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 established in January 1941, ie 

e legal nevepaper and its 

status in reLstlon to House 

Bill lo. 193, 47th Legisleture 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 continuously for a period not less than 12 months prior 

to tie publication of such legal notice; in a newapaper 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 Legielature, re2sting to Legal Publications and defining the term “newspaper”, 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 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 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 Legislature. 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 of 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-bynight' 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 exertions of legislative power. Where a statute is expresely 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) 265, Supplemental Opinion 17 P. (2d) 665, a statute 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 

.- 

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Honorable R. C. Mershell, page .3 (q-3749). ,. , . :. .,.’ 

"It is the 'policy of the law that notices oradvertisementa 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. 335, on the Lrouqrl that it was e retroactive lav, 

impairing the 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 should be selected as the official organ 

.of any county. 

er&clzent. 

We fail +,c. appreciate the force of that . . _. '. . , 

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 193, 47th 

LeS~slaturr, we are unable t,o see any violation of the Constitution 

in that. tzrticular reudfremnt 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;uirement is hardly suggestive 

of any monopolistir grant cf public advertising, bu: fs mrre sogystive 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!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 publisher of any newspaper complain that 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 

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 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