STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

November 10, 1969

Jack T. Klauck
State's Attorney, Pennington County
Rapid City, South Dakota 57701

OFFICIAL OPINION NO. 69-90

Legal newspapers; mailing under second class mailing privilege is requisite. Computation of time of such mailing SDCL 1967 17-2-2, as amended by Ch. 271, Laws of 1968

Dear Mr. Klauck:

You have requested an official opinion in determining whether or not a particular publication, edited, printed and circulated in Pennington County may qualify as a "legal newspaper" under SDC 1960 Supp. 65.0508 (now SDCL 1967 S17-2-1 through 17-2-5, as amended by Chapter 271 of the Session Laws of 1968).

Specifically, your question is in regard to the provision of S17-2-2 as follows:

Qualifications of legal newspaper. No daily or weekly newspaper shall be considered a legal newspaper for the publication of legal and other official notice unless the same, 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, and be printed either in whole or in part in an office maintained at the place of publication.

and whether or not the time that a distribution of a publication under the Federal statutes regarding "controlled circulation publications" may be considered "admission to the United States mail under the second class mailing privilege."

The facts which give rise to this question is that this publication for many years enjoyed the second class mailing privileges; however, upon new management assuming management of the publication, and upon a change in format, it was decided to distribute such publication free to all householders in Rapid City by a carrier system, and. as to nonresidents of Rapid City, to charge a regular subscription fee, and have delivery of such publication under the controlled circulation provisions of the Federal statutes. Subsequently, but within one year of this date, the publisher has decided against using such "controlled" circulation mailing, and free carrier deliveries, and has returned to charging all subscribers a subscription fee, and when necessary or desirable, delivers such publication to the subscriber under a second class mailing privilege.

Second class mail is governed by Federal statute and the entire statutory law is contained in Chapter 63 of Title 30 to the United States Code. Section 4351 of Title 39 of the United States Code (based upon an act adopted in 1879) provides:

Second class mail embraces newspapers and other periodical publications when entered and mailed in accordance with sections 4352-4357 of this title.

The Federal statutes for "Controlled Circulation Publications" are embodied in Sections 4421 and 4422 of Title 39 of the United States Code.

In the early case of U. S. v. Atlanta Journal Co. (CCA GA 1911) 185 F 656, it was held: (Quoting the syllabus)

A newspaper otherwise entitled to be admitted to the second class would violate the law by mailing under the second class rate only where the papers mailed are designated primarily for advertising purposes, or for free circulation, or for circulation at nominal rates.

Newspapers distributed as "Controlled Circulation Publications" are not distributed under a second class mailing privilege. The South Dakota Legislature has added as a condition precedent to qualifying as a "legal newspaper," the admission of such newspaper to the United States mail under the second class mailing privilege "for at least one year prior to the publication of such notices."

Such mailing privilege, in my opinion, must exist immediately prior to so qualifying as a "legal newspaper." Such continuity of second class mailing privileges was interrupted and ceased by mailing under a separate mailing classification. For such publication to qualify as a "legal newspaper" under our statutes, upon resumption of the use of second class mailing privilege, such a mailing must exist for at least one year.

Respectfully submitted,

Gordon Mydland
Attorney General