
    Charles Ashton, et al., v. H. W. Stoy, Appellant.
    
      % ■Selection of Official Paper: practice. Fraud in a contest over such selection should be alleged before the board holds the hearing and makes the selection.
    3 4 ■5 Subscriber. One to whom a publisher sends a newspaper without his consent, at the instance of a third person who pays the subscription for a year for advertising purposes, is not “a bona fide subscriber” within Code, 307, which requires the selection of the paper having the largest number of bona fide yearly subscriber within the county.
    5 Appeal. The district court must try the case on the subscription lists filed with the auditor and they cannot be amended by adding omitted subscribers.
    1 Motion for more specific statement: waiver. Overruling such a motion is not waived where no subsequent pleading is filed.
    
      Appeal from Guthrie District Court. — Hon. J. H. Apple-gate, Judge.
    Thursday, October 24, 1895.
    The plaintiffs are the publishers of the Guthrian a weekly newspaper published in Guthrie county. In January, 1893, they applied to the board of supervisors of that county to have their newspaper selected as one of the official newspapers of the county under the provisions of section 307 of the Code. The hoard denied the application, and selected the Guthrie Times, a weekly newspaper published in the county by the defendant. From the decision the plaintiffs appealed to the district court. That tribunal found in favor of the plaintiffs, and adjudged the Guthrian to be one of the official papers of the county for the year named. From that judgment the defendant appeals.
    
    Affirmed.
    
      
      E. W. Weeks for appellant.
    
      E. R. Sayles for appellees.
   Robinson, J.

The list of subscribers within the county filed by the plaintiffs contained nine hundred and eighty-six names, of which ninety-one were stricken out by the court, leaving eight hundred and ninety-five which were counted as those of bona fide yearly subscribers for the Guthrian. The list filed by the defendant contained one thousand and twelve names, of which ,one hundred and nineteen were stricken out, leaving eight hundred and ninety-three to be counted for the Times, or two less than the number counted for the other paper.

I. In the district court the defendant filed a motion to require the plaintiffs to state more particularly the manner in which they were aggrieved by the action of the board of supervisors, which was overruled, and pf that ruling the defendant complains. It is said that, if the ruling was erroneous, the defendant waived the error by proceeding to trial. There was nothing in wha,t he did inconsistent with his right to insist upon his exception to the ruling. He did not file any subsequent pleading, and therefore does not come within the rule of Mann v. Taylor, 78 Iowa, 357 (43 N. W. Rep. 220), and other cases cited by the appellees. But we do not find that the ruling was erroneous. A contest of this kind is triable in .the first instance by the board of supervisors of the county in which it is instituted, and formal pleadings are not in all cases required. Runyon v. Haislet, 90 Iowa, 376 (57 N. W. Rep. 902). The issues should be presented to the board for determination, and, when fraud is charged, it should be alleged before the hearing is had and the selection of papers is made. Cory v. Hamilton, 84 Iowa, 597 (51 N. W. Rep. 54). The jurisdiction of the district court is appellate (Code, section 807) and it should try and decide the case made before the board of supervisors. Without deciding that pleadings may not be required by the district court in any case, we reach the conclusion that there was no error in not requiring them in this one.

