Board of Com'rs of Decatur County v. Greensburg Times

Decision Date27 February 1939
Docket Number27197.
Citation19 N.E.2d 459,215 Ind. 471
CourtIndiana Supreme Court

Appeal from Ripley Circuit Court; Frank Gardner Judge.

John M. Wood, Raymond Rolfes, Wickens &amp Wickens, and Davidson & Rolfes, all of Greensburg, for appellant.

John W. Goddard, of Greensburg, Robert A. Creigmile, of Osgood and Turner & Woodfill, of Greensburg, for appellee.

SHAKE Judge.

Appellee filed a claim with the Board of Commissioners of Decatur County for publishing certain legal notices. The claim was disallowed by the board and an appeal taken to the circuit court. The complaint was answered by general denial; a change of venue from the county followed; the cause was tried by jury and resulted in a verdict in favor of appellee. The errors assigned relate to the overruling of the appellant's motion for judgment on the answers to interrogatories and to the denial of its motion for a new trial.

The appeal calls for the consideration of the provisions of chapter 96, Acts 1927, §§ 49-701 to 49-709, Burns' 1933, Secs. 10201 to 10209 Baldwin's Ind.St.1934. After deleting the parts of the act that are not pertinent here, it provides:

'In all cases where county * * * officials are required by law of publish notices * * * and reports affecting county * * * business * * * such officials are hereby required to publish such notices * * * in two (2) newspapers representing the two (2) political parties casting the highest number of votes at the last preceding election published in such county. * * * All notices and reports affecting county business shall be published in two (2) newspapers published in such county. * * * If only one (1) of said political parties is represented by a newspaper published in such county, then such county notices and reports shall be published in such newspaper and also in any newspaper of general circulation published in the county. * * * The term 'newspaper' as used in this act shall be construed to mean a weekly, semiweekly, triweekly or daily newspaper which shall have been published for five (5) consecutive years in the same city or town * * *.' (§ 49-704, Burns' 1933, Sec. 10204, Baldwin's 1934).

'The cost of all advertising growing out of any duty of any county * * * officer * * * shall be, by such officer, charged up, collected, and paid over to the printer. When such printing is done for any county * * * the proper officer shall have the claim allowed and shall pay the same from the proper fund out of the public treasury, according to the rate herein fixed * * *.' (§ 49-701, Burns' 1933, Sec. 10201 Baldwin's 1934).

'In case any officer charged with the duty of publishing any notice required by law shall be unable to procure such advertisement at the price herein fixed, it shall be sufficient for him to post up such written or printed notices as the law requires, and such advertisement in newspapers shall be dispensed with.' (§ 49-702, Burns' 1933, Sec. 10202 Baldwin's 1934).

The act also contains a fixed schedule of rates for printing and publishing legal notices, and it makes any officer who fails or refuses to comply with the provisions thereof guilty of a misdemeanor.

It is conceded that the notices published by the appellee, and for which it made claim, were required by law to the published. There is no contention that the amount of the claim is incorrect or that the charge made therefor is not in accordance with the schedule fixed in the statute. From the evidence it appears that the appellee voluntarily printed and published the notices without authority or direction from the county auditor or any other public official. The appeal presents two questions: (1) was the Greensburg Times such a newspaper as to be legally entitled to publish said notices; and, if so, (2) was the county liable to be charged therefor in the absence of an order from its authorized agent directing such publication?

1. It was not disputed that the Times was published in the city of Greensburg for more than five consecutive years. The fact that it changed ownership and missed a few numbers during that period did not disqualify it. Lee v. Burns, 1932, 94 Ind.App. 676, 182 N.E. 277. Its political affiliation was immaterial since there were but two newspapers published in the county, the other representing one of the political parties casting the highest number of votes at the last preceding election. This leaves open but one other inquiry: was the Times a newspaper of general circulation? The verdict of the jury was a finding for the appellee on that issue and we will not disturb the finding if there is competent evidence to sustain it. Appellant contends that the Times was not a good faith newspaper because it had no office, equipment, or plant of its own but was printed by the publishers of the Greensburg News, the other paper of the county. The evidence showed that appellee was a private corporation and that it contracted with the News to issue the Times. Some of the stockholders of the Times company was also financially interested in the News. Appellee's sole employee was an editor and the only local news appearing in the columns of its paper, aside from editorial comment, was material that likewise appeared in the News. It was further disclosed that the legal notices for which appellee sought to recover were printed on the same type composition on which they were printed in the News. Since appellee was a separate and distinct corporate entity and its only connection with the other paper and its publishers was the subject and result of legitimate contract dealings, we can not say that the Times was not a bona fide newspaper. The statute contains no definitions or restrictions that would disqualify it on that ground.

It is next urged that the Times did not have a general circulation in the sense of the statute above quoted. What amounts to general circulation in the case of a newspaper publishing legal notices has been many times considered by the courts. The subject is exhaustibly treated in an annotation found in 16 Ann.Cas. 417. General circulation as applied to a newspaper depends largely upon diversity, rather than on mere number of subscribers. That which will be of general circulation in a town of small population can not be said to be general in a populous city. 46 C. J., p. 22. Lynn v. Allen, 1896, 145 Ind. 584, 44 N.E. 646, 33 L.R.A. 779, 57 Am.St.Rep. 223, holds that by the use of the term 'newspaper of general circulation' in a statute providing for the publication of legal notices, the Legislature did not intend a newspaper read by all of the people of the county. It was pointed out that political newspapers, to a large extent, are read only by the members of the party whose doctrines are advocated and expressed in their columns. It may be noted, in that connection, that the statute which we are here considering not only authorizes the publication of legal notices in political newspapers, but requires that this be done when such newspapers are available. In Ruth v. Ruth, 1906, 39 Ind.App. 290, 79 N.E. 523, it was observed that the general circulation of a newspaper is necessarily comparative, but that no fixed number of subscribers is required to constitute general circulation. That case sustained a finding that the Morgantown Truth, with a circulation of 520, two-thirds of which was in Morgan County, was of general circulation in that county.

The evidence is sufficient to establish that the Times had approximately 700 subscribers when the legal notices, for the publication of which appellee seeks to recover, were published. These subscribers were distributed in each of the nine townships in Decatur County. Some 370 of these were already subscribers when appellee acquired the paper; 200 were added when the Recorder, another newspaper formerly published at St. Paul, in said county, was merged with the Times; and 49 additional persons became subscribers under appellee's management. Copies of the paper containing the legal notices were introduced in evidence and are in the record. From these it appears that the Times is the usual type of local weekly newspaper, containing press dispatches, neighborhood news, and personal items. It does not purport to be the organ of any society, lodge, trade, or group. The evidence is sufficient to...

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