August 25, 1977

Mr. Fern Wanek, Deputy State Superintendent 
Department of Education and Cultural Affairs 
Division of Elementary and Secondary Education 
State Capitol 
Pierre, South Dakota 57501

Official Opinion No. 77-74

Selection of a legal newspaper published outside the school district

Dear Mr. Wanek:

You have requested an official opinion based on the following factual situation:

FACTS: 

“X” is a school district bordering North Dakota and enters into a contract with a North Dakota school district under the provisions of SDCL 13-15-11 for its high school students.  A majority of the people residing in “X” school district subscribe to the “Adams County Record” which is published in Hettinger, North Dakota.  The “Adams County Record” qualifies as a legal newspaper in North Dakota.  There is no newspaper published within the boundaries of School District “X.”

Based on the factual situation you have asked the following specific question:

QUESTION: 

Would “X” school district be authorized to designate the “Adams County Record” as their legal newspaper as required by SDCL 13-8-10?

As you have stated in your request, SDCL 13-8-10 requires each school board to designate a legal newspaper.  A legal newspaper is defined as follows: 
    
17-2-2.  No daily or weekly newspaper shall be considered a legal newspaper for the publication of legal and other official notices unless same is a newspaper of general interest and if a daily newspaper be published five days or more each week and shall have a bona fide paid circulation of two hundred copies daily, or, if a weekly newspaper, shall have a bona fide paid circulation of two hundred copies weekly, and shall have been published in the English language in the county and shall have been admitted to the United States mail under the second class mailing privilege, for at least one year prior to the publication of such notices. 
    
For the purpose of this section the definition of the word “published” shall mean the place of an established newspaper office located within the county where material and related procedures of writing news, preparation of advertising, and other content of a newspaper, are assembled and prepared ready for the printing process and shall be the place from which its second class mailing permit is issued; but no newspaper shall have more than one place of publication during the same period of time.  The word “published” does not include printing, which is defined as the process of reproducing prepared material with the use of ink or chemical means to paper by use of press equipment designed for this purpose, and the reproduction of such material by mats or photographic means for plates required for use on presses. 
    
To be considered a newspaper of general interest said publication shall consist of not less than four pages, with a page size of not less than eleven by fifteen inches, and comply with the second class mail regulation as to content.

If no legal newspaper is published in the school district, SDCL 17- 2-11 applies and provides: 
    
Whenever publication of any kind of order or notice is required in a newspaper in any city, town or other district in a county and there is no legal newspaper published in such city, town, or district and there is no specific provision as to how such publication shall in that event be made, it shall be sufficient if the publication is made in any newspaper published in the county where the city, town, or district is situated, and if none is published in the county, then in any newspaper of the adjoining county, any part of the boundary line of which is nearest said city, town, or district, and if more than one county is equidistant by boundary, then in any of said counties.

The real issue which you raise is whether the word “county,” as used in SDCL 17-2-11, must be interpreted to mean only one within South Dakota.  If that is the case, a newspaper publishing outside of the state could not qualify as a legal newspaper even though it met all other statutory criteria.

In my opinion, SDCL 17-2-11 should not be interpreted so restrictively.  Not only is it a general rule of statutory construction that words are to be read in their ordinary meaning, but also that statutes are to be given full legislative meaning and intent.  Therefore, since the primary reason for requiring political subdivisions to designate a legal newspaper and publishing certain items is to notify and inform the interested public of the official actions being taken, the media most accessible to the persons affected should be utilized.  Geographical boundaries should not become barriers in such situations.

SDCL 17-2-2 establishes the criteria for qualifying as a legal newspaper in South Dakota.  If, in fact, the Adams County Record meets the qualifications, including the general circulation requirement, and SDCL 17- 2-11 is applicable because there is no legal newspaper within the district or county, it is my opinion that the school board of district “X” may designate said newspaper as its legal newspaper.  However, if a legal newspaper is published outside of the school district, but within the county, SDCL 17-2-11 requires the school district to publish in that newspaper.  It is my understanding that there is presently a legal newspaper published in the county in question.  Therefore, although SDCL 17-2 does not, in my opinion, prohibit the use of an out-of-state newspaper as a legal newspaper, the factual situation here presented does.  The answer to your specific question is no.

Respectfully submitted,

William J. Janklow
Attorney General

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