State Ex Rel. Sekyra v. Schmoll , 313 Mo. 693 ( 1926 )

The relators in September, 1925, filed in this court a petition praying for a writ of mandamus commanding the Clerk of the Circuit Court of the City of St. Louis to designate a newspaper wherein the relators could publish an order of publication in a case then pending in that court. The case was one where the relators claimed possession and title to a certain tract of land in the city of St. Louis, description of which was set out. The petition set forth that other persons named claimed some interest in the property, and among the defendants were the unknown heirs of former claimants to the title, and prayed the court to ascertain and determine the title. An affidavit filed with the petition alleged facts justifying an order of publication, and the court accordingly made the order.

The petition filed in this court avers that the clerk has refused to designate a newspaper in which the order of publication might be published, as required by Section 10406, Revised Statutes 1919.

The respondent entered his appearance in this court, waiving the issuance of an alternative writ and agreeing to plead to the petition in lien of such writ, and thereafter filed his return, to which relators on December 21, 1925, filed a reply.

The facts are undisputed, the return admitting all the relevant facts set forth in the petition. The only disagreement between the parties is as to the construction and the applicability of certain statutes. The case was argued here as if on a motion for judgment on the pleadings.

The statutes under which the plaintiff proceeds appear in the revision of 1919, Chapter 94, relating to public notices and advertisements. Section 10405, Revised Statutes 1919, provides that in cities having a population of more than 100,000 inhabitants, a board, consisting of the judges of the circuit court of such cities, on the first day of January, every two years, shall cause to be published in some daily paper a notice designating when and where the board shall receive proposals from the daily newspapers published in said city for the publication of judicial notices, etc. That at the time and place so designated the board, or a majority thereof, should open the bids and award the printing of all such publications to the newspaper naming the lowest and best bid. The section then requires that a bond shall accompany the bid for the faithful publication of such notices, etc., and provides further that in cities having a population of more than 600,000, no paper shall be awarded the contract for such publication unless its bona-fide circulation shall be five per cent of the total population of such city. The section has further conditions under which the board might reject any and all bids and proceed to readvertise.

Section 10406 provides that in case the award of such publication shall not have been made until after the expiration of the previous contract, the parties interested may, or in case of a proceeding pending in the court, the clerks shall, designate in what newspaper the publication should be printed. It is this provision of Section 10406 on which the relators claim the right to compel the clerk to designate the newspaper to publish the order of publication. Section 10407 says the publication of such notice in the newspapers designated by the board shall be valid and sufficient, but nothing in this chapter should invalidate a publication of said notice in some other newspaper by the mutual agreement of the parties in interest.

Respondent contends that Sections 10405, 10406, 10407, were repealed by the Act of 1923, Laws 1923, pages 323-325. That act expressly repeals those sections and enacts other sections of the same numbers in lieu thereof. The new Section 10405 requires that, in cities having a population of 100,000 inhabitants or more, all judicial notices shall be published "in some daily newspaper of such city of general circulation therein, and published for at least one year." New Section 10406 provides for an advertisement printed in some daily newspaper, designating the time and place where the board, consisting of the judges of the circuit court, shall hold a hearing to determine what newspapers in said cities are qualified to publish notices, etc., and then proceeds as follows:

". . . and all newspapers in said cities desiring to publish such notices and advertisements shall, on or prior to the date of each such hearing, file with the board a petition verified by the affidavit of one of the publishers thereof, that such newspaper has the qualifications set forth in the previous section and desires to be designated as a qualified newspaper under the provisions of the preceding section; and a majority of the board at such time and place shall determine what newspaper so petitioning are [is] qualified under the provisions of the preceding section and shall make a record thereof and shall file a copy thereof with the clerk of all courts of record within such cities, and thereupon such newspapers shall be deemed and considered by all courts and officers of this State to be qualified under the provisions of the preceding section; Provided, however, that there shall not be charged by or allowed to any such newspaper for such publications a higher rate than one dollar per square of two hundred and fifty ems agate for the first insertion and fifty cents for each subsequent insertion, fractional squares or parts of squares to be charged for in the same proportion; ``Provided, however, that said petition shall be accompanied by a good and sufficient bond, in a sum to be fixed by said board, conditioned for the correct and faithful publication in said newspaper of all said advertisements, notices and orders, in manner and form as required by law, and according to the schedule of rates fixed herein.' ``Provided further that the board receiving the applications of newspapers for qualification under this act may, in all cases where the judge of the court having jurisdiction over the subject-matter shall deem it for the best interest of the parties in interest, authorize the publication of legal notices in any other newspaper published in any such city, than the newspaper qualifying under the provisions of this act, and at a higher rate than the rate in this act or otherwise legally established.'"

New Section 10407 is as follows: "Public notice oradvertisement to be valid, when. — No public notice or advertisement directed by any court or required by law to be published in a newspaper, in cities of one hundred thousand inhabitants or more, shall be valid unless it be published in a daily newspaper qualified to publish such notices and advertisements under the provisions of this act."

