ENROLLED
COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 554
(Senators Sharpe, Minard, Ross, Wooton, Anderson, Oliverio, Burnette, Sprouse, Minear, Kessler, Fanning, Snyder, Caldwell, Mitchell, Helmick, Edgell, Unger, McCabe, Plymale, Craigo, Prezioso, Bowman, Jackson, Bailey, Hunter, Rowe, Love, McKenzie,
Tomblin, Mr. President, and Chafin, original sponsors)
___________
[Passed March 7, 2002; in effect ninety days from passage.]
___________

AN ACT to amend and reenact section twenty-three, article thirteen, chapter eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact sections one, two, three and four, article three, chapter fifty-nine of said code, all relating to legal advertising; increasing legal advertising rates; modifying requirements for publication, typesetting and circulation; and permitting qualified newspapers to charge usual and customary rates for notarizing and producing additional copies of affidavits and statements.

Be it enacted by the Legislature of West Virginia:
That section twenty-three, article thirteen, chapter eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that sections one, two, three and four, article three, chapter fifty-nine of said code be amended and reenacted, all to read as follows:
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 13. TAXATION AND FINANCE.

§8-13-23. Preparation, publication and disposition of financial statements.

(a) Every city, within ninety days after the beginning of each fiscal year, shall prepare on a form to be prescribed by the state tax commissioner and cause to be published a sworn statement revealing: (1) The receipts and expenditures of the city during the previous fiscal year; (2) the name of each person who received more than fifty dollars during the previous fiscal year, together with the amount received; and (3) all debts of the city, the purpose for which each debt was contracted, its due date and to what date the interest on the debt has been paid. The statement shall be published as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for the publication shall be the city: Provided, That all salaries, receipts, payments to each individual vendor and expenditures to employees of municipal offices, companies and departments may be published in the aggregate.
(b) Every city shall transmit to any resident of the city who requests it a copy of any published statement for the fiscal year designated, supplemented by a document listing the names of each person who received less than fifty dollars from any fund during the fiscal year and showing the amount paid to each and the purpose for which paid and an itemization of the salaries, receipts, payments to each individual vendor and expenditures to employees of municipal offices, companies and departments otherwise published in the aggregate.
(c) Every town or village, within one hundred twenty days after the beginning of each fiscal year, shall prepare on a form to be prescribed by the state tax commissioner a sworn statement revealing: (1) The receipts and expenditures of the town or village during the previous fiscal year arranged under descriptive headings; (2) the name of each person who received money from any fund during the previous fiscal year, together with the amount received and the purpose for which paid; and (3) all debts of the town or village, the purpose for which each debt was contracted, its due date and to what date the interest on the debt has been paid: Provided, That all salaries, receipts, payments to each individual vendor and expenditures to employees of municipal offices, companies and departments may be published in the aggregate.
(d) Every town or village shall transmit to any resident of the town or village who requests it, a copy of any statement for the fiscal year designated. Any town or village may, if its governing body thereof elects, also publish the statement as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and in that event, the publication area for the publication shall be the town or village.
(e) The statement required by subsection (a) of this section and the statement required by subsection (c) of this section shall be sworn to by the recorder, the mayor and two members of the governing body of the municipality. As soon as practicable following the close of the fiscal year, a copy of any statement required by this section shall be filed by the municipality with the state tax commissioner, the clerk of the county commission of the county and the clerk of the circuit court of the circuit in which the municipality or the major portion of the territory of the municipality is located. If the governing body fails or refuses to perform any of the duties set forth in this section, every member of the governing body and the recorder of the governing body concurring in the failure or refusal shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than ten nor more than one hundred dollars. If any of the provisions of this section are violated, it is the duty of the prosecuting attorney of the county in which the municipality or the major portion of the territory of the municipality is located to immediately present the evidence of the violation to the grand jury if in session, and if not in session he or she shall cause the violations to be investigated by the next succeeding grand jury.
(f) Where in subsections (a), (b) and (c) of this section, salaries, receipts, payments to each individual vendor and expenditures are published in the aggregate, the city, town or village shall, upon written request, provide to any resident of the city, town or village an itemized accounting of the salaries, receipts, payments to each individual vendor and expenditures.
CHAPTER 59. FEES, ALLOWANCES AND COSTS; NEWSPAPERS; LEGAL ADVERTISEMENTS.
ARTICLE 3. NEWSPAPERS AND LEGAL ADVERTISEMENTS.
§59-3-1. Definitions and general provisions.
(a) As used in this article, elsewhere in this code or in any other provision of law:
(1) "Legal advertisement" means any notice, advertisement, statement, information or other matter required by law or court to be published.
(2) "Publication area" means the area or areas for which a legal advertisement is required by law or court to be made.
(3) "Once a week for two successive weeks" means two publications of a legal advertisement in a qualified newspaper occurring within a period of fourteen consecutive days with at least an interval of six full days within the period between the date of the first publication and the date of the second publication.
(4) "Once a week for three successive weeks" means three publications of a legal advertisement in a qualified newspaper occurring within a period of twenty-one consecutive days with at least an interval of six full days within the period between the date of the first publication and the date of the second publication and with at least an interval of six full days within the period between the date of the second publication and the date of the third publication.
(5) "Publication date" means the date on which a qualified newspaper is first placed in circulation.
(6) "General circulation" means not only a newspaper meeting the other qualifications specified in subsection (b) of this section and circulated among and of interest to the general public in the area in which it circulates, but also a newspaper meeting said other qualifications, the actual circulation of which throughout the publication area is large enough to give basis for a reasonable belief that publication of a legal advertisement in the newspaper will give effective notice to the residents of the publication area.
(b) Wherever the term "qualified newspaper" or "qualified newspapers" is used in this article, or the term "newspaper" or "newspapers" is used elsewhere in this code or in any other provision of law in connection with a legal advertisement as herein defined in this section, the terms shall be taken to mean only a newspaper or newspapers, as the case may be, published (unless otherwise expressly provided) in the state of West Virginia and which meet the following qualifications:
(1) Any newspaper shall be of regular issue and must have a bona fide, general circulation in the publication area. A newspaper is considered to be of regular issue if it is published regularly, as frequently as once a week, for at least fifty weeks during the calendar year as prescribed by its mailing permit; and has been published for at least one year immediately preceding the date on which the legal advertisement is delivered to the newspaper for publication. A newspaper is considered to be of bona fide, general circulation in the publication area if it meets the definition of "general circulation" as defined in this section and is circulated to the general public at a definite price or consideration.
(2) Any newspaper shall bear a title or name, consist of not less than four pages without a cover, and be a newspaper to which the general public resorts for passing events of a political, religious, commercial and social nature, and for current happenings, announcements, miscellaneous reading matters, advertisements and other notices.
(c) Notwithstanding any other provision of this code or law to the contrary, a qualified newspaper shall for all purposes be considered to be published where it is first placed in circulation.

