Thursday, March 22, 2007
Page 7
PERSPECTIVES (Column)
Superior Court Judge Fails to Apply Clear Wording of Code Section
By ROGER M. GRACE
This newspaper lost a case in the Los Angeles Superior Court—and the judge was wrong…out and out wrong. No question about it. Wrong.
The jurist’s name? Nathaniel P. Conrey. If you hunt for that name in our monthly directory, you won’t find it. He’s dead. In fact, he died in 1936.
The case in which he displayed his inability to grasp the meaning of simple, unambiguous statutory verbiage was decided 100 years ago today.
At issue, in general terms, was whether only one of
the two weekly newspapers in the Township of Sawtelle was 
qualified to carry
legal notices, or if both were.
Sawtelle, incorporated into the City of Los Angeles in 1922, was a fledgling town 100 years ago, situated west of the area that was to become Westwood Village. It included the Old Soldiers’ Home and the Veterans’ Cemetery. Its population was only about 1,000—rendering it remarkable that there were two newspapers there.
This newspaper was one of them. Then known as the Veteran-Enterprise, it had been founded by A. A. Bynon in February, 1901, as the Pacific Veteran-Enterprise. Susie Pierson Miller became its editor in April, 1902, and soon after that, she purchased it, assuming the role of editor/publisher.
The opposition was the Sawtelle Sentinel, owned and published by Henry Schultz. It was started by C.B. Irvine in July, 1904, and sold to Schultz two months later. Irvine retained ownership of the press, leasing it to Schultz. But then in 1906, Irvine found he had a better use for the press, and moved it to the City of Los Angeles. As of April of that year, the Sentinel was rolled off the press in Santa Monica at the plant of the Outlook. That’s what gave rise to a legal controversy.
Did the Sawtelle Sentinel qualify as a “newspaper of general circulation,” as defined by §4460 of the Political Code? From the time that section was enacted in 1905, a newspaper had to meet its requirements in order to be eligible to carry legal advertising—such as probate or government notices. One of the requisites was that the newspaper “have been established, printed and published at regular intervals, in the…town, where such publication, notice by publication, or official advertising is given or made, for at least one year preceding the date of such publication, notice or advertisement.”
The Sentinel clearly met one of the three statutory criteria; it had been established (that is, in existence) in Sawtelle for the previous one-year period. Also clear is that it was not printed there for the entirety of that period—and that was enough to defeat its entitlement to publish notices for the town.
(The matter of where it was “published” was unclear. The term “published” was not statutorily defined until 1923; under the definition arrived at, the Sentinel had been published in Santa Monica because that’s where the press was.)
When the town’s Board of Trustees in 1906 was set to award an advertising contract to the Sentinel, Miller appeared at a public session to contest the proposed action. She flung before the town fathers an opinion from her lawyer, Frank G. Finlayson, proclaiming the Sentinel’s lack of status as a “newspaper of general circulation.”
As later recited by the Los Angeles Times in its March 17, 1907 edition:
“The attorney’s opinion didn’t feaze [worry] the trustees. They wanted to know who Finlayson was, anyway, and they awarded the contract to Schultz.”
(As to who Finlayson was: a special section of the Los Angeles Daily Journal, published May, 1907, identifies him as “one of the influential and leading members of the Los Angeles bar.” He was elected to the Los Angeles Superior Court in 1910; was appointed in 1919 as the first presiding justice of Div. Two of this district’s Court of Appeal; and was appointed to the California Supreme Court in 1926—serving only two months, however, having been defeated at the polls by one of three challengers. Admitted to practice in 1885, his bar number was “5.”)
In those days, gaining a court adjudication of a newspaper’s status as one of general circulation was voluntary. (Since 1952, it’s been a legal “must” if the newspaper wants to publish public notice advertising.) Schultz, to play it safe, on Jan. 14, 1907, filed a petition in the Superior Court seeking such an adjudication. However, he had not resumed printing in the Town of Sawtelle until October, 1906. I don’t think the proposition is subject to doubt that the one-year printing requirement was not met.
In newspaper adjudication cases, then as now, anyone may oppose the petition. Local realtor W.R. Chapman and other Sawtelle businesspeople did so, represented by Finlayson.
Conrey on Feb. 15 sustained a demurrer to Schultz’s petition, with leave to amend.
An amended petition was filed alleging that the non-printing in Sawtelle was somehow precluded by virtue of the San Francisco fire the previous April and the impossibility of shipping a new press from that demolished city/county.
A hearing was held on March 14. The objectors presented testimony from representatives of two companies that they could have supplied Schultz with the equipment he needed.
Actually, that testimony was irrelevant. Schultz’s evidence of the non-availability of a source in San Francisco was not a cognizable excuse even if San Francisco had been the only place on the planet from which presses could be obtained. The requirements of the statute were absolute.
Nonetheless, after taking the matter under submission, Conrey granted Schultz’s petition, doing so 100 years ago today.
The Times’s report the next day begins:
“The Sawtelle Sentinel is really a newspaper. The Superior Court has so decided.”
There was never any doubt that it was a newspaper. Of course it was. The legal issue was whether it was a “newspaper of general circulation,” as that term was defined by §4460 of the Political Code, which definition included having been printed for one year in the geographical area for which an adjudication was sought.
The Sentinel hadn’t been. It was a bad call.
And what inglorious fate befell this judicial bungler, Conrey? Well, actually, he was elected in 1935 to the California Supreme Court, with a stop at the Court of Appeal on his way there (serving as presiding justice of this district’s Div. One).
