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
