Great Southern Media, Inc. v. McDowell County

HEDRICK, Judge. Plaintiffs, by their first and third assignments of error, contend that the trial court erred in admitting evidence of the unpaid distribution of The Old Fort Dispatch and in relying upon such evidence in its findings of fact and conclusions of law. Plaintiffs argue that G.S. §§ 1-597 and 105-369(d) require that the newspaper publishing the notice of the tax lien sale must be one of “general circulation to actual paid subscribers,” and that any evidence as to unpaid distribution or non-paid subscribers is therefore irrelevant to the determination of whether The Old Fort Dispatch satisfied the requirements of those statutes. While we agree that evidence of unpaid distribution might be irrelevant, we do not agree that the court relied upon such evidence in its findings and conclusions, and thus plaintiffs were not prejudiced thereby. G.S. § 1-597 in pertinent part provides: Whenever a notice or any other paper, document or legal advertisement of any kind or description shall be authorized or required by any of the laws of the State of North Carolina, heretofore or hereafter enacted ... 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 which' newspaper at the time of such publication, advertisement or notice, shall have been admitted to the United States mails as second class matter in the county or political subdivision where such publication, advertisement — 717 — or notice is required to be published, and which shall have been regularly and continuously issued in the county in which the publication, advertisement or notice is authorized or required to be published, at least one day in each calendar week for at least twenty-five of the twenty-six consecutive weeks immediately preceding the date of the first publication of such advertisement, publication or notice;... G.S. § 105-369(d) in pertinent part provides: Notice of the time, place, and purpose of the tax lien sale shall be given by advertisement at some public place at the courthouse (in the case of county taxes) . . . and by advertisement once each week for four successive weeks preceding the sale in one or more newspapers having general circulation in the taxing unit.... We note at the outset that G.S. § 105-369(d), the statute most specifically designed to the instant situation, refers only to newspapers of “general circulation in the taxing unit,” while G.S. § 1-597, a more general statute, refers to newspapers “with a general circulation to actual paid subscribers.” When two statutes deal with the same subject matter, the statute which is addressed to a specific aspect of the subject matter takes precedence over the statute which is general in application unless the General Assembly intended to make the general statute controlling. In re Greene, 297 N.C. 305, 255 S.E.2d 142 (1979). In our view, the legislature intended to make G.S. § 1-597 controlling here, especially in light of the fact that the reference to “general circulation” was added to G.S. § 105-369(d) subsequent to the enactment of G.S. § 1-597. A newspaper publishing notices of tax lien sales must therefore be one with a “general circulation to actual paid subscribers.” Plaintiffs’ contentions are based upon two exceptions. Exception No. 1 is set out in the record as follows: Q. Now then, would you state to the Court whether or not copies of The Old Fort Dispatch are distributed to other locations in McDowell County for distribution other than sale? OBJECTION, as to the relevancy of non-paid distribution. — 718 — COURT: Overruled. Exception No. 8 was made to the following finding of fact made by the court: (13) The approximate total circulation of The Old Fort Dispatch in the Marion area each week, both through sales and through free distribution, is 345. The statute clearly states that the newspaper publishing the notice must have a general circulation to its actual paid subscribers. Even if the evidence admitted as to non-paid subscribers, upon which the challenged finding is partially based, was declared to be irrelevant, that holding would not make any difference in the instant case since the court also made the following findings, which in turn were based upon competent evidence in the record as to the existence of actual paid subscribers: (4) The Old Fort Dispatch has actual paid subscribers in McDowell County, North Carolina. (5) Actual paid subscribers of The Old Fort Dispatch, who receive their copies of said newspaper by mail, live on all ten (10) rural postal routes in McDowell County. (6) Actual paid subscribers of The Old Fort Dispatch receive their copies by mail at city addresses through all three post offices in McDowell County and at street addresses in both of the incorporated towns within McDowell County, as follows: 162 businesses and individuals in Old Fort, North