§59-3-2. Classification of legal advertisements; designation of newspapers; frequency of publication; posting; manner of publishing.

(a) A Class I legal advertisement shall be published one time, a Class II legal advertisement shall be published once a week for two successive weeks and a Class III legal advertisement shall be published once a week for three successive weeks in a qualified newspaper published in the publication area; or if there is no qualified newspaper published in the publication area or if no qualified newspaper published in the publication area will publish the legal advertisement at the rates specified in section three of this article, the legal advertisement shall be published in a qualified newspaper published outside the publication area; or if no qualified newspaper is published outside the publication area or if no qualified newspaper published outside the publication area will publish the legal advertisement at the rates specified in section three of this article, the legal advertisement shall be posted in at least three public places in the publication area, one of which postings shall be in the county courthouse, at or near the front door of the county court house, if a county courthouse is located in the publication area and one of which postings shall be in the municipal office building or municipal office or offices, at or near the front door thereof, if the publication area is a municipality.
(b) A Class I-0 legal advertisement shall be published one time, a Class II-0 legal advertisement shall be published once a week for two successive weeks, and a Class III-0 legal advertisement shall be published once a week for three successive weeks, in two qualified newspapers of opposite politics published in the publication area; or if two qualified newspapers of opposite politics are not published in the publication area or if two qualified newspapers of opposite politics published in the publication area will not publish the legal advertisement at the rates specified in section three of this article, the legal advertisement shall be published in one qualified newspaper published in the publication area; or if there is no qualified newspaper published in the publication area or if no qualified newspaper published in the publication area will publish the legal advertisement at the rates specified in section three of this article, the legal advertisement shall be published in one qualified newspaper published outside the publication area; or if no qualified newspaper is published outside the publication area or if no qualified newspaper published outside the publication area will publish the legal advertisement at the rates specified in section three of this article, the legal advertisement shall be posted in at least three public places in the publication area, one of which postings shall be in the county courthouse, at or near the front door thereof, if a county courthouse is located in the publication area and one of which postings shall be in the municipal office building or municipal office or offices, at or near the front door thereof, if the publication area is a municipality.
(c) A legal advertisement may be published in a qualified newspaper published on any day of the week except Sunday.
(d) All legal advertisements shall be published together in continuous columns on one page of the newspaper publishing them under a general heading styled "Legal Advertisements", unless the number or size of the legal advertisements requires the use of more than one page, in which event the legal advertisements shall be published as near as practicable in continuous columns on as many pages as necessary under the same heading as above required.

