IZRAID c. Mm
AU-IN II. VNXAB
-
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Bonorable R. c. Marllba11
County Attorney
Cocbren county
Morton, Texas
Bear Sir: OQinionNo. o-3749
Re: Whethera newspaper estab-
lished in January 1941,ie
e legal nevepaper and its
status in reLstlon to House
Bill lo. 193, 47th Legisle-
ture emendingArticle 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 peerage of House Bill tie.193 02
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 tie publication of such legal notice; in a newa-
paper established in January 1941, under Article 28a,
a legal nevf~paperend duly authorizedby virtue of
said article 28a to publish legal notlcee?”
The particular portion of House Bill 193, 47th Legiela-
ture, re2sting to Legal Publicationsand defining the term “news-
paper”, material to your question,reads:
“Section 2. The term tnevspeperrah.311men any
newspaper l * * having been published regulerlyend
continuourlyfor not lesa then twelve (12) months
prior to the meklng of any publicationmentioned in
this act.”
By your request you raise the question of the reasonable-
neem of the above quoted qualificationfor a “newspaper”as defined
in the Act end ae to ita conatltutionalltyen an ex poet facto law
ahould It operate to prohibit a newspaper establishedJanuary 1941,
from nesting such qualification.
Honorable R. C. Marshall, page 2 (O-3749)
,
Subetanti*llythie.,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, :itvar.provMed that euch notices
shall be given for publicationthereof in e nevapeper of general'
circulation "vhich has been continuouslyand 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 of the action
but same had not been published for twelve (12) month8 et the time
of the questionedpublication. The court, recognizingthe basis
for such requirement,stated and we quote:
"We can underutandthe Intent of the Legirlature in
requiring the continuousend regular publicationof such
newspaper for e period of 88 long 88 twelve montha. Thir
we# evidently done to avoid publicetfonoof 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 HutchinsonCounty which compliedwith the requirementa
of the statute."
In 9 Texae Jurieprudence,Per*. 104, page 539, it is said:
'The legislatureha~llthe came power to enect law6
retrospectively*a it has to legislateprospectively;
and very frequentlythe courts have held curative or
validatingacte to be constitutionaland valid exer-
tions of legislativepower. Where a statute is ex-
presely retroactive,end the object and effect of it
ere to correct en innocentmistake, remedy a mischief,
execute the intentionof 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) 265, SupplementalOpinion 17 P. (2d) 665, a stat-
ute requiring publicationof legal notice8 in newspapere established
for one year vae held a general law of uniform operstion, in that
the claaslflcatlonwas reaeonable. The court held among other things
that the Legislatureban the right, in exercisingthe State's police
power, to make regulationsae to legal notices end in doing BO, such
statutee were not unconetitutlonalaa impairing contract obligations;
that it was at most a privilege not a right, which the Legislature
can modify or take away vithout violatingthe COnatitUtion. Quoted
in the court*a opinion, ie the followingprovision from 46 C.J. 27,
which zeads:
-. _. c
.- -
HonorableR. C. Mershell,
page.3(q-3749). ,. , . :. .,.’
"It is the 'policyof the law that notices oradvertise-
menta requiredto be publishedby law'eh~~ld.be.~bliq~d : :
in nawspaperswhich hare.been.dn existence long epow to, /
be of d pezaanentand substantialchara&er.' _..
A somevhat similar stetutoryprovisionvas attacked es
being unconstitutionalin the case of Dollar, Sheriff, et al., vs.
Wind, i3S.S. 335, on the Lrouqrlthat it was e retroactivelav,
impairingthe obl&,ationof contracts. The Supreme Court of Georgh,
in that case said:
"&pert o