City of Frankford v. Davis

• Decision Date: 18 July 1961
• Docket Number: No. 30631,30631
• Citation: 348 S.W.2d 553
• Parties: CITY OF FRANKFORD, Missouri, (Plaintiff) Respondent, v. Paul R. DAVIS, (Defendant) Appellant.
• Court: Missouri Court of Appeals

Page 553

348 S.W.2d 553

CITY OF FRANKFORD, Missouri, (Plaintiff) Respondent, v. Paul R. DAVIS, (Defendant) Appellant.

No. 30631.

St. Louis Court of Appeals, Missouri.

July 18, 1961.

Rehearing Denied Sept. 5, 1961.

William B. Spaun, Hannibal, for appellant.

John M. McIlroy, James Millan, Bowling Green, for respondent.

RUDDY, Judge.

Defendant was charged in the Police Court of the City of Frankford, Missouri, with operating 'a motor vehicle on the City Streets of Frankford, Missouri, without first having purchased a license for said vehicle and without first having placed same on the windshield of said vehicle; all of which was contrary to * * * the Revised Ordinances * * * entitled Motor Vehicle Licenses; * * *.'

In the Police Court defendant was found guilty and a fine of $25 was assessed against him. He appealed to the Circuit Court of Pike County where he was found guilty by a jury and was fined the sum of $50. He has appealed from the judgment entered by the Circuit Court.

One of the points relied on by defendant is that he 'was denied due process of law as provided by the 5th and 14th Amendments of the Constitution of the United States, and Section 10 of the Bill of Rights of the 1945 Constitution of the State of Missouri.' Our jurisdiction of this appeal has not been challenged, but before reviewing the case we have the duty of examining the record to determine if this court has jurisdiction of the appeal. Reaves v. Rieger, 360 Mo. 1091, 232 S.W. 2d 500; Flynn v. First National Safe Deposit Company, Mo.App., 273 S.W.2d 756; City of St. Louis v. Stenson, Mo.App., 333 S.W.2d 529

The Supreme Court of this state has exclusive appellate jurisdiction in all cases involving the construction of the Constitution of the United States or of this state (Article V, Section 3, Constitution of the State of Missouri, 2 V.A.M.S.) but that ground must appear affirmatively in the record in order to confer jurisdiction on the Supreme Court. City of St. Louis v. Stenson, supra, and cases cited therein.

Four factors must appear affirmatively in the record before the Supreme Court has jurisdiction of a ground which invokes a constitutional question. City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372, and City of St. Luis v. Stenson, supra. Before a party may raise such a question on appeal, (1) he must raise the constitutional question at his first available opportunity; (2) he must 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) he must state the facts showing such violation, and (4) he must preserve the constitutional question throughout for appellate review.

An examination of the record before us discloses that at no time in the Police Court of the City of Frankford, Missouri, or in the trial of the case in the Circuit Court of Pike County, did defendant raise the question of the constitutionality of the ordinance or the proceedings in question. No claim was made by the defendant in either of the trials below that any constitutional right of the defendant had been infringed or denied. The first time it was raised, according to the record before us, was in defendant's motion for a new trial filed in the Circuit Court.

A constitutional question must be directly raised at the first opportunity that good pleading and orderly procedure will permit, and must be kept alive, otherwise it will be considered as abandoned. State v. Lofton, Mo., 1 S.W.2d 830 loc. cit. 832. The validity of the ordinance under which defendant was charged was not challenged in any pleading filed by defendant. The record before us shows no attempt on the part of defendant during the trial in the Circuit Court to assert a constitutional question. The first open door under the orderly procedure of the case would have been at the time of the trial in the Police Court and again in the trial in the Circuit Court. As we have said, no pleading was filed asserting a constitutional question and no defense involving a constitutional question was raised in the trial courts. Absent any such affirmative showing in the record, the Supreme Court would not have jurisdiction of this appeal. The jurisdiction of this appeal is in this court and the constitutional question attempted to be raised by defendant in this appeal cannot be considered by this court. City of St. Louis v. Stenson, supra.

In three other points relied on by defendant he contends that the Ordinance under which he was prosecuted does not comply with Sec. 301.340 RSMo 1949, 16 V.A.M.S., and, therefore, is invalid and unenforceable. This contention must suffer the same fate as defendant's attempt to raise a constitutional question. The first time defendant questioned the validity of the Ordinance in question was in this appeal. At no time prior to filing his brief in this court has defendant made the contention that the Ordinance was invalid because it failed to comply with the enabling act, Sec. 301.340, supra. At no time in the trial courts did he specifically challenge the validity of the Ordinance because of its failure to comply with the enabling act. No written or oral request for dismissal was lodged in the trial courts by defendant based on the ground now asserted. Challenging the validity of an Ordinance, like raising a constitutional question, must be done at the first available opportunity and if not so raised, its invalidity is deemed waived. Frank v. Wabash Railroad Company, Mo., 295 S.W.2d 16, loc. cit. 21; City of St. Louis v. Langeneckert, Mo.App., 210 S.W.2d 736, loc. cit. 739. This contention of defendant cannot be considered by us.

Another point relied on by defendant is 'That the City of Frankford did not prove by competent evidence the exact boundaries of the limits of the City of Frankford.' As pointed out by plaintiff-respondent, this point, as alleged by defendant fails to comply with Civil Rule 83.05, V.A.M.R., in that it fails to state what action or ruling of the trial court is claimed to be erroneous and moreover fails to show in what respect the proof of the boundaries of the limits of the City of Frankford was not competent. Disregarding this deficiency in stating the point, we find there was ample proof of the exact boundaries as set out in the ordinance establishing the limits of the City of Frankford.

James H. Fleming, a registered land surveyor, was given a copy of the ordinance establishing the city limits and from it conducted a survey and prepared a plat in accordance with the survey and the boundaries as established in the ordinance. This witness located the home of defendant on the plat and testified that the defendant's property and home were within the city limits.

Arlie Bogue, Mayor of the City of Frankford, testified that he employed Mr. Fleming, the surveyor, and that he personally was acquainted with the position of the city limits around the city and that he was acquainted with the corner stones and markings which established the beginning points for the survey. He was acquainted with the residence of the defendant and testified that it was within the City of Frankford.

D'Arlene Click, City Clerk, testified that defendant paid real estate taxes for the years 1953 and 1954 to the City of Frankford on the property in which he resided at the time of his arrest.

Defendant in his testimony never did deny living within the City of Frankford Missouri. We think the proof was competent to establish the boundaries of said city and was sufficient proof to show that the defendant lived within the said City of Frankford.

The final point relied on by defendant is that the City of Frankford failed to make a submissible case in that it failed to show a violation of the ordinance in question. We think defendant must be upheld in this contention. The testimony bearing on this question was given by the following witnesses.

D'Arlene Click, City Clerk of the City of Frankford, testified that she had custody of the records of motor vehicle licenses issued and purchased and that defendant had not purchased a city automobile license for the year 1959.

Tony Jennings, City Marshal, testified that he enforced compliance with the city ordinances and that one of those enforced was the 'purchasing of motor vehicle licenses.' He testified that on May 29, 1959, he saw defendant driving a motor vehicle within the city limits of the City of Frankford. Thereafter, the witness gave the following answers...