Southern Crescent Newspapers v. Dorsey

Decision Date02 February 1998
Docket NumberNo. S97A2023,S97A2023
Citation497 S.E.2d 360,269 Ga. 41
PartiesSOUTHERN CRESCENT NEWSPAPERS, L.P., et al. v. DORSEY, et al.
CourtGeorgia Supreme Court

Appeal from the Superior Court, DeKalb County; Hon. L.A. McConnell, Jr., J.

David E. Hudson, Hull, Towill, Norman & Barrett, Augusta, for Southern Crescent Newspapers, L.P.

W. Ray Persons, Swift, Currie, McGhee & Hiers, David Frank Walbert, Charles A. Mathis, Jr., Walbert & Mathis, W. Charles Adams, Swift, Currie, McGhee & Hiers, Atlanta, for Sidney Dorsey.

Lawrence Patrick Auld, Dow, Lohnes & Albertson, Atlanta, for Amicus Appellant.

SEARS, Justice.

The former legal organ of DeKalb County appeals the trial court's denial of its request for injunctive and mandamus relief after the official designation of a new county legal organ, claiming that the legislature's amendment of the statutory criteria required for legal organs should be applied retroactively to disqualify the newly-designated paper. We conclude that (1) the newly-designated paper satisfied the necessary criteria for legal organs at the time of its appointment, and (2) under our present statutory scheme, the official act of designating a new county legal organ was completed before the legislature amended the criteria for legal organs, and thus the amended criteria was not applicable. Therefore, we affirm.

The facts of this case are somewhat unusual. From 1972 until 1997, Southern Crescent Newspapers, d/b/a the Decatur-DeKalb News/Era ("the News/Era") served as the legal organ of DeKalb County. On December 27, 1996, The Champion Newspaper ("the Champion"), which has been published since 1991, formally expressed an interest in being designated to replace the News/Era as the county's legal organ. At that time, the Code required that, in order to be designated as a legal organ, at least 85% of a newspaper's circulation had to be comprised of paid circulations, and it must have been continuously published for at least two years. 1 Evidence introduced in the trial court showed that, as of January 15, 1997, the Champion satisfied those criteria. Seven days later, the Champion officially applied for designation as the legal organ of DeKalb County.

Under the Code, a county's designated legal organ may only be changed upon the concurrent action of a majority of the county probate judge, sheriff, and clerk of superior court. 2 On January 29, 1997, a hearing was held before the DeKalb County Probate Judge, Sheriff, and Superior Court Clerk to hear the News/Era's and the Champion's presentations regarding their respective qualifications to serve as the county's legal organ. At that hearing, it was requested that the Champion provide an independent circulation audit to show that it satisfied the Code's 85% paid circulation requirement, and the Champion complied with that request shortly thereafter.

On April 4, 1997, the County Sheriff and Superior Court Clerk issued a declaration "designating the Champion as legal organ of DeKalb County effective April 4, 1997 at 5:00 P.M." (The County Probate Judge previously had stated that he would dissent from that designation.) All interested parties were notified immediately of the Champion's designation. The designating officials specified that the publication of official notices in the Champion would commence on May 1, 1997 (later changed to July 1, 1997).

A mere ten days after the Champion's designation, on April 14, 1997, the statute governing legal organs was amended to require that, in order to serve as a county legal organ, a newspaper must have maintained an 85% paid circulation for at least one year. On that same day, the News/Era filed the underlying action, claiming that because the Champion had an 85% paid circulation only for approximately four months before being designated, the amended law should be applied retroactively to disqualify it from publishing legal notices, and the officials should be compelled to designate the News/Era as DeKalb County's legal organ. After an evidentiary hearing, the trial court denied the News/Era's request for injunctive and mandamus relief, and upheld the Champion's designation as legal organ. From that ruling, the News/Era brings this appeal.

1. On April 4, 1997, the date on which the Champion was declared to be the legal organ of DeKalb County, the Code dictated that:

No journal or newspaper 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 delivered to ... paid bona fide subscribers in that county for a period of two years ... and unless 85 percent of [its] circulation ... is paid circulation. 3

On appeal, the News/Era argues that the trial court clearly erred in finding that the Champion had an 85% paid subscription at the time of its designation. Therefore, argues the News/Era, the Champion was ineligible under the statute, as it existed at the time of designation, to serve as DeKalb County's legal organ. We disagree.

