Ash v. City of Independence

• Decision Date: 22 June 1898
• Citation: 46 S.W. 749,145 Mo. 120
• Parties: Ash et al., Appellants, v. City of Independence
• Court: Missouri Supreme Court

46 S.W. 749

145 Mo. 120

Ash et al., Appellants, v. City of Independence

Supreme Court of Missouri, First Division

June 22, 1898

Appeal from Jackson Circuit Court. -- Hon. E. L. Scarritt, Judge.

Transferred to Kansas city court of appeals.

Paxton & Rose for respondent on motion to transfer.

(1) We do not think this court has jurisdiction of this appeal. Two thousand five hundred dollars is claimed and no more. Plaintiff did not raise any constitutional question nor was he beaten on one. Plaintiff can not claim to be damaged by rulings against the defendant. The constitutional question must be fairly presented by the record. Bennett v Railroad, 105 Mo. 642. (2) To confer jurisdiction on this court there must not only be a constitutional question raised in the court below; but there must be a constitutional question before the appellate court. Kansas City v Cook, 38 Mo.App. 660; Coyle v. Railroad, 27 Mo.App. 584.

L. A Laughlin for appellants in reply.

(1) That a constitutional question may be raised by an instruction there can be no doubt, for this is one "of the methods recognized by the practice and procedure of the court." Bennett v. Railroad, 105 Mo. 642; State ex rel. v. St. Louis Court of Appeals, 95 Mo. 281; State ex rel. v. Kansas City Court of Appeals, 105 Mo. 299. (2) If defendant had chosen to raise the constitutional question in its brief, it could have done so, for if its objection was valid, it would be fatal to plaintiff's case, notwithstanding the court may have erred in other instructions. Fitzgerald v. Barker, 96 Mo. 661; Bushey v. Glenn, 107 Mo. 331; Clough v. Holden, 115 Mo. 336; Greer v. Lafayette Co. Bank, 128 Mo. 550; Whitehead v. Atchison, 136 Mo. 485.

OPINION

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 fifteen 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 eighteenth 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 of March 26, 1885 (Acts 1885, p. 47) as amended by the act of 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. Afterward, 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, Revised Statutes of 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 plaintiff the court gave two instructions, the first declaring that ordinance numbered 189, under which plaintiffs' 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, Revised Statutes of Missouri 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.

The first question presented is whether this court has jurisdiction. The amount involved is $ 2,500. Section 12 of article VI 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 order to confer jurisdiction on this court. We can not, therefore take jurisdiction of this appeal for this reason.

But it is claimed that the case involves the construction of the Constitution of this State, and hence that this court has jurisdiction. This claim is based on the fact that at the opening of the case the defendant objected to the introduction of any evidence on the ground, partly, that section 4942, Revised Statutes 1879, is unconstitutional, and that at the close of the whole case the defendant asked an instruction which declared the law to be that said section of the statutes is...