City of Excelsior Springs To Use of McCormick v. Ettenson

• Citation: 86 S.W. 255,188 Mo. 129
• Parties: CITY OF EXCELSIOR SPRINGS to use of DAVID McCORMICK v. ETTENSON, Appellant
• Decision Date: 30 March 1905
• Court: Missouri Supreme Court

86 S.W. 255

188 Mo. 129

CITY OF EXCELSIOR SPRINGS to use of DAVID McCORMICK v. ETTENSON, Appellant

Supreme Court of Missouri, First Division

March 30, 1905

Transferred from Kansas City Court of Appeals.

Remanded to Kansas City Court of Appeals.

Harris L. Moore and I. J. Ringolsky for appellant.

Sections 1620 and 1652, Revised Statutes 1889, are unconstitutional and void, and the appointment of city engineer Norris under said laws was void. Petitioners for Board of Viewers, 138 Pa 430.

D. C Allen and Sandusky & Sandusky for respondent.

There is no constitutional question involved. Section 1592, Laws 1893, pp. 107-8, provides for the appointment of a city engineer in making city improvements. This section requires him to compute the cost and apportion the same among the lots according to frontage, and to make out and certify the taxbills. The contention of appellant on this point fails on a question of fact. The Legislature, as a matter of fact, did not delegate to cities of the fourth class the power to create new departments, and in that way to extend, by ordinance, their charter powers. The charter itself (section 1592) provides for the appointment of a city engineer and defines his principal duties.

VALLIANT J. Brace, P. J., absent.

OPINION

VALLIANT, J.

This is a suit on special taxbills issued to pay for work done in the improvement of a street in the plaintiff city, charged as a lien on certain property of the defendant. The judgment was in favor of the plaintiff, establishing the lien. The amount of the judgment in money was less than forty-five hundred dollars. Defendant took an appeal to the Kansas City Court of Appeals, but that court transferred the cause to this court, because it was of the opinion that a question as to the constitutionality of a certain ordinance of the city was involved.

We are of the opinion that there is no constitutional question in the case. It is the defendant who would now insist that the ordinance is unconstitutional, but he made no such assertion in the circuit court, he gave that court no opportunity to pass on the question. On the trial of the cause in the circuit court the ordinance was introduced in evidence by the defendant himself with the only purpose, so far as the record shows, of showing by it that the work was not done in conformity to its requirements, and in the argument on the merits now the force of the brief of the learned counsel for the appellant is directed to that object. The point is made in the answer, that the ordinance delegates to the city engineer authority to say in what manner the work shall be done instead of setting out in the ordinance itself the specifications, and also that at the date of the ordinance a city engineer had not yet been appointed, but no reference is made to any constitutional right that is infringed; the inference is rather that the city council had not followed the requirements of the statute. The only reference to the Constitution that we find in the record is this sentence in the answer: "That the statute authorizing the appointment of an engineer is unconstitutional and void." The particular statute there referred to is not specified and we would have to go through the books relating to this city or to cities of this class to find a statute conferring power to appoint a city engineer, and when we had found what we might consider the statute intended, we would then have to go carefully through our Constitution to see if there was any infringement. The language is: "unconstitutional and void." It does not say whether it is our State Constitution or our Federal Constitution that is violated; the language used applies as well to the one as to the other.

There was no instruction on the point asked and no reference to the Constitution in the motion for a new trial. In Hulett v Railroad, 145 Mo. 35, 46 S.W. 951, the party essayed to raise a constitutional question by asking this instruction: "To hold the defendant liable in this case would violate its rights guaranteed by the Constitution of the State of Missouri and of the United States, and would deprive...