Stone County Publishing, Inc. v. Bill Prout
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CA-02106-COA
STONE COUNTY PUBLISHING, INC. D/B/A
THE TIMES OF STONE COUNTY AND SOUTH
MISSISSIPPI
APPELLANT
v.
BILL PROUT, DARRELL BERRY, DONNA
ROUSE, MIKE CAIN AND THOMAS E. HALL
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
06/20/2007
HON. LISA P. DODSON
STONE COUNTY CIRCUIT COURT
DARREN E. GRAY
REBECCA C. TAYLOR
CIVIL - OTHER
UPHELD DECISION OF THE BOARD OF
ALDERMAN NOT TO ACCEPT BID TO
PUBLISH LEGAL NOTICES
AFFIRMED-06/23/2009
BEFORE MYERS, P.J., GRIFFIS AND ISHEE, JJ.
ISHEE, J., FOR THE COURT:
¶1.
This matter comes before us on appeal from a decision originally made by the Board
of Aldermen of the City of Wiggins (“Board”). Stone County Publishing, Inc. d/b/a The
Times of Stone County and South Mississippi (“Times”) requested that the City of Wiggins
solicit bids from qualified newspapers for the purpose of publishing the city’s legal notices.
The two newspapers that are published in Stone County, the Times and the Stone County
Enterprise (“Enterprise”), each submitted their bids; however, the bid provided by the Times
did not include circulation figures as requested, and the price quoted by the Times was higher
than that which was quoted by the Enterprise. As a result, the Board awarded the contract
to the Enterprise. The Times appealed to the Stone County Circuit Court, which upheld the
Board’s decision. Aggrieved, the Times appealed, asserting that the Board’s failure to
consider the Times’s bid was not in compliance with Mississippi statutory and case law.
Finding no error, we affirm.
FACTS
¶2.
There are two newspapers published in Stone County, Mississippi: the Enterprise and
the Times. The Enterprise has been around for a number of years, and the Times is a newer
publication. The Times had been in existence for nearly two years when, on September 19,
2006, Tim Cain (“Cain”) approached the Board on behalf of the Times asking that they invite
competitive bids from local newspapers for the privilege of publishing legal notices pursuant
to Mississippi Code Annotated section 21-39-3 (Rev. 2007).
¶3.
The following timetable of events was derived from the minutes from the Board’s
meeting. On October 3, 2006, Cain appeared again before the Board and asked that they
advertise with the Times. Before agreeing to do so, the Board asked Cain to provide
circulation figures, which he agreed to do, and the matter was to be put on hold until the
Board received the requested information. Two weeks later, the Mayor of Wiggins informed
the Board that the Times was not going to present its circulation numbers in written form.
This prompted the Board’s attorney to seek an Attorney General’s Opinion for guidance on
the issue of whether “a newspaper seeking to be considered a ‘newspaper qualified to publish
legal notices’ pursuant to Miss. Code Ann. [s]ection 21-39-3 in a municipality must furnish
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the municipality information concerning its general circulation and/or bona fide paying
subscribers pursuant to Miss. Code Ann.[section] 13-3-31(1)(a) and (b)[.]” In an opinion
dated October 27, 2006, the Attorney General replied that municipal authorities could require
newspapers to provide evidence of compliance with the statute. On November 7, 2006, the
Times’s attorney and Cain asked the Board for the Times to be deemed qualified to publish
legal notices. The attorney and Cain were asked by motion to provide “sworn evidence of
the circulation of The Times pursuant to the statutory requirement that a newspaper qualified
to publish legal notices maintains a numerically substantial, geographically widespread,
demographically diversified circulation to bona fide paying subscribers.”
¶4.
The Times and the Enterprise were both given notice on November 15, 2006, that the
Board would be receiving bids on December 5, 2006, for its publication of legal notices.
