GA Code § 9-13-142 (2021)
2021 Georgia Code|Title 9 - Civil Practice|Chapter 13 - Executions and Judicial Sales|Article 7 - Judicial Sales|Part 1 - Advertisement|§ 9-13-142. Requirements for Official Organ of Publication; Designation Where No Journal or Newspaper Qualifies; How Official Organ Changed; Notice to Secretary of State

  No journal or newspaper published in this state shall be declared, made, or maintained as the official organ of any county for the publication of sheriff's sales, citations of probate court judges, or any other advertising commonly known in terms of "official or legal advertising" and required by law to be published in such county official newspaper unless the newspaper shall meet and maintain the following qualifications:   "Newspaper" as used in this Code section means a printed product of multiple pages containing not greater than 75 percent advertising content in no more than one-half of its issues during the previous 12 months, excluding separate advertising supplements inserted into but separately identifiable from any regular issue or issues of the newspaper;   The newspaper shall be published within the county and continuously at least weekly for a period of two years or is the direct successor of such a newspaper. Failure to publish for not more than two weeks in any calendar year shall not disqualify a newspaper otherwise qualified;   For a period of two years prior to designation and thereafter, the newspaper shall have and maintain at least 75 percent paid circulation as established by an independent audit. Paid circulation shall not include newspapers that are distributed free or in connection with a service or promotion at no additional charge to the ultimate recipient. For circulation to be considered paid, the recipient of the newspaper or such recipient's employer or household must pay reasonable and adequate consideration for the newspaper. No rules of circulation of audit companies, the United States Postal Service, or accounting principles may be considered in determining paid circulation if they are inconsistent with the provisions of this subsection;   Based on the published results of the 1990 United States decennial census or any future such census, the newspaper shall have and maintain at least the following paid circulation within the county for which it is designated as the legal organ newspaper:   Five hundred copies per issue in counties having a population of less than 20,000;   Seven hundred fifty copies per issue in counties having a population of at least 20,000 but less than 100,000; or   One thousand five hundred copies per issue in counties having a population of 100,000 or greater; and     For purposes of this Code section, paid circulation shall include home or mail delivery subscription sales, counter, vendor and newsrack sales, and sales to independent newspaper contract carriers for resale. Paid circulation shall not include multiple copies purchased by one entity unless the multiple copies are purchased for and distributed to the purchaser's officers, employees, or agents, or within the purchaser's household.     However, in counties where no journal or newspaper meets the qualifications set forth in subsection (a) of this Code section, the official organ may be designated by the judge of the probate court, the sheriff, and the clerk of the superior court, a majority of these officers governing from among newspapers otherwise qualified to be a legal organ that meet the minimum circulation in the preceding subsection for the county, or if there is no such newspaper, then the newspaper having the greatest general paid circulation in the county.   Any selection or change in the official organ of any county shall be made 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. No change in the official legal organ shall be effective without the publication for four weeks of notice of the decision to make a change in the newspaper in which legal advertisements have previously been published. All changes in the official legal organ shall be made effective on January 1 unless a change has to be made where there is no other qualified newspaper.   Notwithstanding the other provisions of this Code section, an official organ of any county meeting the qualifications under the statute in force at the time of its appointment and which was appointed prior to July 1, 1999, may remain the official organ of that county until a majority of the judge of the probate court, the sheriff, and the clerk of the superior court determine to appoint a new official organ for the county.   During the month of December in each year, the judge of the probate court of each county shall notify the Secretary of State, on a form supplied by the Secretary of State, of the name and mailing address of the journal or newspaper currently serving as the official organ of the county. The judge of the probate court shall also likewise notify the Secretary of State of any change in the official organ of the county at the time that such change is made. The Secretary of State shall maintain at all times a current listing of the names and addresses of all county organs and shall make such list available to any person upon request.    (Laws 1850, Cobb's 1851 Digest, p. 580; Code 1863, § 3577; Code 1868, § 3600; Code 1873, § 3650; Code 1882, § 3650; Civil Code 1895, § 5460; Ga. L. 1910, p. 87, § 1; Code 1910, § 6065; Code 1933, §§ 39-1103, 39-1107; Ga. L. 1953, Nov.-Dec. Sess., p. 271, § 1; Ga. L. 1989, p. 1248, § 1; Ga. L. 1992, p. 1035, § 1; Ga. L. 1997, p. 528, § 1; Ga. L. 1999, p. 6, § 2.)   