It will be perceived that the differences between the old sections and the new ones are these: Under the old law the contract for the printing was let to the lowest bidder. In the new Section 10406 the price is fixed. Under the old law there was a provision regarding cities having a population of more than 600,000, where it was required that the paper containing the contract should have a circulation of fiveper cent of the population. In the new law, all papers obtaining the contract were required to be papers of general circulation in the city. The requirement in the old law that the clerk at the expiration of a contract not renewed shall designate the newspaper in which the publication shall be had, is not in the new law. The relators contend that the provision relating to the duty of the clerk is still in force because the Act of 1923 is unconstitutional on several grounds which we will now consider.

I. Relator's first position is that the Act of 1923 is vague, uncertain and meaningless. It is said that Section 10405, part of which is quoted above, requires the order of publication to be published for at least one year. The section isVague awkwardly worded, but there is no doubt about theStatute. meaning of the language used. It is the daily newspaper and not the order of publication which must have been published for one year. In construing language of that kind it is proper to give it a meaning which is in accord with common sense when it is susceptible of such meaning.

It is further said that there is no reasonable basis upon which the circuit judges are authorized to qualify newspapers. The paper shall be one of general circulation and shall have been published in the city for one year. Those are the sufficient qualifications required of papers in filing their statement of qualifications verified by affidavit with the board.

It is further said there is a conflict between Sections 10406 and 10407, because the former section provides that under certain circumstances the legal notices may be published in some other paper than those qualifying at a higher rate than that designated, while Section 10407 provides that no notice required by law to be published shall be valid unless it be published in a paper qualified by the act. It will be noticed that these last two objections are not based on the theory that they render this act unconstitutional and therefore if sustained would be of no effect on the point that the provision in the old law relating to the duty of the clerk is repealed. But a reasonable construction of Sections 10406 and 10407 of the new act shows no such conflict. The requirement under Section 10407, that the notice must be published in a paper qualified, refers, of course, to all that is said in the previous section which provides generally for the qualifications of the newspapers and allows exceptions in certain instances. The papers coming under the exceptions are qualified under the requirement of Section 10407.

II. It is contended that the title of the Act of 1923 is defective and renders the act unconstitutional. The title is as follows:

"An act to repeal Sections 10405, 10406 and 10407 of Chapter 94, Revised Statutes of Missouri 1919, relating to public notices and advertisements in cities of more than 100,000 inhabitants and to enact in lieu thereof three new sections relating toTitle. the same subject to be designated as Sections 10405, 10406 and 10407."

In the relator's petition for the writ they say that the act conflicts with Section 28, Article IV, of the Constitution, by failing to express in its title that the act repeals the law as to publications in cities of more than 600,000. The title expressly says that it repeals Sections 10405, 10406 and 10407, Revised Statutes 1919, relating to published notices in cities ofmore than 100,000.

The rule in relation to such matters was stated by this court in Asel v. City of Jefferson, 287 Mo. 195, l.c. 205, where it is said: "The mere reference, in the title of the Act of 1919, to the Act of 1915, without other description of the subject-matter, under the rulings by this court, give sufficient notice that the new section to be enacted would deal with the same subject as contained in the section of the Act of 1915 to be repealed."

Other cases were there cited, where the question has been decided under the varying circumstances many times by this court. The reference to Sections 10405, 10406 and 10407, in the title to the Act of 1923, repealing them and enacting others in lieu of them, means that the same subject dealt with in the former sections was to be dealt with in the amended sections, and that is, the publication of notices required by law or by an order of court, mentioned in Section 10404 of the same chapter, in cities containing a population of more than 100,000.

The argument of the relator is that the purpose of the act was to affect cities of more than 600,000 inhabitants and that the title to the new act is misleading in that it does not specifically state that purpose. The only difference between the old law and the Act of 1923, in relation to cities of 600,000 inhabitants and over, was that the old law provided a definite way to ascertain the general circulation of the paper to be awarded the contract. The effect of the relator's argument is this: While the original statute and the amendatory act both deal with cities having more than 100,000 population, the original law further classified the subject by a separate provision relating to such cities in excess of 600,000. That is, the old law, in addition to the general subject, further classifies cities in one respect. The new law deals with the same general subject without such classification. The only thing in the amendment to which appellant objects is an omission from the new act of a provision in the old. The original Section 10405 provided a test for the circulation of papers published in cities of over 600,000. The new law contains no such test. According to relator's argument, the title to the act is not comprehensive enough, because the act itself fails to cover certain matter dealt with in the original act but not in the new act.

Section 28, Article IV, of the Constitution, provides that no bill "shall contain more than one subject, which shall be clearly expressed in the title." The one subject here relates to legal publications in cities of over 100,000, and the statute repealed relates to that. The Constitution does not require each subdivision of the subject and details germane to the general purpose of the act to be mentioned in the title. [State ex rel. Greene Co. v. Gideon, 277 Mo. 361.] When certain sections of the statute are repealed and other sections enacted in lieu thereof, we do not understand that the Constitution is violated if the new section fails to deal with all the matter contained in the law repealed. If there is included a different matter not in the law repealed, there might be some ground for the objection.