This included notice that the Board had the right to reject any bid from a newspaper that was
unqualified to publish legal notices pursuant to the statute. The only bids received were
those from the Times and the Enterprise, and the Board found that: (1) the Enterprise
submitted the lower bid, and (2) the Enterprise provided its circulation figures, but the Times
did not. Accordingly, the Board passed the following motion, which the Times would like
to have set aside:
Bill Prout made a motion [that] the Stone County Enterprise publish the
proceedings, ordinances, resolutions and other notices required to be published
for the City of Wiggins and that since The Times of Stone County and South
Mississippi has not provided any circulation information whatsoever to the
Mayor and Board of Aldermen for consideration, its bid not be considered
since no determination can be made as to whether or not the newspaper
complies with [s]ection 13-3-31 or whether it is qualified to publish legal
notices of the City of Wiggins.
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STANDARD OF REVIEW
¶5.
Mississippi Code Annotated section 11-51-75 (Rev. 2002) grants an aggrieved party
the right to appeal a decision of a municipality to the circuit court; however, judicial review
is limited. Gannett River States Publ’g Corp. v. Jackson Advocate, 856 So. 2d 247, 249
(¶10) (Miss. 2003). A decision or order of a municipality will be upheld unless the order was
not supported by substantial evidence, was arbitrary or capricious, was beyond the
municipality’s scope or power, or was in violation of the aggrieved party’s constitutional or
statutory rights. Id. at (¶8). “Likewise, so long as the governing body’s decision is ‘fairly
debatable,’ [appellate courts] are without authority to supplant the municipality’s legislative
action.” Id.
DISCUSSION
¶6.
The Times alleges that the Board’s decision not to consider its bid was “arbitrary,
capricious, not based on substantial evidence and violated [its] statutory rights.” It contends
that the Board failed to consider the Times as required by Mississippi Code Annotated
section 13-3-31 (Supp. 2008) and that no evidence was presented indicating that the Times
was not qualified to publish legal notices. Mississippi Code Annotated section 13-3-31 reads
in pertinent part:
(1)
Whenever it is required by law that any summons, order, citation,
advertisement or other legal notice shall be published in a newspaper
in this state, it shall mean, in addition to any other requirements
imposed by law, publication in some newspaper which:
(a)
Maintains a general circulation predominantly to bona
fide paying subscribers within the political subdivision
within which publication of such legal notice is required.
The term “general circulation” means numerically
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substantial, geographically widespread, demographically
diversified circulation to bona fide paying subscribers. .
..
¶7.
The circuit court found that while the Board would be unable to determine that a
newspaper is unqualified based solely on circulation figures, nothing prohibits the Board
from obtaining and using those figures as a factor in determining whether or not a newspaper
is qualified. If the figures are sufficiently high or low in a particular geographic area, it may
be possible to decide whether or not a newspaper is in general circulation. Therefore, a
request for circulation figures is not arbitrary or capricious.
¶8.
The Board, however, never concluded that the Times was unqualified. To the
contrary, the Board expressly stated in its motion that no determination could be made
whether the Times was qualified or in compliance with section 13-3-31 since it did not
receive any circulation information. The circuit court held that the determining issue in this
case, however, was not that of circulation figures, but it was instead the lower bid submitted
by the Enterprise. We agree.
¶9.
Mississippi Code Annotated section 21-39-3 states, in part, that:
In municipalities in which there is more than one newspaper qualified to
publish legal notices, the governing authorities of such municipality shall enter
into a contract for the publication of its proceedings, ordinances, resolutions,
and other notices required to be published only after inviting competitive bids
from such newspapers. Such contracts shall be let to the lowest bidder among
them for a period of not more than twelve months from the date of such
contract.
(Emphasis added). The statute specifically uses the word “shall,” and “[w]hen used in a
statute, the word ‘shall’ is mandatory . . . [and] eliminat[es] any possible interjections of
judicial discretion.” D.D.B. v. Jackson County Youth Court, 816 So. 2d 380, 383 (¶7) (Miss.
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2002). The Board invited and accepted bids from both the Times and the Enterprise as
required, and both parties agree that the Enterprise submitted the lower bid. Pursuant to the
language of the statute, the Board was required to award the contract to publish legal notices
to the lowest bidder. Therefore, we find that the Board acted in accordance with the statute,
and we affirm the judgment of the Board and the circuit court affirming the Board’s decision
to award the contract to the Enterprise to publish legal notices. This issue is without merit.
¶10. THE JUDGMENT OF THE STONE COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES,
ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.
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