State ex rel. Daily Record Company v. Hartmann

• Decision Date: 02 July 1923
• Citation: 253 S.W. 991,299 Mo. 410
• Parties: THE STATE ex rel. DAILY RECORD COMPANY v. MOSES HARTMANN et al., Judges of Circuit Court
• Court: Missouri Supreme Court

253 S.W. 991

299 Mo. 410

THE STATE ex rel. DAILY RECORD COMPANY v. MOSES HARTMANN et al., Judges of Circuit Court

Supreme Court of Missouri

July 2, 1923

Peremptory writ denied.

Frank X. Hiemenz and Wilfley, Williams, McIntyre, Hensley & Nelson for relator.

The second proviso of Section 10405, Revised Statutes 1919, is unconstitutional and void. (1) Said second proviso is in violation of subdivisions 32 and 33 of Section 53, Article IV, of the Constitution, in that it creates a classification without any reasonable basis therefor and enacts a special or local law where a general law could have been made applicable. State ex rel. Garesche v. Roach, 258 Mo 541, 561; State ex rel. v. Miller, 100 Mo. 439, 448; Murnane v. St. Louis, 123 Mo. 479, 491; State v Anslinger, 171 Mo. 600, 611; Henderson v Koenig, 168 Mo. 356, 376; 1 Lewis' Sutherland on Stat. Con. (2 Ed.) 388. (2) Said second proviso is in violation of said subdivisions 32 and 33 of Section 53, Article IV, of the Constitution, in that it is limited to cities having a population of more than 600,000 as shown by the United States census of 1910 (said census being the last United States census taken prior to the enactment of said proviso). State ex rel. v. Turner, 210 Mo. 83; State ex rel. v. Williams, 232 Mo. 56, 72; State ex rel. v. Messerly, 198 Mo. 354; State ex rel. v. County Court, 89 Mo. 237. (3) There is nothing in the Constitution which requires or authorizes the Legislature to pass a law providing that in St. Louis alone newspapers which carry legal publications must have a certain percentage of circulation, but there is a provision in the Constitution which says that a special law shall not be passed where a general law can be made applicable, and this provision of the Constitution denies to the Legislature the power to pass a law fixing a percentage of circulation in St. Louis alone. If a percentage of circulation of a newspaper authorized to receive legal publications is a good thing in St. Louis or in cities of over 600,000 or in cities of over 100,000, then it inevitably follows that it would also be a good thing in the remaining portions of the State. That such a law could be made general no one will dispute. It is a well-known fact that out in the numerous counties of the State legal notices are too frequently published in some little newspaper published in some small town remote from the county seat, and the persons interested in the legal publication and the interested public now has no protection against such abuse.

Buder & Buder and Shepard Barclay, amici curice.

(1) The "last United States census," intended by the proviso in Section 10,405, refers to the time when any award of the printing is to be made, and not alone to the last census "taken prior to the enactment of said proviso," as claimed by the learned brief for relator (p. 10). The figures of each "last census" are intended to apply to all future lettings of such printing. Dunne v. Railway, 131 Mo. 1; Beard v. Rowan, 1 McLean 135, 9 Pet. 317; State ex rel. Flanningham v. Board, 16 Nev. 92; Railroad v. Blackman, 63 Ill. 117; Town v. Jenkins, 40 Barb. 574; Stebbins v. Board, 2 McCrary, 196. (2) The second proviso is neither a special nor local law, but a general law, and will apply to all persons or things which now or in future may come within its terms. State v. Tolle, 71 Mo. 645; State v. Wofford, 121 Mo. 61; State ex rel. v. Higgins, 125 Mo. 364; Dunne v. Railway, 131 Mo. 1; Young v. City, 152 Mo. 661; Ex parte Loving, 178 Mo. 194; State v. Speed, 183 Mo. 186; State v. Keating, 202 Mo. 197. (3) If relator is right (as we deny) in supposing that the second proviso (which originated in Laws of 1893, p. 26) should be discarded as unconstitutional, the effect of its elimination would be to leave in force former laws (R. S. 1889, sec. 312, or R. S. 1899, sec. 4692) both of which required of the successful bidder a larger circulation than 3,000 copies. The relator has no such circulation; and hence it would have no standing to obtain the remedy sought, because the old law would be an obvious bar. State ex rel. v. Clark, 275 Mo. 95; Henderson v. Koenig, 168 Mo. 356. (4) The respondents have discretion to award the printing to the newspaper making the "lowest and best bid." In a large city they do not abuse that discretion by rejecting the bid of relator (with a circulation of less than 3000) and awarding the printing to another newspaper having a circulation such as the second proviso requires. The latter was assuredly a "better" bidder, and the board was right in making its award accordingly, but, if in error, their action, being discretionary, should not be controlled by another court by writ of mandamus. State ex rel. v. McGrath, 91 Mo. 386; State ex rel. v. Hawkins, 130 Mo.App. 41; State ex rel. v. Meier, 142 Mo.App. 309; Anderson v. Schools, 122 Mo. 61; State v. Hermann, 63 Ohio St. 440; People v. Kent, 160 Ill. 655; Trapp v. Newport, 115 Ky. 840; People ex rel. v. Council, 78 N.Y. 33; 2 Dillon, Munic. Corp. (5 Ed.) sec. 811.

