A-72251, MARCH 27, 1936, 15 COMP. GEN. 864

A-72251: Mar 27, 1936

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ADVERTISING - NEWSPAPERS - REAL ESTATE SALES WHERE THE TERMS OF THE FEDERAL AND STATE STATUTES AS TO THE PERIOD OF NEWSPAPER ADVERTISEMENT IN CONNECTION WITH REAL ESTATE SALES UNDER ORDER OF A COURT ARE IN CONFLICT THE TERMS OF THE FEDERAL STATUTES ARE CONTROLLING AS TO SALES ORDERED BY FEDERAL COURTS. NO PROVISION HAVING BEEN MADE BY FEDERAL STATUTE AS TO THE RATES TO BE PAID THE APPLICABLE STATE STATUTE RATES ARE FOR PAYMENT IN THE ABSENCE OF CONTROLLING REASONS OTHERWISE. 1936: THERE IS FOR CONSIDERATION LETTER DATED FEBRUARY 17. WHEREIN ONLY $3.30 WAS CERTIFIED FOR PAYMENT COVERING CHARGE FOR ADVERTISING INCIDENT TO THE MARSHAL'S SALE OF CERTAIN DESCRIBED LANDS AND PREMISES. IF THE PUBLICATION IS RUN THREE TIMES ONLY.

A-72251, MARCH 27, 1936, 15 COMP. GEN. 864

ADVERTISING - NEWSPAPERS - REAL ESTATE SALES WHERE THE TERMS OF THE FEDERAL AND STATE STATUTES AS TO THE PERIOD OF NEWSPAPER ADVERTISEMENT IN CONNECTION WITH REAL ESTATE SALES UNDER ORDER OF A COURT ARE IN CONFLICT THE TERMS OF THE FEDERAL STATUTES ARE CONTROLLING AS TO SALES ORDERED BY FEDERAL COURTS, BUT NO PROVISION HAVING BEEN MADE BY FEDERAL STATUTE AS TO THE RATES TO BE PAID THE APPLICABLE STATE STATUTE RATES ARE FOR PAYMENT IN THE ABSENCE OF CONTROLLING REASONS OTHERWISE.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, MARCH 27, 1936:

THERE IS FOR CONSIDERATION LETTER DATED FEBRUARY 17, 1936, FROM THE UNITED STATES MARSHAL FOR THE WESTERN DISTRICT OF TEXAS, IN REPLY TO PREAUDIT DIFFERENCE STATEMENT DATED FEBRUARY 6, 1936, RETURNED WITH VOUCHER FOR $8.12 IN FAVOR OF THE EL PASO HERALD POST, WHEREIN ONLY $3.30 WAS CERTIFIED FOR PAYMENT COVERING CHARGE FOR ADVERTISING INCIDENT TO THE MARSHAL'S SALE OF CERTAIN DESCRIBED LANDS AND PREMISES, SAID LETTER BEING AS FOLLOWS:

I AM HEREWITH RETURNING ATTACHED VOUCHER AND PREAUDIT DIFFERENCE STATEMENT FOR FURTHER CONSIDERATION AND WISH TO CALL YOUR ATTENTION TO TITLE 28, SECTION 849 OF THE FEDERAL CODE WHICH PROVIDES THAT "NO SALE OF REAL ESTATE UNDER ANY ORDER, JUDGMENT OR DECREE OF ANY U.S. COURT SHALL BE HAD WITHOUT PREVIOUS PUBLICATION OF NOTICE OF SUCH PROPOSED SALE BEING ORDERED AND HAD ONCE A WEEK FOR AT LEAST FOUR WEEKS PRIOR TO SUCH SALE * *

IN PRIVATE LITIGATION CASES ALL ATTORNEYS REQUEST AND TITLE EXAMINERS REQUIRE THAT TITLE 28, SECTION 849 BE FOLLOWED AND THAT THE PUBLICATION BE RUN FOUR TIMES. THE RULES OF THE COURT PROVIDE THAT IN LAW CASES THE PROCEDURE PRESCRIBED BY THE LAWS OF TEXAS SHALL BE FOLLOWED ONLY WHEN THEY DO NOT CONFLICT WITH THE LAWS OF THE UNITED STATES. VOLUME 12, ARTICLE 3808, VERNON'S ANNOTATED STATUTES (CIVIL) OF TEXAS, APPARENTLY CONFLICTS WITH TITLE 28, SECTION 849, U.S. CODE, 1935.

