      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<iihe act thus ettackedwasthatwhich
                declared that no newpaper which had not been published
                for tvo yeers should be selectedas the official organ
               .of any county. We fail +,c.appreciatethe force of that . .. _. '. . ,
                er&clzent.Sheriffs an public officers. Their duties
                C&I be ch.ingedor modifiedby the Legislature.:.That
                body can prescribereasonablequalificationsfor a
                newspaperbefore it shallbe selected as a medium in
                which shall be publishedadvertisementsof Sheriff's
                eeles, citations,wl other similar advertiee~nts.      :
               The rights of the public may be inJurioualyaffect
                by the selectlon~ofan impropermedium for giving -
                suck notices."

                 As to the above quoted portion of House Bill 193,47th
      LeS~slaturr,we are unable t,osee any violation of the Constitution
      in that.tzrticularreudfremnt by the Leaisletum that the new-
      paper be-"one publis'bed  regularlyand ro&inuouely for not ices
      then tve3ve (12) zon?:hL" Such a re;uirementis hardly suggestive
      of any monopolistirgrant 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 necessisicsof t.hr;
      Government requilr.  +.ba-particularpcreons shall he selected to
      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!ra-
      t ion to be zaedein newspaws, they would require that nOtiCe be
      posted upon the door of every schocl house in the county, could
      the publisherof any newspapercomplain that the law was unconstl-
      tutional, or took &way from him to that. eJctenthis a@ar.sof liwli-
      hood? It be.6been held in numerous cases that the publisher of J
      nevspaper acts in an official capacity when publishinga tdx noticr."

                    It is thereforethe opinion of this departmentt.h%tthe
          provision in Bouee Bill 193, 47th Le,lslatun, Section 2, which
          among other qualiflc&.ions,defines "newpapcr" es "having been
          published regularlyand continuouslyfor not less than twelve (12)
                                                                   ..~.




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



no&he prior to the making of any publicationmentioned in this
act," i6 a r666oaable qU6lffic6tlOnand a nev6psper66tablisbed
In January 1941, cannot meat the statutoryrequirementuntil 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!
         A!LToRREYm
