*1 judgmеnt and affecting rights, the appellants’ Finding error no Ferguson Hyde, GC., con- trial court is affirmed. decree cur. C., opinion by Sturgis, foregoing
PER CURIAM: The judges concur. opinion court. All of as adopted Partners, Business Under Doing S. E. O. W. Chilton Juden, Democrat-Argus, Appellants, Firm Name of Style and County. (2d) 645. v. Pemiscot May One, 27, 1932. Division Mayes appellant. Von *2 & McKay respondent.
O. E. I-Ioolcerand Peal engaged, here) (appellants FERGUSON, C. The County publishing in Pemiscot business printing in a partners, as Democrat-Argus.” known as "The general circulation newspaper a They brought against County judg- seeking suit Pemiscot against ment printer’s alleged fees to be due them publication in newspaper their sheriff’s notices of sale special execution judgments delinquent on in a number of suits for real estate taxes. petition The defendant demurrеd on ground petition wholly that “the fails to state facts sufficient constitute cause of action de- defendant.” The plaintiff plead judg- murrer was sustained, declined to further and dismissing petition ment was frtom which entered plaintiff appealed. “during years that, alleges petition County “as of revenue of
prior collector Pemiscot thereto” the circuit court of certain said law, instituted directed county;” that, “the taxes due said and divers suits ’ “ ’ style out in state- are set an itemized and numbers of such cases . *3 filed;” that, “judgments ment herewith in said suits were obtained” “special duly executions were issued and to the delivered” county sheriff of “duly that upon who levied lands thereunder the therein;” described “according that the sheriff to law notices caused of published” sale to be newspaper by in published plaintiffs the ‘‘ and said accepted notices were published therein in the manner required and for the by law';” plaintiffs time that “thereafter were paid part by in publicatiоn notices, the of said as shown the given statement,” credits in but the balance due has said itemized paid; “prices charged not been that the in each ease set out in the itemized statemеnt” were reasonable and “not in of excess the county rate;” “plaintiffs presented that of to the court ’’ county claim, said unpaid portion their demand for the of their said payment оf unpaid same was refused and the “balance now due and “by ... $1746.49” is of the fore- reason going law, facts pay plaintiff and the defendant is liable to a reason- compensation able publishing said notices.” Appellants rely upon provisions 13771, the of Section Revised 1929. any Statutes reads: Said section “When notice or adver relating any cause, tisement thing matter or in of court by required record shall be law order of any pub or the court to be lished, duly same, published, paid by the when shall be the party published, at payment, whose instance it was which or so much reasonable, may thereof as shall be deemed be taxed as other by costs, proper or the courts, otherwise allowed of course proceedings the to which such advertisement It aрpel relates.” is they published lants’ contention that when sale, the notices of which published sheriff caused to be the in their newspaper, in the county of proceedings collectоr to enforce the collection of taxes, real primarily estate became liable to
471 charges them for the of their therefor and that while under provisions printer’s publicatiоns statutes fees for are such in required taxable as costs a tax suit cannot be to look solely proeeds pr¡o sale, thereof, to the or a rata share their compensation. applicable publication Section 13771 is of ordinary notices or advertisements made in civil actions between individuals but in 9,- Chapter 59, Section 9969 Article of Revised Statutes 1929, discuss, which we hereinafter set out and we find special statutory provision applying brought to- actions against enforce the lien of upon the State lands which taxes delinquent. Said 9 Chapter prescribеs Article of method enforcing manner of paramount upon the State’s lien land on which taxes delinquent. have become in which the The suits sale notices published were brought provisions were of this article. Missouri, “prosecuted Such suits are in the name of the State of at the (Section relation and to 9953, the use of the collector” S.R. 1929) and the State is the real interest. ex rel. v. рarty [State Sanford, 127 368, 30 A general personal judg Mo. S. or W. against ment cannot be rendered in an action the landowner for against taxes his special, land. The the land alone, special constitutes a first lien thereon and “a fieri facias” issues which special judgment is executed “as in other eases 9956, 1929; City execution.” R. S. v. Joseph, Neenan of St. [Sec. 963; Mo. Hayes Snyder, State ex rel. v. 139 Mo. 549, 41 S. W. Section 9969 provides of said article 216.] allowance fees “for services rendered under article,” specifying first paid fees to be to the collector clerk and then reаds: clerk, “To the circuit . . . *4 printer, by sheriff and such fees as are allowed law for like services Provided, in civil which eases shall be in taxed as costs the case: county1 state, that in no any eаse shall the city or he liable such for posts, nor county shall the court any state auditor allow claim or. any by provisions costs (Italics incurred the .