"This is an original proceeding in mandamus brought by the state at the relation of the Daily Record Company against Hon. 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, R. S. Mo. 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, Mo., 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 andproceedings of all actions begun before justicei 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; that the rate of subscription to said paper is the sum of $9 per year, payable in monthly installments of 75 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, R. S. Mo. 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, Mo., for the publication of all advertisements, judicial notices, and orders of publication required by law to be made; that 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
publisher of the St. Louis Daily Records. 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 5 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 bone, fide daily circulation in the city of St. Louis of 2,155 copies, and within the state of Missouri 2,210 copies, and outside the state of Missouri copies; all of the bidders, pursuant to said advertisement, bid on a basis of a square of 250 ems of agate type, one rate for the first insertion and another for each subsequent insertion; the Star-Chronicle Publishing Company for the St. Louis Star bid the sum of $1.33 per square of 250 ems agate type for the first and each subsequent insertion; the American Press, bidding for the St. Louis Times, bid the sum of $1.25 per square for the first insertion and the sum of $1½ for each subsequent insertion; the Daily Record Company, relator herein, bid the sum of 41½ cents per square of 250 ems of agate type foe the first and all subsequent insertions.
"The American Press Association, In its bid for the St. `Louis Times, in addition to bidding on the publication of advertisements, judicial notices, and orders of publication, as required by the notice given by the judgment aforesaid, made a separate bid on public advertisements under the provisions of section 1040:1, R. S. Mo. 1919, at the rate of $1 per square of 250 ems agate for the first insertion and 50 cents for each subsequent insertion, and bid the sum of 20 cents for the publication of the final settlement docket for each estate in course of administration in the probate court of the city of St. Louis, as required by law. The St. Louis Daily Record, in addition to bidding on the advertisements, judicial notices, and orders of publication, under and pursuant to section 10405, agreed in its bid to publish the final settlement docket of all estates in course of administration in the probate court of the city of St. Louis as its several terms, free of charge. Each bid was accompanied by a good and sufficient bond.
"The sealed proposals were opened publicly by respondents, and the Daily Record Company, relator herein, bidding for the St. Louis Daily Record, was found by said board to have named the lowest and best bid, and that its said bid was sufficiently definite and specific as required by said section, and was not in consequence of combination or from any other cause unreasonably high, but was, on the contrary, reasonable and just, and that the St. Louis Daily Record was in all things a fit and proper medium or newspaper in which to publish the notices as aforesaid, and respondents, sitting as a board, as aforesaid, found and stated that they would have awarded the printing of all of said publications to relator on its bid aforesaid, were it not for the provisions of the second proviso of section 10405, R. S. Mo. 1910, which proviso undertakes to prohibit respondents from awarding the contract to newspapers in cities having a population of more than 000,000 inhabitants as shown by the United States census of 1910, unless such a newspaper have a bona fide daily circulation equal in number of copies to at least 5 per cent, of the total population of such cities as shown by the last United States census; that respondents concluded that they, as said board, had no alternative in the premises, but to reject the bid of the Daily Record Company, relator herein, and refuse to award it the contract, which they accordingly did, and said board will award the contract to the American Press aforesaid unless restrained by this honorable court.
"The city of St. Louis is the only city in the state having a population of more than 600,000. "Section 10405, R. S. Missouri 1919, as amended by the Act of March 10, 1913 (Laws of Mo. 1913, p. 97), is as follows:
"`Section 10405. In all cities having a population of more than one hundred thousand inhabitants, a board consisting of the judges of the circuit court of such cities, or of the judicial circuit in which such city is situated, or a majority of the same, shall, on or before the first day of January, 1914, and every two years thereafter, cause to be published in some daily newspaper of said city a notice of at least twenty days, designating when and where said board will receive sealed proposals from daily newspapers published in said city for the publication of all advertisements, judicial notices and orders of publication required by law to be made. At the time and place so designated, said board, or a majority thereof, shall proceed publicly to open said bids, and shall award the printing of all said publications to the newspaper naming the lowest and best bid: Provided, however, first, that said bid 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 named in said proposal, and upon said bond suit may be instituted in the name of the state, to the use of any person aggrieved; second, that in...