AMONG OTHER DISPUTES THAT AROSE under the 1905 Political Code provisions on newspapers was one involving a street improvement assessment in the City of Ocean Park (an area which had been incorporated in 1904 and is now part of the City of Los Angeles). Landowners, seeking to resist paying the assessment, claimed the project was unlawfully undertaken because notice of it was published in the Evening Journal which, they averred, was not validly adjudicated for Ocean Park.
It seems the boundary line between the cities of Ocean Park and Santa Monica went smack through the Evening Journal’s building. The press was in Ocean Park; the editorial and business offices were in Santa Monica. All these operations were under one roof.
Acting on the bid by the Ocean Park landowners to avoid paying for the street improvement was none other than Nathaniel P. Conrey. He held that publication of notice in the Evening Journal sufficed. That one he got right.
Why would it possibly not have sufficed? The newspaper had been “established” in Ocean Park for more than a year. It had been printed there for a spell in excess of a year.
But was it “published” there? Well, yes. This was before 1923 when the Legislature defined “publish.” Nonetheless, the meaning of the term was commonly understood. As the California Supreme Court was to observe in a 1926 opinion, “[t]he word ‘publish’ ordinarily means to disclose, reveal, proclaim, circulate, or make public.” Under the common definition, the Evening Journal was published—that is disseminated—in Ocean Park…so it met all three criteria.
Had the 1923 statutory definition been in effect, the result would have been the same; Ocean Park is where the press was located.
It does seem rather simple. However, a 1915 opinion of a three-member panel of the California Supreme Court created murkiness. It declares:
“[I]t is contended that the place from which this paper was issued for circulation, that is to say was published, was not from the press room in Ocean Park, but from the business offices across the imaginary line and in Santa Monica. There is no manner of doubt but that the paper in question was circulated, and widely circulated, in Ocean Park. Having in mind the purpose to be effected by the law, we hold appellants’ view of the word ‘publication’ as used in the statute to be entirely too narrow. It is quite as rational to say, since the fact is that the circulation and distribution of the paper was in the city of Ocean Park, that the publication which followed the printing came immediately from the press rooms in Ocean Park. It is wholly unnecessary to picture the physical transportation of these papers from the press in Ocean Park across the imaginary line into the business offices, and a primary publication being made in another room in the same building, to the end of defeating the plain purpose of the law. We will not review the authorities. None upholds plaintiffs’ contention; while to the contrary the general principle is well established that, the vital consideration being notice by publication, such publication is the publication contemplated by law, with little or no regard paid to the mere place of printing, even when the word ‘printing’ coupled with publication is embraced in the statutory requirement.”
In support of the “general principle” the court cited six cases...all from other states.
This is tommyrot. The place of printing was Ocean Park. This was undisputed. Under §4460, a newspaper had to be printed in the town, city, or county to which the notice related. Given that the place of printing in the case comported with the statutory printing requirement, what possible reason was there for denigrating that requirement by opining that “little or no regard” should be “paid to the mere place of printing”?
Of course “regard” had to be accorded the printing requirement; it was statutorily mandated.
Clinging to his view that the judiciary was at liberty to simply ignore words contained in a statute, Conrey, as a justice of the Court of Appeal, concurred in a 1917 decision reversing the trial court’s denial of an adjudication to a newspaper in what was then the City of Watts.
The opinion says:
“[I]t is very apparent that the only ground upon which the denial of the petition was made was because seven issues of the newspaper were not actually ‘printed’ in the city of Watts. The newspaper was circulated there and was a paper local to that community. We think to construe the statute in such a close and literal sense is to narrow its meaning more than was intended by the Legislature.”
The California Supreme Court in 1921 cited that case with approval in a decision affirming the adjudication of the Ontario Weekly Herald as a newspaper of general circulation notwithstanding that it was printed in Colton. The high court said:
“In the production of the publication, everything is done at Ontario, save the setting up of the type and making the impressions on the paper [i.e., the “printing.”] It would be giving too narrow a meaning to the word ‘printed’ to hold that these acts alone were contemplated by its use in the statute. The only reasonable construction that can be given to ‘printed and published’ is that the paper must be produced in the community where it is aimed to have it recognized as a legal advertising medium.”
In other words, “printed” doesn’t mean “printed,” it means “published.” Jurists who so manipulate and distort words should be flogged in the public square.
The Legislature was not pleased that the printing requirement was ignored by the judiciary. In 1923, it added §4463 to the Political Code, spelling out:
“The word ‘printed, as used in [§4460] shall mean, and be construed to mean, that the mechanical work of producing such a newspaper of general circulation, that is to say, the work of typesetting and impressing type on paper, shall have been performed during the whole of the period as designated and required by [§4460]. The word ‘published,’ as used in said section, shall mean, and be construed to mean, that such a newspaper of general circulation shall have been issued from the place where it is printed.”
That’s still the law...except that now, only a monthly average of 50 percent of the printing has to be done in the city or county for which an adjudication is sought. Too, an alternative adjudication statute was enacted in 1974 which dispenses with the requirement of local printing, but adds other conditions.
Even if that statute, Government Code §6008, had been included in the Political Code 100 years ago, the Sepulveda Sentinel would not have qualified. One of the requirements of §6008 is that the newspaper have been established and published for three years. As of March 22, 1907, the Sepulveda Sentinel was just short of the three-year mark.
Copyright 2007, Metropolitan News Company