OPINION

In Banc

Mandamus.

GRAVES J.

-- The relator has made a fair outline of this case, and we adopt it, as follows:

"This is an original proceeding in mandamus brought by the State at the relation of the Daily Record Company against Honorable Moses Hartmann et al., Judges of the Eighth Judicial Circuit of the State of Missouri, comprising the city of St. Louis sitting as a board under the provisions of Section 10405, Revised Statutes 1919, for the purpose of compelling respondents to award to relator a contract for printing all advertisements and judicial notices as therein provided.

"The petition for the writ was filed January 10, 1922, and on the same date this court ordered the issuance of an alternative writ of mandamus returnable on February 9, 1922.

"Thereafter, and in due time, the respondents, having waived the issuance of the alternative writ and having agreed to plead to the petition in lieu of the alternative writ, filed their return. Thereafter, relator filed a motion for judgment on the pleadings.

"There is, therefore, no dispute concerning the facts involved. Practically all the facts alleged in the petition are specifically admitted to be true in the respondents' return. The facts thus admitted may be stated as follows:

"The relator, a Missouri corporation, publishes in the city of St. Louis, Missouri, in the English language, a daily newspaper known as the St. Louis Daily Record, published daily, except Sundays. The principal purpose of said newspaper is to gather and print the minutes and proceedings of all the courts of record within the city of St. Louis, the Supreme Court, the St. Louis Court of Appeals, the United States District Court and Circuit Court of Appeals, together with the minutes and proceedings of all actions begun before justices of the peace of the city of St. Louis, together with a complete transcript of all real estate transfers in the city and county of St. Louis and transcript of judgments rendered by all courts of record situated in the city and county of St. Louis, the suits and actions filed daily in the office of the clerk of the circuit court and the United States court situated in the city of St. Louis, together with full and complete information of releases of mortgages, deeds of trust, satisfaction of judgments and chattel mortgages, filing and satisfaction of mechanics' liens, together with full and complete information and minutes of the proceedings in bankruptcy before the referee for the Eastern District of Missouri, a list of all public sales of real estate in the city and county under foreclosure or sale under execution or in partition. Said paper is commonly called the court paper of the city of St. Louis, and is almost wholly relied upon by the bar and general public for its information in such matters.

"The St. Louis Daily Record has an actual daily circulation in the city of St. Louis of 2,155 copies, within the State of Missouri of 2,219 copies, and without the State of Missouri of 11 copies. The rate of subscription to said paper is the sum of nine dollars per year, payable in monthly installments of seventy-five cents, by carrier, and the sum of $ 12 per year, payable in monthly installments by mail.

"On the 5th day of December, 1921, the respondents, comprising all the judges of the Circuit Court of the City of St. Louis, acting as a board, pursuant to the provisions of Section 10405, Revised Statutes 1919, as aforesaid, caused to be published a notice, as provided by said act, that said board would on a certain day receive sealed proposals from daily newspapers published in the city of St. Louis, Missouri, for the publication of all advertisements, judicial notices and orders of publication required by law to be made. Pursuant to said notice, on the 31st day of December, 1921, respondents as such board met and received three sealed proposals, to wit: One from the Star-Chronicle Publishing Company, owners and publishers of the St. Louis Star; one from the American Press Association, owners and publishers of the St. Louis Times, and one from the Daily Record Company, relator herein, owners and publishers of the St. Louis Daily Record. Both the St. Louis Star and St. Louis Times are printed in the English language; the St. Louis Times is published daily, except Sunday, and the St. Louis Star is published daily, including Sunday. Both set forth in their bids that they had a bona-fide daily circulation, equal to five per cent of the total population of the city of St. Louis; the Daily Record Company, relator herein, set forth in its bid that it had a bona-fide daily circulation in the city of St. Louis of 2,155 copies and within the State of Missouri 2,219 copies and outside the State of...