IN RE: the Proposed Ascertainment and Establishment of the Standing of the ‘NORWALK CALL’ as Newspaper of General Circulation.

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District Court of Appeal, Second District, Division 2, California.

IN RE: the Proposed Ascertainment and Establishment of the Standing of the ‘NORWALK CALL’ as Newspaper of General Circulation. WHITEHEAD-DONOVAN CORPORATION, Petitioner and Respondent, v. HERALD PUBLISHING COMPANY, a California corporation, publisher of the ‘Norwalk Heraid American’, Contestant and Appellant.

Civ. 27651.

Decided: July 09, 1964

James G. Butler, Los Angeles, for appellant. Robert F. Tyler, Los Angeles, for respondent.

This appeal is taken from the judgment granting respondent's petition for a judicial declaration of its status as a newspaper of general circulation for the City of Norwalk.

The facts are not in dispute. It is conceded that respondent meets all the requirements set forth in Articles 1 and 2 (sections 6000–6027) of Chapter 1, division 7 of Title 1 of the Government Code prerequisite to the challenged judicial establishment of its standing except that 50 per cent of the work of impressing type on paper is not being performed in the City of Norwalk. (Cf. Government Code, §§ 6000, 6003, 6004, 6004.5 and 6005.)

The evidence supports the finding of the trial court that respondent newspaper ‘was an established newspaper of general circulation prior to and at the time of and ever since the passage of Chapter 258 of the Statutes of 1923 of the State of California * * *.’ Applying section 6006 of the Government Code to this factual determination, the trial court concluded that respondent was not required to meet the printing requirements applicable to newspapers established after 1923.

Section 6006, as amended in 1961, provides: ‘Nothing in this chapter alters the standing of any newspaper which, prior to the passage of Chapter 258 of the Statutes of 1923, was an established newspaper of general circulation, irrespective of whether it was printed in the place where it was published for a period of one year as required; * * *.’ In its present form this section is substantially identical with former Political Code section 4465 as added by Statutes of 1923, chapter 258 section 3, page 513.

Appellant contends initially that the expression ‘established newspaper of general circulation’ as used in the present Government Code section 6006 and in former Political Code section 4465 ‘means actual judicial establishment, that is Established by decree of court.’ We have concluded that this contention is erroneous and untenable.

Chapter 345 of the Statutes of 1905, which was applicable and in effect in 1923 (Political Code, § 4462), provided that a court adjudication was not necessary in order for a newspaper to be established as one of general circulation. This section was enacted into the Government Code in 1943 as section 6027 which provided: ‘This article is not obligatory upon nor does it require any newspaper to comply with its provisions in order to be in fact, or in law, a newspaper of general circulation. Any newspaper may at its option avail itself of the provisions of this article.’ (Emphasis added.) It was not until 1951 that section 6027 was amended to require that ‘On and after July 1, 1952, a newspaper shall not be in fact or in law a newspaper of general circulation unless it obtains or has theretofore obtained a judicial decree establishing it as having such status pursuant to the provisions of this article.’

In addition, respondent was declared to be a newspaper of general circulation for the township of Norwalk on May 21, 1926, the city being at that time unincorporated. The judgment in this earlier proceeding declared true the allegation that respondent newspaper had been ‘printed and published as a weekly newspaper at regular intervals in said Township, County and State for a period of more than one year last past, to wit: From on or about the first day of January, 1891, to the date hereof.’ Whether this order conclusively established respondent's standing for the years prior to 1926 we need not now decide. (Compare In re The Anaheim Daily Gazette, 214 Cal.App.2d 438, 442, 29 Cal.Rptr. 520 with In re The Napa Journal, 132 Cal.App. 339, 342, 22 P.2d 772.)

In the instant case, the trial court has found, upon the basis of sufficient evidence, that as a matter of fact respondent was so established as of May 30, 1923. No judicial establishment prior thereto was required. (Former Political Code sections 4462 and 4465; In re The Anaheim Daily Gazette, supra, 214 Cal.App.2d pp. 441–445, 29 Cal.Rptr. 520.)

Appellant's second contention is that, if respondent was an established newspaper in 1923, ‘it lost its establishment as a newspaper for the City of Norwalk in August, 1959.’ The record discloses that following the incorporation of the City of Norwalk in 1957, a judgment was entered on October 18, 1958, establishing respondent as a newspaper of general circulation therein. This judgment was subsequently vacated under section 6024, Government Code, upon a showing that at that time, as well as at the present, respondent newspaper was printed outside the said city. (In re Norwalk Call, 183 Cal.App.2d 597, 6 Cal.Rptr. 864.)

