State v. Schmoll

• Decision Date: 15 March 1926
• Docket Number: No. 26627.,26627.
• Citation: 282 S.W. 702
• Parties: STATE ex rel. SEKYRA et al. v. SCHMOLL, Clerk of Circuit Court.
• Court: Missouri Supreme Court

282 S.W. 702

STATE ex rel. SEKYRA et al. v. SCHMOLL, Clerk of Circuit Court.

No. 26627.

Supreme Court of Missouri, in Banc.

March 15, 1926.

Motion for Rehearing Denied April 9, 1926.

Mandamus by the State, on the relation of Joseph W. Sekyra and others, against John Schmoll, Clerk of the Circuit Court of St. Louis, to compel respondent to designate a newspaper wherein relators could publish an order of publication. Alternative writ quashed.

Buder & Buder and A. W. Wenger, all of St. Louis, for relators.

Frank X. Hiemenz, James T. Blair, and Foristel, Mudd, Hezel & Habenicht, all of St. Louis, for respondent.

WHITE, J.

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. Luis, 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 lieu 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 1st 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 he 5 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 10408 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 10405-10407, were repealed by the act of 1923 (pages 323-325, Acts of 1923). 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 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 he 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 or Advertisement 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 10403 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 5 per 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 is awkwardly worded, but there is no doubt about the 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...