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 1999, in subsection (a), punctuation was revised at the end of paragraphs (a)(1) through (a)(3), "United States" was substituted for "U.S." in paragraph (a)(3), and "; and" was substituted for a period at the end of subparagraph (a)(4)(C); and a comma was inserted in subsections (d) and (e).   Law reviews.   - For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 13 (1997). For note discussing procedures governing execution sales and the application of the proceeds of the sales, see 12 Ga. L. Rev. 814 (1978).   JUDICIAL DECISIONS    Continuous-publication requirement was intended as evidence of stability that newspaper ought to have before it could enjoy the status of a legal gazette which must carry legal advertisements that affect the lives and property of citizens of this state. This statutory purpose is subserved if the newspaper does in fact have 85 percent paid circulation at the time of the newspaper's designation as an official legal organ, and not necessarily by an 85 percent paid circulation of a two year duration. Williams v. Athens Newspapers, Inc., 241 Ga. 274, 244 S.E.2d 822 (1978).   Duties of designating officials.    - Officials charged with designating a newspaper as an official organ were not required to ensure that the newspaper met the statutory requirements at the time of the annual report to the Secretary of State. Atlanta Journal v. Clarke, 269 Ga. 33, 497 S.E.2d 358 (1998).   Publication ordinance not a prior restraint.    - Requirement that applicants had to "advertise" in the legal gazette was not a prior restraint in violation of the First Amendment; thus, the city's current zoning and adult entertainment ordinance was valid as the ordinance placed no time limits on when the paper had to run the advertisements and no repercussions if the paper failed to run the advertisement in a timely manner. Further, the legal organ of the county published public notices or advertisements as a matter of course and had certain restrictions placed on it pursuant to O.C.G.A. § 9-13-142. Augusta Video, Inc. v. Augusta-Richmond County, F.3d (11th Cir. Sept. 6, 2007)(Unpublished).   Newspapers to which section applicable.    - This section applies alike to newspapers published in county and those nearest county having largest or general circulation therein. McGinty v. Chambers, 182 Ga. 341, 185 S.E. 513 (1936).   Publication in county newspaper where county has newspaper.    - Newspaper selected as official organ must be published in county, if at time of selection a newspaper is published in the county. Dooly v. Gates, 194 Ga. 787, 22 S.E.2d 730 (1942).   Subscriber list requirements.    - O.C.G.A. § 9-13-142 requires that the subscribers be legitimate subscribers who have paid adequate consideration for their subscriptions and who regularly receive the publication, not persons fraudulently listed by the newspaper who have not actually purchased subscriptions or whose subscriptions were paid for by the newspaper to inflate the newspaper's subscriber list. Community Newspapers, Inc. v. Baker, 198 Ga. App. 680, 402 S.E.2d 545 (1991).   Distribution.    - Under O.C.G.A. §§ 9-13-140 and9-13-142, there exists no requirement that a journal or newspaper must in fact be distributed to the public "as a whole" in order for the advertisement to be deemed legally and sufficiently published. Sparti v. Joslin, 230 Ga. App. 346, 496 S.E.2d 490 (1998).   "Change" construed.    - Mere private declaration of an intention to make a change in the future, or an agreement with a publisher that at some future time a change should be made, was not a completed change within the provisions of this section. Dollar v. Wind, 135 Ga. 760, 70 S.E. 335 (1911) (but see Southern Crescent Newspapers L.P. v. Dorsey, 269 Ga. 41, 497 S.E.2d 360 (1998)).    Interpretation of word "successor" as used in this section is question of law. New Era Publishing Co. v. Guess, 231 Ga. 250, 201 S.E.2d 142 (1973).   Newspapers jointly serving as official medium.    - There is no provision of law authorizing two newspapers to be jointly designated as official medium for a county's legal advertisements. Rish v. Clements, 21 Ga. App. 287, 94 S.E. 318 (1917).    Newspaper need not be mechanically printed in county the newspaper serves as official organ. Southeastern Newspapers Corp. v. Griffin, 245 Ga. 748, 267 S.E.2d 21 (1980).    Requirement that newspaper have 85 percent paid circulation rate applies to newspaper chosen and not the newspaper's predecessor before merger which must have only been continuously published and mailed to a list of subscribers for two years. Southeastern Newspapers Corp. v. Griffin, 245 Ga. 748, 267 S.E.2d 21 (1980).   Statutory circulation rate requirement.    - Newspaper failed to statutorily qualify to serve as official legal organ of a county when the newspaper's circulation had fallen below 75 percent paid circulation for approximately 6 months out of the 2-year period prior to designation. Henry County Record, Inc. v. Cmty. Newspaper Holdings, Inc., 274 Ga. 353, 554 S.E.2d 150 (2001).    Newspaper's failure to publish during Christmas week for previous two years does not disqualify the newspaper under this section from being the legal organ of a county. Williams v. Athens Newspapers, Inc., 241 Ga. 274, 244 S.E.2d 822 (1978).   Challenge by competitor.    - Competing publication could not challenge the status of a legal organ on the ground that the newspaper's paid circulation had dropped below the statutory requirement. Atlanta Journal v. Clarke, 269 Ga. 33, 497 S.E.2d 358 (1998).   When newspaper published outside county preferred.    - Journal or newspaper which has been published and mailed to a bona fide list of subscribers for a period of 20 years, and which for a like period of time has published the official and legal advertisements of the county, though such journal or newspaper be not published in the county, is the official organ of the county, and has a legal right to publish the official and legal advertisements in preference to one which has not been continuously published and mailed to a bona fide list of subscribers for a period of two years, even though such latter journal or newspaper be published in the county. McGinty v. Chambers, 182 Ga. 341, 185 S.E. 513 (1936).   Newspaper headquartered in another state not published within the county.    - County officials' decision under O.C.G.A. § 9-13-142 to change the county's legal organ to a newspaper that was headquartered across the state line in Tennessee was properly enjoined by the trial court because the paper was edited, formatted, and issued in Tennessee; it was not "published within the county" as required by § 9-13-142(a). Catoosa County v. Rome News Media, LLC, 349 Ga. App. 123, 825 S.E.2d 507 (2019).   Change in statutory criteria.    - Because the newspaper satisfied the statutory criteria required of legal organs at the time the newspaper was appointed, and the designation process was complete when the criteria was amended in 1997, the amended criteria was inapplicable to the newspaper's designation. Southern Crescent Newspapers v. Dorsey, 269 Ga. 41, 497 S.E.2d 360 (1998).    Cited in Champion Box Co. v. Manatee Crate Co., 75 F.2d 340 (5th Cir. 1935); Georgia Cracker v. Hesters, 193 Ga. 706, 20 S.E.2d 7 (1942); Dooly v. Gates, 194 Ga. 787, 22 S.E.2d 730 (1942); Reed v. Southland Publishing Co., 222 Ga. 523, 150 S.E.2d 817 (1966).   OPINIONS OF THE ATTORNEY GENERAL    No date is specified upon which choice of organ shall be made,  and a record should be kept of the meeting at which this is done. 1948-49 Op. Att'y Gen. p. 469.   Changing of organ allowed.   - Ordinary (now probate judge), clerk, and sheriff may change official organ during year. 1948-49 Op. Att'y Gen. p. 469.   Publication in currently constituted county official organ.   - County commissioner must publish official tax levy in currently constituted county official organ. 1948-49 Op. Att'y Gen. p. 470.   Size of circulation irrelevant in choice of official newspaper.   - When two journals or newspapers circulate generally in a county, and both meet the statutory requirements, thereby qualifying for selection as the official organ of the county, the officials, who are designated to select which journal or newspaper shall be the official organ, are not bound by statute to base their selection upon the size of circulation, but are free to choose either. 1960-61 Op. Att'y Gen. p. 311.   Circulation requirement.   - Official organ for publication of legal advertising must continually have paid circulation of 85 percent. 1962 Op. Att'y Gen. p. 68.   Independent audit must show that a proposed new legal organ has had an 85% paid circulation rate for the 12 months prior to the newspaper being declared the county's official legal organ. 1997 Op. Att'y Gen. No. U97-14.   Concurrent designation of county organ.   - Ordinary (now probate judge), sheriff, and clerk of superior court have authority to concurrently designate county organ, should it become necessary. 1968 Op. Att'y Gen. No. 68-181.   Newspaper may be mechanically printed outside county.    - Bona fide county newspaper which was otherwise qualified under former Code 1933, §§ 39-1101 through 39-1103 and 39-1107 (see now O.C.G.A. §§ 9-13-140 and9-13-142) may be chosen as the official organ of the county even if the newspaper is mechanically printed outside of the county. 1973 Op. Att'y Gen. No. U73-15.    County newspaper may be selected by Constitutional Amendments Publications Board  for publishing of general constitutional amendments as provided in former Ga. Const. 1976, Art. XIII, so long as this newspaper is designated as the "official organ of that county." 1976 Op. Att'y Gen. No. 76-71.   Official publisher may maintain action against official required to publish legal notices.   - For a newspaper which has been properly selected as the official organ of a county, the publisher of that newspaper may maintain an action against the sheriff, the probate judge, or other governmental officers who are required to publish legal or official advertising in a county's official newspaper. 1979 Op. Att'y Gen. No. U79-25.    All advertisements mandated by law are not required to be published  in official organ of a county. 1979 Op. Att'y Gen. No. U79-25.   RESEARCH REFERENCES   Am. Jur. 2d.   - 47 Am. Jur. 2d, Judicial Sales, § 28 et seq. 58 Am. Jur. 2d, Newspapers, Periodicals, and Press Associations, §§ 34, 36, 38, 41, 48.   C.J.S.   - 50A C.J.S., Judicial Sales, § 14 et seq.   ALR.    - Necessity that newspaper be published in English language to satisfy requirements regarding publication of legal or official notice, 90 A.L.R. 500.   What constitutes newspaper of "general circulation" within meaning of state statutes requiring publication of official notices and the like in such newspaper, 24 A.L.R.4th 822.   Application of requirement that newspaper be locally published for official notice publication, 85 A.L.R.4th 581.