Albia Pub. Co. v. Klobnak

• Decision Date: 25 January 1989
• Docket Number: No. 88-130,88-130
• Citation: 434 N.W.2d 636
• Parties: 16 Media L. Rep. 1377 ALBIA PUBLISHING COMPANY, Appellant, v. George KLOBNAK, Raymond Vance, and Billy K. Myers, as Board of Supervisors of Monroe County, Iowa, Appellees.
• Court: Iowa Supreme Court

Page 636

434 N.W.2d 636

16 Media L. Rep. 1377

ALBIA PUBLISHING COMPANY, Appellant, v. George KLOBNAK, Raymond Vance, and Billy K. Myers, as Board of Supervisors of Monroe County, Iowa, Appellees.

No. 88-130.

Supreme Court of Iowa.

Jan. 25, 1989.

Kasey W. Kincaid of Nyemaster, Goode, McLaughlin, Emery & O'Brien, Des Moines, and W.K. Cash, Albia, for appellant.

Annette J. Scieszinski, Monroe County Atty., for appellees.

Michael A. Giudicessi, Des Moines, for amicus curiae Iowa Newspaper Ass'n.

Considered by HARRIS, P.J., and SCHULTZ, CARTER, NEUMAN and ANDREASEN, JJ.

NEUMAN, Justice.

When the Monroe County Board of Supervisors met in January 1986 to select the newspapers in which official proceedings would be published for the ensuing year, two applicants came forward: the Albia Union-Republican and the Monroe County News. The board knew that the statute guiding its selection, Iowa Code § 349.3 (1985), required counties having a population of less than 15,000 to select two official newspapers unless "there be but one published therein." Seizing on this qualification as an opportunity "to safeguard the taxpayers' dollars," the board decided the two applicants were really one and the same entity. Thus it rejected the Monroe County News' application and granted official status to the Union-Republican.

The publisher of the Monroe County News, appellant Albia Publishing Company, responded by filing a petition for mandamus in district court to compel the board's designation of a second newspaper as required by section 349.3. Following trial, the district court dismissed the petition, concluding "there was a basis in fact" for the board's decision. On appeal from that ruling, the Albia Publishing Company contends that the district court's deference to the board resulted in a violation of section 349.3. We agree and reverse the district court.

I. At the outset we note that the case is properly before us on mandamus. Iowa Code section 349.1 imposes a duty upon county boards of supervisors to annually select newspapers for publication of official proceedings. The appropriate number to be selected is prescribed by section 349.3(1):

In counties having a population of less than fifteen thousand, two such newspapers, or one, if there be but one published therein.

The board concedes that Monroe County's population is less than 15,000, and that both the Albia Union-Republican and the Monroe County News meet the general criteria established for "official" newspapers by Iowa Code section 618.3. In an earlier case we summarized those general requirements this way:

[A] paper in which such notices may be carried must be, (1) of general circulation; (2) published regularly and mailed through the post office of current entry for more than two years; and (3) for the same period had a bona fide circulation recognized by the postal laws.

Widmer v. Reitzler, 182 N.W.2d 177, 180 (Iowa 1970).

The board claims that the publishing company should have appealed the board's refusal to designate two papers, rather than seek mandamus. The trial court correctly ruled, however, that the appeal provisions of Iowa Code section 349.11 apply only where a "contest" exists. A contest is defined in this context as occurring when "more applications are filed than there are newspapers to be selected." See Iowa Code § 349.4. No such contest exists here.

Given two qualified newspapers published within the county, the board would be without discretion to select a lesser number than that prescribed by section 349.3(1). Bredt v. Franklin County, 227 Iowa 1230, 1234, 290 N.W. 669, 671 (1940). The Albia Publishing Company was entitled to maintain mandamus to attempt to prove that the board was required to act under the statute. See id.

II. Because an action for mandamus is triable in equity, we make a de novo review of the record on appeal. Iowa Code § 661.3; Iowa R.App.P. 4; Osborn v. City of Cedar Rapids, 324 N.W.2d 471, 474 (Iowa 1982). We give weight to the trial court's findings, but we are not bound by them. Nowlin v. Scurr, 331 N.W.2d 394, 396 (Iowa 1983).

The question before us boils down to a factual determination of whether the Albia Union-Republican and the Monroe County News are two separately published newspapers or, as the board persuaded the trial court, merely two editions of the same newspaper. Before proceeding to an examination of the record made before the district court, however, a brief review of the law guiding our assessment of those facts is in order.

Prior decisions of this court relating to the selection of official newspapers have focused almost exclusively on contests over subscription lists. See generally Times-Guthrian Publishing Co. v. Guthrie County Vedette, 256 Iowa 302, 125 N.W.2d 829 (1964); Bloomfield Davis County Messenger v. Bloomfield Democrat, 201 Iowa 196, 205 N.W. 345 (1925); Ashton v. Story, 96 Iowa 197, 64 N.W. 804 (1895). Although not dispositive of the question before us, we may glean from even the earliest of these cases the principle that "[t]he 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 as is practicable in two newspapers." Ashton, 96 Iowa at 201, 64 N.W. at 805; accord Times-Guthrian Publishing Co., 256 Iowa at 307, 125 N.W.2d at 832. Moreover, this emphasis on wide dissemination of official proceedings has not precluded newspapers with similar or even identical subscription lists from separately qualifying for official status. See Bloomfield Davis County Messenger, 201 Iowa at 199-200, 205 N.W. at 346.

The question of what test might apply to a dispute like the one before us, however, has most frequently been addressed to the Iowa Attorney General. In a 1974 opinion, the attorney general addressed the question whether two newspapers which share offices, employees, owners, and subscribers nonetheless can both be selected as official newspapers. The opinion concluded that ownership and publication by a single corporate entity did not preclude the designation of both papers under section 349.3(1):

[I]f, in fact, the two papers present distinctly different editorial policies or carry different kinds of syndicated articles or features so as to attract separate reading interests and to maintain two distinctive identities, then there would be two newspapers, regardless of the fact that they both are published by a single corporate entity. On the other hand, an absence of such facts would probably indicate publication of two editions of the same newspaper.

If the two newspapers are organized as separate corporations, it is immaterial whether the ownership of such corporations is identical and whether or not they are housed in the same offices and have the same subscribers. In such case, both newspapers could be the official newspapers.

1974 Op. Att'y Gen. 513-14.

While an attorney general's opinion is not binding on this court, it is entitled to our respectful consideration. Unification Church v. Clay Central School Dist., 253 N.W.2d 579, 581 (Iowa 1977). We note that the views held in the foregoing opinion have been consistently expressed since 1939 and reiterated as recently as 1984. See generally 1939 Op. Att'y Gen. 3; 1984 Op. Att'y Gen. No. 84-4-5[L]. We find the reasoning persuasive and consistent with the evident legislative intent. By shifting the focus away from factors such as shared publication facilities to factors which better identify separate readership, the legislative goal of widely publicizing the county's official...