Chilton v. Pemiscot County.

• Decision Date: 27 May 1932
• Docket Number: No. 30126.,30126.
• Citation: 50 S.W.2d 645
• Parties: O.W. CHILTON AND S.E. JUDEN, Partners, Doing Business Under the Style and Firm Name of THE DEMOCRAT-ARGUS, Appellants, v. PEMISCOT COUNTY.
• Court: Missouri Supreme Court

50 S.W.2d 645

O.W. CHILTON AND S.E. JUDEN, Partners, Doing Business Under the Style and Firm Name of THE DEMOCRAT-ARGUS, Appellants, v. PEMISCOT COUNTY.

No. 30126.

Supreme Court of Missouri.

Division One, May 27, 1932.

Appeal from Pemiscot Circuit Court.

AFFIRMED.

Von Mayes for appellant.

(1) A party at whose instance a notice of sale under execution is published is directly liable to pay the printer compensation therefor, and when paid by such party, if reasonable, may be taxed as cost in favor of such party and against the defendant in the action in which the execution was issued. The amount paid the printer for publishing such notice is only a matter of cost between the parties to the action. As between the county and the printer the obligation to pay for publishing such notice is independent of the suit. Sec. 10399, R.S. 1919; Reed v. Doniphan Lumber Co., 91 Ark. 303, 121 S.W. 275. (2) Section 1649, R.S. 1919, directs the sheriff, in cases of sales under executions, to cause notice of such sales to be published in a newspaper, and when he complies with this requirement of the law the county is liable to pay the printer for publishing such notices. The contract being implied by law does not have to be in writing to make the county liable. 46 C.J. sec. 56, p. 37; Board of Comrs. v. Wood, 250 Pac. 860; Miles v. Holt County, 86 Neb. 238, 125 N.W. 527; Kansas City Sanitary Co. v. County, 269 S.W. 395. (3) While said Section 1649 provides that the printer's fee for publishing such notices shall be "taxed and paid as other costs," this section can be entirely reconciled with said Section 10399, above mentioned. These two sections being in pari materia, should be construed together and there being nothing repugnant between them it will be presumed that the Legislature intended the printer's fee should be taxed and paid as provided in said Section 10399, that is, in favor of the party at whose insurance the notices of sales were published and who paid the printer for publishing the same. State v. Lee, 5 S.W. (2d) 83. (4) The Legislature cannot regulate the compensation to be charged by a printer for publishing legal notices. State v. Schmoll, 282 S.W. 702; Chamber of Commerce Pub. Co. v. Tribune Co., 286 Fed. 111. (5) Respondent contends that the defendant is not liable to the printer for publishing sale notices. Any statute depriving the printer of the right to be paid by the county compensation for his services in printing such notices, would violate both the State and Federal Constitutions. Such a statute would interfere with the freedom of contract or deprive the printer of his property without due process of law or the gains of his industry. Sec. 10, Art. 1, U.S. Constitution; Sec. 1, 14th Amendment, U.S. Constitution; Secs. 4, 30, Art. 2, Missouri Constitution; State v. Loomis, 115 Mo. 307; State v. Julow, 129 Mo. 163; State v. Tie Co., 181 Mo. 536; State v. Vandiver, 222 Mo. 264; State v. Railroad, 242 Mo. 377; Lochner v. New York, 198 U.S. 45.

O.E. Hooker and McKay & Peal for respondent.

Appellants' petition states no cause of action against respondent, and the court rightfully sustained the demurrer thereto. R.S. 1929, sec. 9969; Pollard v. Atwood, 79 Mo. App. 193; State ex rel. v. Wilson, 174 Mo. 505; State ex rel. v. Smith, 13 Mo. App. 421; State ex rel. v. Wilson, 216 Mo. 289; State ex rel. v. Lewis, 256 Mo. l.c. 120.

FERGUSON, C.

The plaintiffs (appellants here) are engaged, as partners, in a printing business in Pemiscot County publishing a newspaper of general circulation known as "The Democrat-Argus." They brought this suit against Pemiscot County seeking a judgment against the county for printer's fees alleged to be due them for publication in their newspaper of sheriff's notices of sale under special execution on judgments in a number of suits for delinquent real estate taxes. The defendant demurred to the petition on the ground that "the petition wholly fails to state facts sufficient to constitute any cause of action against the defendant." The demurrer was sustained, plaintiff declined to plead further and judgment was entered dismissing the petition from which judgment plaintiff appealed.

The petition alleges that, "during the years 1928 and 1927, and prior thereto" the collector of revenue of Pemiscot County "as directed by law, instituted in the circuit court of said county certain and divers suits for delinquent taxes due said county;" that, "the style and numbers of such cases" are set out in an "itemized statement herewith filed;" that, "judgments in said suits were obtained" and "special executions were duly issued and delivered" to the sheriff of that county who "duly levied thereunder upon the lands described therein;" that the sheriff "according to law caused notices of sale to be published" in the newspaper published by plaintiffs and said notices were accepted and published therein "in the manner and for the time required by law;" that "thereafter plaintiffs were paid in part for the publication of said notices, as shown by the credits given in said itemized statement," but the balance due has not been paid; that the "prices charged in each case set out in the itemized statement" were reasonable and "not in excess of the statutory rate;" that "plaintiffs presented to the county court of said county their demand for the unpaid portion of their said claim," payment of same was refused and the "balance now due and unpaid to plaintiffs ... is $1746.49" and "by reason of the foregoing facts and the law, defendant is liable to pay plaintiff a reasonable compensation for publishing said notices."

Appellants rely upon the provisions of Section 13771, Revised Statutes 1929. Said section reads: "When any notice or advertisement relating to any cause, matter or thing in any court of record shall be required by law or the order of any court to be published, the same, when duly published, shall be paid for by the party at whose instance it was published, which payment, or so much thereof as shall be deemed reasonable, may be taxed as other costs, or otherwise allowed by the proper courts, in the course of the proceedings to which such advertisement relates." It is appellants' contention that when they published the notices of sale, which the sheriff caused to be published in their newspaper, in the course of proceedings by the county collector to enforce the collection of delinquent real estate taxes, the county became primarily liable to them for the payment of their charges therefor and that while under the provisions of the statutes printer's fees for such publications are taxable as costs in a tax suit appellants cannot be required to look solely to the proceds of the sale, or a pro rata share thereof, for their compensation. Section 13771 is applicable to the publication of notices or advertisements made in ordinary civil actions between individuals but in Section 9969 of Article 9, Chapter 59, Revised Statutes 1929, which we hereinafter set out and discuss, we find a special statutory provision applying specifically to actions brought to enforce the lien of the State upon lands against which taxes are delinquent. Said Article 9 of Chapter 59 prescribes the method and manner of enforcing the State's paramount lien upon land on which taxes have become delinquent. The suits in which the sale notices were published were brought under the provisions of...