San Francisco S. News Co. v. City of So. San Francisco
| Decision Date | 19 March 1934 |
| Docket Number | No. 7125.,7125. |
| Parties | SAN FRANCISCO SHOPPING NEWS CO. v. CITY OF SOUTH SAN FRANCISCO et al. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thomas C. Ryan and Sloss & Turner, both of San Francisco, Cal., for appellant.
J. W. Coleberd, of South San Francisco, Cal., and John A. McGilvray, of Sacramento, Cal., for appellees.
Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.
Since the present appeal is from a decree dismissing the appellant's amended bill in equity, on motion of the appellees, we shall set forth in some detail the allegations of the bill. While it is true that, for the purpose of this case, all well-pleaded allegations of the bill are to be taken as true, as we proceed in our examination of that document we will point out certain averments that, in our opinion, are not statements of facts, but mere conclusions. As will be seen, however, our views as to such averments have not been controlling in our determination of the case.
Alleging that the jurisdiction of the court below was invoked because of the federal question involved, the appellant's amended bill in equity sets forth that the appellant is the owner and publisher of "San Francisco Shopping News," which it describes as "a newspaper," giving its dimensions; and that the publication is distributed regularly twice each week throughout the year in the city of South San Francisco, Cal., "only to those * * * who have specially requested" such delivery.
The details of the delivery are then elaborated. The bill avers that the publication is delivered "by boys who are trained and regularly organized as carriers thereof and are competent for that purpose, and who are instructed to deliver and do deliver copies of said San Francisco Shopping News by attaching them to knobs of doors or by leaving them on porches of houses, and not otherwise"; that "the carriers are instructed, strictly, not to leave, and they do not and will not leave, said paper at a place where the same is not desired by the occupant thereof, or upon the porches or knobs of doors or about the premises of vacant buildings, or at a building whose appearance indicates that the occupant is away from home."
Here we may pause to observe that the pleader does not intimate by what means its carriers arrive at the conclusion that a given house "indicates" that it is vacant. Common experience suggests that it is frequently extremely difficult to tell by the exterior of a house whether or not it is occupied. As we shall see presently, the city council of South San Francisco might reasonably have arrived at the conclusion that it is impossible, either as a general rule or under special local conditions, to determine, for practical purposes, whether or not a particular building is tenanted.
Continuing our examination of the bill, we are informed that the carriers are instructed, also strictly, "not to deliver, and they do not and will not deliver," a copy of the publication "to a place where said paper is not regularly taken up by tenant thereof; that, in case a paper of any sort should remain at a place without being taken in, said carriers are instructed, strictly, not to deliver," etc., a copy of the publication at such place; "that deliveries of said paper are regularly followed up by competent men in the employ of plaintiff appellant, as inspectors, for the purpose of ascertaining whether or not said papers are properly delivered, as aforesaid, and whether there is any litter of papers at any place on the delivery list of said carriers; that plaintiff does not intend to carry out, and will continue to carry out, said manner of delivery" and said "superintendence"; and that the appellant does not distribute its paper otherwise than as above indicated. (Italics our own.)
In the foregoing allegations, the term "regularly" is manifestly a conclusion of the pleader's. Whether the word means twice a week, once a week, or once a month, we are not told. And here, again, the city council's conception of requisite "regularity" might well differ from that of the appellant; and the council may well, in its discretion, have concluded that the requisite regularity is so frequent as to be impracticable, and not generally observed by publishers of papers of the class to which "Shopping News" belongs; and that therefore such porch deliveries of the class of publications of which the appellant's is one should be forbidden altogether.
After a number of allegations that are either uncontroverted or immaterial, the bill continues: "That said paper cannot be delivered with beneficial results to its advertisers except in the manner hereinabove indicated, that is to say, by leaving copies thereof upon the porches or attaching copies to the door knobs of houses."
The bill then attempts to bolster up this manifest conclusion by setting forth certain alleged exigencies of the situation, dealing with the mechanical or other limitations of its publication, with reference to the days on which "sales" are held by the stores. While we are not impressed with the reasoning of the appellant in this regard, we are not disposed to discuss this matter in detail; for, as we shall see, even assuming that the appellant's reasons for using this particular method of distribution are dictated by necessity — if, as a matter of law, the city council has the right to declare such a method unlawful, the fact that the appellant, because of its particular system of publishing, would happen to be driven out of business, would not render the ordinance in question, infra, unconstitutional.
The bill next alleges that the persons to whom the paper is delivered "are greatly interested" in its contents, "look forward" to its delivery, and pick it up and read it "regularly" and "promptly." The "interest" of the public constitutes a state of mind that is a difficult subject of pleading; nevertheless, we waive that objection aside, and reserve the materiality of the averment for later consideration. We might note in passing, however, that again no attempt is made to define "regularly," as regards the frequency of intervals at which the paper is picked up by its "interested" readers.
Then follows a series of generalizations and legal conclusions. The bill alleges that, before the papers are delivered, "they are carefully and distinctively folded and boxed," etc.; that, because of such folding and boxing, "and also because of their weight," the copies of the paper "are not, and cannot be, blown away by the wind from their respective places of deposit and delivery," etc.; that the appellant "takes such great care and pains in the distinctive folding and boxing * * * as to insure the reception of such papers by the persons for whom they are intended, and so as to guard against the littering up of the public streets and sidewalks and of the premises of persons who have not requested the delivery of such papers to them"; that the papers, so prepared and delivered, "do not and will not litter up or render unsightly either the public streets and sidewalks or private property, and do not and will not frighten horses, and do not and will not increase the fire hazard, and do not and will not injuriously affect the public health or safety or order or morals or the general welfare, and do not and will not constitute a public detriment or menace or nuisance," etc.; that the papers "retain their shape and integrity and keep their position at the place of deposit and delivery at least as well as any newspaper, whether local or metropolitan, printing news of a general nature"; that the publication "is no more likely to be blown away by the wind and is no more likely to litter up the public streets and sidewalks and private property * * * than is any newspaper * * * printing news of a general nature, which is delivered by carrier" in the same city; that the publication "is no more likely to frighten horses or to increase the fire hazard or to affect injuriously the public health, etc., than is any newspaper," etc.; that many newspapers printing news of a general nature are delivered by carrier from house to house in the same city, "without let or hindrance * * * on the part of" the appellees, and that there is no law or ordinance forbidding such delivery of such other newspapers.
There follow allegations that the appellant's stockholders are a group of corporations, which are named in the bill; that the corporations consist of several mercantile institutions and a bank; that the publication is issued for the purpose of advertising the businesses of the respective stockholder corporations; that advertising space in the publication is kept open to the general public; and that the people of the Bay region "look for and read" the publication. There are also a number of allegations as to the value of the advertising space, the high standing of the stockholder corporations, the prestige derived therefrom by the publication, and the "convenience and the general welfare of the people of said City of South San Francisco," which, it is averred, are "served and promoted by" the publication, by its aiding the people in their shopping.
The bill sets forth that the publication does not print news of a general nature, but that "all of the matter printed in said paper is in the nature of general advertising." There are also uncontroverted allegations as to the inoffensive and unobjectionable character of the matter published, and an immaterial or at least redundant averment as to the publication's wide appeal, which is elsewhere, as we have seen, expatiated on in the bill.
Reference is next made to the ordinance that is the subject of the present controversy; namely, one passed by the city council of South San Francisco on February 1, 1932. A copy of the ordinance is annexed as an exhibit to the bill. Its pertinent provisions are as follows:
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