel),
for appellant.
Bausman & Kelleher, for respondent.


GOSE, J. RUDKIN, C.J., DUNBAR, CROW, and MOUNT, JJ., concur. GOSE
{*668} This is an action brought by the respondent against the
defendants and appellant to enjoin the defendants from entering
into a contract with appellant to do the city printing of the
city of Seattle for the year 1909. The city of Seattle, a city of
the first class, is acting under an independent charter. The
charter provides for the printing of all municipal legal notices,
the manner of awarding contracts therefor, and for the
designation of the city official newspaper. Section 31 of article
4, of the charter prescribes that such newspaper must be "A daily
newspaper of general circulation and published in the city, to be
styled city official newspaper." Such section further provides
that the Board of Public Works shall, on the first Monday of
August of each year, cause to be published a call for sealed
proposals to do the city printing for the then next ensuing
fiscal year.
In obedience to this provision, the board caused such notice to
be published, and on August 10, 1908, the appellant filed its
bid, in every way in compliance with the charter provision,
proposing to publish in the Noon Star "all the city printing" for
the next fiscal year. On August 29, all the bids, five in number,
were opened, and the bid of the appellant, it being the lowest
bidder, was accepted by the board.
On October 11th the case was tried to the court, which found that
the Noon Star is only a preliminary or special edition of a
newspaper called "The Seattle Star," and is not a newspaper on
its own account, and enjoined the parties from entering into the
contract. From this order this appeal is prosecuted.
Two principal points are urged: First, that the Noon Star is an
edition of a newspaper, and not a newspaper proper; second, that
it is not a newspaper of general circulation, within the meaning
of the charter provision. We will {*669} consider these points in
the order stated. The Noon Star is issued regularly every day, is
an eight page paper, eighteen by twenty-three inches in size,
with eight columns to the page, and contains telegraphic,
sporting, political, and theatrical news and advertisements, and
has an editorial column. The Star Publishing Company published
both the Seattle Star and the Noon Star. Prior to June 20, 1908,
the Noon Star was known as the Noon Edition of the Evening Star,
and was principally devoted to sporting news.
The evidence shows that, at the time of filing its bid, the Noon
Star had no regular subscription list, but that about one
thousand papers were sold daily on the streets by newsboys. At
the time of the trial, it had a subscription list of 360, and an
average daily circulation of 1,083. In view of these facts, we do
not regard it as important whether it was an edition of the
Evening Star or an independent newspaper. Its size, the
regularity of its issuance, and the variety of its news were such
as to make it clear that it was a newspaper at the time it
submitted its bid, and the fact that it contained news some of
which was published the previous day in the Evening Star does not
militate against this view. This court, in the case of Puget
Sound Publishing Co. v. Times Printing Co., 33 Wash. 551, 74 P.
802, quoted with approval the following definition of a
newspaper:
"A newspaper, in the popular acceptance of the word, is a
publication issued at regular stated intervals, containing, among
other things, the current news, or the news of the day. 21 Am. &
Eng. Ency. Law (2d ed.), p. 533."
In Hanscom v. Meyer, 60 Neb. 68, 82 N. W. 114, 48 L.R.A. 409, the
court say:
"The principal distinguishing feature of a newspaper, in
contemplation of the statute, in our opinion, is that it be a
publication appearing at a regular, or almost regular, intervals,
at short periods of time, as daily or weekly, usually in sheet
form, and containing news; that is, reports of happenings of
recent occurrence of a varied character, such as {*670}
political, social, moral, religious, and other subjects of a
similar nature, local or foreign, intended for the information of
the general reader."
In United States Mortgage & Trust Co. v. Marquam, 41 Ore. 391, 69
P. 37, 41, this language was used:
"Mr. Justice Mitchell, in Hull v. King, 38 Minn. 349, 350, 37
N.W. 792, in attempting to give a very general definition of a
newspaper, says that according to the business world, and in
ordinary understanding, it is 'a publication, usually in sheet
form, intended for general circulation, and published regularly
at short intervals, containing intelligence of current events and
news of general interest.'"
See, also, Williams v. Colwell, 18 Misc. Rep. 399, 43 N.Y. Supp.
720.
