Brooks v. Cooper

• Decision Date: 23 June 1893
• Parties: BROOKS et al. v. COOPER.
• Court: New Jersey Supreme Court

26 A. 978

50 N.J.E. 761

BROOKS et al.

v. COOPER.

Court of Errors and Appeals of New Jersey.

June 23, 1893.

(Syllabus by the Court.)

Appeal from court of chancery.

Bill by Alfred Cooper against Thomas R. Brooks and Aaron W. Hand, copartners trading as Brooks & Hand, for an accounting. From a decree for complainant, orally advised by the vice chancellor, (not reported,) defendants appeal. Reversed.

Herbert W. Edmunds, for appellants.

Morgan Hand, for respondent.

LIPPINCOTT, J. By an act of the legislature of this state, entitled "An act relative to the publication of the laws of this state in the newspapers," approved May 6, 1887, (P. L. 1887, p. 260,) it is provided, in section 2: "That the governor and comptroller shall, within ten days after this act shall become a law, and thereafter annually, within thirty days after the day fixed in January for the convening of the legislature, select and designate the newspapers to publish the laws, upon the following basis: (1) To select as many in each county as there are representatives from that county in both brunches of the legislature, not exceeding six; such selection to be of an equal number of newspapers, representing each of the two leading political parties; having reference, also, to such of them us have the larger circulation." In 1889 a supplement to the act of 1887, above cited, was enacted, approved May 16, 1889, ( P. L. 1889, p. 462,) by which section 2 was amended to read as follows, viz.: "That the governor, comptroller, and secretary of state, or a majority of them, shall, within ten days after this shall become a law, and thereafter annually, within thirty lays after the day fixed iu January for the convening of the legislature, select and designate the newspapers to publish the laws, upon the following basis: (1) To select as many in each county as there are representatives from that county in both branches of the legislature, not exceeding eight; such selection to be of an equal number of newspapers, representing each of the two leading political parties; having reference, also, to such of them as have the larger circulation." On March 8th, in the year 1890, the appellants and respondent entered into a written agreement as follows, viz.: "Agreement: 11 is hereby agreed between Alfred Cooper, publisher of the Gazette, at Cape May Courthouse, N. J., and Aaron W. Hand, one of the publishers of the Star of the Cape newspaper, at Cape May City, N. J., and representing his firm, that there shall be no antagonism between them in their efforts to obtain the business of the publication of the laws of the state for their respective newspapers during the present term of State Senator Walter F. Learning, but that, in case of the designation of either pa per to publish the laws, the net amount received for this service, after paying the expenses of the said publication, shall be equally divided between the two newspapers. It is also agreed between the parties aforesaid that the Star of the Cape shall be designated to publish said laws for the year 1890, and that the Gazette shall be designated for this purpose in the year 1891. [Signed] Alfred Cooper. Aaron W. Hand." By the bill, answer, and proofs here, it appears that in the county of Cape May there was but one member of the legislature, in each branch thereof,—a senator and one assemblyman,—and therefore the governor, comptroller, and secretary of state, comprising the body having the selection, could only select one newspaper of each of the leading political parties in the county of Cape May. It appears, after this agreement was made, the Star of the Cape was selected and designated, as the newspaper representing one of the leading political parties, to publish the laws of this state for the year 1899 at the rates of compensation fixed for such publication. The selection and designation and rates were made and fixed under the act of 1889. It also appears that the agreement above referred to was complied with by the appellants and respondent, and the net profits of the publication for that year were divided between them. By the bill of complaint it is alleged that under this agreement the appellants published the laws for the year 1890, and thereby acquired the distinction and prestige of such publication, which the respondent claims is of value and benefit to the newspapers selected, and the proprietors thereof, and received the compensation therefor. The expenses of the said publication for that year were submitted to the respondent, and approved by him, and the one-half part of the net profits of such publication was by the appellants paid to the respondent, according to the agreement. The appellants and respondent both allege, in substance, that their respective newspapers had the larger circulation in the county. The respondent alleges that there was an unsettled dispute in relation to the question which had the larger circulation, —the Star of the Cape, belonging to the appellants, or the Gazette, belonging to the respondent. It further appears, by bill, answer, and proofs, that the respondent was very anxious, in accordance with the terms of the agreement, to secure for the Gazette the publication of the laws for the year 1891, but because of some difficulties, fancied or otherwise, which had arisen since the making of the agreement, or had existed previously, between himself and some one or more members of the body empowered by law to make the selection, he became convinced that he could not succeed in having his paper selected for that purpose; and that it was further agreed between appellants and respondent that the respondent should make no effort to have his newspaper so selected for that year; that he would forego the distinction and prestige of such publication in his newspaper, and make no opposition to the selection and further publication in the Star of the Cape of the laws of that year; and that the agreement to share the net profits of such publication warn then and there expressly ratified and continued both by respondent and appellants; and that the respondent having so withdrawn his news paper from any contest for the selection, there being no other eligible newspaper in the county, the Star of the Cape was again selected to publish the laws; that the appellants received compensation therefor; that the expenses of such publication were small, the profits considerable; and the respondent prays an accounting of the profits, and payment to himself of his one-half part of the net profits, in accordance with the agreement. These are substantially the facts, as shown by bill, answer, and proofs.

The vice chancellor, upon the pleadings and proofs, in an oral opinion, determined that the respondent was entitled to recover on the agreement; that there had been a rivalry between them, existing for years that the agreement of March 8, 1890, was a truce between them; that the construction to be given to the agreement was that, for the two succeeding years mentioned therein, whichever procured the designation for the publication of the laws should perform the work of printing, and divide the net proceeds; that under the evidence this agreement continued, without abrogation, during the publication of the laws of 1890 and 1891, and that the agreement was still in force in the year 1891; that, if the respondent was entitled to anything under it, he was still entitled the same for the year 1891 as for the year 1890,—and held that the court had jurisdiction of the matter in controversy, and decreed that the respondent was entitled to the relief prayed in the bill of complaint, and referred the matter to a master for an accounting between the appellants and respondent, "to report what, upon such accounting, appears to be due from each party to the other, and also the balance which, upon the said account, shall appear to be due from each party to the other."

From the record it is rather obscure upon what grounds the case was discussed in the court of chancery. The appellants, on this appeal, now contend that this agreement was in contravention of the statute on this subject-matter; that it was intended to influence and control the official action of the body having the power and duty to select the newspapers to publish the laws, regardless of the provisions of the statute having reference to the publication in the newspaper of the larger circulation, and regardless of the public benefit to be derived from this provision of the statute, and therefore contrary to the provisions and policy of the statute requiring such publication, and contrary to sound public policy, and therefore void.

It is not difficult to interpret the statute. It is a fundamental requisite that the laws be notified to the people who are to obey them, and the object of the statute is to prescribe the method of this notification; and, whatever way is made use of, it is incumbent upon "the promulgators to do it in the most public and perspicuous manner." 1 Bl. Comm. 44. The public benefit intended by the statutes can only be obtained by the publication, in the manner required by the statute, in the newspapers to be selected in accordance with the provisions of the statute, "having reference also to such of them as have the larger circulation." The nature and object of this contract or agreement between the proprietors of these newspapers are perhaps best stated by the evidence in the case, about which there appears to be no dispute. In doing this there must be kept in view the general rule of law that where there is no statutory prohibition the law will not readily pronounce an agreement invalid on the ground of policy or convenience, but is, on the contrary, inclined to leave men free to regulate their affairs as they think proper. Where, however, a contract is of such a nature that it cannot be carried into execution without reaching beyond the parties, and exercising an injurious influence over the community at large,...