Oregon Advisory Opinions June 29, 1966: OAG 66-91 (June 29, 1966)

Oregon Attorney General Opinions

1966.

OAG 66-91.

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478

Whether the "Whistlepunk" qualifies as a newspaper for publication of county expenditures is a fact question to be determined by the Hood River County governing body.

You have inquired whether the "Whistlepunk" would qualify as a newspaper under the provisions of ORS 294.255.

The facts indicate that the Hood River News is one of the established newspapers in Hood River County. "Whistlepunk," the only other paper published, originally started as a "shopper" and has expanded to 1,300 subscribers under a second class mailing permit.

ORS 294.250 requires that the county governing body publish each month a schedule of county expenditures. ORS 294.255 provides in part:

"(1) * * * In counties having more than 10,000 population, the required publications [ORS 294.250] shall be made in each of two newspapers. The newspapers must be published within the county and shall be the newspapers having the largest bona fide circulation within the county and shall be selected for the calendar year by the county * * * governing body at its first regular meeting each year * * *."

ORS 294.250 and 294.255 governing the publication of county expenditures have been the law of Oregon since 1891. General Laws of Oregon 1891, p. 140. The only requirement found in these two statutes for making publication of county expenditures is that they be published in each of two newspapers. Thus it becomes clear that if the "Whistlepunk" qualifies as a "newspaper" it could be so designated by the county governing body under ORS 294.255.

"Newspaper" is defined in 66 C.J.S. 22-23, Newspapers, § 1, as:

"* * * 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

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as general, devoted to the 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 none the less a newspaper because it is devoted primarily to special interests, such as legal, commercial and financial, mercantile, political, religious, or sporting."

In Opinions of the Attorney General, 1938-1940, p. 392, the Attorney General was asked whether "Oregon Voter" could be classed as a "newspaper of general circulation." We said:

" 'While the rule has been laid down to the effect that, even though a newspaper is devoted more or less to a particular class, profession, trade, or calling, it will not be deprived of its character as a newspaper of general circulation if, in fact, the newspaper does publish intelligence of passing events and news items of interest to the general public, together with news of interest to such particular class of persons. In re Green, 21 Cal. App. 138, 131 P. 91; in re Labor Journal, 190 Cal. 500, 213 P. 408. But the news published in such newspaper must be of such a character that the general reading public might well look to such paper to learn the news of passing events, and should not be of such a character that the general public would not be at all interested in it. Hanscomb v. Meyer, 60 Neb. 72, 82 N.W. 114, 48 L. R. A. 411, 83 Am. St. Rep. 509; Crowell v. Parker, 22 R. I. 51, 46 A. 35, 84 Am. St. Rep. 815.

"The undoubted purpose of the statutory requirement was to require the publication of legal notices to be published in newspapers which would reach the general reading public, and which would consequently give notice to the public generally and not notice merely to a particular class of the public. * * *' "

In that opinion this office in considering the definition of "newspaper" stated:

"* * * The case of United States Mortgage Co. v. Marquam, 41 Or. 391 involved the question as to whether or not the publication under consideration was a newspaper, within the purview of the statute which provided that notices of sale of real property on execution must be published for the period designated in a newspaper published in the county in which the property was located. The court held:

" '* * * Kerr v. Hitt is fairly illustrative of the subject-matter, where it was held that the Chicago Legal News, published once a week, devoted principally to the dissemination of legal intelligence, but making reference to passing events and containing advertisements, brief notices of legislative bodies, and personal and political items of interest to the general reading as well as the legal profession, was a newspaper of the character contemplated by statute. We are therefore of the opinion that the Sunday Welcome falls within the category of a newspaper. * * * so long as it publishes current news items of general public interest, we must assume that, with the circulation it has, it is read more or less by the general public.' "

With these various definitions in mind it is incumbent upon the county governing body to decide whether or not "Whistlepunk" comes within the definition of a "newspaper." The statutory requirement that the county governing body select the newspapers at its first meeting of the year (ORS 294.255) is merely directory. As stated in 66 C.J.S. 11, Newspapers, § 10:

"* * * it has been variously held that the duty of making the designation at a stated time is merely directory and not mandatory; that the authority is a continuing one and is not exhausted by a single designation * * *."

You have inquired if the definition of a "newspaper" as set out in ORS chapter 193 is applicable to this question. Since ORS 193.010 specifically provides that the definitions would not apply if the context requires otherwise and since ORS 294.250 has been a separate law since 1891, it is evident that ORS chapter 193 has no application in this matter.

It is therefore our opinion that the determination of whether "Whistlepunk" qualifies as a "newspaper" for publishing county expenditures under ORS 294.250 is a fact question that must be determined by the county governing body under ORS 294.255.