Callier v. Director of Revenue, State of Mo.

Decision Date12 December 1989
Docket NumberNo. 71414,71414
Citation780 S.W.2d 639
Parties57 Ed. Law Rep. 1063 Sylvester J. CALLIER, Petitioner-Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Respondent-Appellant.
CourtMissouri Supreme Court

William L. Webster, Atty. Gen., Sandra A. Mears, Sp. Asst. Atty. Gen., Jefferson City, for respondent-appellant.

Larry O. Denny, Kansas City, for petitioner-respondent.

ALMON H. MAUS, Special Judge.

Upon the basis of Section 302.272.5(2), the Director of Revenue refused to issue a school bus operator's permit to respondent Sylvester J. Callier. Callier filed a Petition for Review in the circuit court. Section 302.311, RSMo 1986. The circuit court declared Section 302.272 1 unconstitutional and ordered the Director to issue the permit. The Director appeals.

The issues in this case are presented with the following evidentiary background. Callier had been driving a school bus for B & J School Bus Service, Inc., for seven years. That company operated school buses under contract with a school district in Jackson County. He applied for a permit under Section 302.272. A record check established that in 1961 he had been convicted of wife and child abandonment and nonsupport. Section 559.350, RSMo 1959. As stated, because of the conviction the Director denied the permit.

Callier's Petition for Review alleged:

4. That R.S.Mo., Section 302.272(5) [sic] is:

(a) A taking of Petitioner's permit to [sic] a school bus without due process of law.

(b) Is an ex post facto punishment of Petitioner for a 1961 criminal offense.

* * * * * *

(d) Is a denial of equal protection of the law.

At the hearing de novo, his attorney verbally objected because the offense for which Callier was convicted was not an offense set forth in Section 302.272.5(2). The circuit court apparently determined this objection and subsequent evidence constituted an amendment of the petition. Rule 55.33(b). The relevant evidence consisted of the application and record of Callier's conviction.

The findings of the circuit court included the following. Callier had not been convicted of any offense listed in Section 302.272.5(2). That if Section 302.272.5(2) was applicable to Callier, "it would be taking of Petitioner's right to operate a school bus, if otherwise properly licensed, without due process of law."

3. R.S.Mo. Section 302.272(5)(7) [sic] if applied to Petitioner would be a denial of the Equal Protection Clause of the Fourteenth Amendment of the United States, where compliance with Section 302.272(5) [sic] is optional for school districts in third or fourth class counties, without any standards for exercising said option, and mandatory for school districts in first or second class counties.

Upon the basis of these findings, the circuit court ordered the Director to issue Callier the permit.

The parties in concert assert this appeal is within the exclusive jurisdiction of this Court because it involves the validity of a statute. Mo. Const. art. V, § 3. Nevertheless, this Court is "obliged and entitled to consider questions of jurisdiction, whether or not raised or advanced by the parties." ABC Fireproof Warehouse Co. v. Clemans, 658 S.W.2d 28, 30 (Mo. banc 1983).

This appeal involves the validity of Section 302.272 only if the record presents a "constitutional issue" of that validity. See Stewart v. Director of Revenue, 702 S.W.2d 472 (Mo. banc 1986). A constitutional issue is raised only when presented in accordance with rules of long standing. These rules are found in a multitude of cases. They have been succinctly summarized as follows.

It is firmly established that a constitutional question must be presented at the earliest possible moment "that good pleading and orderly procedure will admit under the circumstances of the given case, otherwise it will be waived."

Meadowbrook Country Club v. Davis, 384 S.W.2d 611, 612 (Mo.1964), quoting Securities Acceptance Corp. v. Hill, 326 S.W.2d 65, 66 (Mo.1959).

A party asserting the unconstitutionality of a statute or ordinance bears the burden of supporting that contention by at least relating his argument to the statute or ordinance and issue at hand. Atkins v. Dept. of Building Regulations, 596 S.W.2d 426, 434 (Mo.1980). To properly raise a constitutional question, plaintiffs are required to: (1) raise the constitutional question at the first available opportunity; (2) designate specifically the constitutional provision claimed to have been violated, such as by explicit reference to the article and section or by quotation of the provision itself; (3) state the facts showing the violation; and (4) preserve the constitutional question throughout for appellate review.

