STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
July 5, 1966
Boyd Bennett
Member South Dakota Legislature
Flandreau, South Dakota 57028
OFFICIAL OPINION NO. 67-68 pg. 1
Newspapers. A nonsubscription newspaper consisting of only advertising, and published legal notices cannot qualify as either a “Newspaper” or a “Legal Newspaper” in South Dakota.
You have forwarded a copy of a publication, the masthead of which denominates such as "THE MOODY COUNTY SHOPPER," published by the Moody County Enterprise, Flandreau, South Dakota. Such is mailed out to various boxholders under Bulk Rate U. S. Postage Permit No. 62 from the Flandreau post office. You have advised that such is a "nonsubscription" newspaper.
An examination of such "SHOPPER" discloses that the June I, 1966, issue consists of six unnumbered sheets, which carried classified and other advertisements, together with various legal notices issued by both the City of Flandreau, the Flandreau Independent School District, copies of the proposed ballots in the primary election of 1966, and various notices required by the probate laws.
You have asked my opinion as to whether or not it would be legal to publish legal notices in "THE MOODY COUNTY SHOPPER?"
There can be no question that the "SHOPPER" cannot qualify as a "legal newspaper" as defined in SDC 1960 Supp. 65.0508 as one of the requisites for a "legal newspaper for the publication of legal and other official notices" is that if such is a weekly newspaper that "it shall have a bona fide paid circulation of two hundred copies weekly." You have advised that the "SHOPPER" is a "nonsubscription" publication. It has no paid circulation. It cannot qualify as a "legal newspaper" of this state.
My predecessor in office in an opinion reported in 1955-56 AGR 319 in construing the appropriate statutes concluded that in the designation of a newspaper as an official newspaper for a municipality that a newspaper which did not qualify as a "legal newspaper" could be designated as such official newspaper so long as it was printed and published within the corporate limits of the municipality.
The question still remains; however, can "THE MOODY COUNTY SHOPPER" qualify as a "newspaper" so as to be designated as an official newspaper for the City of Flandreau?
In 66 CJS pages 22 and 23 the following citation of authority defining what constitutes a "newspaper" appears:
"Newspapers are of so many varieties that it is next to impossible to give any brief definition that will include and describe all kinds of newspapers. In ordinary understanding a newspaper is a publication, usually in sheet form, intended for general circulation and published regularly at short intervals, containing intelligence of current events and news of general interest. Newspapers may be classed as general, devoted to dissemination of intelligence on a great variety of topics which are of interest to the general reader or special, in which some particular subject as religion, temperance, literature, law etc., has prominence, general news occupying only a secondary place. Thus, if a publication contains the current news of the day, it is nonetheless a newspaper because it is devoted primarily to special interest, such as legal, commercial and financial, mercantile, political religious, or sporting."
My predecessor in an opinion reported in 1939-40 AGR 78, after quoting from the above citation of authority, said:
"It is my opinion, therefore, that the character of the particular paper as a newspaper must first exist and that it must be published at regular intervals, at short periods of time. If the paper is printed merely for publishing legal notices or advertisements and does not have the characteristics as defined in the citation given above, it would not be a newspaper."
See also the following authorities. Pennsylvania Publications v. Pennsylvania Public Utility Commission, 152 Pa Super 279, 32 A (2) 40 (holding "racing scratch sheet" was not a "newspaper"); Turney v. Blomstron, 62 Neb. 616, 87 NW 616; Bising v. City oi Cincinnati, 126 Ohio St. 218, 184 NE 837 (holding periodical whose publication was confined to reports of city proceedings was not a "newspaper" in which other legal notices could be published); Green v. Home News Publishing Co. (Fla) 90 South (2) 295 (a publication distributed free to the public which did not contain a masthead setting forth publisher, editor, circulation, place of publication, etc., and which contained one full page of news in a twelve page and in a six page issue, with remainder being advertising, did not constitute a "newspaper" within Sales Tax Act); Deutsch v. McGurrin, 241 NYS (2) 393 (A weekly publication not found on newstands, distributed almost exclusively to persons or companies in travel resort industry, and listed publishing industry directories as a "business publication," and which did not contain general news or general advertisements, was not a "newspaper" so that its editor was exempt from jury service.)
In L. H. Henry Sons v. Rhinesmith9 219 Iowa 1088, 260 NW 9 the Iowa Court held that a "weekly shopping guide" which contained serial stories, editorial comments, items taken from newspaper, and large amount of advertising, which was circulated free in the city, and which was hardly distinguishable in appearance from an ordinary county seat newspaper, was a "newspaper."
I concur in the opinion of my predecessor and the above quoted adjudicated cases. From an examination of such opinion and decisions, and comparison with "THE MOODY COUNTY SHOPPER," it is my opinion that it cannot be considered to be a "newspaper."
As "THE MOODY COUNTY SHOPPER" cannot qualify as a legal newspaper, as defined in SDC 1960 Supp. 65.0508, and cannot qualify as a Newspaper that can be selected as an official newspaper of the City of Flandreau, it is my opinion that the publication of any legal notice within such "SHOPPER" would not satisfy the requirements of South Dakota statutes requiring the publication of such legal notice in a "Legal Newspaper," a "newspaper," or an "official newspaper" within this State.
