Williams v. Athens Newspapers, Inc.

• Decision Date: 04 April 1978
• Docket Number: Nos. 33230,33283,s. 33230
• Citation: 241 Ga. 274,244 S.E.2d 822
• Parties: Larry K. WILLIAMS, Sheriff, et al. v. ATHENS NEWSPAPERS, INC., et al. ATHENS NEWSPAPERS, INC., et al. v. Larry K. WILLIAMS, Sheriff, et al.
• Court: Georgia Supreme Court

Page 822

244 S.E.2d 822

241 Ga. 274

Larry K. WILLIAMS, Sheriff, et al. v.ATHENS NEWSPAPERS, INC., et al.

ATHENS NEWSPAPERS, INC., et al. v.Larry K. WILLIAMS, Sheriff, et al.

Nos. 33230, 33283.

Supreme Court of Georgia.

April 4, 1978.

Rehearing April 25, 1978.

Griffeth, Henry & Marshall, David W. Griffeth, Rupert A. Brown, Athens, for Williams et al.

Larry V. McLeod, Gary B. Blasingame, Erwin, Gibson & McLeod, Rupert A. Brown, Darrel Begnaud, M. Steven Heath, Athens, for Athens Newspapers, Inc. et al.

MARSHALL, Justice.

In the present casewe are asked to determine whether "The Athens Observer," published by the Athens Observer, Inc., one of the defendants herein, is qualified under Code Ann. § 39-1103(Ga.L.1910, p. 87;1953, Nov. Sess., pp. 271, 272) to be the official legal organ of Clarke County. Code Ann. § 39-1103 provides, "No journal or newspaper published in this State shall be declared or made the official organ of any county for the publication of sheriff's sales, judge of the probate court's citations or any other advertising commonly known and termed 'official or legal advertising' and required by law to be published in such county official newspaper, unless such newspaper shall have been continuously published and mailed to a list of bona fide subscribers for a period of two years, or is the direct successor of such journal or newspaper, and unless 85 per cent of the circulation of such newspaper or journal is paid circulation.No change shall be made in the official organ of any county except upon the concurrent action of the judge of the probate court, sheriff and clerk of the superior court of said county or a majority of said officers: Provided, that in counties where no journal or newspaper has been established for two years the official organ may be designated by the judge of the probate court, sheriff and clerk of the superior court, a majority of these officers governing."What do the continuous-publication and 85-percent-paid-circulation requirements of the statute mean?These are the questions for decision.

"The Athens Daily News," which is published by Athens Newspapers, Inc., had been the official legal organ of Clarke County since 1966.By order dated September 1, 1977, the Sheriff of Clarke County, Larry Williams, who is one of the defendants in this case, and the Probate Judge of Clarke County, Margaret Hartman, another of the defendants, filed with the Clerk of the Superior Court of Clarke County, King Crawford, an order designating "The Athens Observer" as the official legal organ of the county, effective January 1, 1978.These county officers testified that after determining that "The Athens Observer" was qualified under Code Ann. § 39-1103, they decided to make the "Observer" the county's official legal organ, primarily because the "Observer" is locally owned and the "Daily News" is not.

As found by the trial court, "The Athens Observer" was first published on January 3, 1974, as a free weekly newspaper, except for a small number of paid subscribers.Beginning February 5, 1976, the "Observer" began to charge 10cents for each copy of the paper.It was stipulated at trial that the paid circulation of the "Observer" was less than 85 percent prior to February 5, 1976.The trial court found that "The Athens Observer" did not have 85 percent average paid circulation for the two-year period prior to September 1, 1977.However, an auditor employed by the Audit Bureau of Circulation testified that the paid circulation for the September 1, 1977, issue of the "Observer" was 97.8 percent.This testimony was not contradicted either by other testimony or by the trial judge's findings.

The trial court also found that the "Observer" was not published during the weeks of August 22 and August 29, 1974.Nor was the "Observer" published during the weeks of Christmas in 1974, 1975 and 1976, at which time employees of the paper were given customary Christmas vacations.

On September 22, 1977, Athens Newspapers, Inc., filed the complaint in this case against the Sheriff of Clarke County, the Judge of the Probate Court of Clarke County, the Clerk of the Superior Court of Clarke County, and Athens Observer, Inc.The complaint alleged that the "Observer" was not qualified under Code Ann. § 39-1103 to be the official legal organ of Clarke County.The complaint prayed that the court, through issuance of the writ of mandamus, direct the sheriff, probate judge, and clerk of superior court, or a majority of these officials, to rescind the order designating "The Athens Observer" as the official legal organ.The complaint also prayed that "The Athens Observer" be enjoined from holding itself out as the official organ.

Following waiver of trial by jury by the parties, the superior court rendered a judgment in which it concluded that "The Athens Observer" had met the requirement of Code Ann. § 39-1103 of being continuously published for a period of two years, despite the small suspensions for Christmas vacations and otherwise.The trial court ruled that if the General Assembly had intended to require publication of the county's legal organ for consecutive weeks during the two-year period, the General Assembly would have so stated, citing in comparison the following cases from other jurisdictions: City of Plainfield v. Courier-News, 72 N.J. 171, 369 A.2d 513(1976);State v. Proctor, Mo., 361 S.W.2d 802(1962);In re Christensen, 104 Cal.App.2d 375, 231 P.2d 152(1951);Board of Commissioners of Decatur County v. Greensburg Times, 215 Ind. 471, 19 N.E.2d 459(1939).

The trial court ruled that, in order to make sense, the provision of Code Ann. § 39-1103 requiring 85 percent. of the circulation of the legal organ to be paid circulation requires 85 percent. paid circulation for the two-year period required for continuous publication.As a result, the court ruled that "The Athens Observer" was not qualified under the statute to be the official legal organ for Clarke County.

The trial court granted the mandamus and injunctive relief prayed for by the plaintiff.The court further ordered that the "Daily News" continue to be the official legal organ of Clarke County pending a proper designation of a newspaper qualified to be the county's legal organ.The trial court also ruled that defendantKing Crawford, Clerk of Clarke Superior Court, had committed no act or omitted to do any act which would subject him to any relief sought by the plaintiff, and a judgment was entered in his favor.

The sheriff, the probate judge, and "The Athens Observer" appeal, arguing that under Code Ann. § 39-1103 a newspaper sought to be designated as the official legal organ of a county is only required to have 85 percent. paid circulation on the date of its designation.

The "Daily News" cross appeals, arguing that the trial court erred in finding that "The Athens Observer" met the requirement of Code Ann. § 39-1103 of having been continuously published for a period of two years.The "Daily News" also enumerates error upon the grant by the trial court of the superior court clerk's motion to dismiss.Held :

1.The trial court erred in ruling that under Code Ann. § 39-1103, a newspaper sought to be designated as the official legal organ of a county must have 85 percent. paid circulation for the two-year period prior to its designation.

The trial court premised this construction of the paid-circulation requirement of Code Ann. § 39-1103 on the following rule of statutory construction: "In all interpretations, the courts shall look diligently for the intention of the General Assembly, keeping in view, at all times,...