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Great Southern Media Inc. v. McDowell County

Filed: December 1, 1981.

GREAT SOUTHERN MEDIA, INC., AND B. E. FOWLER, PLAINTIFFS
v.
MCDOWELL COUNTY, A BODY POLITIC AND CORPORATE; PAUL RICHARDSON, CHAIRMAN, MCDOWELL COUNTY BOARD OF COMMISSIONERS; GUY L. HENSLEY, VICE CHAIRMAN, MCDOWELL COUNTY BOARD OF COMMISSIONERS; GEORGE G. ELLIS; JANE GREENLEE; AND NED L. MCGIMSEY, MEMBERS. MCDOWELL COUNTY BOARD OF COMMISSIONERS; RONI HALL, MCDOWELL COUNTY TAX COLLECTOR; AND JACK H. HARMON, COUNTY MANAGER, MCDOWELL COUNTY; ALL INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES; AND JAYVEE PUBLISHING COMPANY, A PARTNERSHIP, DEFENDANTS



On appeal pursuant to G.S. 7A-30(2) from a divided panel of the Court of Appeals, Exum, Justice. Justice Meyer concurring in result. Chief Justice Branch joins in the concurring opinion. Justice Carlton dissension. Justice Huskins joins in the dissenting opinion.

Exum

The principal question presented on this appeal is whether The Old Fort Dispatch, a weekly newspaper published in McDowell County, qualifies under the "general circulation" provisions of G.S. 1-597*fn1 and G.S. 105-369(d)*fn2 for publication of notices

of ad valorem tax lien sales. Both Judge Ferrell and a majority of the Court of Appeals (Judges Hedrick and Robert Martin, Judge Clark dissenting) concluded that the newspaper qualified. We agree and affirm the decision of the Court of Appeals.

Plaintiffs published The McDowell News, one of two newspapers published in McDowell County at the time of the incident giving rise to this action. The other one is The Old Fort Dispatch. Until 1979 McDowell County published its tax lien sales notices in The McDowell News. In 1978 The McDowell News raised its rates for such notices from $1.95 per column inch to $2.20 per column inch. Noting that a rate of $1.15 per column inch could be obtained from The Old Fort Dispatch, McDowell County's tax collector and its manager, after consultation with the County Board sitting as the Board of Equalization and Review, determined to publish all of the county's notices of tax lien sales for 1978 delinquent taxes in The Old Fort Dispatch. Pursuant to this determination such notices were published in The Old Fort Dispatch in May 1979. At its 1 June 1979 meeting the County Board unanimously ratified this action.

Plaintiffs, in their capacities as McDowell County taxpayers and as publishers of the only McDowell County newspaper qualified, they contend, to publish tax lien sales notices, bring this action. They seek a judgment declaring invalid the decision of the tax collector and the county manager to publish such notices in The Old Fort Dispatch on the grounds, first, that this newspaper does not meet the "general circulation" provision of G.S. 1-597 and G.S. 105-369(d) and second, that the decision was not duly authorized by the County Board of Commissioners. Plaintiffs also seek to enjoin the county from such actions in the future. Defendants

in their answer allege essentially that The Old Fort Dispatch is a qualified newspaper for the publication of tax lien sales notices and that the decision to use it for such publications was properly made.

After hearing evidence, Judge Ferrell, sitting without a jury and upon full findings of fact, made conclusions of law and entered judgment in favor of defendants. A majority of the Court of Appeals affirmed. For the reasons which follow we agree with the foregoing decisions and affirm the Court of Appeals.

We note first our agreement with the Court of Appeals' conclusion, for the reasons stated in Judge Hedrick's opinion, that the decision to place tax lien sales notices in The Old Fort Dispatch was properly made by the county on the ground either that the county tax collector himself could make this decision or, if he could not, the decision was duly ratified by the Board.

We next conclude that in order to qualify to publish notices of tax lien sales a newspaper must meet the "general circulation" requirements of both G.S. 105-369(d), and G.S. 1-597.*fn3 General Statute 105-369(d) delineates the timing and placement requirements for notices of tax lien sales. These include advertisement at a public place and in a newspaper of general circulation. Section 1-597 sets forth the qualifications a newspaper must possess in order to be a valid medium for publication or advertisement of legal notices generally. One qualification is that it be a newspaper with a "general circulation to actual paid subscribers."

