Case Information

*1 Honorable R. C. Marnhall

County Attorney

co&ran county

Morton, Texas

Dear sir: opinion no. O-3749

Re: Whether a newspaper estab- lished in January 1941, is a legal newspaper and its status in relation to House Bill go. 193, 47th Legisla- ture amending Article 28a, Vernon’s Annotated Civil Statutes.

Your letter of June 24th contains the following question upon which you request the opinion of this department:

“In view of the pasnege of iiouse Bill No. 193 of the present Legislature, which amends Article 28a, V.A.T.S., thereby requiring that a legal notice must be published in a newspaper having been published con- tinuously for a period not less than 12 months prior to the publication of such legal notice; is a nevs- paper established in January 1941, under Article 28a, a legal newspaper and duly authorized by virtue of said article 28s to publish legal notices?”

The particular portion of House Bill 193, 47th Legisla- ture, relating to Legal Publications and defining the term “news- Pm==“. material to your question, reads:

“Section 2. The term ‘newspaper’ shall mean any newspaper + + + having been published regularly and continuously for not less than twelve (12) month@ prior to the making of any publication mentioned in this act.”

By your request you raise the question of the reasonable- ness of the above quoted qualification for a “newspaper” as defined in the Act and as to itn constitutionality as an ex post facto law should it operate to prohibit a newspaper established January 1941, from meeting such qualification.

Honorable PI. C. Marshall, page 2 (O-3749) ., .:

, Substantially this..sw@ ;xaqufz!empnt was imposed in Article : 28, R.c.s., 1925 prior to its repeal by the Acts of 1929, 41st Leg- islature. In the former Act, :it vaaprovfded that such notices shall be given for publication thereof in a nevspaper of general' circulation "which has been continuously and regularly publish&l for a period of not less than one year, in the county in which said act or proceeding is to occur * * ". Thin provision came under review by the Court of Civil Appeals, Amarillo, in the case of W. L. Pearson b Co. vs. Hutchinson County, 52 S.W. (26) 509. In that case a newspaper was published in the county of the action but same had not been published for twelve (12) months at the time of the questioned publication. The court, recognizing the basis for such requirement, stated and vs quote:

"We can understand the intent of the Legislature in requiring the continuous and regular publication of such nevspaper a period of ar long as tvelve months. This vas evidently done to avoid publications of the 'fly-by- night' type which could be published for a period of time much less than that to serve a special purpose. Hence, vs cannot hold that there vas such a nevspaper published in Butchinson County which complied with the requirements of the statute."

In 9 Texas Jurisprudence, Para. 104, page 539, it is said: "The legislature has the seae power to enact laws retrospectively as it has to legislate prospectively; and very frequently the courts have held curative or validating acts to be constitutional end valid exer- tions of legislative pover. Where a statute is ex- pressly retroactive, and the object and effect of it are to correct an innocent mistake, remedy a mischief, execute the intention of parties or promote justice, then, both as a matter of right and of public policy effecting the peace and welfare of the community, the law should.be sustained. * * *' In the case of In n Gillette Dal1 Journal, (Sup. Ct. of Wyo.) 11P. (2d) 265, Supplemental Opinion 17 P. (26) 665, a stat- ute requiring publication of legal notices in newspapers established for one year yes held a general law of uniform operation, in that the clasBification vas reasonable. .The court held among other things that the legislature ham the right, in exercising the State’s police pover, to amke regulations aB to legal notices and in doing so, such statutes vere not unconstitutional as impairing contract obligations; that it vas at most a privilege not a right, which the Legislature Quoted can modify or take away without violating the ConStitUtion. in the court's opinion, is the folloving provision from 46 C.J. 27, which reada:

--.. - .- c4,

Honorable R. C. Marshall, page 3 (G-3749). ; * * . :. .: "It is the policy of the lay that notices or~dyertise-

w&s required to be published by law Bhcjuld.be.published _: : in newspapers which have been.dn existence long enough $0. i be of d perslanent and substantial chara&er."

A somswh@ similar statutory provision TAB attacked as being unconstitutional in the case of Dollar, Sheriff, et al., vs. Wind, 7CS.R. 335, 011 the it VaB a X-&ZOWtiVc? loud that h,, impairing the obli,&ion of contracts. Tbr: Supreme Court of Georgia, in that else said:

*'ihe part of: the act thus attacked was that which declared that no newspaper vhlch had not been publiehed tvo years should be selected as the official organ .of any county. Ut fail fo appreciate tbs force of that ._ ,. '. . Sheriffs are. public officers. Their duties BqJsent. CJP be cwed or aodifled by the. Legislature. :.That body can prescribe reasonable qualifications for a newspaper before it shallbe selected as a medium LII vhich shall be published advertisements of Siieriffta sales, citations, nd other similar advertise~+?nts. : The rights the public may be InJuriously affect by the selectIon of an improper medium for giving- such notices."

As to ths above quoted portion of Rouse Bill 193, 47th Legi,islature, we are .unable t,o set, any violation of the Constitution in that ~zticular reqilirenwit by the Legislature that the news- paper be "one publia'bed re@arly and continuously for not less than twelve (l2) ~&hs." Such a re;uirement is barfily suggestive of any sunopolistir Grant cf publlr advertisirg, bu-. !s mcrr sug- gestive as a police rreulztion designed to serve a p&lic pwpcse. As said is the Wytminy cde, supra,, tne very ne.cessi?.lr.s of thr; Gove-& .requir=. *ha* particular pwsons shall he sclsct~d to perform p&r?i.~Y :P >ubl:,: s~Fi.ce, a., 71 Piit-ause such solrctions are made, nob&i rs conpl&n for :o una?irnablr. right. is +.akf.n away. The coutyt furt>er said an3 we: quote: "Suppose, if you please, tine 1eJsLltu.u: would c:hange the manner of 8ervIc~. of notice upon the ttipayers and in place cf requlrind t.hs publica- tion to be nade in newspwers, they would require that notice be posted upon the door of every school house in the county, could the publisher of any newspaper complain that the law was unccnsti- tutional, or took &way from him to that extent bis swans of liveli- hood? It has been held in outzerous cases that the publisher of J. newspaper acts in sn official capacity when publishing a tdx noticr-"

It is therefore the opinion of this department t.tit. the provision in House Bill 193, 47th Legislature, Section 2, which among other qusllficrtions, defines "newspaper" as "having heen published regularly and continuously for not less than twelve (12)

Honorable R. C. Marshall, page 4 (O-3749) months prior to the making any publication mentioned in this act," is a reasonable qualificatioa and a newspaper established in January 1941, cannot meet the statutory requirement until Janu- ary 1942.

Yours very truly ATTORNEY GEIVERAL OF TEXAS By /B/W& J. R. King Wm. J. R. King Assistant WRK:eaw: lm

APPROVED JUL 28, 1941

/s/ Grover Sellers

FIRLFARRImm

ATl!tXtUEY CeaERAL

APPROVRD OPIUIOR C- BY /a/ RUB CRAIRMAll