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AGO 1958 No. 176 - Apr 4 1958
Attorney General John J. O'Connell


Rates for publishing legal notices may be determined by express contract between the parties thereto.  The publication fee may be based upon rate per column inch rather than fixed charge per folio.  Approval of a legal newspaper may not be revoked for receipt of publication fee in excess of statutory rate.

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                                                                    April 4, 1958

Honorable D. W. Moore
Prosecuting Attorney
Asotin County
919 6th Avenue
Clarkston, Washington                                                                                     Cite as:  AGO 57-58 No. 176

Dear Sir:

            You have requested our opinion on several questions which we, for convenience, paraphrase as follows:

            (1) Can a publisher of a legal newspaper having a circulation less than 20,000 each issue charge a fee for the publication of legal notices which is in excess of the fee provided in § 1, chapter 186, Laws of 1955 (RCW 65.16.090)?

            (2) Is it proper to base a publication fee for legal notices on a column inch basis rather than a fixed charge per folio of one hundred words?

            (3) Would receipt of publication fees for legal notices in excess of the statutory rate be grounds to revoke the approval of a legal newspaper?

            We answer questions one and two in the affirmative and question three in the negative.

             [[Orig. Op. Page 2]]


            RCW 65.16.090 provides:

            "Where publication of legal notices is required or allowed by law, the person or officer desiring the publication shall pay on a basis of two dollars and forty cents per folio of one hundred words for the first insertion and one dollar and eighty cents per folio of one hundred words for each subsequent insertion, or its equivalent in number of words:  Provided, That a newspaper having a circulation of over twenty thousand copies each issue may charge such additional rate as it deems necessary and just and any person or officer authorizing the publication of a legal notice in such newspaper may legally pay such rate as is charged by it:  Provided further, That this section shall not apply to the amount to be charged for the publication of a legal notice or advertisement for a school district, city, town, county, state, municipal, or quasi municipal corporation or the United States government."

            On its face this statutory language would appear to place an absolute restriction on the assessment of publication rates in excess of those provided for.  However, courts have generally construed legislation relating to the rate at which publications of legal notices may be compensated so as to reach the conclusion that such legislation was either determinative of the minimum rate which could be charged or as fixing the rate in the absence of an express contract.  26 A.L.R. (2d) 663, § 7.

            InState ex rel. Sekyra v. Schmoll, 313 Mo. 693, 282 S.W. 702 (1926), the court, in construing a statute which prescribed a fixed rate to be charged for the publication of legal notices, held that the establishment of a fixed rate would not prevent the party liable from paying more if he so desired and hence the statute did not prevent a contract for a different rate.  The court concluded that if the statute was interpreted to preclude the formation of contracts for a different rate it would be necessary to declare it unconstitutional as an unlawful interference with freedom of contract.

            Our own state supreme court in Record Publishing Co. v. Monson, (1923) 123 Wash. 569, 574, 575, 213 Pac. 13, ruled on the constitutionality of RCW 65.16.090.  In discussing the question of whether the statute providing a fixed fee for the publication of legal notices was unconstitutional, the court stated as follows:

             [[Orig. Op. Page 3]]

            "While the language of the statute is that, '. . . the person or officer desiring such publication shall be required to pay on a basis . . .' etc., it amounts to no more than if the statute had said:  'It shall be lawful for the publisher to charge.'  With that construction it amounts to no more than saying that, in the absence of an express contract providing for publication at a different rate than that fixed by statute, the publisher can charge the rates fixed by statute and enforce payment, and in the absence of an express contract for a different rate, a person or officer desiring such publication shall be required to pay on the basis fixed by the statute. . . .

            "A consideration of the public health, safety, morals, or general welfare, does not authorize the legislature, under the guise of exercising the police power, to deprive parties of the right to voluntarily contract concerning such ordinary and everyday affairs of life as the printing of legal or public notices.  Such publications have to do generally with estates, with sales of property under execution, or with suits concerning or involving property, and are, therefore, largely concerning property rights.  Legislation respecting the same, wholly supplanting the right of private contract relating thereto, would no doubt be unconstitutional, if that were its purpose and effect.  [Citing cases] Such was not the purpose of this act."

            Since the decision in the Monson case, the legislature has twice amended the statute in question leaving the original language essentially unimpaired except for raising the amount of the fixed rate.  The legislature is presumed to be aware of the judicial construction placed on legislation and, accordingly, if words or provisions in an act or section which have been judicially interpreted are retained in an amendment, it is generally held that the legislature has adopted and sanctioned the court's construction.  Lowman & Hanford Co. v. Ervin, 157 Wash. 649; Yakima Valley Bank & Trust Co. v. Yakima County, 149 Wash. 552;State v. Gustafson, 87 Wash. 613; 1 Sutherland Statutory Construction 427, § 1933 (3rd ed.).

            The reasoning on which the decision in the Monson case is based applies not only to the rate to be charged but also to the method of computing the rate, i.e., a fixed charge per folio as opposed to a fixed charge per column inch.

             [[Orig. Op. Page 4]]

            Thus, since the court ruled that the statutory rate is only applicable in the absence of an express contract between the parties to the contrary, it follows that the basis upon which the rate is computed is also a subject of free contract between parties.  If this were not true the statute's constitutionality would be subject to attack on the same ground as the rate fixing provision, as an unlawful interference with freedom of contract.

            The pertinent statutory provision relative to the termination of approval of a newspaper is found in § 2, chapter 213, Laws of 1941 (RCW 65.16.050).  It provides as follows:

            "An order of approval of a newspaper shall remain effective from the time of the entry thereof until the approval is terminated by a subsequent order of the court, which may be done when it is brought to the attention of the court that the newspaper is no longer qualified as a legal newspaper, . . ."

            The qualifications for a legal newspaper are set forth in § 3, chapter 213, Laws of 1941 (RCW 65.16.020):

            "The qualifications of a legal newspaper are that the newspaper shall have been published regularly, at least once a week, in the English language, as a newspaper of general circulation, in the city or town where it is published at the time of application for approval, for at least six months prior to the date of application, and shall be printed either in whole or in part in an office maintained at the place of publication:  Provided, That in case of the consolidation of two or more newspapers the consolidated newspaper shall be considered as qualified, if either or any of the papers so consolidated would be a qualified newspaper at the date of the legal publication, had the consolidation not taken place."

            This would appear to preclude revocation of an order of approval on grounds other than those enumerated above.

            We hope the foregoing will prove helpful.

Very truly yours,

Attorney General

Assistant Attorney General