The trial court's finding that the Champion satisfied the Code's 85% paid subscription requirement was based upon two convincing pieces of evidence. The first of these was a circulation verification report prepared by an independent professional auditing service that specializes in analyzing circulation figures for community-based publications. The authenticity of the verification report was stipulated to by both parties. That report showed that, at the time of its designation, 89.9% of the Champion's distribution was through paid subscriptions. The second piece of evidence relied upon by the trial court was an audit prepared by the United States Postal Service to determine the Champion's eligibility for second-class mail rates. It, too, showed that more than 85% of the Champion's distribution was through paid subscriptions.

This Court is bound by the trial court's factual findings unless, based upon the evidence of record, those findings are clearly erroneous. 4 Based upon the evidence of record discussed above, it is clear that the trial court's finding that paid subscriptions constituted at least 85% of the Champion's total circulation figures was not clearly erroneous, and we reject the News/Era's contrary assertion. 5

2. Both before and after its amendment, OCGA § 9-13-142(c) provides that:

No change shall be made in the official organ of any county except upon the concurrent action of the judge of the probate court, the sheriff, and the clerk of the superior court of the county or a majority of the officers.

As discussed above, on April 4, 1997, the DeKalb County Sheriff and Superior Court Clerk acted concurrently to designate the Champion as legal organ. Ten days later, the legislature amended section 9-13-142(a)'s eligibility criteria for legal organs to require that, in order to serve as a legal organ, a newspaper must have maintained an 85% paid circulation for at least one year. While that amendment was enacted after the Champion's designation, it also was enacted before the Champion was to commence publishing official legal notices. At the time of its designation, the Champion had maintained an 85% paid circulation for slightly less than four months. The News/Era argues that the amended eligibility criteria for legal organs should be applied retroactively to the Champion's designation, rendering it ineligible to serve as DeKalb County's legal organ, and nullifying its designation as improper. We disagree.

The News/Era bases its argument on this Court's decision in Dollar v. Wind. 6 But a careful reading of that opinion belies the News/Era's reliance. In Dollar, as in this case, the legislature amended the eligibility criteria for legal organs after the Grady County sheriff declared that his office's official notices would be published in a different newspaper, but before the newly-designated paper began publishing legal notices. 7 This Court ruled that the amended eligibility criteria could be applied retroactively to disqualify the newly-designated newspaper.

Unlike this case, though, in Dollar the statutory process for designating a new legal organ was incomplete when the legislature amended the eligibility criteria. The 1895 Code, in effect at the time of Dollar, contained only one provision regarding the official action required to designate a change in legal organs: "No ... officer shall change the advertising connected with his office from one paper to another without first giving notice of his intention to do so in the paper in which his advertisements may have been published." 8 Thus, under the 1895 Code, the Grady County Sheriff's declaration of a change in the county's legal organ carried no legal significance whatsoever. Because the only action required by the 1895 Code to effectuate a change in legal organs--publication notice of the change--had not yet been completed, the Dollar Court treated the sheriff's designation of the new paper as "a mere private declaration of an intention to make a change [in legal organs] in the future." 9 Since there had been no official change made in Grady County's legal organ, the Dollar Court applied the amended statutory criteria to disqualify the newly-designated paper. 10

However, our current Code differs greatly from that in effect at the time of Dollar. Unlike the 1895 Code, our current section 9-13-142 plainly states that a change in a county's legal organ "shall be made ... upon the concurrent action of the judge of the probate court, the sheriff, and the clerk of the superior court, or a majority of the officers." 11 Under our Code, so long as a designated newspaper satisfies the statutory eligibility requirements in existence at the time of designation, 12 the designation of a new paper made by a majority of the responsible county officials "shall" result in a change of legal organs. 13 Hence, unlike the situation in Dollar, the official declaration that a new paper shall serve as...

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1 cases
  • Warren v. Smith
    • United States
    • Georgia Court of Appeals
    • March 23, 2016
    ...construed as a mandatory directive. See Lewis v. State, 283 Ga. 191, 194(3), 657 S.E.2d 854 (2008) ; S. Crescent Newspapers L.P. v. Dorsey, 269 Ga. 41, 45(3), 497 S.E.2d 360 (1998) ; State v. Henderson, 263 Ga. 508, 510, 436 S.E.2d 209 (1993) (“shall” is generally construed as a mandatory d......
1 books & journal articles
  • Local Government Law - R. Perry Sentell, Jr.
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 50-1, September 1998
    • Invalid date
    ...for continuing qualification, "but under the present language of the statute, there simply is no such requirement." Id. 342. Id., 497 S.E.2d at 360. 343. Id. In a second case of the period, Southern Crescent Newspapers v. Dorsey, 269 Ga. 41, 497 S.E.2d 360 (1998), a former legal organ prote......

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