•4 II. The chief contention on this appeal is based upon the action.of the district court in striking from the Times list thirty-six names which were furnished to the defendant under an. agreement made with one W. H. Stiles, but which, the court found were not names of bona fide yearly subscribers. The facts in regard to them are ¡substantially as follows: In December, 1892, the defendant and Stiles entered into an agreement in writing, a copy of which is as follows: “This article of agreement, made and entered into by and between H. W. Stoy, of the first part, and W. H. Stiles, of the second part, all of Guthrie county, Iowa, witnesseth: That, for and in consideration of the sum of twenty-five dollars and other valuable consideration, the party of the first part hereby agrees to' furnish party of the second part fifty copies Of the Guthrie Times for one year, from and including Yol. 10, No. 20, to be sent to such persons in Guthrie county, Iowa, as party of the second part shall direct; also to furnish party of the second part one column of advertising in saichpaper for same time as above stated, party of the second part to have the privilege of changing the said column at such time and in such manner as he may direct. Said (advertisement shall oecupy the 1st column or the upper half of the 1st two columns ¡of the 1st page of the said Guthrie Times. Dated this twenty-seventh day of December, 1892. H. W. Stoy. W. H. Stiles.” After that agreement was made Stiles handed to the defendant a list which contained the names of forty-four persons, who appear to have been residents of Guthrie county. The names were placed on the Times subscription list, and a copy of the paper was sent to each of the persons thus designated, before the meeting of the board in January. Stiles then /sent to each of them a communication of which the following is a copy, omitting the name of the person addressed: “Guthrie Center, Iowa, Dec. 27, 1892. Dear Sir: Upon retiring from the office of county attorney, I have established a real-estate office in' connection with pay other business. Knowing the value of a hind word from personal friends when occasion offers', I have taken the liberty to address you as such friend, hoping you pa ay be able to throw some business in my way. As I do not feel like asking something for nothing, I have made arrangements with the publisher pf the Guthrie Times to furnish a paid-up subscription to Times for one year as a partial consideration for any aid you may extend in my behalf among your neighbors. You will find inclosed a receipt in full for one year to the Times. You will find my column advertised in the paper. Respectfully, etc., Wm. H. Stiles.” With each communication was .sent, a receipt, which, omitting name of beneficiary, was in the following form: “Guthrie Center, Iowa, Dec. 27, 1892. Received from Wm. H. Stiles, for •-, one and no-100 dollars for subscription to the Times, from Yol. 10, No. 20, to Yol. 11, No. 20, year ending January 1, 1894. H. W. Stoy.” The names of the persons to whom these instruments were sent were duly inserted in them. We do not find that there was anything illegal or unwarranted in the transaction considered by itself. It appears to have been a legitimate effort on the part of Stiles to increase his business, and the defendant had the undoubted right to be a party to it. The question to determine, however, is! whether the person^ whose names were placed on the Times list by virtue of that transaction without any ratification on their part of what was done thereby become bona fide subscribers for the paper. Section 307 of the Code, as amended •(Mcdain’si Code, section 428), requires the board of supervisors of each county, at the January session of every year to select two newspapers published within the county, having the largest number of bona fide yearly subscribers within the county, to be the official papers of the county for that year. The reason for selecting the papers having the largest number of subscribers is to secure as large a general circulation of the official publications of the county among its citizens ais is practicable in two' newspapers. It is therefore provided that the persons to whom the papers ¡are sent shall be subscribers in good faith for a year at least, and not persons to whom the papers are sent temporarily for the' purpose of increasing their circulation. The primary meaning of the word “subscriber” is to. write underneath, as one’s name; but it also means to give consent to something written, to assent, to agree; and a subscriber is defined to be: “(1) One who subscribes; one who contributes to an undertaking by subscribing. (2) One who enters his name for a paper, book, map, or the like.” Webster Int. Diet. To become a subscriber to a newspaper includes some voluntary act on the part of the subscriber, or something which is in effect an assent by him to the use of his name as a •subscriber. A person to whom a paper is sent without his knowledge or consent, either expressed or implied, is not a “subscriber,” within the meaning of the statute. Of the forty-four persons whose names were furnished to. the defendant by Stiles, but few are shown to have approved the sending of the paper to them, and it is not certain that any had done so when the board of supervisors was required to. make a selection, of newspapers, while some refused to receive it We are of the opinion that the .district court was fully authorized by the evidence to strike from the list of the Times the names in question.

III. Complaint is made of the action of the court in refusing to permit the defendant to amend his list by adding thereto the name of a subscriber which had been omitted. We think the ruling was correct The district court was required to try the case on the lists as deposited with the county auditor, and the proposed amendment was not allowable. But, if this were not true, the error would have been without prejudice, as the addition of the name to the Times list would not have Changed the result. We do not find any error in the proceedings of the district, court, and the judgment is affirmed.  