We next pass to the consideration of the second question, viz.,
was it a newspaper of general circulation at the time of the
filing and acceptance of its bid? The evidence, as we have said,
shows that about one thousand copies were daily sold on the
streets by the newsboys, and that at the time of the acceptance
of the bid it had no subscription list; that at the time of the
trial, some two months later, it had a subscription list of 360
and an average daily circulation of 1,083. Furthermore, it
appeared that, at the time of the acceptance of the bid, it had
no circulation in the residence districts, and was rarely, seen,
either in business houses or the offices of professional men. In
September, 1907, the city of Seattle had a population of 242,000
according to the "Review of the Resources and Industries of
Washington," issued under the auspices of the state. At the time
of the acceptance of the bid, it had a population of about
275,000. We think we may take judicial notice of this fact. The
rule in respect to judicial notice is stated in 16 Cyc. 870 as
follows: "The court will take judicial notice of the population
of counties, cities, and towns, and of the approximate rate at
which the population of such places increase." See, also, Union
P. R. Co. v. Montgomery, 49 Neb. 429, 68 N.W. 619.
{*671} The controlling purpose of the city in letting a contract
of this nature is to give the public notice of certain of its
official and proposed official acts. Webster defines the word
"general" as being equivalent to extensive. It is a relative
term, and its meaning must be determined by a process of
inclusion and exclusion. That which would be a general
circulation in a town of 5,000 or 10,000 people can hardly be
said to be general in a populous city. The appellant urges,
however, that this question has been settled favorably to its
contention in the case of Puget Sound Publishing Co. v. Times
Printing Co., supra. We think the two cases are distinguishable.
The former case was decided in 1903 when the population of
Seattle was estimated at 121,813, according to the "Review of
Resources," supra. At pages 555 and 556 the court, in discussing
this question, uses the following language:
"The court further found, that The Bulletin circulates among all
classes of people in the city of Seattle; that it has between 750
and 1000 subscribers in the city of Seattle, and is daily
delivered to such subscribers, with the exception of legal
holidays, and is daily read in the city of Seattle by about 3,000
persons; that it daily contains a resume of the world's
telegraphic news, briefly stated; that it contains an editorial
column devoted to the discussion of events and topics of interest
to the general public; that it has been, by order of the superior
court of King county, frequently designated as, and declared to
be, a newspaper of general circulation; that for more than three
years notices of all classes, required by law to be published in
a newspaper of general circulation, have been published regularly
in The Bulletin; among which appear summons for publication,
foreclosure notices, all manner of probate notices required by
law to be published, notices of foreclosure of delinquent tax
certificates, and all other such notices as are usually found in
a newspaper of general circulation; and that in each instance an
order of the superior court of King county has declared The Daily
Bulletin to be a newspaper of general circulation in King county.
The testimony introduced at the trial, and the copies of the
paper sent up as exhibits, seem to support the {*672} findings of
the court as to the character of The Daily Bulletin."
An examination of the language quoted will show the difference in
the kind and extent of circulation. The Bulletin had a regular
list of subscribers, and was read by 3,000 people. There is no
evidence in the case at bar that the Noon Star was read by more
than one thousand people. The circulation of the Bulletin was
general among the people. The circulation of this paper is
confined to those who buy it from the street. For more than three
years the Bulletin had published all kinds of legal notices which
the law required to be published. Our attention has not been
called to the fact that any such publication has been made in the
Noon Star.
In the case of Norton v. Duluth, 54 Minn. 281, 56 N.W. 80, also
relied upon by the appellant, the statute defined the
qualification of a newspaper for doing official printing as one
regularly issued, published, and delivered to 240 paying
subscribers. In the case of Pentzel v. Squire, 161 Ill. 346, 43
N.E. 1064, 52 Am. St. 373, cited in the appellant's brief, it was
shown that the paper circulated among "lawyers and laymen," and
had an average weekly circulation of 3,875. In United Staes
Mortgage & Trust Co. v. Marquam, supra, at page 42 of the
opinion, the court uses the following language: "The circulation
of the Sunday Welcome through the mails, by delivery, and by news
stands is from 1,000 to 1,100 copies, and is not confined to any
particular class or sect of individuals." This case was decided
in 1902. In Williams v. Colwell, supra, the court was considering
the question as to whether the publication was in a newspaper
within the meaning of the law, and at page 721 said: "And that it
has a circulation in the city of Buffalo of 1,000, and in the
county outside the city of 500, and in other parts of the state
of New York and in twenty-four other states and the province of
Ontario, Canada, of 3,600." Neither the Oregon statute nor the
New York statute in direct terms {*673} require a paper to have a
general circulation. However, the courts in construing them
assume that this is an implied qualification.
