STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
December 29, 1972
George Weisensee
States Attorney, Minnehaha County
Sioux Falls, South Dakota 57102
OFFICIAL OPINION NO. 72-75
Distinction between official and legal newspapers.
Dear Mr. Weisensee:
You have asked for an official opinion on the following factual situation:
The "Garretson Weekly," a newspaper printed and published in the City of Garretson, Minnehaha County, South Dakota, commenced publication October 19, 1972, with a paid subscription list in excess of 200; has 4 or more pages at least 11 inches by 18 inches; and has applied for second class United States postal mailing privileges which approval is expected in the very near future. It would qualify as "legal" if it had second class mailing privileges for one year or more. (SDCL 1967 17-2-2) It is not now a legal newspaper.
There is no other newspaper, legal or non-legal, published either in the City of Garretson, State of South Dakota or within the boundaries of the Garretson Independent School District No. 151. There are legal newspapers distributed in the boundaries of both the City of Garretson and the Independent School Distriit No. 151 published elsewhere.
1. May the Garretson Weekly be designated as the official City of Garretson newspaper for all city legal notices and publications including the Council Proceedings?
2. If Question No.1 is answered in the negative, may the Garretson Weekly be designated as the City of Garretson official newspaper for any city notices, publications or proceedings?
3. If Question NO.1 or Question NO.2 be answered in the affirmative, does the city council have the authority to designate the Garretson Weekly as the official newspaper at an official meeting of the City Council at a meeting other than the first meeting in the month of July?
4. May the Independent School District No. 151 designate the Garretson Weekly as its official newspaper for all or any of its legal publications, including the minutes or proceedings of the school board meetings? If designation is not necessary, may the school District No. 151 Board authorize publication of any legal notices or publications or minutes and proceedings of the school board meetings in the Garretson Weekly?
The definition of a "legal newspaper" is contained in SDCL 17-2-2. Under that statute, the Garretson Weekly would qualify as a legal newspaper, if it had been admitted to second class mailing privileges for one year.
A municipality is permitted to designate annually a newspaper published therein as the city's official newspaper. There is no statutory requirement that an official newspaper meet the qualifications of a legal newspaper. SDCL 9-12-6.
Under the general law of this state, all legal and other official notices must be published in a legal newspaper. SDCL 17-2-1. However, there is a special law governing publication for municipalities. SDCL 9-1-1(8) provides that any requirement for publication (by a municipality) shall mean publication in the city's official newspaper except for notices of municipal elections which may be published in any newspaper published within the city. (See SDCL 9-13-13) Where there is a conflict between two laws, the special law takes precedence over the general law. In Re Otting's Estate, 57 S.D. 420, 233 N.W. 274.
My answer to your Question No.1, so far as in compliance with an opinion of my predecessor contained in 9155-56 AGR 319. However, by Ch. 278, Sec. 1 of the 1963 Session Laws, SDC §45.1116, since recodification as SDCL 9-18-1, was amended to provide that publication of municipal minutes and expenses shall be in the City's "official legal Newspaper." The phrase "official legal newspaper" is not defined, but by using statutory construction outlined in SDCL §§2-14-1 and 2-14-4, it is clear the Legislature intended it to mean "a newspaper that was both legal and official." If there is no such official legal newspaper, they shall be published in any legal newspaper serving the community. This statute must be construed as a qualification of the special act relating to municipalities.
Therefore, the answer to your Question No.1 is: The Garretson Weekly may be designated as the official city newspaper and all city notices and publications may be published therein except those required by SDCL 9-18-1 to be published in an official legal or legal newspaper. I believe this also answers your Question No.2.
The answer to your third question depends on whether the City Council designated an official newspaper last July. If it did, the statute implies that such designation shall not be changed until next July. If the City Council did not designate any newspaper as its official newspaper, it is my opinion that it can make the designation at this late date which will remain in effect until next July. The reasoning behind this is that a municipal corporation must exercise its powers in compliance with statute, Erickson v. City of Sioux Falls, 70 S.D. 40, 14 N.W. 2d 89, but a governmental corporation cannot lose its powers, by the failure to exercise them.
The answer to your Question No.4, is, NO. Unlike municipalities. I am unable to find a statute which would exempt school boards from the general law (SDCL 17-21) which requires all notices to be published in a legal newspaper. SDCL 13-8-35 provides the minutes and expenditures of a school board be published in an official legal newspaper.
It may be contended that the requirement that the newspaper to qualify to publish legal notices must be admitted to the U.S. mail as second class constitutes a prohibited delegation of state legislative power to Congress, hence is inoperative. (See Dearborn Independent v. City of Dearborn, 49 N.W. 2d 370) and Miller v. State, 188 N.W. 2d 795).
This contention is answered in 16 Am. Jur. 2d Sec. 245, p. 496. A legislature does not invalidly delegate its legislative authority by adopting a law or rule of Congress, if such law is already in existence or operative.
Respectfully submitted,
Gordon Mydland
Attorney General