III. It is next claimed by relator that the act is unconstitutional because it is a special or local law; that there is no distinguishing peculiarity which furnished a proper classification. If we understood the trend ofSpecial and relator's argument, it is that only a general law,Local Law. applying to such publications in all counties and cities, would be constitutional. If that position is sound, then the original act was unconstitutional and the principal clause in Section 10406 which relator seeks to enforce would have no validity.

It is argued that the law defeats its own purpose because large metropolitan daily papers cannot afford to qualify under the act on account of the low maximum price fixed in the statute, and instead of being an aid to the courts in the administration of justice, it is a detriment. This was an argument which properly would have been addressed to the law-making body. The wisdom or propriety of a statute is not for our consideration. We are not to determine the propriety of the classification of cities by population in relation to legal notice or as to any other matter. When the language of the statute relates to persons or things as a class, it is a general law. In State ex rel. Daily Record Co. v. Hartmann, 299 Mo. 410, 253 S.W. 991, the matter was fully considered. Respondent presents an argument to the effect that the price of advertising in St. Louis had grown to such heights that the General Assembly was asked by the bar of St. Louis to grant relief and the Act of 1923 was the result. This argument, like that of the relator, is quite beside the question. We find nothing in the act which violates the rule in relation to the classification of subjects. The law as a general law applies to every person or thing coming within the class designated.

IV. Finally, it is contended that the act is unconstitutional because it interferes with the freedom of contract in fixing a rate at one dollar per square of 250 ems for the first insertion and fifty cents for each subsequent insertion. TheFreedom of argument is that the Act of 1923 does not permitContract. parties to agree upon a definite rate. The act will not be given a construction which renders it unconstitutional or unreasonable, if it is susceptible of a constitutional and reasonable construction. [State ex rel. v. Railroad, 262 Mo. 720; Johnston v. Reagan, 265 Mo. l.c. 435.]

The Act of 1923 amends Chapter 94, Revised Statutes 1919, and that chapter is devoted to public notices, notices which "in any court of record shall be required by law or the order of anycourt to be published." [Sec. 10399, R.S. 1919.] The relator admits that the provision of Section 10401 fixing rates for notices published by any public officer, on account of or in the name of the State, or for any county, is perfectly constitutional, because they are official notices required by law to be published. The notice, which the relator seeks to have published in this instance, is an order of publication required by law to be published. Relator argues that newspapers are not monopolies and are not impressed with public interest, and the rates which they charge are not rates of public service, nor monopoly rates. That has nothing to do with the subject. An order of publication is a method by which the court obtains jurisdiction of the parties to a proceeding. While the publisher is not an official of the court, the clerk, who orders it, is. It is required in the absence or inability of an officer of the court, the sheriff, to obtain personal service in the usual way.

The expense of an order of publication may be taxed as cost, and the act simply fixes the rate which may be taxed as costs against the losing party. The statutes in every particular provide the fees which may be charged and taxed as costs, whether the service is performed by an officer of the court or some other. An order of publication is a notice necessary in the proper administration of justice. It is an official act which the clerk performs in carrying out the order of the court when he inserts the order of publication in a newspaper. It is as necessary in the administration of justice, as the act of a sheriff in serving a summons.

A reasonable construction of Section 10406 in the Act of 1923, one which agrees with the Constitution in relation to freedom of contract, is justified by its language. The rate fixed by that section is one which the newspapers may charge, one which the plaintiff in the case may have assessed as costs against the defendant if he succeeds. Undoubtedly the act itself permits one to procure his publication at a lower rate if he can. The plaintiff, if he so desires, may pay a higher rate than that, but he may not have assessed as costs any more than the rate fixed. Relator argues that if this rate is constitutional, then the Legislature would have a right to fix a rate for printing briefs and abstracts and other expenses incurred in that connection. If any of this may be taxed as costs against the other side, it looks as if the Legislature could establish the rate. This court has a rule fixing the rate which the successful party may have assessed against the losing party for printing an abstract. That rate may be assessed as costs against the losing party. Its constitutionality never has been questioned. That does not prevent the party who prints the abstract from paying more if he so desires.

There is no valid objection to the act on the ground that it violates the freedom of contract, for the two reasons: because it is a rate paid for a necessary service in the administration of justice, which may be taxed as costs, and because the statute, properly construed, does not prevent a contract for a different rate.

V. Relator complains of a provision in Section 10406 of the act which permits the judge of the court, when he deems it for the best interest of the parties, to order a, publication in other newspapers than those qualifying under theAlternative provisions of the act. With that particular featureProvision: of the act we have nothing to do. If the particularRevival of part of the old law under which the relator claimsRepealed he has a right to a peremptory writ, is repealed, itProvision. does not matter what alternative provisions in the new act appear, nor does it matter if this particular provision is unconstitutional. It would not invalidate the rest of the act, nor the principal clause repealing the old sections.

We conclude that the Act of 1923 is constitutional and valid, and that the provision which the relator seeks to enforce has been repealed. The alternative writ is quashed. All concur, except Graves, J., not sitting.