Great Southern Media, Inc. v. McDowell County

275 S.E.2d 226, 50 N.C. App. 705, 1981 N.C. App. LEXIS 2194
CourtCourt of Appeals of North Carolina
DecidedMarch 3, 1981
DocketNo. 8029SC540
StatusPublished

This text of 275 S.E.2d 226 (Great Southern Media, Inc. v. McDowell County) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Great Southern Media, Inc. v. McDowell County, 275 S.E.2d 226, 50 N.C. App. 705, 1981 N.C. App. LEXIS 2194 (N.C. Ct. App. 1981).

Opinions

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]*717or 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]*718COURT: 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]*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.

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Related

Wahl v. Hart
332 P.2d 195 (Arizona Supreme Court, 1958)
In Re Herman
191 P. 934 (California Supreme Court, 1920)
Burak v. Ditson
229 N.W. 227 (Supreme Court of Iowa, 1930)
Barrett v. Cuskelly
52 Misc. 2d 250 (New York Supreme Court, 1966)
Barrett v. Cuskelly
28 A.D.2d 532 (Appellate Division of the Supreme Court of New York, 1967)
In re Greene
255 S.E.2d 142 (Supreme Court of North Carolina, 1979)
Lynn v. Allen
44 N.E. 646 (Indiana Supreme Court, 1896)

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Bluebook (online)
275 S.E.2d 226, 50 N.C. App. 705, 1981 N.C. App. LEXIS 2194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/great-southern-media-inc-v-mcdowell-county-ncctapp-1981.