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Wahl v. Hart

Supreme Court of Arizona

November 26, 1958

John C. WAHL and Frances Wahl, husband and wife, Earl W. Hoffman and Grace Hoffman, husband and wife, and Blair E. Johns and Mary E. Johns, husband and wife, Appellants,
v.
James G. HART, James T. O'Neill, Sr., and James E. Lindsay, as Members of and constituting the Board of Supervisors of Maricopa County, Arizona, Appellees.

[85 Ariz. 86] Fennemore, Craig, Allen & McClennen, Phoenix, for appellants.

Charles c. Stidham, County Atty., John B. Marron, Deputy County Atty., Phoenix, for appellees.

STRUCKMEYER, Justice.

This action was brought by appellants to set aside an order of the Board of Supervisors of Maricopa County, Arizona, creating the Georgia Improvement District. The trial court ordered judgment in favor of the appellees, defendants below, thereby holding that the district was legally formed. This appeal followed.

By statute, improvement districts in counties may be organized in areas lying without incorporated cities and towns, and the cost thereof assessed against the property specially benefited. While the Improvement District Act provides for certain notices to those concerned, we are here only directly

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concerned with § 11-705, subd. B, A.R.S. 1956. It provides that 'Notice announcing the hearing [for the creation of a district] * * * shall be published twice in a newspaper published in the county and of general circulation within the proposed district.'

Notice of the hearing was published in the Arizona Weekly Gazette, the duly designated official newspaper of Maricopa County, a publication devoted to the dissemination of news on a variety of topics of interest to the general reader, but giving special prominence to legal news, including the proceedings of the Supreme Court and of the local courts sitting in Maricopa County. Similar publications have usually been held to be newspapers of general circulation. 39 Am.Jur. 7, § 9.

The Arizona Weekly Gazette is published at Phoenix, Arizona, and is delivered by mail only on subscription. There were no subscribers within the boundaries of the proposed district at the time of the [85 Ariz. 87] hearing by the Board. While the possibility was not precluded that residents of the district had access to it at their places of employment, no evidence was offered which tended to establish that it actually passed into the hands of such residents. It is therefore the appellants' position that the Arizona Weekly Gazette is not within the statutory category as a newspaper of general circulation 'within the proposed district.' With this contention we agree.

It is the aim of statutes requiring general circulation of a newspaper that the publication be generally read so that the contents of the notice be brought home to the public generally. Pirie v. Kamps, 68 Wyo. 83, 229 P.2d 927, 26 A.L.R.2d 647. Consequently, we assume at the outset that where the statute requires circulation within a particular area, the aim is for the contents of the notice to be brought home to that portion of the general public within that area. This assumption is inferentially rejected by appellees, for they urge that the proper construction of the phrase 'general circulation' requires consideration of the qualitative aspects rather than the quantitative aspects of the publication, it being said 'Whether a newspaper is one of general circulation is a matter of substance, and not of size.' Burak v. Ditson, 209 Iowa 926, 229 N.W. 227, 228, 68 A.L.R. 538, and Pirie v. Kamps, supra.

In examining the authorities cited by appellees, we note that the Pirie case relies on the Burak case, which in turn relies on in Re Green, 21 Cal.App. 138, 131 P. 91, 93. In the Green case the California District Court said:

'* * * As to whether it is such a newspaper [of general circulation] is manifestly a matter of substance and not merely of size; and that it is of general circulation must largely depend upon the diversity of its subscribers rather than upon mere numbers.' [Emphasis supplied]

This language does not support the unqualified statement that the size of the circulation has no bearing whatsoever upon the question. Rather, we believe, the court was there saying that mere size is not the only test to determine the character of a publication as one of general circulation. Surely, the extent of the circulation cannot be wholly disregarded else, as here, the number of readers in a given area might so dwindle that finally a point of complete nonexistence is reached. In that event, the aim of the statute to give notice to those concerned is defeated.

Contrary to the appellees' position there are decisions which specifically turn on the number of copies in circulation. For example, in Times Printing Co. v. Star Pub. Co., 51 Wash. 667, 99 P. 1040 the circulation[85 Ariz. 88] was 1,000 copies in the City of Seattle at a time when the population was 274,000; and in Doster v. City of Cleveland, 20 Ohio Dec. 548 the circulation was 1,000 in 500,000. In both instances, the publications were held not to be of 'general circulation.' We do not mean to suggest from those decisions that a ratio of circulation to population is

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to be inferred. We simply conclude that the term is not wholly devoid of a quantiative connotations. It implies a necessity for some circulation among those ...


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