PENAAT v. TERWILLIGER ET AL (1943)

Defendant was the owner of a city lot in San Mateo County upon which she failed to pay the 1934 county taxes. Plaintiff purchased the property at a tax sale in 1940. In an action brought by plaintiff to quiet her title the trial court found that the tax sale was illegal and entered judgment quieting defendant's title to the lot.

The delinquent tax list of San Mateo County was published in 1935 in a separately folded section of the Burlingame Advance Star. This section carried the name and trade–mark of the newspaper at the top of the page, but there was printed therein no news nor any other reading matter except that dealing exclusively with the delinquent tax list. The notice of sale of the lot in question was published in 1940 in a similar separately folded section of the San Mateo Times also devoted exclusively to the delinquent tax list, with no news or other reading matter except a map of the world which was put in as a “filler” on the last page.

The trial court found that these publications did not comply with section 3766 of the Political Code (now section 3356, Rev. and Tax Code, St. 1939, p. 1321). To point the question involved we quote the following from Clayton v. Schultz, 22 Cal.App.2d 72, 74, 70 P.2d 512, 513:

“Prior to 1921, section 3766 of the Political Code * * * of this state provided as follows: ‘Manner of making publication. The publication must be made once a week for three successive weeks in some newspaper, or a supplement thereto, published in the county.’

“The foregoing section was amended in 1921 * * * to read as follows: ‘Publication of delinquent tax lists. The publication must be made once a week for three successive weeks in some newspaper of general circulation published in the county.’

“Obviously it was the intention of the Legislature to eliminate publications of delinquent tax lists in supplements to a newspaper, and to confine the publications thereof to a regular or main issue of a newspaper of general circulation.”

Appellant calls attention to the very general practice of newspapers of printing their regular issues in two or more separately folded sections, and argues that in view of such practice the separately folded delinquent tax lists in question were not supplements to the newspapers, but parts of the “regular or main issue” of such papers.

“Supplement” is defined in Funk & Wagnalls New Standard Dictionary of the English Language (1933) as: “Something added that supplies a deficiency; especially, an addition to a publication. In a newspaper it is often a separate sheet * * *.”

In Webster's New International Dictionary, 2d Ed. 1935, we find the following: “Specif., a part added to, or issued as a continuation of, a book or paper, to make good its deficiencies, correct its errors, or provide special features not ordinarily included.”

In seeking to determine the purpose of the legislature in eliminating the provision from § 3766, Pol.Code which had theretofore authorized the publication of the tax list in a supplement to a newspaper we are entitled to look to these definitions of the term in standard and recognized works on the subject. Tested by these definitions we are satisfied that the delinquent tax lists were published in supplements to the newspapers. The only reason for the publication and distribution of the entirely distinct sections in question was, in the language of Webster's to “provide special features not ordinarily included,” i.e. the delinquent tax list, and to “make good its deficiencies” i.e. the omission of the delinquent tax list from the main section of the newspaper. It was “a part added to” the paper in each instance for those purposes and those alone by way, to quote Funk & Wagnalls, of “a separate sheet” or sheets. The newspaper in each instance was a complete newspaper without the section containing the delinquent tax list. The section containing this list added to the newspaper such list and nothing more. We can conceive of no meaning to be given to the word “supplement”, eliminated from this code section in 1921, unless it means a separately folded or bound page or pages added to and distributed with the newspaper and containing no printed matter which would otherwise appear in the newspaper except the list of delinquent taxes. The use of the map of the world as a filler in the 1940 publication does not in our opinion change this result, but conceding that it might, the 1935 publication contained nothing at all but the tax list.

The cases and quotations from Corpus Juris cited by appellant are not in point. It may be conceded that normally provision for publication in a newspaper is satisfied by publication in a supplement thereto which is fully circulated as a part of the newspaper. But in view of the statutory history of § 3766, Pol.Code, it must be construed, as pointed out in Clayton v. Schultz, supra, as if it read “in a newspaper, and not in a supplement thereto.”

The distinction is clearly recognized in Morton v. Horton, 189 N.Y. 398, 82 N.E. 429 and Whitney v. Bailey, 88 Minn. 247, 92 N.W. 974. In the Morton case the statute of New York provided that certain publications should be “in the body of the newspapers and not in a supplement” and others should be published in “two newspapers”. Tax Law, Laws 1896, c. 908, §§ 120, 151. The court of appeals of New York held that the latter type of publication might be in supplements to the newspapers although the former clearly could not. In the Whitney case the law required the delinquent tax list to be published “in a designated newspaper, or partly in such paper and partly in a supplement issued therewith.” [88 Minn. 247, 92 N.W. 975.] It further provided that the “forfeited list” should be appended to the delinquent list. The delinquent list “commenced in the newspaper, but it was concluded in the supplement, and then followed the forfeited list; all thereof being in the supplement.” The Minnesota court held, under the peculiar language of their statute, that a portion of the delinquent list having been published in the main body of the newspaper the publication complied with the statutory requirement.

It may be said of these cases, and of all the cases on the subject which we have examined, that uniformly they proceed on the theory that the publication of tax lists on separately folded sheets constitutes publication in a supplement, the question involved in the cases generally being whether the publication in a supplement constitutes a publication in a newspaper within the meaning of the particular statute.

Appellant complains that the judgment appealed from quiets defendant's title without securing the repayment of taxes, penalties and costs paid out by appellant. Holland v. Hotchkiss, 162 Cal. 366, 123 P. 258. There is nothing in the point. The judgment orders payment by respondent of $39.09 “taxes, costs, penalties and interest” to appellant. It gives judgment to respondent for $43.50 costs against appellant. The amount of costs is not questioned on this appeal. Since the costs exceed the amount which the judgment finds appellant entitled to be repaid she is fully protected by offsetting one against the other.

The judgment is affirmed.

DOOLING, Justice pro tem.

NOURSE, P. J., and SPENCE, J., concur.