Case Information

*1 IZRAID c. Mm AU-IN II. VNXAB r-m -*. Bonorable R. c. Marllba11

County Attorney

Cocbren county

Morton, Texas

Bear Sir: OQinion No. o-3749

Re: Whether a newspaper estab- lished in January 1941, ie e legal nevepaper and its status in reLstlon to House Bill lo. 193, 47th Legisle- ture emending 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 peerage of House Bill tie. 193 02 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 tie publication of such legal notice; in a newa- paper established in January 1941, under Article 28a, a legal nevf~paper end duly authorized by virtue of said article 28a to publish legal notlcee?”

The particular portion of House Bill 193, 47th Legiela- ture, re2sting to Legal Publications and defining the term “news- paper”, material to your question, reads:

“Section 2. The term tnevspeperr ah.311 men any newspaper l * * having been published regulerly end continuourly for not lesa then twelve (12) months prior to the meklng of any publication mentioned in this act.”

By your request you raise the question of the reasonable- neem of the above quoted qualification for a “newspaper” as defined in the Act end ae to ita conatltutionallty en an ex poet facto law ahould It operate to prohibit a newspaper established January 1941, from nesting such qualification.

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

, Subetanti*lly thie.,ee# :re~ufrempnt wa# impored in Article 1

28, R.c.~., 1925 prior to its repeal by the Acto of 1929, klet Leg- islature. In the former Act, :it var.provMed that euch notices shall be given for publication thereof in e nevapeper of general' circulation "vhich has been continuously and regularly publie&d' for a period of not leas than one year, in the county in which said act or proceeding ir to occur * * *". This provision came under review by the Court of Civil Appeals, Amarillo, in the ceae of W. L. Peareon & Co. vs. Eutchineon County, 52 S.W. (26) 509. In that case B newpaper wel publirhed in the county the action but same had not been published for twelve (12) month8 et the time of the questioned publication. The court, recognizing the basis for such requirement, stated and we quote:

"We can underutand the Intent of the Legirlature in requiring the continuous end regular publication of such newspaper for e period of 88 long 88 twelve montha. Thir we# evidently done to avoid publicetfono of the 'fly-by- night' type which could be published for a period of time much leas than that to serve a special purpore. Eence , we cannot hold that there YBI euch e newspaper published in Hutchinson County which complied with the requirementa of the statute."

In 9 Texae Jurieprudence, Per*. 104, page 539, it is said: 'The legislature ha~ll the came power to enect law6 retrospectively *a it has to legislate prospectively; and very frequently the courts have held curative or validating acte to be constitutional and valid exer- tions of legislative power. Where a statute is ex- presely retroactive, end the object and effect of it ere to correct en innocent mistake, remedy a mischief, execute the intention of parties or promote Justice, then, both as e matter of right end of public policy affecting the peace end welfare of the community, the law should.be sustained. * * *II In the cese of In re Gillette Dail Journal, (Sup. Ct. of Wyo.) 11 P. (2d) Supplemental Opinion 17 P. (2d) a stat- ute requiring publication of legal notice8 in newspapere established for one year vae held a general law of uniform operstion, in that the claaslflcatlon was reaeonable. The court held among other things that the Legislature ban the right, in exercising the State's police power, to make regulations ae to legal notices end in doing BO, such statutee were not unconetitutlonal aa impairing contract obligations; that it was at most a privilege not a right, which the Legislature can modify or take away vithout violating the COnatitUtion. Quoted in the court*a opinion, ie the following provision from 46 C.J. 27, which zeads:

-. _. c

.- Honorable R. C. Mershell, page .3 (q-3749). ,. , . :. .,.’ "It is the 'policy of the law that notices oradvertise- : :

menta required to be published by law'eh~~ld.be.~bliq~d in nawspapers which hare. been.dn existence long epow to, / be of d pezaanent and substantial chara&er.' . _.

A somevhat similar stetutory provision vas attacked es being unconstitutional in the case of Dollar, Sheriff, et al., vs. Wind, i3S.S. on the Lrouqrl that it was e retroactive lav, impairing the obl&,ation contracts. The Supreme Court of Georgh, in that case said:

"&pert o<iihe act thus ettackedwasthatwhich declared that no newpaper which had not been published for tvo yeers should be selected as the official organ .of any county. We fail +,c. appreciate the force of that . . . _. '. . , er&clzent. Sheriffs an public officers. Their duties C&I be ch.inged or modified by the Legislature. :.That body can prescribe reasonable qualifications for a newspaper before it shallbe selected as a medium in which shall be published advertisements of Sheriff's eeles, citations, wl other similar advertiee~nts. : The rights of the public may be inJurioualy affect by the selectlon ~of an improper medium for giving - suck notices. "

As to the above quoted portion of House Bill 47th LeS~slaturr, we are unable t,o see any violation of the Constitution in that. tzrticular reudfremnt by the Leaisletum that the new- paper be-"one publis'bed regularly and ro&inuouely for not ices then tve3ve (12) zon?:hL" Such a re;uirement is hardly suggestive of any monopolistir grant cf public advertising, bu: fs mrre sog- ystive as a police r~&.z+.,lon designed to serve a public pwp4z.e.

As said in the Wy~;tming -use, supra, tne very necessisics of t.hr; Government requilr. +.ba- particular pcreons shall he selected to perform *ir-: :r fibl:c ec?i.rt?, ez.d ~iccaue? such snl~cttons are aade, nob& en compldir for :o und!ienahlc right. is +.akc.n amy. The court furthr se13 end we .pote: "Suppose, if, ycu please, the lcJsslr?tu;c. would change the manner of service of notice upon the tucpaycrrs and in place cf requiriw the publ!ra- t ion to be zaede in newspaws, they would require that nOtiCe be posted upon the door of every schocl house in the county, could the publisher of any newspaper complain that the law was unconstl- tutional, or took &way from him to that. eJctent his a@ar.s of liwli- hood? It be.6 been held in numerous cases that the publisher of J nevspaper acts in an official capacity when publishing a tdx noticr."

It is therefore the opinion of this department t.h%t the provision in Bouee Bill 193, 47th Le,lslatun, Section 2, which among other qualiflc&.ions, defines "newpapcr" es "having been published regularly and continuously for not less than twelve (12)

..~.

Honorable R. c. Marshall, page 4 (O-3749)

no&he prior to the making of any publication mentioned in this act," i6 a r666oaable qU6lffic6tlOn and a nev6psper 66tablisbed In January 1941, cannot meat the statutory requirement until Janu- ary 1942.

By /I/ Wm. J. R. Kim Wm. J. R. King AEEi6t6llt WJRK:eaw:lm

APPROVED JUL 28, 1941

/6/ Grover S6ller6

FIRmA6sI8rAm!

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