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, Appellant
• Court: Missouri Supreme Court

68 S.W. 888

169 Mo. 77

ASH et al. v. CITY OF INDEPENDENCE, Appellant

Supreme Court of Missouri, Second Division

May 27, 1902

Appeal from Jackson Circuit Court. -- Hon. John W. Henry, Judge.

Transferred to Kansas City Court of Appeals.

Paxton & Rose for appellant.

L. A Laughlin for respondents.

OPINION

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. Independence, 145 Mo. loc. cit. 120 at 124-5, 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. 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 taxbills 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 guarantees 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. Railroad, 105 Mo. loc. cit. 645, 16 S.W 281, "it can not be laid down by rule how every such question must be raised in the trial court, it should, at least, be fairly and directly presented by some of the methods recognized by the practice and procedure of the court," and when, as in this case, the party seeking its protection was advised, at the time of filing its answer, of the statute which it asserts is unconstitutional, and that the rights of the opposite party would be predicated on such statute, it is...