State ex rel. Sun Co. v. Vigil

• Court: New Mexico Supreme Court
• Writing for the Court: CARMODY
• Citation: State ex rel. Sun Co. v. Vigil, 398 P.2d 987, 74 N.M. 766, 1965 NMSC 12 (N.M. 1965)
• Decision Date: 01 February 1965
• Docket Number: No. 7509,7509
• Parties: STATE of New Mexico ex rel. SUN COMPANY, Inc., and Sun Company, Inc., Individually, Plaintiffs-Appellees, v. Cipriano VIGIL, Mayor of the Village of Espanola, C. L. Hunter, Tomas Vigil, Luis Quintana, and Bernabe Jacquez, Members of the Village Council of the Village of Espanola, Dolores Haas, Village Clerk of the Village of Espanola, and the Village of Espanola, a municipal corporation, Defendants-Appellants.

Page 987

398 P.2d 987

74 N.M. 766

STATE of New Mexico ex rel. SUN COMPANY, Inc., and Sun Company, Inc., Individually, Plaintiffs-Appellees, v. Cipriano VIGIL, Mayor of the Village of Espanola, C. L Hunter, Tomas Vigil, Luis Quintana, and Bernabe Jacquez Members of the Village Council of the Village of Espanola Dolores Haas, Village Clerk of the Village of Espanola, and the Village of Espanola, a municipal corporation Defendants-Appellants.

No. 7509.

Supreme Court of New Mexico.

Feb. 1, 1965.

Bigbee & Byrd, Zerne P. Haing, III, Santa Fe, for defendants-appellants.

Smith, Kiker & Ransom, Albuquerque, for plaintiffs-appellees.

CARMODY, Chief Justice.

The Village of Espanola appeals from a judgment entered by the district court, making absolute a writ of mandamus, which, in effect, requires the village to publish ordinances and other notices required by law in two separate newspapers.

Although three questions are raised on appeal, we find it necessary to only reach one, viz., whether the word 'published' as used in Sec. 14-25-7, N.M.S.A. 1953, is synonymous with the word 'printed.'

The corporate limits of the Village of Espanola are partially located in Rio Arriba County and partially in Santa Fe County. For some time prior to April 1963, the village had published all of its legal notices in both the New Mexican, a daily newspaper, and in the Rio Grande Sun, a weekly newspaper. The New Mexican is actually printed in the City of Santa Fe, but maintains a reporter in Espanola, whereas the Rio Grande Sun maintains its printing office in the Rio Arriba County portion of the Village of Espanola. Both papers are of general circulation in the village. The Rio Grande Sun holds a second-class mailing permit in Rio Arriba County, but not in Santa Fe County; and the New Mexican holds a second-class mailing permit in Santa Fe County, but not in Rio Arriba County. Following an opinion from the attorney general, the village council voted to publish all future ordinances and legal notices only in the New Mexican. The Sun Company, Inc. then instituted this action, which sought both mandamus and a declaratory judgment.

Section 14-25-7, N.M.S.A. 1953, provides for the publication of ordinances, and, insofar as pertinent, reads as follows:

'* * * all by-laws of a general or permanent nature, and those imposing any fine, penalty or forfeiture, shall be published in some newspaper of general circulation in the municipal corporation, * * * Provided, however, that if no such newspaper is published within the limits of the corporation, then, and in that case, such bylaws may be published by posting copies thereof in three public places, within the limits of the corporation, two of which places shall be the post-office and the mayor's office of such town or city; * * *.'

It was the view of the trial court, and is urged by appellees here, that the above language must be read together, or in pari materia, with Sec. 10-2-2, N.M.S.A. 1953, which defines a 'legal newspaper.' This section reads as follows:

'Any and every legal notice or advertisement shall be published only in a daily, a triweekly, a semiweekly or a weekly newspaper of general paid circulation, which is entered under the second class postal privilege in the county in which said notice or advertisement is required to be published; which said newspaper, if published triweekly, semiweekly, or weekly, shall have been so published in such county continuously and uniterruptedly, during the period of at least twenty-six consecutive weeks next prior to the first issue thereof containing any such notice or advertisement, and which said newspaper, if published daily, shall have been so published in such county, uninterruptedly, and continuously, during the period of at least six months next prior to the first issue thereof containing any such notice or advertisement; Provided, that the mere change in the name of any newspaper, or the removal of the principal business office or seat of publication of any newspaper from one place to another in the same county shall not break or affect the continuity in the publication of any such newspaper if the same is in fact continuously and uninterruptedly printed and published within such county as herein provided; Provided, further, that a newspaper shall not lose its rights as a legal publication if it should fail to publish one or more of its issues by reason of fire, flood, accident, transportation embargo or tie-up, or other casualty beyond the control of the publisher; Provided, further, that any legal notice which fails of publication for the required number of insertions by reasons beyond the control of the publisher, shall not be declared illegal, if publication has been made in one issue of said publication; Provided, further, that if in any county in this state there shall not have been published therein any newspaper or newspapers for the prescribed period at the time when any such notice or advertisement is required to be published then such notice or advertisement may be published in any newspaper or newspapers having a general paid circulation and/or published and printed in whole or in part in said county.'

