Ash v. City of Independence

• Decision Date: 27 May 1902
• Citation: 68 S.W. 888,169 Mo. 77
• Parties: ASH et al. v. CITY OF INDEPENDENCE.
• Court: Missouri Supreme Court

68 S.W. 888

169 Mo. 77

ASH et al. v. CITY OF INDEPENDENCE.

Supreme Court of Missouri, Division No. 2.

May 27, 1902.

STATUTES — UNCONSTITUTIONALITY — PLEADING — JURISDICTION OF APPEAL.

An answer alleging generally the unconstitutionality of Rev. St. 1879, § 4942, inasmuch as it provides for an illegal method of doing work and making an assessment, without indicating what constitutional provision is violated, is too indefinite to raise a constitutional question, so as to give the supreme court jurisdiction on appeal.

Appeal from circuit court, Jackson county; John W. Henry, Judge.

Action by G. W. Ash and another against the city of Independence. Judgment for plaintiffs. Defendant appeals. Transferred to court of appeals.

Paxton & Rose, for appellant. L. A. Laughlin, for respondents.

GANTT, J.

This cause was appealed to this court once before, but we declined to take jurisdiction for the reason that the only possible ground on which the appeal could be entertained in this court was that it involved a constitutional question, and that question had been resolved by the circuit court in favor of the then appellants (the plaintiffs, Ash and Gentry), and no rights of theirs had been impaired by the ruling of the circuit court in that respect. Ash v. City of Independence, 145 Mo., loc. cit. 124, 125, 46 S. W. 749. So holding, this court transferred the cause to the Kansas City court of appeals, which court reversed and remanded the cause. Ash v. City of Independence, 79 Mo. App. 70. It was pointed out in the opinion of this court that said alleged constitutional question was not raised in the pleadings as they then stood. After the cause was remanded, the defendant filed an amended answer, evidently intending to cure the defect in the former answer as to pleading the unconstitutionality of the statute under which the contract was charged to have been made and the street grading done. As amended, the sixth paragraph of the answer alleges that "section 4942 of the Revised Statutes of Missouri for 1879, under which the alleged work was done and the tax bills were issued, is unconstitutional and void, inasmuch as it provides for an illegal method of doing the work and making the assessment, and for this reason the contract with the city and the whole proceedings set forth by plaintiffs were void, and defendant is not liable in damages."

It will be observed that the answer does not state in what the unconstitutionality of the act consists; whether it collides with the constitution of the United States or the constitution of this state or whether it infringes some specific provision in one or both. Each of said constitutions contains guaranties for the protection of our citizens, and they may invoke them in a state as well as in a federal court. To say merely that an act is unconstitutional indicates nothing. While it is true, as was said in Bennett v. Railway Co., 105...