It is a basic principle of statutory construction that different statutes dealing with the same subject matter must be construed {PA}

Page 431} in pari materia and reconciled, if possible, so that effect may be given to each; Justice v. Scheidt, Commissioner of Motor Vehicles, 252 N.C. 361, 113 S.E.2d 709 (1960); Town of Blowing Rock v. Gregorie, 243 N.C. 364, 90 S.E.2d 898 (1956). Clearly the legislature intended that G.S. 1-597 apply to all legal notices required to be published in newspapers. The sweeping, all inclusive nature of the introductory phrases of the statute demonstrate this intent; it provides that "[w]henever a notice . . . shall be authorized or required . . . to be published or advertised in a newspaper, such publication, advertisement or notice shall be of no force and effect unless it shall be published in a newspaper with a general circulation to actual paid subscribers." The "general circulation" provision in G.S. 105-369(d) does not conflict with its counterpart in G.S. 1-597. It simply specifies the geographic area, i.e., "the taxing unit" in which there must be a newspaper of general circulation and the times at which publication must be made. Reading both statutes together and giving effect to each, we conclude that in order for a newspaper to qualify to publish notices of tax lien sales it must be a newspaper of general circulation to actual paid subscribers in the taxing unit.*fn4

Since the taxing unit here is McDowell County the pivotal question becomes whether The Old Fort Dispatch is a newspaper of general circulation to actual paid subscribers in McDowell County.

On this issue the material evidence was fully developed before and the necessary facts found by Judge Ferrell. This evidence and Judge Ferrell's findings are set out at great length in Judge Hedrick's opinion. Essentially they are as follows:

{PA}

Page 432} The Old Fort Dispatch contains items of general interest to persons within and without McDowell County, with its masthead proclaiming its intent to serve Old Fort and McDowell County. It features local news and sports items of county-wide interest, political columns from congressmen and senators, human interest stories, jokes, cartoons, and religious and social news of interest throughout the county. It contains advertising from a great variety of businesses throughout the county. It has regularly published various legal notices since 1976.

The population of McDowell County is approximately 30,000 and in October 1978 there were 15,864 registered voters in the county. Of the registered voters, 11.7 percent live in Old Fort and 52.4 percent live in Marion, which is the county seat located in the eastern portion of the county and about ten miles east of Old Fort. Of the paid subscribers to The Old Fort Dispatch, 77 live in Marion, 33 live on six Marion rural routes, 162 live in Old Fort, 220 live on two Old Fort rural routes, and seven live in other parts of the county. There are 425 paid subscribers who live outside McDowell County.

In addition to copies to paid subscribers some 15 copies of the newspaper are delivered to Marion for sale from newsstands and paper racks and some 285 copies are delivered to Old Fort for similar sales. Approximately 40 to 50 copies are delivered to two newsstands in other areas in the county. All advertisers in The Old Fort Dispatch receive complimentary copies of the paper. This distribution is to a wide range of different businesses, public offices, government agencies, and libraries, in both Old Fort and Marion, the two major population centers. Approximately 330 complimentary copies go to the Marion area. There is substantial free distribution to the public, so that The Old Fort Dispatch customarily prints 1500 copies of its weekly edition. It printed 1700 copies, however, for the editions which contained the tax sale notices.

Plaintiffs contend that because The Old Fort Dispatch is distributed primarily in Old Fort, a town containing only 11.7 percent of the registered voters of the county and, more particularly, because there are only 117 paid subscribers for all of the county outside Old Fort, the newspaper does not meet the "general circulation to actual paid subscribers" criterion. In his dissent Judge

Clark agreed, noting that "the record on appeal indicates a paid circulation of 499 copies, 382 copies in Old Fort Township, and 117 copies in the remainder of the county with 88.3 percent of the population.*fn5 Defendants, on the other hand, argue that because The Old Fort Dispatch has content of interest to the general reader, is available throughout the county to all who wish to subscribe, and has more than a de minimis number of paid subscribers in the county, it satisfies the "general circulation" criterion of the statutes.

Since the meaning of the term "general circulation" is a question of first impression with us,*fn6 we look to decisions in other states construing statutes similar to ours for guidance.*fn7

Cases from our sister jurisdictions make clear that the term "general circulation" when applied to newspapers refers not so much to the numerical or geographic distribution of the newspaper as it does to the contents of the paper itself. The primary consideration is whether the newspaper contains information of general interest. "Whether a newspaper is one of general circulation is a matter of substance, and not of size." Burak v. Ditson, 209 Iowa 926, 929, 229 N.W. 227, 228 (1930). Recognizing that "every newspaper is, in greater or less[er]

degree, devoted to some special interest," Lynn v. Allen, 145 Ind. 584, 587, 44 N.E. 646, 647 (1896), the courts have examined the content of the newspaper to determine if its avowed purpose, manifested by its actual content, is to attract and serve more than a particular class or calling in the community. As summarized in Burak v. Ditson, supra, 209 Iowa at 930, 229 N.W. at 228:

"A study of the decisions bearing on the question before us suggests the following criteria: First, that a newspaper of general circulation is not determined by the number of its subscribers, but by the diversity of its subscribers. Second, that, even though a newspaper is of particular interest to a particular class of persons, yet, if it contains news of a general character and interest to the community, although the news may be limited in amount, it qualifies as a newspaper of 'general circulation.'" (Citations omitted.)

Thus, courts have deemed a number of newspapers to be ones of general circulation because they contained news of general interest, despite their primary appeal to a particular group in the community. For example, in Burak, the paper specialized in news of legal matters but contained some general information. Its subscribers numbered between four and five hundred and included "[a]ttorneys, automobile dealers, repair shops . . . wall paper companies, ...


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