Ash v. City of Independence

• Decision Date: 22 June 1898
• Citation: 46 S.W. 749,145 Mo. 120
• Parties: ASH et al. v. CITY OF INDEPENDENCE.
• Court: Missouri Supreme Court

46 S.W. 749

145 Mo. 120

ASH et al. v. CITY OF INDEPENDENCE.

Supreme Court of Missouri, Division No. 1.

June 22, 1898.

SUPREME COURT — JURISDICTION — AMOUNT INVOLVED — CONSTITUTIONAL QUESTIONS.

1. Under Const. art. 6, § 12, giving the supreme court appellate jurisdiction in all cases where the amount in dispute, exclusive of costs, exceeds $2,500, the court has no jurisdiction of an appeal involving $2,500.

2. The supreme court has no jurisdiction to decide on the constitutionality of a statute, where the question was not involved in the issues, and the party seeking to have it reviewed had a decision on it in his favor in the lower court.

Appeal from circuit court, Jackson county; E. L. Scarritt, Judge.

Action by G. W. Ash and others against the city of Independence. There was a judgment for defendant, and plaintiffs appeal. Transferred to the Kansas City court of appeals.

L. A. Laughlin, for appellants. Paxton & Rose, for respondent.

MARSHALL, J.

This is an action for $2,500 damages for alleged breach of contract. Prior to April 18, 1889, defendant was a city of the fourth class, and on that day it became a city of the third class. While a city of the fourth class, to wit, on July 13, 1887, it adopted an ordinance, numbered 188, establishing the grade on College street and Lexington road, that being a continuous highway, — the part east of Noland street being called "Lexington Road"; the part west of Noland street being called "College Street." At the same time defendant adopted an ordinance, numbered 189, requiring the owners or occupiers of the property fronting on College street, between Liberty street and Noland street, and those on Lexington road, between Noland street and the eastern city limits, to grade the same to the established grade within 15 days after the approval of the ordinance, and, if they failed to do so, the board of aldermen should cause the work to be done, and assess the cost against the abutting property. Some of the property owners on College street, between Liberty and Noland streets, graded the street as so required, but on Lexington road none of them did so. Accordingly, on August 9, 1887, defendant entered into a contract with plaintiffs to do the grading that had not been done. Plaintiffs entered upon the execution of their contract, and did some work on Lexington road, but none on College street. On the 18th of September, 1887, one of the property owners whose land would be affected by the change of grade obtained a temporary injunction against the city and the plaintiffs, restraining the actual change of grade until the damages and benefits were ascertained and the damages paid, as authorized by Act March 26, 1885 (Acts 1885, p. 47), as amended by Act March 31, 1887 (Acts 1887, p. 37). The temporary injunction was made perpetual. The city took no steps to have the damages and benefits for change of grade ascertained and paid, but in December, 1887, the city engineer certified that plaintiffs had completed their contract, the work was accepted by the board of aldermen, and special tax bills were issued to plaintiffs in payment for their work, as by the express terms of the contract it was provided should be done upon the completion of the work. Suit was brought on the special tax bills, and judgment rendered for the defendant, which, on appeal, was affirmed by this court. City of Independence v. Gates, 110 Mo. 374, 19 S. W. 728. Afterwards, on July 21, 1891, the city changed the name of Lexington road to College street, and later changed the grade of College street, and improved the street according to the new grade. Plaintiffs then began this action, set up these facts, and asked for $2,500 damages for being prevented from carrying out their contract. At the opening of the trial defendant objected to the introduction of any evidence for various reasons, among them, "Because section 4942, Rev. St. 1879, is unconstitutional, and that by reason of the method of assessment." The court overruled the objection, and heard the evidence. At the request of the plaintiffs, the court gave two instructions, — the first declaring that ordinance numbered 189, under which plaintiff's contract was made, was not affected by the repeal of ordinance numbered 126 (128?), which was the general ordinance relating to the steps to be taken when a street was to be improved, and upon which ordinance 189 rested; and the second declaring that the city had the power to enter into a contract for grading its streets. At the request of the defendant, the court gave two instructions, — the first declaring that, under the pleadings and evidence adduced, the plaintiffs were not entitled to recover; and the other that plaintiffs' contract was void, and beyond the power of defendant to make. The defendant asked the court to give an instruction declaring section 4942, Rev. St. Mo. 1879, unconstitutional on account of the method of assessment therein provided, but the court refused so to declare the law. There was judgment for defendant, and plaintiffs appealed.

1. The first question presented is whether this court has jurisdiction. The amount involved is $2,500. Section 12 of article 6 of the constitution gives this court appellate jurisdiction "in all cases where the amount in dispute, exclusive of costs, exceeds the sum of two thousand five hundred dollars," etc. The amount here in dispute is $2,500. It must exceed that sum in...