State v. Board of Com'rs of Big Horn County

• Decision Date: 30 October 1926
• Docket Number: 5998.
• Citation: 250 P. 606,77 Mont. 316
• Parties: STATE ex rel. v. BOARD OF COM'RS OF BIG HORN COUNTY et al. VICKERS et al.
• Court: Montana Supreme Court

250 P. 606

77 Mont. 316

STATE ex rel. VICKERS et al. v. BOARD OF COM'RS OF BIG HORN COUNTY et al.

No. 5998.

Supreme Court of Montana

October 30, 1926

Appeal from District Court, Big Horn County; O. F. Goddard, Judge.

Suit by the State, on the relation of Robert A. Vickers and another copartners, doing business as Vickers & Corkins, and others against the Board of County Commissioners of Big Horn County and others, in which J. E. Patten intervened. From a judgment for plaintiffs, the board and intervener appeal. Affirmed.

Brown & Jones, of Billings, for appellants.

Guinn & Maddox, of Hardin, for respondent.

MATTHEWS J.

Appeal from judgment restraining the board of county commissioners of Big Horn county from entering into a contract for county printing with the Searchlight Publishing Company, and commanding said board to contract with the Hardin Tribune Inc.

The board of county commissioners of Big Horn county advertised for bids for the county's printing to be submitted March 2, 1926. The Hardin Tribune, Inc., and J. E. Patten, manager of the Searchlight, submitted bids, of which the latter bid was the lower and was accepted by the board. Thereupon, the Hardin Tribune instituted an action to enjoin the board from entering into a contract with the Searchlight and to compel the acceptance of its bid, upon the ground that the Searchlight was not competent to contract under the law, and that the Hardin Tribune is the only newspaper published in Big Horn county measuring up to the requirements of the law. The board by answer denied these allegations, and J, E Patten, as manager of the Searchlight, filed a complaint in intervention alleging facts sufficient to qualify his paper for a county contract; these allegations were denied by reply.

The matter was heard by Judge O. F. Goddard on March 20, 1926, and this hearing resulted in judgment for the plaintiffs according to the prayer of their complaint. The board and the intervener thereupon joined in an appeal to this court from the judgment.

The only question presented on this appeal is as to whether, under the evidence adduced, the Searchlight had been published continuously in Big Horn county at least one year immediately preceding the 2d day of March, 1926.

The uncontroverted evidence discloses that in January, 1925, the Searchlight newspaper plant was moved from Billings, Yellowstone county, to Hardin, Big Horn county, during which operation some casting, without which the newspaper press could not be used, was lost. From January 21, 1925, to June 3, 1925, Manager Patten maintained the Searchlight office at Hardin, where all editorial matter and copy were written; this was sent to Billings, each week, where the manual labor of getting out and printing the paper was done at the Western Newspaper Union Office. The completed edition was then sent to Hardin, where the newspapers were mailed out to the Searchlight subscribers from the Searchlight office as second-class matter, under permit from the government postal department. Such permit was secured on application through the local post office and the submission of a copy of the paper and affidavits.

The paper so distributed was the usual country weekly, made up of one half patent ready-printed matter and the other half local items, general news, and advertising; it consisted of 8 pages, 15 inches by 22 inches each, 6 columns to the page. The first page of each edition was headed the Searchlight and thereunder appeared the words, Hardin, Big Horn County, Montana, with appropriate date. Nothing therein contained was composed or printed in Big Horn county, but, during the period mentioned, a single sheet, 9 inches by 12 inches in size, was printed on one side with three or four columns of additional local items, headed Searchlight Supplement and thereunder issued as a part of the regular edition. This work was done in the Searchlight office on a job press and one loose sheet inserted in each paper sent out. Asked whether he ever made application for a permit for, circulated, or published a newspaper known as the Searchlight Supplement, Mr. Patten answered:

"No; that was a part of the Searchlight."

From June 10, 1925, to March 2, 1926, the entire regular edition of the Searchlight, with the exception of the patent matter, was composed, printed, and placed in circulation at Hardin, Big Horn county, and the Supplement was discontinued.

The controlling statute (section 4482, Rev. Codes 1921), if set out in full, would unduly lengthen this opinion; briefly, it requires the county commissioners of the several counties-

"to contract with some newspaper, published at least once a week, and of general circulation, published within the county, and having been published continuously in such county at least one year, immediately preceding the awarding of such contract, to do and perform all of the printing for which said counties may be chargeable," etc.

Then follows an enumeration of supplies, with maximum charge therefor and the section closes with the provision that:

"All newspapers which may receive any contract for printing under this act, and which may not be able to execute any part of such contract, shall be required to sublet such contract or portion of contract to some newspaper or printing establishment within the state, which shall do the work under contract so sublet entirely within the state with Montana labor."

1. It is first contended that, as the statute employs only the word "published," the full requirement of the statute is met by the circulation of a newspaper from the office thereof within the county, at least once a week for the period of one year, regardless of where the work on such paper is done.

The diligence of the learned counsel for defendants has disclosed numerous authorities to the effect that the place of publication of a newspaper is where it is first put in circulation, regardless of where such paper is printed, but in no one of the cases cited was the question here involved decided. They deal with the status of publications as newspapers or official newspapers, with statutory requirements regarding the publication of legal notices, notices of election and the like, and the facts and circumstances shown were found to be sufficient to bring the "publication" within the requirements of the statutes considered, as the purposes of the acts were evidently fully served.

The nearest approach to the case at bar is the case of Bayer v. Hoboken, 44 N. J. Law, 131, wherein the New Jersey court had under consideration an act requiring city councils to publish their proceedings in a newspaper "printed and published" in the city. It was held that where the office of the newspaper in question was in Hoboken, and the entire matter for the paper was composed, set up, and placed in forms at such office, and the papers were issued from there to its subscribers, it fulfilled the requirements of the act, although the press work was done in...