In view of the charter provision requiring that the paper
selected shall be one of general circulation, the purpose of the
publication of official notices, the population of the city of
Seattle at the time of the acceptance of the proposal, and
treating the word "general" as being equivalent in meaning with
extensive, and giving to this word a reasonable interpretation,
we are constrained to hold that the Noon Star was not a
newspaper of general circulation at the time of the acceptance of
its proposal to do the city printing. Indeed, we could not reach
a different conclusion without unduly restricting the meaning of
the word "general." This conclusion requires an affirmance of the
judgment, and it is so ordered.
                     DISPOSITION
                              
                              Affirmed.
                              
                          DISSENT
FULLERTON, J. (dissenting)
I am unable to distinguish the question presented in this case
from that presented and decided in the case of Puget Sound
Publishing Co. v. Times Printing Co., 33 Wash. 551, 74 P. 802,
where we held "The Daily Bulletin" to be a paper of general
circulation. In my opinion that case should be followed and not
distinguished, and I dissent, therefore, from the judgment
directed by the majority.
CHADWICK, J. (dissenting) --
I cannot agree with that part of the majority opinion that
assumes to hold that the Noon Star is not a newspaper of general
circulation. It may or may not be so. In my judgment this is not
a judicial question. It was determined by the city council of
Seattle that it was a newspaper of general circulation. The
determination of that fact having been reserved to the
legislative body, its finding, in the absence of fraud, is
conclusive upon the court. Otherwise no contract of the city
within the limit {*674} of its legislative power would be of any
validity until revised or passed upon by the courts. I think the
rule laid down in State ex rel. News Pub. Co. v. Milligan, 3
Wash. 144, 28 P. 369, is the true rule in this class of cases. In
that case the city council of Tacoma had, under a charter
provision declaring it to be the duty of the city council to
designate the newspaper published by the party receiving the
contract for city printing, let the contract to one who was in
fact not the publisher of any newspaper -- an extreme case -- yet
this court held:
"No principle of equity jurisprudence is better established than
that courts of equity will not sit in review of proceedings of
subordinate political or municipal tribunals, and that where
matters are left to the discretion of such bodies the exercise of
that discretion in good faith will not, in the absence of fraud,
be disturbed. High on Injunctions (3d ed.) 1240. In this case
we think the council was acting within the scope of its lawful
authority, so that the rule laid down by Mr. High in the next
section, 1241, 'that the restrictions thus placed upon equitable
interference with the action of municipal corporations do not
extend to cases where the act sought to be enjoined is in excess
of the corporate power,' has no application to this case.
Possibly some inconvenience may on occasion arise by pursuing the
policy adopted by the city council of Tacoma in this case; but to
hold that the bidders must have the qualification of publishers
would be to encourage a monopoly in the bidding business which
might defeat the very object of the law and deprive the city of
the benefit of competition, and make the requirement of bidding a
mere farce. In this case we think the law authorizes the action
of the city council, that they are acting within the limits of
their discretion, and that the court therefore did not have
jurisdiction of the subject-matter of the action, and that its
action is therefore void."
The case of Puget Sound Pub. Co. v. Times Printing Co., 33 Wash.
551, 74 P. 802, assumed to treat the question before us as a
judicial question, without reference to the Milligan case. That
case is, in my opinion, not only an unwarranted departure from,
but is inconsistent with, the repeated {*675} holding of this
court that it will not, in the absence of fraud, review the
conclusion of a coordinate branch of the government, when it is
the result of its discretion or entered upon a disputed state of
facts. Nichols v. School District, 39 Wash. 137, 81 P. 325;
Parmeter v. Bourne, 8 Wash. 45, 35 P. 586, 757; Heffner v. Board
of County Com'rs., 16 Wash. 273, 47 P. 430; State ex rel. Reed v.
Jones, 6 Wash. 452, 34 P. 201, 23 L.R.A. 340.
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