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 containsthe following question
upon which you request the opinion of this department:
“In view of the pasnege of iiouseBill No. 193 of
the present Legislature,which amends Article 28a,
V.A.T.S., thereby requiringthat 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 authorizedby virtue of
said article 28s to publish legal notices?”
The particular portion of House Bill 193, 47th Legisla-
ture, relating to Legal Publicationsand defining the term “news-
Pm==“. material to your question,reads:
“Section 2. The term ‘newspaper’shall mean any
newspaper + + + having been published regularlyand
continuouslyfor not less than twelve (12) month@
prior to the making of any publicationmentioned in
this act.”
By your request you raise the question of the reasonable-
ness of the above quoted qualificationfor a “newspaper”as defined
in the Act and as to itn constitutionalityas an ex post facto law
should it operate to prohibit a newspaper establishedJanuary 1941,
from meeting such qualification.
Honorable PI.C. Marshall, page 2 (O-3749)
, ., .:
Substantiallythis..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 publicationthereof in a nevspaper of general'
circulation "which has been continuouslyand regularly publish&l
for a period of not less than one year, in the county in which
said act or proceeding is to occur * * l". Thin provision came
under review by the Court of Civil Appeals, Amarillo, in the case
of W. L. Pearson b Co. vs. HutchinsonCounty, 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 questionedpublication. The court, recognizingthe basis
for such requirement,stated and vs quote:
"We can understandthe intent of the Legislature in
requiring the continuousand regular publication of such
nevspaper for a period of ar long as tvelve months. This
vas evidently done to avoid publicationsof 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 ButchinsonCounty which compliedwith the requirements
of the statute."
In 9 Texas Jurisprudence,Para. 104, page 539, it is said:
"The legislaturehas the seae power to enact laws
retrospectivelyas it has to legislateprospectively;
and very frequentlythe courts have held curative or
validatingacts to be constitutionalend valid exer-
tions of legislativepover. Where a statute is ex-
pressly retroactive,and the object and effect of it
are to correct an innocentmistake, remedy a mischief,
execute the intentionof 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, SupplementalOpinion 17 P. (26) 665, a stat-
ute requiring publication of legal notices in newspapersestablished
for one year yes held a general law of uniform operation, in that
the clasBificationvas reasonable. .The court held among other things
that the legislatureham the right, in exercisingthe State’s police
pover, to amke regulationsaB to legal notices and in doing so, such
statutes vere not unconstitutionalas impairing contract obligations;
that it vas at most a privilege not a right, which the Legislature
can modify or take away without violating the ConStitUtion. Quoted
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 publishedby law Bhcjuld.be.published _::
in newspaperswhich have been.dn existence long enough $0. i
be of d perslanentand substantialchara&er." .
A somswh@ similar statutoryprovisionTAB attacked as
being unconstitutionalin the case of Dollar, Sheriff, et al., vs.
Wind, 7CS.R. 335, 011 the loud that it VaB a X-&ZOWtiVc? h,,
impairingthe obli,&ion of contracts. Tbr:Supreme Court of Georgia,
in that else said:
*'ihepart of:the act thus attacked was that which
declared that no newspapervhlch had not been publiehed
for tvo years should be selected as the official organ
.of any county. Ut fail fo appreciatetbs force of that ._ ,. '. .
BqJsent. Sheriffs are.public officers. Their duties
CJP be cwed or aodifled by the.Legislature.:.That
body can prescribe reasonable qualificationsfor a
newspaperbefore it shallbe selected as a medium LII
vhich shall be published advertisementsof Siieriffta
sales, citations,lnd other similar advertise~+?nts. :
The rights of the public may be InJuriouslyaffect
by the selectIonof an improper medium for giving-
such notices."
As to ths above quoted portion of Rouse Bill 193, 47th
Legi,islature,
we are .unablet,oset,any violation of the Constitution
in that ~zticular reqilirenwit by the Legislaturethat the news-
paperbe "one publia'bed re@arly and continuouslyfor not less
than twelve (l2) ~&hs." Such a re;uirementis barfilysuggestive
of any sunopolistirGrant cf publlr advertisirg,bu-.!s mcrr sug-
gestive as a police rreulztiondesigned 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~dto
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 coutytfurt>er said an3 we:quote: "Suppose, if you
please, tine1eJsLltu.u:would c:hangethe manner of 8ervIc~.of
notice upon the ttipayers and in place cf requlrindt.hspublica-
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 outzerouscases that the publisher of J.
newspaper acts in sn official capacity when publishinga tdx noticr-"
It is thereforethe opinion of this departmentt.tit.the
provision in House Bill 193, 47th Legislature,Section 2, which
among other qusllficrtions,defines "newspaper"as "having heen
published regularlyand continuouslyfor not less than twelve (12)
.
Honorable R. C. Marshall, page 4 (O-3749)
months prior to the making of any publicationmentioned in this
act," is a reasonable qualificatioaand a newspaper established
in January 1941, cannot meet the statutoryrequirementuntil Janu-
ary 1942.
Yours very truly
ATTORNEY GEIVERALOF 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