Carolina; 4 individuals in Nebo, North Carolina; and 77 businesses and individuals in Marion, North Carolina. These findings are sufficient in our view to support the court’s conclusion with respect to actual paid subscribers. Plaintiffs have failed to show any prejudicial error, and these assignments of error are without merit. Plaintiffs next contend, based upon their fifth and tenth assignments of error, that the court erred in concluding as a matter of law that The Old Fort Dispatch was a newspaper with a general circulation in McDowell County to actual paid subscribers and therefore qualified to publish the 1979 notice of the tax lien sale. We do not agree. — 719 — Neither the General Statutes nor the courts of this State have addressed the meaning of the phrase “general circulation.” Courts in other jurisdictions, however, when faced with the lack of a statutory definition, have explained this phrase in the following ways: A newspaper of general circulation is a publication to which the general public would resort in order to be informed of the news and intelligence of the day, editorial opinions, and advertisements, and thereby to render it probable that the “notice” would be brought to the attention of the general public. In re Herman, 183 Cal. 153, 191 P. 934 (1920). See also Wahl v. Hart, 85 Ariz. 85, 332 P.2d 195 (1958). Whether a newspaper is one of general circulation is not determined merely by the number of its subscribers, but by the diversity of those subscribers, and even if the newspaper is of particular interest to a particular class of persons, if it contains news of a general character and interest to the community, although that news may be limited in amount, the newspaper qualifies as one of general circulation. Burak v. Ditson, 209 Iowa 926, 229 N. W. 227 (1930). It is not required that the newspaper be one that is read by all the people in the county or district, Lynn v. Allen, 145 Ind. 584, 44 N.E. 646 (1896), nor is it required that it reach all the voters in the district, as long as it is reasonably calculated to give notice to the persons affected. Barrett v. Cuskelly, 52 Misc. 2d 250, 275 N.Y.S.2d 280 (1966), aff'd, 28 A.D.2d 532, 279 N.Y.S.2d 380 (1967). See, generally, 66 C.J.S. Newspapers § 4; 58 Am. Jur. 2d Newspapers, Periodicals, and Press Associations § 7. We have already established that the court made sufficient findings relative to The Old Fort Dispatch having actual paid subscribers in McDowell County. With respect to the Dispatch having a general circulation to these actual paid subscribers, the court made, in addition to the findings discussed heretofore, the following pertinent findings: (17) The nature of the categories of items regularly contained within The Old Fort Dispatch include the following: current event news items that deal with Old Fort, McDowell County, and Marion; sports items that deal with teams from Old Fort, from McDowell County and from Marion; political columns from U.S. congressman and U.S. Senator Helms; religious items; social news of Old Fort, McDowell County, and Marion; historical features, including old pictures of persons and places in — 720 — McDowell County under the heading of “Shades of Yesterday”; human interest features; general and miscellaneous features; humorous items, including jokes and cartoons; legal notices; classified advertisements; commercial advertising from businesses in and around Old Fort, businesses from various places in McDowell County, businesses in and around Marion, and businesses from outside McDowell County; public service announcements, including full page promotional advertisements for the McDowell County United Way Campaign, United States Savings Bonds, etc.; commercial news; and agricultural news. (18) Several lawyers from McDowell County, North Carolina, have caused to be published various legal notices in The Old Fort Dispatch.... (19) Legal notices have also been sent to The Old Fort Dispatch for publication and such notices have actually been published for the following non-lawyers: The North Carolina Department of Transportation, Western Carolina Telephone Company, Duke Power Company, the Sheriff of McDowell County, and non-lawyer individuals serving as executors and administrators of descendant estates. (26) The areas of McDowell County, North Carolina having the greatest circulation of The Old Fort Dispatch Newspaper are the same which contain 72.6% of the registered voters of McDowell County, using figures of October, 1978. (27) The population of McDowell County is 30,000. (29) The masthead of The Old Fort Dispatch reads in part “Proudly serving Old Fort and McDowell County, North Carolina.” These findings, supported by competent evidence, indicate the following: The Old Fort Dispatch has actual paid subscribers in all parts of McDowell County; The Old