184 N.E. 837
No. 23601Supreme Court of Ohio.
Decided January 25, 1933.
Municipal corporations — Charter cities — Publication of legislation making improvements or levying assessments — Section 4676-1, General Code — Method of publication, under statute or charter, sanctioned, when — Publication in periodical, not having attributes of newspaper, insufficient — City bulletin not newspaper within meaning of ordinance and charter.
1. Section 4676-1, General Code, authorizes charter cities to adopt methods of procedure, relating to publication of legislation in the making of improvements and levying of assessments, either under the provisions of the general law or under any method provided by their charters; and such methods will be sanctioned by the courts, if all legislative steps have been strictly followed and the owner assessed has been given such notice as will meet the requirement of due process of law.
2. Where a city charter has provided that such publication may be made either in a newspaper of general circulation in the city or in “a newspaper legally published under authority of council,” the city council cannot ignore the charter by publishing improvement or assessment notices in a periodical which has not the attributes of a newspaper.
3. In this instance, a city ordinance adopted a periodical, styled the “City Bulletin,” as “an official newspaper” of the city. The publications contained in the Bulletin were confined solely to the proceedings of the city and its municipal officers; it contained neither news of other public bodies nor notices of general current events, either local or foreign. Measured by the definitions given to the word “newspaper,” by lexicographers and by the courts: Held — That the City Bulletin was not a newspaper, within the meaning of that term as used in the ordinance and city charter.
ERROR to the Court of Appeals of Hamilton county.
This action was instituted by Louise Bising, the plaintiff below, wherein she sought to enjoin the defendants from collecting certain assessments levied against her property. The trial court denied her relief, and on appeal to the Court of Appeals that court also refused her relief, whereupon she instituted proceedings
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in this court seeking to reverse the judgments of the lower courts.
The Court of Appeals heard the cause upon the pleadings and stipulations of fact. The salient facts necessary to the determination of the cause may be briefly stated. Plaintiff alleged that she was the owner of a lot and a part lot abutting on certain avenues in the city of Cincinnati. On January 9, 1929, the council of that city passed a resolution of necessity for the improvement of these avenues by the installation of a combined storm and sanitary sewer, and on February 20, 1929, the council passed an ordinance determining to proceed with the improvement. On October 2, 1929, it passed a resolution appointing a board for the purpose of reporting the estimated assessments upon the lots abutting on the improvement, including those owned by plaintiff. On October 30, 1929, the council received the report and directed the clerk to give notice of the pendency of the proceeding by publication. The clerk gave this notice by publishing it in a periodical styled the “City Bulletin,” designated by ordinance as “an official newspaper” of the city. The city council had adopted an ordinance providing that the City Bulletin should contain all ordinances and resolutions passed by council, all notices, announcements and advertisements required by law or ordinance to be published, and which could be published in the City Bulletin, and also any information concerning the official action of the departments, boards and commissions of the city. No objection having been filed to the report of the estimating board the council on December 11, 1929, passed an ordinance levying the special assessments upon the lots of plaintiff, and it is these assessments which the plaintiff now seeks to enjoin.
The stipulation of facts discloses that the City Bulletin is a weekly paper edited and published by the clerk of the council of the city of Cincinnati, that by the census of 1930 the population of the city of Cincinnati
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was 445,000, and that the number of paid subscribers to the City Bulletin, during the year these proceedings were had, was 323. A copy of the City Bulletin was introduced in the record. This Bulletin contains some twelve pages, is published by the city clerk under authority of the city, and contains the official account of the proceedings of council, and the city boards and commissions, ordinances, resolutions, notices and advertisements of bids. It appears that the Bulletin contains no other matters save those that pertain to the proceedings of the city council and the various functions exercised by the officers of the city. It contains no general public advertisements, no reports of proceedings relating to other public bodies, and no news whatever, either local or foreign. The only matters contained in the paper pertain solely to the activities of the city.
Mr. John Weld Peck, Mr. Edgar W. Cist and Mr. Walter M. Schoenle, for plaintiff in error.
Mr. John D. Ellis, city solicitor, Mr. Ed. F. Alexander an Mr. John J. O’Donnell, for defendants in error.
JONES, J.
The plaintiff in error contends that the city failed to comply with Section 3895, General Code, which provides that the city council shall publish notices of this character in a newspaper of general circulation within the city. That section found early lodgment in the Municipal Code, and were that the only section involved in the present proceeding, this court would be constrained to hold that notices of assessments should be published in compliance with the provisions of that section i. e., in newspapers of general circulation within the municipal corporation, and to hold, furthermore, that the City Bulletin was not a newspaper of general circulation. However on March 25, 1925, the Legislature of Ohio adopted what is
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known as Section 4676-1, General Code. That section authorizes charter cities to adopt a method of publication other than that provided in Section 3895, General Code, if they so desire. That section reads in part as follows:
“Municipal corporations now or hereafter operating under a special charter adopted in accordance with the constitution of the state of Ohio, which charter provides for or authorizes in whole or in part a method of procedure in the passage and publication of legislation, the making of improvements and the levying of assessments differing from the method prescribed by general law, may pass and publish such legislation, make such improvements and levy such assessments either under the provisions of the general law or in accordance with the procedure so provided for or authorized by such local charter.”