In 1951, the following concluding proviso was added to section 6006, Government Code, as quoted above: ‘* * * provided, however, that this section shall apply only in the event that said newspaper has altered neither the county, nor the town, nor the city of its publication or printing, or both, since the effective date of this act.’ This concluding restriction was eliminated by Statutes of 1961, chapter 1217, section 1, thereby restoring section 6006 to its pre-1951 form which, as indicated, was substantially identical to former section 4465, Political Code. In commenting upon these consecutive amendments, the court in In re The Anaheim Daily Gazette, supra, 214 Cal.App.2d page 444, 29 Cal.Rptr. page 524, stated:

‘It now appears that section 6006 has the same legal effect as section 4465 of the old Political Code. This statute was applied and construed in In re Byers, supra, 219 Cal. 446, 27 P.2d 641, a case similar to the one at bar. Apparently, like its predecessor section 4465, section 6006 creates two classes of newspapers of general circulation: those in existence before 1923 and those initiated thereafter, and exempts those venerable publications of the first class from the requirement that printing be done in the place of publication. Apparently, the Legislature recognized this distinction in 1951 when, with the Byers case in the books, it amended section 6006, expressly limiting its application to newspapers that had not altered the city of publication or printing since the effective date of the statute. This severe limitation upon the exemptive application of section 6006 was removed in 1961. Thus, the plain meaning of section 6006, as presently in force, is to free newspapers of general circulation in existence before 1923 from the requirement that they be printed in the place of publication. This interpretation is compelled by the unambiguous language of section 6006.’

Additionally, it should be noted that, even though it be conceded respondent ‘lost its establishment as a newspaper for the City of Norwalk in August, 1959’, this could not cause it to lose its standing as a ‘newspaper which, prior to the passage of Chapter 258 of the Statutes of 1923, was an established newspaper of general circulation, * * *.’ (Government Code, § 6006 as amended in 1961.)

Appellant next contends that even if it be conceded that respondent was an established newspaper prior to 1923, nevertheless it could not have been so established for the City of Norwalk, because that city was not incorporated until 1957. Although this undoubtedly is true, the exception created by Government Code section 6006 in its present form, and by former Political Code section 4465, supplies no limitation arising from a change in the political structure or entities within the confines of the area in which the excepted newspaper was established in 1923. While it might well be appropriate and good policy to make such changes a point of limitation upon the otherwise indefinite favorable treatment extended the excepted newspapers, this is a matter for legislative rather than judicial determination. The intent of the Legislature in this respect appears to be clearly indicated by its enactment of the limitation to section 6006 in 1951 and its subsequent repeal thereof in 1961 as heretofore discussed.

Lastly, appellant contends that section 6006 is unconstitutional. Appellant's arguments in support of this contention are quite persuasive and very similar to those which apparently were accepted by the appellate court whose decision it cites. It was therein stated: ‘To say, however, that the Legislature intended to prescribe for all times one set of requirements for newspapers theretofore established and a different set for newspapers to be established in the future would be to give to the amendment such a construction that the reasonableness thereof would become a serious question.’ (In re Byers, Cal.App., 25 P.2d 236, 237.) However, a hearing was granted following this decision, and upon the same issue the court stated:

‘The further contention is made that such a construction of these sections of the Political Code renders the same unconstitutional and void, for the reason that it is an attempt to classify the newspapers in the state into two classes, those established before the legislation of 1923, which are free from the requirements of such legislation, and those established at a later date, which are forced to comply with such requirements. This same contention in principle has been before this court on frequent occasions, one of the most recent of which was in the case of Jones v. City of Los Angeles, 211 Cal. 304, 295 P. 14. We there held that an ordinance excluding hospitals and sanitariums for the treatment of mental and nervous diseases from certain districts in said city was valid in so far as it purported to prohibit the establishment of such institutions within said district in the future, but that it was void when applied to an existing business of the same character in said district. Such a classification, if we may properly use that term, may not be said to be an unreasonable application of the police power. Upon the same principle, it cannot be said in the present action that it is unreasonable to exact certain requirements of a newspaper to be established in the future which are not required of those long established and which have proved their right to exist by a full compliance with all the laws in force at the time of their establishment.’ (In re Byers, supra, 219 Cal. 446, 450, 27 P.2d 641, 642.)

The decision since has been cited with approval in Hunter v. Justice's Court, 36 Cal.2d 315, 321, 223 P.2d 465 and People v. Western Fruit Growers, 22 Cal.2d 494, 508, 140 P.2d 13. If any redetermination of this issue of law is now to be made, it is beyond the province of this court to do it.

The judgment is affirmed.

I concur in the judgment through the following reasoning:

Beginning with the statute of 1923, section 4465, Political Code, (codified as section 6006, Government Code in 1943), has contained a ‘grandfather clause’ reading: ‘Nothing in this chapter alters the standing of any newspaper which, prior to the passage of Chapter 258 of the Statutes of 1923, was an established newspaper of general circulation, irrespective of whether it was printed in the place where it was published for a period of one year as required; * * *.’

