In re Publishing the Docket in a Local Newspaper

187 S.W. 1174, 266 Mo. 48, 1913 Mo. LEXIS 308

• Court: Supreme Court of Missouri
• Decided: March 28, 1913
• Status: Published

Opinions

FARIS, J.

Since the administrative order, made by a majority of the Court In Banc, touching' the matter in the caption, may be said with historical truth, to overrule a former holding of this court on this question, a decent respect for the diverse views entertained by other members of the court (and mayhap by the public likewise) requires a setting forth of the points which induced the conclusions reached.

At the threshold we are met by the question as to whether the language of the statute is clearly mandatory and requires that the docket of the Supreme Court be “published in d newspaper,” which newspaper is printed in Cole County. If the language does so require, we must needs acquiesce, and further comment is “weary, stale, fiat and unprofitable.” If the language to which we shall presently call attention be directory only, then we may exercise a sound discretion, influenced by an expediency which fits the means to the end. In thus asserting we bear in mind the certainly elastic and perhaps inherent power of the court to make rules inuring toward orderliness and expedition of business. The section under discussion is as follows :

“Sec. 2079. It shall be the duty of the judges of the Supreme Court and Courts of Appeals, at the end of each term of said courts, to direct the number of cases to be docketed by the clerks for the next succeeding terms of the courts, and the clerks shall docket all cases from the same judicial circuit in succession, in the order of the circuits, setting not more than ten cases for each day, and a copy of the docket shall be printed' in the county wherein such Supreme Court and Courts of Appeals shall be held, at least forty days before the commencement of the term: Provided, that if for any cause any cases are not reached for hearing at the first term at which they are docketed, then it shall be the duty of the clerk to place all cases undisposed of at any term first upon the docket of the succeeding term; and provided further, that.if any case hasj or shall hereafter, come before any of said courts, by appeal or writ of error, and has been or shall be reversed and remanded, and said ease shall again come before any of said courts for further trial, it shall be the duty of the clerk of said court to docket said case for trial among the first cases for trial at the next term of the court, if it reaches the court in time, and if not it shall be docketed at the next term of such court, and it shall be the duty of the court to hear and determine the case at the same term it is docketed, unless continued for cause.”

The only words of the above section which concern us, because they are the only words having any reference to the matter in hand, are: “A copy of the docket shall be printed in the county wherein such Supreme Court ... is held.” If we can read into this section by construction the additional requirement that such printing shall be “in a newspaper published” in the county wherein the Supreme Court is held, then such publication must be so had. We must give to the word “print” as used by the law-making power, its ordinary meaning, when used as a verb (and it so occurs in this statute), which is “to make an impression with inked type.” The word “publish” ordinarily means “to make public.” A book, a paper or a pamphlet might be “printed” but never “published.” A paper might be “printed” in St. Louis and “published ’ ’ in Chariton County. [E. g. vide, Julian v. Kansas City Star, 209 Mo. 35; Cook v. Globe Printing Co., 227 Mo. 471.] We hold, therefore, that upon its face the statutory language is not clearly mandatory in requiring publication of our docket to be made in any newspaper.

But we need not engage in such analytical splitting of hairs. We need only consider the legislative history of the governing words of the section, supra. The requirement as to the printing of the docket came into the statute by an act approved February 28, 1871 (Laws 1871, sec. 21, p. 48), and was couched in the following words: “A copy of the docket shall be printed in some newspaper printed in the county wherein such Supreme Court shall be held.” The wisdom of this provision at that time is not difficult to see, when we bear in mind that there were then held six terms of court each year; that such terms were held in St. Louis, Jefferson City and St. Joseph. The March and October terms were held in St. Louis; the January and July terms at Jefferson City; the February and August terms at St. Joseph. The court was ambulatory; the mountain came to Mohammed. The court was carried to the bar.

By the Constitution of 1875 the place of sitting of the Supreme Court was permanently fixed at Jefferson City. So, as we might expect, the language under discussion was changed in 1877 to read thus: “A copy of the docket shall be printed m the county wherein such Supreme Court shall be held at least ten days,” etc. [Laws 1877, p. 232.]

The language used in the Act of 1877, supra, and last 'above quoted, was carried, without change, into the revision of 1879. [Sec. 3763, R. S. 1879.]

In 1883, the above section was amended to read:

“The clerk shall cause a copy of the docket to be printed in some newspaper published in the county wherein such Supreme Court shall be held, at least thirty-five days before the commencement of said term.” [Laws 1883, p. 123.]

The above language is clear and needs no comment. It will be noted also that the period of publication was “thirty-five” days, whereas before it had been but ten days.

In 1889 the entire Practice Act was revised and reenacted. As re-enacted, the provision under discussion, being section 3763, Revised Statutes 1879, was changed to read as follows: “And a copy of the docket shall be printed in the cownty wherein such Supreme Court and Courts of Appeals shall be held at least forty days before the commencement of the term.” [Laws 1889, p. 208.] This language was carried from the revised and amended act, above quoted and cited, into the Revised Statutes of 1889, as section 2293, and this language has come down to us unchanged through the revisions of 1899 (Sec. 855, R. S. 1899), and 1909 (Sec. 2079, R. S. 1909), and now occurs in the section last cited, just as it was re-enacted in 1889.

From this it is clear that the Legislature eliminated the requirement as to publication in a newspaper, and that it did so with premeditation. This is clear from the fact that in the revised bill as set out in the Session Laws of 1889, the amendment of 1883 (requiring and directing publication in a newspaper), is referred to in the parenthetic footnote. Furthermore, the period of publication is changed from thirty-five days to forty days. It follows that the rules of statutory construction will not allow us to say that the Legislature did not intend to repeal the requirement of publication in a newspaper.

Another consideration, in its logic equally convincing and decisive, is the fact that by section 2079 is conferred the sole authority for this court, through its clerk, to print and distribute to the bar the bound pamphlet dockets. This being so, has this court, or the clerk of this court, under the provisions of section 2079, power both to publish the docket of this court in a newspaper printed in Cole County, and to print paper-bound pamphlet dockets for the benefit of and to be sent out to counsel over the State having causes set for trial in the court. Unless the power comes from this section we are then clearly lacking in any legal authority under the statute quoted, to either print in a pamphlet, or publish in a newspaper. We may do one, but not both. The authority specifically conferred (history of the legislative changes being kept in mind, and expediency and publicity considered), would then seem to be to print in a pamphlet the docket of the court, and to publish such docket in every county and place where interested counsel reside.

The administrative rule heretofore adopted, since it entails upon the State an almost useless expense of some $800 a year, and requires to uphold it a construction of the statute which is wrong, ought to be followed no longer. Ordered therefore that the publication of the docket of this court be not hereafter published in any newspaper in Cole county.

Lamm, G. J., and Brown and Walker, JJ., concur; Woodson, J., dissents in opinion filed; Graves, J., dissents in an opinion filed in which Bond, J., concurs.