Community Newspapers, Inc. v. Baker

• Decision Date: 22 February 1991
• Docket Number: No. A90A2218,A90A2218
• Citation: 198 Ga.App. 680,402 S.E.2d 545
• Parties: COMMUNITY NEWSPAPERS, INC. v. BAKER et al.
• Court: Georgia Court of Appeals

Page 545

402 S.E.2d 545

198 Ga.App. 680

COMMUNITY NEWSPAPERS, INC. v. BAKER et al.

No. A90A2218.

Court of Appeals of Georgia.

Feb. 22, 1991.

Steward, Melvin & House, Frank Armstrong, III, Gainesville, Hull, Towill, Norman & Barrett, David E. Hudson, James B. Ellington, Augusta, for appellant.

Smith, Gilliam & Williams, Kelly Ann Miles, Burroughs, LeFevre & Wynne, J. David Burroughs, Gainesville, for appellees.

SOGNIER, Chief Judge.

Community Newspapers, Inc., publisher of The White County News, the official organ for White County since 1976, brought this action for mandamus and injunctive relief against The Telegraph, Inc. and the White County Sheriff, Superior Court Clerk, and Probate Court Judge, challenging the decision to designate The Telegraph as the official organ. After reviewing the facts stipulated by the parties, the trial court denied the requested relief. Community Newspapers filed an appeal with the Supreme Court, which transferred the case to this court for disposition.

Appellee The Telegraph, Inc. (hereinafter "appellee newspaper") began publication in November 1982 and, with the exception of a small number of paid subscriptions mailed outside the county, its 10,000 copies were distributed free of charge by third-class mail to all 5,371 White County postal patrons and to others in nearby areas. There were 117 paid subscribers in 1988 and 141 in 1989, and the parties have stipulated that some of those subscribers owned property in White County and lived within the county part time, although none was a permanent resident of the county. Appellee newspaper converted to paid circulation on March 6, 1990, with 2,215 paid copies comprising 91.6 percent of the total circulation of 2,418. Again, virtually all of the paid subscribers resided outside the county. On March 26, 1990, appellees sheriff, clerk, and probate judge met and decided to change the official organ of the county from appellant to appellee newspaper effective May 1, 1990.

Disposition of this case turns on the interpretation of OCGA § 9-13-142, which sets forth the prerequisites for official organs and establishes the procedure for changing the designation of the official organ. The subsection at issue is OCGA § 9-13-142(a), which provides that "[n]o journal or newspaper published in this state shall be declared or made the official organ of any county for the publication of ... 'official or legal advertising' ... unless the newspaper shall have been continuously published and mailed to a list of bona fide subscribers for a period of two years ... and unless 85 percent of the circulation of the newspaper or journal is paid circulation." Appellant contends the trial court erred by concluding appellee newspaper met the requirement of being "continuously published and mailed to a list of bona fide subscribers for a period of two years" because its subscribers were not county residents. Appellant contends that the statute should be construed with OCGA § 9-13-140(a), which provides that notices of judicial sales must be published in newspapers located in or near the county, and that when so construed the "continuously published" requirement of OCGA § 9-13-142 evinces a legislative intent to require that the subscriber list of the official organ be composed of residents of the county.

We do not agree, as the plain language of the statutes does not support appellant's interpretation, and the Supreme Court has construed these statutory provisions in a manner that precludes the construction urged by appellant. The court has held that the "continuously published" requirement of OCGA § 9-13-142 and its predecessor, Ga.Code Ann. § 39-1103, was intended by the legislature as " 'evidence of stability that a newspaper ought to have before it could enjoy the status of a legal gazette which must carry legal advertisements that affect the lives and property of citizens of this State.' " Williams v. Athens Newspapers, 241 Ga. 274, 278(1), 244 S.E.2d 822 (1978). The Williams court did recognize that the legislature intended to ensure "widespread dissemination" of the newspaper designated as the legal organ, but found that the 85 percent paid circulation requirement was the means by which that goal was to be met, and held that the test was satisfied if the newspaper met the 85 percent requirement at the time it was designated as official legal organ. Id.

The Supreme Court also has agreed with appellant's theory that OCGA § 9-13-142 and OCGA § 9-13-140 (former Ga.Code Ann. § 39-1101) should be construed together, holding in McGinty v. Chambers, 182 Ga. 341, 342-343, 185 S.E. 513 (1936), that the notices described in OCGA § 9-13-140 must be published in a newspaper meeting the "continuously published" requirement of OCGA § 9-13-142. However, the court has reached a different conclusion from that urged by appellant, interpreting OCGA § 9-13-140 as requiring that the editing and publishing operations of the...