The city charter provides that every ordinance must be published either in a newspaper of general circulation in the city, “or a newspaper regularly published under authority of council.” Pursuant to this charter authority the city council adopted Section 48 of the Code of Ordinances which established the City Bulletin as “an official newspaper of the city of Cincinnati;” and it also adopted Section 48-3, which provided that the City Bulletin should contain all the ordinances, resolutions, notices, advertisements, official reports, proposals for bids and other various matters authorized by the city council.
Whether the city of Cincinnati, as a charter city, could ignore the statute law by providing a different method of publication from that required by statute, is now academic, for the obvious reason that Section 4676-1, General Code, now plainly authorizes a charter city to provide its own methods of procedure and publication in making improvements and levying assessments; and such methods should be sanctioned by the courts if the legislative steps have been strictly followed
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and the owner assessed has been given such notice as will meet the requirement of due process of law. The contention of counsel for plaintiff in error is that the operative effect of Section 4676-1, General Code, and of the ordinance adopted pursuant thereto, deprives their client of due process. They insist that any ordinance selecting for the publication of assessment notices a paper having only 323 subscribers, in a city containing a population of 445,000, is an unreasonable exercise of legislative discretion, gives inadequate notice to the property owner and thereby violates the due process clause of the Constitution. Whether such publication would have been sufficient had it been inserted in a recognized newspaper with such limited subscription we do not feel called on to decide since we base our decision upon the fact that the publication was not made in a newspaper as required by the terms of the city charter.
If the city council selected as its medium of publication a periodical which cannot legally be defined as a “newspaper” it ignored not only its ordinance but its charter authority, which plainly require notice of assessments to be published in a newspaper. The City Bulletin was not a newspaper as defined by the lexicographers or by judicial decisions. Its publication was confined solely to the proceedings of the city and its municipal officers; it contains no news of other public bodies, nor any notices of general current events, either local or foreign. Had news of that character been published it might possibly have increased its list of subscribers. While various publications, such as legal journals and the like, may be devoted chiefly to their particular business or profession, if they also devote their columns to the dissemination of news that is of importance and of general interest to the public, the courts have generally recognized such publications
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as partaking the character of and falling within the definition of a newspaper. Hanscom v. Meyer, 60 Neb. 68, 82 N.W. 114, 48 L.R.A., 409, 83 Am. St. Rep., 507; Pentzel v. Squire, 161 Ill. 346, 43 N.E. 1064, 52 Am. St. Rep., 373; In re Labor Journal, 190 Cal. 500, 213 P. 498; Olsen v. Bibb Co., 117 Minn. 214, 135 N.W. 385, Ann. Cas., 1913D, 877; Lynch v Durfee, Judge of Probate, 101 Mich. 171, 59 N.W. 409; Kerr v Hitt, 75 Ill. 51; Lynn v. Allen, 145 Ind. 584, 44 N.E. 646, 33 L.R.A., 779, 57 Am. St. Rep., 223; Brice v. Graves, 142 Iowa 722, 121 N.W. 504; Hall v. City of Milwaukee, 115 Wis. 479, 91 N.W. 998; Turney v. Blomstrom, 62 Neb. 616, 87 N.W. 339; Puget Sound Publishing Co. v. Times Printing Co., 33 Wn. 551, 74 P. 802; State, ex rel. Yaegar, v. Rose, Judge, 93 Fla. 1018, 114 So. 373. Without further extending this opinion, we shall allude only to the Florida case, supra, citing in its support a number of cases portraying the attributes of a newspaper, a part of its syllabus reading as follows: “The term ‘newspaper’ as used in our constructive service statute must have reference to some publication appearing at daily or weekly intervals, reporting the news or happenings of local or foreign interest, or both, such as social, religious, political, moral, business, professional, editorial, and other kindred subjects intended for the information of the general reading public.” The foregoing citations as well as other cases fully support such statement.
Measured by the definition of a newspaper usually given by lexicographers and by court decisions, since the City Bulletin contains publication of the activities of the city only, and no other news, we hold that the City Bulletin is not a newspaper within the meaning of that term as used in the ordinance and city charter. The judgments of the lower courts are reversed, and
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judgment will here be rendered in favor of the plaintiff in error.
Judgment reversed.
WEYGANDT, C.J., DAY, ALLEN, STEPHENSON and MATTHIAS, JJ., concur.
KINKADE, J., not participating.