ON SUGGESTION OF ERROR.
Movants again urge upon us that the proof of publication of the notice to the voters is invalid in that the affidavit of the publisher of the newspaper did not contain any averment that the said newspaper had "been established for at least twelve months next prior to the first publication of the notice to be published." Section 1. Movants say that, since this is a requirement of chapter 313, Laws 1936, any proof of publication which
omits the quoted averment is, in the eyes of the law, no proof at all under the rule that the statutory requirements in respect to publication of legal notices and the proof thereof must be strictly followed.
In addition to what we have said in our original opinion on this subject, we would again point out that the said chapter 313, Laws 1936, contains the following as a proviso: "Provided, further, that in the event of the discontinuance of the publication of the only newspaper in any county qualified to publish legal notices, any other newspaper published in the county regardless of the length of time it has been published, shall be deemed qualified to publish legal notices."
There is thus presented a situation similar in material respects to that considered in Donald v. Bradt, 15 Colo. App. 414, 419, 62 P. 580, 582, wherein the court said: "A portion of section 1 the act . . . provided that [it] should not apply to the counties in which no newspaper had been published for the required length of time. This may have been the case with reference to the newspaper in which this publication was made, and, if so, the act did not apply to it, and the publisher was not required to make any certificate as to the length of time his paper had been published. Obviously the burden was upon the defendant, as he was attacking the judgment, to have made some allegation in his affidavits and proofs to show that the newspaper in question was one which did come within the terms of the act. This he wholly failed to do." This case is the only decision which we have found in precise point, other than our original opinion here, and, without adopting the course of reasoning in the Colorado opinion, we point to it as being in accord with the result reached by us, to wit, that the failure in the proof of publication to recite that the newspaper is one qualified under chapter 313, Laws 1936, does not invalidate it.
Suggestion of error overruled.