City of Eureka v. Litz, 658 S.W.2d 519, 521 (Mo.App.1983). See also Century 21 v. City of Jennings, 700 S.W.2d 809 (Mo. banc 1985); City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372 (banc 1949); State ex rel. McMonigle v. Spears, 358 Mo. 23, 213 S.W.2d 210 (banc 1948); State ex rel. Allison v. Barton, 355 Mo. 690, 197 S.W.2d 667 (banc 1946); State ex rel. Spradling v. Bondurant, 501 S.W.2d 527 (Mo.App.1973); and Creamer v. Banholzer, 694 S.W.2d 497 (Mo.App.1985).

With rare exception, unless a constitutional issue has been raised, a question of the constitutionality of a statute is not before the Court. "This determination is beyond the scope of the petition in the case. Constitutional questions must be properly raised by the parties. The question was not raised and was not properly before the trial court and is not properly for review here." City of St. Louis v. Missouri Com'n on Human Rights, 517 S.W.2d 65, 71 (Mo.1974). See also State v. Wickizer, 583 S.W.2d 519 (Mo. banc 1979); State v. Flynn, 519 S.W.2d 10 (Mo.1975). When a constitutional question has not been raised, a declaration of the invalidity of a statute on such a basis by a circuit court is erroneous and should be reversed. Moreover, the case does not involve the validity of a statute, and this Court does not, on that basis, have exclusive jurisdiction of an appeal. St. Louis Teachers Ass'n v. Board of Education, 456 S.W.2d 16 (Mo.1970).

It is not necessary to discuss all instances that constitute an actual or an apparent exception to these rules. See City of St. Louis v. Butler Co., 219 S.W.2d at 372. It is sufficient to make the following observations. The doctrine of inherency has been abolished. Christiansen v. Fulton State Hospital, 536 S.W.2d 159 (Mo. banc 1976). When the public interest is involved, these rules do not prevent this Court from deciding constitutional questions. State ex rel. McMonigle v. Spears, 213 S.W.2d at 210. Nor do they impinge upon the authority of a court to determine a criminal statute or a statute proscribing individual conduct is invalid within the strict limitations set forth in State ex rel. Williams v. Marsh, 626 S.W.2d 223 (Mo. banc 1982).

The relevant parts of the Petition for Review have been noted. The petition contains no designation of any constitutional section claimed to have been violated. It pleads no facts showing a constitutional violation. It is patently insufficient to raise a constitutional issue and a question concerning the validity of Section 302.272. "But certainly it should not be held a mere allegation that a given act, claim, right or statute 'violates the Constitutions of the United States and the State of Missouri,' or the 'applicable' provisions of those Constitutions, properly raises a constitutional question." City of St. Louis v. Butler Co., 219 S.W.2d at 380 (emphasis added). In the absence of compelling reasons otherwise, this case should be transferred to the court of appeals with instructions to reverse the finding of the circuit court that Section 302.272 is invalid and to determine if Callier had been convicted of a crime listed in Section 302.272.5(2). Christiansen v. Fulton State Hospital, 536 S.W.2d at 159. Dictum in Kansas City v. Hammer, 347 S.W.2d 865 (Mo.1961) (finding jurisdiction to be in this Court because of the circuit court's unprovoked declaration of unconstitutionality) should not be followed.

However, to so transfer the case would create a degree of uncertainty concerning the validity of Section 302.272. Even though the question had not been raised, the circuit court found that section to be invalid for two reasons. It is in the public interest to determine if the entire act is invalid for the reasons expressed by the circuit court.

The circuit court first found that, if applicable to Callier, Section 302.272.5(2) would constitute a taking of Callier's right to operate a school bus without due process. This finding includes no facts upon which that conclusion was based. It is not certain if that finding refers to procedural or substantive due process. It is obvious, as demonstrated by the hearing upon the Petition for Review and this appeal, that Callier has been accorded procedural due process. Division of Employment Security v. Smith, 615 S.W.2d 66 (Mo. banc 1981).

" 'The substantive due process aspect of this test mandates that the ordinance have a rational relationship to a legitimate state interest.... Similarly, the equal protection clause requires that classifications drawn by the ordinance have a rational relationship to a legitimate state interest.' " Simpson v. Kilcher, 749 S.W.2d 386, 392 (Mo. banc 1988) (citations omitted) (quoting American Motorcyclists Ass'n v. City of St. Louis, 622 S.W.2d 267, 269 (Mo.App.1981). As hereafter developed, Section 302.272 does bear a rational relationship to a legitimate state interest and does not deny substantive due process to Callier.

The circuit court's second finding was that Section 302.272 violated the Fourteenth Amendment to the Constitution of the United States because of an impermissible classification of counties. 2

The proper analysis of a claim of statutory invalidity by reason of the "equal protection clause" is well established.

In equal protection claims the first step is to...

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