**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 newspaperestablished in January 

### 1941,ie
e legal nevepaper and its status in reLstlon to House Bill lo. 193, 47th Legisleture emendingArticle 28a, Vernon’sAnnotated Civil statutes.

Your letter of June 24th containsthe followingquestion 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 newspaperhaving been published continuously for a period not less than 12 months prior to tie publicationof such legal notice; in a newapaper established in January 1941, under Article 28a,
a legal nevf~paper

end duly authorizedby virtue of said article 28a to publish legal notlcee?”

The particularportion of House Bill 193, 47th Legielature, re2sting to Legal Publications and definingthe term “newspaper ”
, material to your question,reads:

“Section2. The term tnevspeperr ah.311 men any newspaper l * * having been published regulerlyend continuourlyfor not lesa then twelve (12) months prior to the meklng of any publication mentioned in this act.”
By your requestyou raise the question of the reasonableneem 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 newspaperestablished 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 Legislature. In the former Act, :itvar.provMed that euch notices shall be given for publicationthereof in e nevapeper of general' circulation "vhich has been continuously and regularlypublie&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. EutchineonCounty, 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 questioned

publication. The court, recognizingthe basis for such requirement,stated and we quote:

"We can underutandthe Intent of the Legirlature in requiring the continuous end regularpublicationof such newspaper for e period of 88 long 88 twelve montha. Thir we# evidently done to avoid publicetfono of the 'fly-bynight' type which couldbe published for a period of time much leas than that to serve a specialpurpore. Eence , we cannot hold that there YBI euch e newspaperpublished in HutchinsonCounty which compliedwith 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 legislateprospectively; and very frequentlythe courts have held curativeor validatingacte to be constitutional and valid exertions of legislative power. Where a statute is expresely 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 GilletteDail Journal, (Sup. Ct. of Wyo.) 11 P. (2d) 265, Supplemental Opinion 17 P. (2d) 665, a statute requiringpublicationof legal notice8 in newspapereestablished 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 exercisingthe State's police power, to make regulations ae to legal notices end in doing BO, such statuteewere not unconetitutlonal aa impairingcontract obligations; that it was at most a privilegenot 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

.- -



### Honorable

R. C. 

### Mershell,

page .3 (q-3749).
,. , . :. .,.’

"It is the 'policy

of the law that notices oradvertisementa requiredto 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 somevhatsimilarstetutory provisionvas attacked es being unconstitutional in the case of Dollar, Sheriff,et al., vs. Wind, i3S.S. 

### 335,on the Lrouqrl that it was e retroactivelav, impairingthe obl&,ation **of** 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 shouldbe selectedas the officialorgan .of any county. er&clzent. We fail +,c. appreciatethe force of that

. . _. '.

. , Sheriffsan public officers. Their duties C&I be ch.inged

or modifiedby the Legislature. :.That body can prescribereasonable qualifications

for a newspaperbefore it shallbe selectedas a medium in which shallbe published advertisements

of Sheriff's eeles, citations,

wl other similaradvertiee~nts. : The rights of the publicmay be inJurioualy affect by the selectlon

~of an impropermedium for giving - suck notices.

"

As to the above quotedportion of House Bill 

### 193,47th LeS~slaturr,

we are unable t,o

see any violation of the Constitution in that.

tzrticularreudfremnt by the Leaisletum that the newpaper be-"one publis'bed regularly

and ro&inuouely for not ices then tve3ve (12) zon?:hL" Such a re;uirementis hardly suggestive of any monopolistir grant cf public advertising, bu: fs mrre sogystive as a police r~&.z+.,lon designedto serve a public pwp4z.e. As said in the Wy~;tming -use, supra,tne very necessisicsof **t.hr;** Governmentrequilr. +.ba- particular

pcreons shall he selectedto perform *ir-: :r fibl:c ec?i.rt?, ez.d ~iccaue?

such snl~cttons are aade, nob& en compldirfor :o und!ienahlcright. 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!rat 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 publisherof any newspapercomplainthat the law was unconstltutional, or took &way from him to that. eJctent his a@ar.s

of liwlihood? It be.6

been held in numerous cases that the publisher of J nevspaperacts in an officialcapacitywhen publishinga tdx noticr."

It is thereforethe opinion of this departmentt.h%t the provision in Bouee Bill 193, 47th Le,lslatun, Section 2, **which** among other qualiflc&.ions, defines "newpapcr" es "havingbeen published regularlyand 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 r666oaableqU6lffic6tlOn and a nev6psper66tablisbed In January 1941, cannot meat the statutoryrequirement until January 1942.

By /I/ Wm. J. R. Kim Wm. J. R. King AEEi6t6llt

WJRK:eaw:lm

APPROVED JUL 28, 1941
/6/ Grover S6ller6

FIRmA6sI8rAm! A!LToRREYm