We would observe that one of the reasons for the use of the pari materia doctrine is to settle ambiguity, if it exists in the construction of a particular statute. Actually, there is no ambiguity in Sec. 14-25-7, supra, and, therefore, other than to answer the principal issue raised, there would be little need to discuss Sec. 10-2-2, supra.

Appellants urge that the word 'published' as used in the statutes means to give notice to the residents of the municipal corporation by advertising the same in a newspaper of general circulation in the municipality, regardless of where the newspaper is physically printed. Appellees, to the contrary, declare that the word 'published' contemplates the physical printing of the newspaper within the boundaries of the municipality. The trial court, apparently on the theory that notices must be published in a newspaper having a second-class postal privilege, thereby required the dual publication of the notices by reason of the fact that neither newspaper had a second-class mailing privilege in both of the counties in which the municipality exists.

We are of the opinion that the use of the word 'published' by the legislature, both in Secs. 14-25-7, supra, and 10-2-2, supra, is not synonymous with the word 'printed.' Actually, even Sec. 10-2-2, supra, so strongly relied upon by appellees, seems to use the two words in their proper sense. As is apparent from a reading of this section, the word 'published' is used many times, whereas a distinction is made in two places in the section when the legislature used the words 'printed and published,' or 'published and printed.'

Although this court has not had occation to pass upon this particular question, it has been considered by other courts in some of our sister states. The verbiage of the acts is different, and the courts of Montana and Georgia held that the legislative use of the word 'published' really meant 'printed,' in that the legislative intent was to channel money back into the local areas from which taxes were collected, rather than giving notice to the residents of the area. See State ex rel. Vickers v. Board of Com'rs of Big Horn County, 1926, 77 Mont. 316, 250 P. 606; and Carter v. Land, 1932, 174 Ga. 811, 164 S.E. 205.

We note also that two California cases relied upon by appellees, In re Monrovia Evening Post, 1926, 199 Cal. 263, 248 P. 1017, and In re Covina Argus-Citizen, 1960, 177 Cal.App.2d 315, 2 Cal.Rptr. 184, involved a statute which required that the notice be 'printed and published.' However, the opinion in In re Monrovia Evening Post, supra, makes it plain that the ruling was based upon a change of the California statute following decisions by the Supreme Court of California that a newspaper need not be printed within the geographical boundaries of a legal subdivision to be published within the same. See Stanwood v. Carson, 1915, 169 Cal. 640, 147 P. 562, and In re McDonald, 1921, 187 Cal. 158, 201 P. 110. Thus the California cases are not authority for appellees' position here, and actually In re Monrovia Evening Post, supra, specifically pointed out the ordinary difference between 'publish' and 'printed,' but stated that the court was bound by the legislative pronouncement that the newspaper must be both printed and published in the legal subdivision involved.

We are unable to imply a legislative intent as urged by appellees and as announced by the Montana and Georgia courts. Contrariwise, we are impressed by the decision of the Arkansas Supreme Court in Lewis v. Tate, 1946, 210 Ark. 594, 197 S.W.2d 23, wherein the court concluded:

"We do not think the word 'published' as used in the amendment is altogether synonymous with the word 'printed.' If that meaning alone should be attributed to the word 'published' in the connection in which used, it follows that the people intended by the passage of the amendment to deny cities in which a weekly newspaper is not printed the privilege of voting bonds to build a public hall. Certainly it was not the intention of the people to penalize a city simply because a weekly newspaper was not printed therein. * * * The common and ordinary meaning of the word 'published,' according to Webster's New International Dictionary, is 'to make public, to make known to the people in general.' The newspapers might be printed but never published. It is only published when put in general circulation. The proper and correct meaning of the word 'published,' as used in the amendment, is that the notice must be inserted for the required time in a newspaper that will make the special election and the date thereof a public matter of known to the people in the city affected. * * *' (Emphasis added.)

and the opinion of the Supreme Court of North Dakota, in Daly v. Beery, 1920, 45 N.D....