NEWSPAPERS OF GENERAL CIRCULATION IN THIS STATE DO NOT CARE TO PRINT PUBLICATIONS FOR THE AMOUNT ALLOWED UNDER THE STATE LAW AND FOR THAT REASON THE LITIGANTS AND STATE COURTS GENERALLY DISREGARD THE PROVISION OF THE STATE STATUTE RELATIVE TO THE CHARGES ALLOWED UNDER SAID STATUTE.

BECAUSE OF THE SEEMING CONFLICT BETWEEN THE STATE AND FEDERAL STATUTES AND THE CONSTRUCTION PLACED UPON SAME AS A RESULT OF YOUR PREAUDIT, IT PLACES THE UNITED STATES MARSHAL IN A VERY DELICATE POSITION. IF THE PUBLICATION IS RUN THREE TIMES ONLY, ATTORNEYS GENERALLY, WILL ADVISE THEIR CLIENTS THAT SAME IS INSUFFICIENT AND THE TITLE WILL NOT BE GOOD; WHILE ON THE OTHER HAND, IF THE PUBLICATION IS RUN FOUR TIMES, THE ACCOUNT MAY NOT BE ALLOWED BY THE DEPARTMENT. THE MARSHAL IS ALSO CONFRONTED WITH THE DIFFICULTY OF HAVING THE PUBLICATIONS PRINTED FOR THE PRICE STATED IN THE TEXAS STATUTES.

IN VIEW OF THE FACT THAT IT IS ANTICIPATED THAT MANY SIMILAR PUBLICATIONS WILL BE REQUIRED IN THIS DISTRICT IN THE FUTURE, IT IS IMPORTANT THAT THE MARSHAL BE ADVISED HOW TO PROCEED IN SUCH MATTERS.

WITH THE FOREGOING IN MIND, PLEASE ADVISE IF PUBLICATIONS OF NOTICE OF SALE OF REAL ESTATE SHOULD BE RUN FOUR TIMES, AND IF SO, IS THE PUBLISHER ENTITLED TO THE RATE SET OUT IN "STATEMENT OF ADVERTISING RATES," BECAUSE OF THE DEPARTURE FROM THE STATE STATUTE TO THAT EXTENT. IF NOT, WOULD HE BE ENTITLED TO CHARGE FOR FOUR PUBLICATIONS AT THE RATE SET OUT IN THE STATE STATUTE INSTEAD OF THREE AS ALLOWED IN YOUR PREAUDIT.

VERNON'S ANNOTATED TEXAS STATUTES (CIVIL), VOLUME 12, ARTICLE 3808, IS AS FOLLOWS:

THE TIME AND PLACE OF SALE OF REAL ESTATE UNDER EXECUTION, ORDER OF SALE, OR VENDITIONI EXPONAS SHALL BE ADVERTISED BY THE OFFICER BY HAVING THE NOTICE THEREOF PUBLISHED IN THE ENGLISH LANGUAGE ONCE A WEEK FOR THREE CONSECUTIVE WEEKS PRECEDING SUCH SALE, IN SOME NEWSPAPER PUBLISHED IN SAID COUNTY. THE FIRST OF SAID PUBLICATIONS SHALL APPEAR NOT LESS THAN TWENTY DAYS IMMEDIATELY PRECEDING THE DAY OF SALE. SAID NOTICE SHALL CONTAIN A STATEMENT OF THE AUTHORITY BY VIRTUE OF WHICH THE SALE IS TO BE MADE, THE TIME OF LEVY, AND THE TIME AND PLACE OF SALE; IT SHALL ALSO CONTAIN A BRIEF DESCRIPTION OF THE PROPERTY TO BE SOLD AND SHALL GIVE THE NUMBER OF ACRES, ORIGINAL SURVEY, LOCALITY IN THE COUNTY, AND THE NAME BY WHICH THE LAND IS MOST GENERALLY KNOWN, BUT IT SHALL NOT BE NECESSARY FOR IT TO CONTAIN FIELD NOTES. PUBLISHERS OF NEWSPAPERS SHALL RECEIVE FOR PUBLISHING SAID SALES FIFTY CENTS PER SQUARE FOR THE FIRST INSERTION AND THIRTY CENTS PER SQUARE FOR SUBSEQUENT INSERTIONS, TO BE TAXED AND PAID AS OTHER COSTS, FOR SUCH PUBLICATION, TEN LINES SHALL CONSTITUTE A SQUARE, AND THE BODY OF NO SUCH ADVERTISEMENT SHALL BE PRINTED IN LARGER TYPE THAN BREVIER. NO FEE FOR ADVERTISING ANY PROPERTY IN A NEWSPAPER UNDER THE PROVISIONS OF THIS ARTICLE SHALL EXCEED THE SUM OF FIVE DOLLARS. IF THERE BE NO NEWSPAPER PUBLISHED IN THE COUNTY, OR NONE WHICH WILL PUBLISH THE NOTICE OF SALE FOR THE COMPENSATION HEREIN FIXED, THE OFFICER SHALL THEN POST SUCH NOTICE IN WRITING IN THREE PUBLIC PLACES IN THE COUNTY, ONE OF WHICH SHALL BE AT THE COURTHOUSE DOOR OF SUCH COUNTY, FOR AT LEAST TWENTY DAYS SUCCESSIVELY NEXT BEFORE THE DAY OF SALE. THE OFFICER MAKING THE LEVY SHALL GIVE THE DEFENDANT OR HIS ATTORNEY WRITTEN NOTICE OF SUCH SALE, EITHER IN PERSON OR BY MAIL, WHICH NOTICE SHALL SUBSTANTIALLY CONFORM TO THE FOREGOING REQUIREMENTS.

TITLE 28, SECTION 849 OF THE U.S.C. PROVIDES:

NO SALE OF REAL ESTATE UNDER ANY ORDER, JUDGMENT, OR DECREE OF ANY UNITED STATES COURT SHALL BE HAD WITHOUT PREVIOUS PUBLICATION OF NOTICES OF SUCH PROPOSED SALE BEING ORDERED AND HAD ONCE A WEEK FOR AT LEAST FOUR WEEKS PRIOR TO SUCH SALE * * *.

THE ONLY CONFLICT BETWEEN THESE FEDERAL AND STATE STATUTES IS AS TO THE PERIOD THE ADVERTISEMENT MUST APPEAR AND OF COURSE THE TERMS OF THE FEDERAL STATUTE ARE CONTROLLING AS TO THE SALES UNDER DECREES OR JUDGMENTS OF THE FEDERAL COURTS. THEREFORE, FOUR INSERTIONS WERE PROPERLY MADE AS PROVIDED IN TITLE 28, SECTION 849, U.S.C. ANNOTATED, AND PAYMENT SHOULD BE MADE THEREFOR.

THE CITED FEDERAL STATUTE MAKES NO PROVISION AS TO THE RATES WHICH SHOULD BE PAID FOR SUCH ADVERTISING BUT AS IT WAS DONE IN TEXAS, THE UNITED STATES APPEARS JUSTIFIED IN APPLYING THE BASIS FURNISHED BY THE PROVISIONS OF VERNON'S ANNOTATED TEXAS STATUTES (CIVIL), VOLUME 12, ARTICLE 3808, IN MAKING SUCH PAYMENTS, ESPECIALLY IN THE ABSENCE OF CONTROLLING REASONS AS TO THE APPLICATION OF SOME OTHER BASIS.

PAYMENT MAY BE MADE AT "50 CENTS PER SQUARE (10 LINES TO CONSTITUTE A SQUARE) FOR THE FIRST INSERTION AND 30 CENTS PER SQUARE FOR SUBSEQUENT INSERTIONS.' THE VOUCHER WILL BE PREAUDIT APPROVED ACCORDINGLY AND RETURNED THROUGH THE USUAL CHANNELS FOR PAYMENT.