#### The State, ex rel. Dayton-Oakwood Press, Inc., *v.*Herman et al.

(No. 1705

Decided January 13, 1942.)

*Mr. P. Eugene Smith,*for relator.

*Messrs. Matthews, Matthews <& Altick,*for respondents.

Barnes, J.

The above-entitled cause is now being-determined as an original action in our court, wherein plaintiff prays for a writ of mandamus against the city of Oakwood, Ohio, an incorporated municipality, and its members of council, consisting of five individuals specifically named.

The relator in substance alleges that it is a corporation, duly organized and doing business under the laws of the state of Ohio, with an office and principal place of business in the city of Oakwood, Montgomery county, Ohio. Relator further alleges that the Press Publishing Company is also a corporation, duly organized and existing under and by virtue of the laws of the state of Ohio, with its office and principal place of business in the city of Oakwood, Montgomery county, Ohio. It is further alleged that the city of Oakwood is *104arid was at all times herein mentioned a municipal corporation, organized and existing under the laws of the state of Ohio, and that the named five defendants are the duly appointed, qualified and acting members of the council of the city of Oakwood, and as such councilmen are charged with the duty of publishing the ordinances and resolutions initiated and passed by the council of such incorporated municipality, required by law to be published.

Relator further alleges for its cause of action against the respondents that it is a taxpayer and the owner and publisher of a newspaper of general circulation in Montgomery county, Ohio; that for the purpose of publishing such newspaper it employs a regular staff of general news reporters, an editorial staff, an advertising staff, a columnist, a fashion editor, a sports commentator and a circulation department, and ■ that the items of general news, editorials, columnists’ articles, fashion notes and sports items gathered by such employees are regularly published in every edition of such newspaper; that its newspaper is published once each week, and that it is printed by the Press Publishing Company, whose principal place of business is in the city of Oakwood, Ohio, such newspaper being printed at its principal place of business; that such newspaper has a circulation in Montgomery county, Ohio, of approximately 48,000 copies; that the Oakwood edition of the newspaper is known as the Oakwood Press and that the newspaper is regularly distributed to every home in the entire city of Oak-wood, being approximately 2,400 copies of the 4,900 copies of the edition distributed in the vicinity of the municipality of Oak-wood; that the edition of the newspaper circulated outside the city of Oakwood in Montgomery county, is known as the Dayton Press and is delivered to homes in every section of Montgomery county.

*105Relator further alleges that its newspaper is offered for sale in the state of' Ohio; that more than 25 copies of the newspaper are sold by mail each week, .and that more than 10 copies of the newspaper are sold to transient persons calling at relator’s office to purchase the same; and that the remaining balance of the circulation of relator’s newspaper is distributed and delivered free of charge to the homes of persons living in the city of Oakwood, in the county of Montgomery.

Relator further alleges that its newspaper is the ■only newspaper published and of general circulation in the city of Oakwood; that the city of Oakwood is a municipality organized under the provisions of Section 3515-1, General Code, and is governed by a council in pursuance of the plan of organization known as the ■city manager plan, as defined by the General Code of ■Ohio; that in pursuance of the powers granted to the ■city of Oakwood, Ohio, by the General Code provisions for such city manager plan, the respondent city of ■Oakwood, Ohio, by its members of council, has enacted an ordinance of a general nature, being ordinance No. 1340, entitled “An Ordinance to vacate Houk road from the south line of Katherine street to the south •corporation line of the city of Oakwood, as delineated in Plat Book L, pages 33 and 34, Montgomery county, •Ohio, and as modified and described in ordinance passed March 2, 1925 — No. 434 — and ordinance passed July 12, 1926 — No. 590.”

Relator further alleges that ordinance No. 1340 was passed by the council of the city of Oakwood, Ohio, on the 2nd day of June 1941, and has not been published by respondent in relator’s newspaper; that respondents, as members of the council of the city of Oakwood, being the entire council of that city, have failed and *106neglected to deliver or direct the delivery to this relator of a copy of the ordinance for publication in-relator’s newspaper.

Wherefore relator prays for a writ of mandamus,, directed to the respondents, requiring them forthwith to deliver a copy of ordinance JSTo. 1340 to the relator herein for publication in its newspaper for the time and in the manner required by law, and for its costs herein-expended.

The respondents filed an answer, wherein are admitted the allegations of the petition. In the prayer they ask that their interest may be protected and that a proper order be issued by this court.

In addition to the pleadings there are presented a stipulation and an agreed statement of facts. To the agreed statement of facts are attached three copies of' relator’s publication, dated June 6, June 12 and June-19, respectively. The agreed statement of facts really adds nothing to the pleadings except to elaborate on some of the facts alleged in the petition.

Through the briefs we are advised that the only question presented is whether, under the facts stated, relator’s publication is a newspaper so as to come within the terms of the pertinent section of the Code-requiring publication.

Counsel for respondents admit that if the publication is a newspaper, as contemplated under the Code, then it would be the obligation of the city council to-cause to be published therein ordinances of a general nature. It is further admitted that the ordinance referred to in the relator’s petition is of a general nature.

