Reed v. Southland Publishing Co.

222 Ga. 523 | Ga. | 1966

Duckworth, Chief Justice.

This is a mandamus action to require the Ordinary, Sheriff and Clerk of the Superior Court of Hall County to cease and desist from designating another newspaper in that county as the official legal organ and to enjoin and restrain them from doing so until the final determination of the case. The petition contains allegations that it is the defendants’ official duty to select a qualified newspaper as the official legal organ, that the law requires that (1) such newspaper must be continuously published and mailed to a list of bona fide subscribers for a period of two years and, (2) 85% of said circulation must be paid subscribers, and that petitioner’s newspaper is the only qualified paper in the county. Demurrers were filed by all the officials, and after a hearing, denied. The three defendants filed separate appeals. Held:

Submitted September 12, 1966 Decided September 22, 1966. Stewart, Sartain ■& Carey, Jack M. Carey, Telford, Wayne & Greer, Jeff C. Wayne, Perry S. Oliver, for appellants. B. Carl Buice, Robinson, Thompson, Buice & Harben, for appellee.

On demurrer all properly pleaded allegations must be accepted as true, and the petition contains allegations of fact which, if true, would be sufficient to show that the newspaper selected does not conform to the requirements of law and that petitioner’s paper is the only qualified one in the county. Code § 39-1101; Code Ann. § 39-1103 (Ga. L. 1953, Nov. Sess., pp. 271, 272); Code § 55-110. Both mandamus and injunction will lie and are available and can be combined in the same case since this is a continuing act of alleged illegality. See Dollar v. Wind, 135 Ga. 760 (70 SE 335); Baggerly v. Bainbridge State Bank, 160 Ga. 556 (128 SE 766); Burt v. Crawford, 180 Ga. 331 (179 SE 82); Heath v. Miller, 197 Ga. 443 (29 SE2d 416). The cases of Tilman v. Thrasher, 61 Ga. 15; Simmons v. Lindsay, 144 Ga. 845 (88 SE 199); Shurley v. Black, 156 Ga. 683 (119 SE 618); and Whigham v. Davis, 92 Ga. 574 (18 SE 548) do not hold otherwise. None of the appeals is meritorious.

Judgment affirmed.

All the Justices concur.