Record Pub. Co. v. Monson

• Court: Washington Supreme Court
• Writing for the Court: HOLCOMB, J.
• Citation: Record Pub. Co. v. Monson, 123 Wash. 569, 213 P. 13 (Wash. 1923)
• Decision Date: 14 February 1923
• Docket Number: 17634.
• Parties: RECORD PUB. CO. v. MONSON. [*]

213 P. 13

123 Wash. 569

RECORD PUB. CO. v. MONSON. ^[*]

No. 17634.

Supreme Court of Washington, En Banc.

February 14, 1923

Appeal from Superior Court, King County; Austin E. Griffiths, Judge.

Action by the Record Publishing Company against Walter A. Monson. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Mackintosh Fullerton, Parker, and Pemberton, JJ., dissenting in part.

Roberts & Skeel and J. J. Geary, all of Seattle, for appellant.

Preston Thorgrimson & Turner, of Seattle, amici curiae.

W. M Bruce, of Seattle, for respondent.

HOLCOMB J.

Appellant brought suit to recover $5.43 for the publication of a legal notice at the rate of $1.40 per 100 words for the first insertion and 80 cents per 100 words for each subsequent insertion, these being the rates provided for by section 4, c. 99, Sess. Laws 1921 (sections 253-1 to 253-7, Rem. Comp. Stat. of 1922.). The suit is a friendly one, brought, as stated in the briefs, on bahalf of the Washington State Press Association, seeking to uphold the law.

The answer of respondent admits the publication, but alleges by way of affirmative defense an express agreement that the total charge was to be $3.75, and tendered that amount. Appellant demurred to the affirmative defense, urging that the agreement was void as contrary to section 4 and 7, c. 99, Sess. Laws 1921. The trial court sustained the demurrer, holding the provisions of chapter 99, supra, to be unconstitutional and void. The question before us is the constitutionality of these sections of the chapter involved.

Section 4 of chapter 99 provides:

'In all cases where publication of legal notices of any kind is required or allowed by law, the person or officer desiring such publication shall be required to pay on a basis of one dollar and forty cents per folio of one hundred words for the first insertion and eighty cents per folio of one hundred words for each subsequent insertion, or its equivalent in number of words: Provided, that any newspaper having a circulation of over 20,000 copies each issue may charge such additional rate as it may deem necessary and just and any person or officer authorizing the publication of any legal notice in such newspaper may legally pay such rate as is charged by such newspaper, and: Provided, further, that this section shall not apply to the amount to be charged for the publication of any legal notice or advertisement for any school district, village, town, city, county, state, municipal or quasi municipal corporation or the United States government.'

Section 7 provides:

'The affidavit of publication of all notices required by law to be published shall state the full amount of the fee charged for such publication and that the fee has been paid in full.'

Two objections are made to the law: (1) That it imposes an unlawful restraint on the right of freedom of contract, thus violating the due process clause of the Constitution; and (2) that it discriminates unjustly in favor of newspapers having a circulation of over 20,000 copies each issue, and also in favor of municipal corporations named in the proviso, thus violating the special privilege clause of the Constitution.

We have no brief on the part of respondent himself, but are favored by a very able brief on behalf of the Seattle Bar Association by amici curiae. Amici curiae do not dispute that the Legislature has power to determine as to what costs of publication may be taxed. But they argue that this statute goes much farther. They urge that it attempts to provide that a litigant shall be compelled by law to pay certain fixed charges to newspapers when those newspapers are willing to perform the services for less, or even perform them without charge. It therefore, they say, attempts to destory, as to this matter, the freedom of the proprietor of the newspaper to make such contract as he sees fit in doing his private business, and to destroy also the freedom of the litigant as to the right of contract in the same manner. They insist that the newspaper proprietor cannot be compelled to publish such notices, and that the statute does not attempt to compel him to accept the amount fixed by statute, and that the only way the statute affects the newspaper owner is that it compels him to make a certain minimum charge, whether he will or no.

It is the duty of the courts, and this court has generally been disposed to so construe legislation, to render it valid and constitutional rather than otherwise, when possible.

We will presume that, in order to bring the legislation within the power of the Legislature under constitutional restrictions, a state of facts can generally be reasonably presumed to exist which justifies the legislation, and it is only in cases where there can be no reasonable doubt that the act of the Legislature violates some constitutional prohibition or limitation that we will set such act aside. State v. Pitney, 79 Wash. 608, 140 P. 918, Ann. Cas. 1916A, 209; State v. McFarland, 60 Wash. 98, 110 P. 792, 140 Am. St. Rep. 909; State ex rel. Vance v. Frater, 84 Wash. 466, 147 P. 25; State ex rel. Case v. Howell, 85 Wash. 281, 147 P. 1162; same parties, 85 Wash. 294, 147 P. 1159, Ann. Cas. 1916A, 1231; Allen v. Bellingham, 95 Wash. 12, 163 P. 18; State ex rel. Reclamation Board v. Clausen, 110 Wash. 525, 188 P. 538, 14 A. L. R. 1133; Parrott & Co. v. Benson, 114 Wash. 117, 194 P. 986.

In the last case cited we said:

'We are already committed to the doctrine that the police power includes within its scope not only the public health, public morals, and public safety, but also all regulations designed to promote public convenience, the general welfare, and general prosperity, and all great public needs.'

Under our system of judicial procedure, many notices are required to be published, and litigants cannot proceed in courts in various proceedings without the publication of notices. Estates cannot be administered, mortgages foreclosed, and property sold, nor real property subjected to execution, without the use of notices published in newspapers. In so far as the newspapers publish these notices, they are performing a public service and assisting in the administration of justice. Their service is as essential as the service of the process server, or any other adjunct of the court.

The Legislature has the undoubted power to make reasonable regulations governing court procedure, and governing the fees to be charged for various judicial or public services. We can readily conceive that in the interest of regularity and uniformity, and probably economy, the Legislature found abuses which this act tends to remove. We can readily conceive one, and that is that formerly litigants may have padded their cost bills as to the items of fees charged for publishing notices. Under this statute, and especially section 7 referred to, this can no longer be done. Nor can it be contemplated that they can or will refuse arbitrarily to publish legal notices if tendered the legal fees. It was probably for the purpose of creating a standard of legal fees which litigants could possibly compel newspapers to accept, and which would not be so unreasonably low as to be unjust or illegal, that such act as the one in question was enacted.

But we do not assent to the assertion that a service which cannot be demanded and compelled cannot be regulated. That contention has no basis in principle. Noble State Bank v. Haskell, 219 U.S. 104, 31 S.Ct. 186, 55 L.Ed. 112, 32 L. R. A. (N. S.) 1062, Ann. Cas. 1912A, 487.

While the language of the statute is that 'the person or officer desiring such publication shall be required to pay on the basis,' etc., it amounts to no more than if the statute had said, 'it shall be lawful for the publisher to charge.' With that construction it amounts to no more than saying that, in the absence of an express contract providing for publication at a different rate than that fixed by statute, the publisher can charge the rates fixed by statute and enforce payment, and, in the absence of an express contract for a different rate, a person or officer desiring such publication shall be required to pay on the basis fixed by the statute. In other words, in the...