§59-3-3. Rates for legal advertisements; computation; filing affidavits with secretary of state.

(a) The rates which a publisher or proprietor of a qualified newspaper in West Virginia may charge and receive for a single or first publication of any legal advertisement set solid depends on the bona fide circulation of the newspaper, as follows:
(1) Four cents per word if the qualified newspaper has a bona fide circulation of less than one thousand, except as provided in subdivision (1), subsection (a) of this section;
(2) Eight and one-half cents per word if the qualified newspaper has a bona fide circulation of one thousand to five thousand;
(3) Nine cents per word if the qualified newspaper has a bona fide circulation of more than five thousand but less than ten thousand;
(4) Ten cents per word if the qualified newspaper has a bona fide circulation of more than ten thousand and less than thirty thousand; or
(5) Eleven cents per word if the qualified newspaper has a bona fide circulation of thirty thousand or more: Provided, That on the first day of July in the year two thousand three and on the first day of July in the year two thousand four and on the first day of July in the year two thousand five the allowable rate per word in each of the classifications of qualified newspapers with reference to circulation as set forth in this subsection shall, for each classification, increase one cent per word over the prior year's rate.
(b) In computing the number of words in a legal advertisement, not set solid, the basis is the size of type in which legal advertising is set by the qualified newspaper making the publication and shall be computed at the legal rate as though the matter were solid type, that is to say, on the basis of eighty-four words to the single column inch in six point type and fifty-four words to the single column inch in eight point type and any other size type in proportion.
(c) In determining the cost of a legal advertisement which is to appear more than once in the same qualified newspaper, the cost for the first publication shall be computed as specified in subsections (a) and (b) of this section and the cost of the second and each subsequent publication shall be seventy-five percent of the cost of the first publication computed as specified in subsections (a) and (b) of this section.
(d) The average bona fide circulation stated by each qualified newspaper in the statement filed by the newspaper with the United States post office department in October of each year shall control the rate of circulation classification of the qualified newspaper for the period commencing the first day of July of each year until the last day of June of the following year. On or before the first day of November of each year, the publisher or proprietor of each newspaper desiring to publish any legal advertisement during the ensuing one year time period commencing the first day of July shall file with the secretary of state an affidavit stating the average bona fide circulation of the newspaper during the preceding twelve month time period ending the thirtieth day of September of each year and shall set forth sufficient facts in the affidavit to show whether the newspaper is a qualified newspaper. The average bona fide circulation stated in the affidavit by each qualified newspaper shall control the rate circulation classification for the ensuing twelve-month period commencing the first day of July. Any qualified newspaper for which the required affidavit is not filed on or before the first day of March of any calendar year shall be conclusively presumed to have for the ensuing twelve-month period commencing the first day of July of such year a bona fide circulation of less than one thousand. At the time a publisher or proprietor of a qualified newspaper files an affidavit with the secretary of state, as required by this subsection, the publisher or proprietor shall notify the clerk of the county commission and the board of education of the county in which the qualified newspaper is published of the circulation classification of the qualified newspaper and of the applicable rate for publishing legal advertisements in the qualified newspaper during the ensuing twelve-month period commencing the first day of July. If the qualified newspaper is published in a municipality, the publisher or proprietor shall at the same time also furnish the same notification to the clerk or recorder of the municipality.
(e) The rate charged for political advertising appearing in a newspaper at any time or times during the time period commencing thirty days prior to any primary or general election and ending the day following the election may not exceed one hundred five percent of the lowest commercial rate charged by the newspaper in which the political advertising appears.
(f) Nothing contained in this section prohibits qualified newspapers from charging less than the specified rates for any legal advertisement or from charging usual and customary rates for notarizing and producing additional copies of the affidavits and statements required in section four of this article.

§59-3-4. Proof of publication and posting.

(a) Any qualified newspaper publishing a legal advertisement incident to any type of judicial proceeding or any provision in a deed of trust or contract, or incident to any other case if required by the responsible party placing the legal advertisement for publication, shall make and furnish under oath an affidavit of publication of each legal advertisement published, showing the number of times it was published in the qualified newspaper, the dates of the publications and the cost of the publications. When posting of any legal advertisement is required in addition to publication of the legal advertisement in a qualified newspaper, the posting shall be done by the party responsible for causing the legal advertisement to be published. In any case where any legal advertisement is not required to be published in a qualified newspaper but is required to be posted, an affidavit of the type provided for in this section with respect to posting shall be made by the party who would have been responsible for causing the legal advertisement to be published in a qualified newspaper had it been required.
(b) The affidavit of the publisher or proprietor of a qualified newspaper required by this section, together with a copy of the legal advertisement as published, constitutes prima facie evidence that the legal advertisement was published or published and posted as stated in the affidavit.