Fort Dispatch contains a wide — 721 — variety of news items and advertisements of importance to all citizens of McDowell County; The Old Fort Dispatch is not intended to serve any particular class of persons, and although the newspaper is published in Old Fort, the Dispatch does not merely cover items of interest to the Old Fort community; and the paid distribution of the Dispatch covers an area containing the bulk of the county’s registered voters. These findings, in our view, provide sufficient support for the conclusion that The Old Fort Dispatch is a newspaper with a general circulation in McDowell County to actual paid subscribers. While we realize that the court made other findings, especially in relation to the distribution of The Old Fort Dispatch for sale at various businesses throughout McDowell County and the free distribution of the newspaper to customers at other businesses, which would indicate a wider circulation of the Dispatch, such findings are not necessary to the conclusion that the Dispatch has a “general circulation to actual paid subscribers” and are therefore mere surplusage. We also realize that the number of actual paid subscribers of the Dispatch is small relative to the number of citizens of McDowell County; however, more specificity with respect to the minimum number of actual paid subscribers required for a newspaper to be of “general circulation” is a matter for the legislature and not for the courts. We are also of the view that the court made sufficient findings, based upon competent evidence, to support its conclusion that The Old Fort Dispatch meets the other requirements of G.S. §§ 1-597 and 105-369(d) and therefore the Dispatch was qualified to publish the notice of McDowell County’s 1979 tax lien sale. These assignments of error are without merit. Plaintiffs lastly contend, based on their sixth, seventh, eighth, and tenth assignments of error, that the trial court erred in concluding as a matter of law that the action of the county in authorizing publication of tax lien sale notices in The Old Fort Dispatch was proper and lawful. Plaintiffs argue that such an authorization could not lawfully be made by the county without formal action by the Board of County Commissioners in a public meeting, and since such formal action was not taken prior to the first publication of the tax lien sale notice in the Dispatch, the board acted unlawfully in contracting with the Dispatch for the publication. We disagree. — 722 — G.S. § 105-369(a) in pertinent part provides: On the first Monday in February in each year, each county tax collector . . . shall report to the governing body the total amount of unpaid taxes for the current fiscal year that are liens on real property, and the governing body shall thereupon order the tax collector to sell such tax liens at one of the times specified in subsection (b).... G.S. § 105-369(b) in pertinent part provides: “The county tax lien sale shall be held on the first Monday in March, April, May, or June . ...” G.S. § 105-369(d) in pertinent part provides: “Notice of the time, place, and purpose of the tax lien sale shall be given ... by advertisement once each week for four successive weeks preceding the sale in one or more newspapers having general circulation in the taxing unit....” G.S. § 105-350 in pertinent part provides: “It shall be the duty of each tax collector: (1) To employ all lawful means to collect all property ... taxes with which he is charged by the governing body The unchallenged findings show that the decision to publish the tax lien sale notice in The Old Fort Dispatch was made by defendant Hall, the county tax collector, and defendant Harmon, the county manager, who had discussed the matter informally with the McDowell County Board of Commissioners. As a result of this decision, an oral contract was made with The Old Fort Dispatch for publication of the notice. When he decided, along with the county manager, that the notice was to be published in the Dispatch, and then orally contracting for the publication, the county tax collector was merely performing one of the incidental and administrative duties associated with his carrying out the Board’s directive pursuant to G.S. § 105-369(a) as to handling the sale of tax liens. Assuming arguendo that formal action by the county commissioners was necessary with respect to authorizing the publication of the tax lien sale notice in The Old Fort Dispatch, the action of the Board at its 1 June 1979 meeting ratifying the actions taken by the county tax collector would satisfy that requirement. The court properly concluded, based on the findings, that the county’s actions were proper and lawful, and these assignments of error are without merit. — 723 — The decision of the trial court is Affirmed. Judge MARTIN (Robert M.) concurs. Judge CLARK dissents.