-” this article for of ours.) statutory By provision аn exception made, is- in favor general county, of the State and party litigant to the rule that each is primarily liable for the costs In he incurs. State ex rel. v. Wilson 174 505, 74 636, Mo. it purpose provisiоn is said the of foregoing county city the statute in state, “that no case shall the or any costs, liable for county be such nor the shall court or State any allow any by Auditor claims for costs incurred the chapter” bring exception of this- is “to the State within the the to general parties asserting that rule a claim in court are liable for at they cost that incur” least the. and that “the (by State such exempted liability is provision) from the primary for costs it incurs” All proceedings. tax costs in in such incurred a proceeding to 472 including of taxes, fees of State for real estate the liеn the enforce advertisements, a of and are publication notices printer for the
the judgment being special enforceable is of the the and part sale, by solely out, that is pointed in manner have the we judgment and special of land described execution the the proceeds of sale declared. The which State’s lien is therein the may State costs and the аpplied payment of the must be first to the proceeds payment of taxes apply any of the not share in or by statute, provided paid. costs, the so for and interest until proceеds of Wilson, supra.] appears ex It that the rel. v. [State state appellants’ the in itemized the sales made in tax suits listed petition herein part and a of their by ment filed with' reference made by part paid received pro and a thereof to and applied were so rata fee in publication each by upon them the appellants and credited remaining credits ,suit. It these aggregate for the balance after is of Sec they special provisions bring this suit. The were made that for real lien of State tion to to enforce the the applicаble suits general provisions Section of estate taxes over the preyail exempting the supra, rely, which upon appellants and including liability any costs, for county State from or clаim exception in printer’s fees, proceedings, an in such make incurred general provisions of Section county favor of State to the the printing of for provides Section fees the published in real estate proceeding notices a to collect taxes as item of costs in the No other method one the case. by plain unambiguous statute payment thereоf made nonliability any of positive language the of State and proceeding the costs of such a is declared. following the
Appellants’ petition, separate paragraph in a allegations stating action, their claim or the substance of cause of out, which we have set that if the effect said Section states is, act, right look legislative to to deprive printer to a in tax compensation printing pro for his sale notices ceedings reason said then such section is unconstitutional “for the process section deprives property оf their without due law.” petition The demurrer not of admit the did contention, which of this of law. As to this correctness conclusion n here, appellant it that makes we think is sufficient to observe comрel publish accept printer statutes nowhere undertake proceeds look to tax sale his remunera notices entirely they optional It pub tion. was with whether *5 prescribed by lished nоtices on the terms conditions statute publications payment fees for such must accepted published voluntarily be held to have the notices with subject knowledge of and prescribing full payment therefor exclusive method a sole and publishing any liability. In from exempting the State proceeding of a enforce notices and advertisements so in printer con- estate taxes the does lien real State’s thereby restricted and is templation of the' terms of statute his fees. proceeds of the sale Hyde, Sturgis affirmed. trial conrt is CC., concur. C., is foregoing opinion by FergusoN,
PER CURIAM: The judges concur. opinion All of the adopted of the court. as the W. Appellant. S. T. Williams, Edward T. Hall v. Susannah (2d) 138. May One, Division