In 1951 this section was amended by adding the following proviso: ‘* * * provided, however, that this section shall apply only in the event that said newspaper has altered neither the county, nor the town, nor the city of its publication or printing, or both, since the effective date of this act.’ This limitation remained in the statute until the 1961 Legislature eliminated it, thus restoring the section to its original flat exemption of a newspaper which was actually an established one prior to the 1923 statute. No court decree establishing the status of a pre-1923 newspaper was required until 1951. The 1943 section 6027 said: ‘This article is not obligatory upon nor does it require any newspaper to comply with its provisions in order to be in fact, or in law, a newspaper of general circulation. Any newspaper may at its option avail itself of the provisions of this article.’ In 1951 the section was amended to read as follows: ‘On and after July 1, 1952, a newspaper shall not be in fact or in law a newspaper of general circulation unless it obtains or has theretofore obtained a judicial decree establishing it as having such status pursuant to the provisions of this article.’ It has so remained at all times since.

Being a pre-1923 publication the Call apparently had no court decree establishing its status with respect to the City of Nor-walk,1 so it in 1958, being confronted by the terms of section 6027, obtained a judgment declaring it to be a newspaper of general circulation for the City of Norwalk. (See page 3 of Clerk's Transcript in 2nd Civil No. 24300, of which we take judicial notice.)

On May 14, 1959, Mr. T. A. Garrett filed a petition to vacate the 1958 decree upon the ground that the Call had ceased to be a newspaper of general circulation in that it was printed outside the City of Norwalk contrary to the terms of section 6003, Government Code. (See page 1 of Supplemental Clerk's Transcript in 2nd Civil No. 24300.) After contested hearing, this petition was granted and decree made on July 14, 1959 to the effect that the Call was a newspaper of general circulation of the County of Los Angeles but not of the City of Norwalk because printed outside the city. (See page 14 of original Clerk's Transcript in No. 24300.) This judgment was affirmed in In re Norwalk Call, 183 Cal.App.2d 597, 6 Cal.Rptr. 864, upon the ground that evidence of change in the place of printing authorized the ruling because that change had occurred after the July, 1959 judgment which spoke of the time of its rendition and had no effect upon subsequent events.

As I read that proceeding it involved only the question of whether the Call had lost its status because of violation of the provisions of section 6003. The instant proceeding invokes establishment through long publication prior to 1923 as basis for a decree of establishment required by section 6027. The question thus arises whether the decree of 1959 is res judicata of the instant proceeding.2 I think not. In my judgment it falls within the rationale of these authorities: 29 Cal.Jur.2d, section 242, page 204: ‘It [the res judicata rule] has no application to independent matters that the parties may but are not required to, and do not in fact, plead or rely on. It may be that a plaintiff might have united other causes of action with that set out in his complaint, but as long as these several matters are not tendered as issues in the action, they are not affected by it.’ See Daugherty v. Board of Trustees, 111 Cal.App.2d 519, 521–522, 244 P.2d 950; Hayward Lbr. & Inv. Co. v. Const. Prod. Corp., 117 Cal.App.2d 221, 229–230, 255 P.2d 473; Title Guarantee & Trust Co. v. Monson, 11 Cal.2d 621, 631–633, 81 P.2d 944; Estate of Setzer, 192 Cal.App.2d 634, 640, 13 Cal.Rptr. 683; Stout v. Pearson, 180 Cal.App.2d 211, 215, 4 Cal.Rptr. 313; Lord v. Garland, 27 Cal.2d 840, 849, 168 P.2d 5.

The Hayward opinion says, at page 229 of 117 Cal.App.2d, at page 478 of 255 P.2d: ‘* * * One of the principal requirements for the application of the doctrine of res judicata is: Was the issue decided in the previous action identical with the one presented in the present suit? Bernhard v. Bank of America, 19 Cal.2d 807, 813, 122 P.2d 892.

‘In Stark v. Coker, 20 Cal.2d 839, 843, 129 P.2d 390, 393, the court points out that only such matters are adjudicated in a prior judgment which appear upon its face to have been adjudicated or which were necessarily included therein, and that ‘when it affirmatively appears that an issue was not determined by the judgment, it obviously is not res judicata upon that issue.’ Likewise, the rule may not be invoked merely because the rights, claims or demands arise out of a subject matter involved in a prior litigation, so long as they constitute separate or distinct causes of action which were not placed in issue in the former case. Title Guarantee & Trust Co. v. Monson, 11 Cal.2d 621, 631, 81 P.2d 944.'

Thus I reach the conclusion that the 1959 judgment is not a bar or an estoppel with respect to the instant case. That removes the only obstacle to my joining in an affirmance of the judgment at bar.

FOOTNOTES

1.  The 1926 decree mentioned in the majority opinion established the newspaper's status with respect to the township of Norwalk, there being no city of that name at that time.

2.  This is not a situation in which it was necessary to plead res judicata (Solari v. Atlas-Universal Service, Inc., 215 Cal.App.2d 587, 592, 30 Cal.Rptr. 407), nor does appellant's failure to rely on the 1959 decree preclude our consideration of it when it stares us in the face (Amer. Auto. Ins. Co. v. Seaboard Surety Co., 155 Cal.App.2d 192, 200, 318 P.2d 84; Escobedo v. Travelers Ins. Co., 197 Cal.App.2d 118, 127, 17 Cal.Rptr. 219.)

HERNDON, Acting Presiding Justice.

ROTH, J., concurs.

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