The relator’s publication qualifies in every particular as a newspaper of general circulation, unless the-fact that its major circulation results from free distribution, and only a very small part from paid sub*107scriptions, will take it out of the classification. Under the pleadings and agreed statement of facts it is admitted that the weekly publication goes to every home within the city limits of Oakwood, but the distribution in the main is free; only twenty-five copies are sent out on paid subscription and approximately ten copies are sold from the office each week.

In addition it is stipulated that the weekly publications are offered for sale.

At a former term of this court we had before us a similar action by the relator against the city manager and clerk, as defendants. In that case we dismissed ■the petition, principally upon the ground that the city manager and city clerk were not proper parties ■defendant. In that case we volunteered the opinion that a publication could not be considered a newspaper for the purpose of publishing statutory notices unless it came within the definition laid down in Section ■6319-2, General Code. This section reads as follows:

“Any person or persons, firm or firms, co-partnership or voluntary association, joint stock association, ■company or corporation, wherever organized or incorporated, engaged in the business of printing or publishing a newspaper, magazine or other periodical sold ■or offered for sale in this state, is • a newspaper company, and any such newspaper, magazine or other periodical publication is a newspaper within the meaning of this act.”

Counsel for relator urges that its publication comes within this definition for the reason that the same was ■offered for sale and sold, although the greater number of papers is distributed free.

Counsel for relator presents the further argument, with much logic, that this section has no application to the instant case, but is merely the first section of the ■chapter devoted to itemizing the procedure for causing *108the correction of false statements printed in newspapers, etc. Counsel for relator in his briefs cites several Ohio cases which are pertinent to the instant case.

The first case to which we are referred is that of *Ambos*v. *Campbell,*40 Ohio App., 346, 178 N. E., 320. Paragraph three of the syllabus reads as follows:

“3. Newspaper may be of ‘general circulation’ in county within statute requiring publication of notice concerning annexation petition, although circulation need not consist exclusively of paid subscribers. (Section 3520, General Code).”

On page 350 of the opinion the court gives the foling narrative of facts:

“The evidence discloses that the Heights Press has a paid circulation of 2,625 subscribers; that, while these subscribers are largely in the Heights region, they are scattered nevertheless through various parts of the county; that it has an unpaid circulation of 8,000,. and altogether its actual circulation is between ten and eleven thousand, extending throughout nearly every section of this county.” ;

Thereafter in the opinion the court, in substance,, makes the statement that such circulation need not necessarily consist exclusively of paid subscriptions; that the purpose of the law is clear, *vis.,*that the notice should be inserted in a newspaper which people in the community are likely to read; and that when the circulation is extensive it makes no difference whether it consists of paid subscriptions or non-paid recipients of the same.

The next case to which we are referred is that of *State, ex rel. Sentinel Co.,*v. *Commrs. of Wood County,*14 C. C. (N. S.), 531, 23 C. D., 93. Paragraph three of the syllabus reads as follows:

“3. A newspaper having a circulation of eight *109hundred in a county containing a population of fifty thousand distributed over twenty townships, and in fifteen of those townships containing a population of thirty-five thousand a circulation of only thirty-six, is a newspaper of general circulation within the meaning of the statute providing for the publication.”

This decision was by a divided court, Judge Parker dissenting. The dissenting opinion contains a much fuller statement of facts than does the majority opinion. The case was carried to the Supreme Court and affirmed in *State, ex rel. Sentinel Co.,*v. *Sockman et al., Commrs.,*84 Ohio St., 447, 95 N. E., 1157.

We are also referred to the case of *Bising*v. *City of Cincinnati,*126 Ohio St., 218, 184 N. E., 837. In this case the city was acting under Section 4676-1, General Code, which authorizes charter cities to adopt methods of procedure relative to publishing of legislation, either under the provisions of the general law or under any method provided by their charter. The city charter had provided for publication in a newspaper legally published under authority of the city council. The court held that the city council could not make legal publication in a periodical which did not have the attributes of a newspaper. The periodical adopted by the council as an official newspaper was called the City Bulletin. Publications contained in the City Bulletin were confined solely to the proceedings of the city and its municipal offices; it contained neither news of other public bodies, nor notices of general current events, either local or foreign. The court stated:

“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.”

*110Within a very short period of time the identical question was again presented under different facts, in the case of *State, ex rel. Ellis, City Solicitor,*v. *Timer, Aud.,*127 Ohio St., 84, 186 N. E., 706. The action was against the city auditor and was in mandamus. It appears that the city auditor had refused to carry the publication in the City Bulletin of the city of Cincinnati, by reason of the decision of the Supreme Court in the case of *Bising*v. *City of Cincinnati, supra.*In this second case the Supreme Court allowed the writ. The decision was *per curiam,*and on page 89 appears the following:

“It therefore now appears to the court that the periodical in question contains news and happenings of local and general interest, social, political, moral, business, professional and educational, intended for the information of the general reading public of Cincinnati. None of these facts were presented in the *Bising case, supra.”*

We think it is inferable that the City Bulletin was not circulated on a paid subscription. '

It can not be said that any of the cited cases we have referred to is exactly analogous to the facts in the instant case. However, we think the basic reasonings are such as require us to determine that relator’s publication was a newspaper, within the meaning of that term, as used under pertinent sections of the General Code.

The writ is allowed as prayed.

*Writ allowed.*

Geiger, P. J., and Hornbeck, J., concur.