In re Simpson

On August 18, 1913, the superior court of Kern County, in a proceeding duly instituted and prosecuted for that purpose, entered an order adjudging the “Daily Report” to be a newspaper of general circulation. This is a proceeding under section 4462 of the Political Code to annul the order previously made. The ground set forth in the petition is the alleged fact that the “Daily Report” had ceased to be a newspaper of general circulation. After a trial the superior court denied the petition and dismissed it. Prom the order of dismissal the petitioners appeal.

The petition alleged and the court found the “Daily Report” to be a publication issued and published in the city of Bakersfield. A number of typical issues of the publication issued in September and October, 1920, were introduced as exhibits at the trial and are before this court for inspection. An inspection of these and of the paper published in 1913, also offered in evidence, shows that with regard to its contents, the “Daily Report” now contains more items of general interest and is not otherwise less qualified to be termed a newspaper of general circulation than at the date of the original hearing and adjudication. The evidence shows also that it now has more paid subscribers than formerly. Political Code, section 4460, provides that to be a newspaper of general circulation, a publication must be “published for the dissemination of local or telegraphic news and intelligence of a general character, and that if it be devoted to the interests, or published for the entertainment or instruction of a particular class, profession, trade, calling, etc., it is not such a newspaper.” Section 4462 makes provision for the vacation of a judgment which has determined a newspaper to be one of general circulation. The sole requirement which authorizes the vacating of the judgment previously entered is that “such newspaper has ceased to be a newspaper of general circulation, as that term is defined by Section Four Thousand Four Hundred and Sixty.”

[1] The judgment entered on August 18, 1913, necessarily determined the fact to be that the “Daily Report,” as then published, having regard for conditions in its community, was a newspaper of general circulation. This judgment became final. The matters there passed upon and

[2] The requirement that it be shown that the paper has “ceased” to be one of general circulation necessitates a comparison of conditions. We cannot know that a child is larger or taller to-day than it was a year ago unless we are informed as to its size and height both then and now. We cannot say that the “Daily Report” has ceased to be a newspaper of general circulation unless we know its character and as compared with the character and size of the community, the extent of its circulation, not only now, but at the time when it was judicially determined that it was one of general circulation. This does not involve solely a viewing of the evidence introduced in

[3] Petitioner earnestly insists that the judgment in 1913 is not of such a character as to be regarded as finally deciding the matter there adjudicated as against those petitioners. Much stress is placed on the concurring opinion of Mr. Justice Shaw in In re Herman, 183 Cal. 153 [ 191 Pac. 934 ], In questioning the right of the legislature to enact legislation of this character if it authorizes a judgment binding, as contended by respondent here, the learned justice cites no authorities and gives no definite reason for the doubts upon the matter entertained by him. The decision of the court in that proceeding expressly held that the question here presented was not in issue and could not properly be passed upon. However, from what is there determined, it logically follows that the decision in the instant proceeding in 1913' is binding, not only upon the parties, but upon all persons. In In re Herman the court points out that section 4462 of the Political Code provides that any person may appear and contest the petition; any person may show that the newspaper in question is not the proper medium for the publication of legal notices, etc., and any person may appeal without showing that he is interested in an individual capacity or otherwise than as one of the public. It is logical to conclude that if “any person” had such rights and failed to exercise them he is bound by the judgment rendered, though, perchance, it may be merely through his failure to interpose a contest.

It is elementary that a judgment in rem is binding upon all persons. It is said by Mr. Freeman in Ms work on

If this were the only question involved in the instant proceeding the facts which were the basis of the former judgment would not alone suffice to grant the relief sought in this proceeding. The doctrine of res adjudicata would prevent their consideration for such a limited purpose. The peculiar language of this statute requires a showing of a change having taken place, and this at once necessitates proof of the condition of affairs which must appear to have ceased to be in order that the judgment may be set aside.

The question as to whether or not a paper is one of general circulation involves other elements besides the number of its subscribers and the size of the community in which it is published and circulates. It does not necessarily follow that the contestant has sustained the burden of proof required of him to show that a paper has ceased to be one of general circulation because he has proved -that some one of the elements involved has changed. The difference must be of such a nature as to bring about an altered relativity of conditions as contrasted with that

[4] As shown by the record on appeal, the only fact proven or of which this court can take judicial notice which has been altered since the former proceeding is that the population of Bakersfield has increased from approximately 12,000 inhabitants in 1913 to 18,000 in 1920. From this evidence it cannot be inferred that the paper has ceased to be one for the dissemination of local and telegraphic news and intelligence, nor from the fact of change of population alone can it be concluded that it is no longer true that the paper is not devoted to the interests or published for the entertainment or instruction of the particular class, profession, trade, calling, race, or denomination, or for any number of classes, professions, trades, or callings; nor would the circumstance of increase of inhabitants in itself show that the newspaper has ceased to have a bona fide subscription list of paying subscribers. Appellant ad

The “Daily Recorder, ’ ’ published and issued in Sacramento, was held to be a newspaper of general circulation, although the court said that the “paying subscribers to said paper somewhat exceeds the number of 200.” (In re Green, 21 Cal. App. 138 [ 131 Pac. 91 ].) The decision just cited refers with approval to Hesler v. Coldron, 29 Okl, 216 [ 116 Pac. 787 ], in which the “Daily Legal News,” with from 205 to 215 subscribers, was recognized as a paper of general circulation. We cannot say that a newspaper having a Iona fide subscription list of 197 subscribers, nearly all of which is distributed in a city of 18,000 inhabitants, might not be one of general circulation. [5] Until the city of Bakersfield becomes so large that the number of people living in it precludes the conclusion that the paper can be one of general circulation with a Iona fide subscription list of almost 197 subscribers, a decision of the trial court adjudging that its circulation is general will not be disturbed on appeal, where other conditions appear to have remained unchanged since the first decree was entered.

Appellant contends that the rule which we uphold is one of unprecedented severity. On the contrary, if the ancient doctrine of res adjudicata were applied without modification, it would not be permissible to again challenge any of the ultimate facts found by the court in the first proceeding. But the statute permits the entire subject to be reopened upon condition, however, that the ultimate facts are shown to have materially changed subsequent to the original order having been made. Hence, the application of the rule of

[6] It is argued that res adjudícala must be pleaded in order that it may be invoked. This is no doubt usually the rule, but as was said by the court in a similar situation in Lux v. Haggin, 69 Cal. 255 [ 4 Pac. 919 , 10 Pac. 674 ], it was for the plaintiffs to show the right which they claimed. If their right had been legally extinguished at the commencement of the action the defendant was entitled to prove it under a general denial. In this proceeding the petition shows, as it must, the rendition of the original judgment. No plea of res adjudícala need be interposed by respondent, but petitioner must avoid the effect of the judgment shown by its own pleading to exist.

We conclude that a cessation of the status found to exist by the judgment in the original proceeding must be shown to have taken place before the petitioner’s case can be said to have -become a prima facie one. The burden is not upon the respondent to show that conditions have remained unchanged. The duty rests squarely upon the petitioner to bring his case up to the standard established by the code in the measure of proof required to set aside an order decreeing a paper to be one of general circulation, to wit, evidence of the cessation of that condition, necessarily through a change of one or more of the essential facts formerly contributing to the production of it.

The judgment is affirmed.

Finlayson, P. J., and Works, rJ., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 13, 1923.