City of Laclede v. Libby
| Decision Date | 22 December 1925 |
| Docket Number | 25054 |
| Citation | 278 S.W. 372 |
| Parties | CITY OF LACLEDE v. LIBBY |
| Court | Missouri Supreme Court |
O. F Libby, of Laclede, and Charles K. Hart, of St. Louis, for appellant.
C. A Johnson, of Linneus, for respondent.
Action to enforce the collection and lien of a special tax bill for $ 5.57, which amount was levied and assessed against certain real estate in the city of Laclede, a city of the fourth class, as its proportionate share of the cost of oiling the streets in oiling district No. 2 of said city under an ordinance of said city, enacted by virtue of the powers granted to said city by section 8501, R. S. Mo. 1919. Defendant is alleged to be the owner of said real estate. The cause was tried by the court without a jury, resulting in a finding of the issues for plaintiff and against defendant and a judgment that plaintiff have and recover said sum of $ 5.57, with interest from December 1, 1921, the date of said tax bill, which sum is declared to be a lien upon and against the described real estate. In due time defendant filed his motion for a new trial and in arrest of judgment, and, both motions being overruled, he was allowed an appeal to this court.
It is apparent that this court is without jurisdiction of the appeal unless the case is one involving the construction of the Constitution of the United States or of this state. Article 6, § 12, Mo. Const. The petition is in conventional form. The answer pleads several defenses, none of which involves the construction of either the state or federal Constitution, and then avers that:
'The sprinkling of oil upon the street in front of lots Nos. 3 and 4 aforesaid is not an improvement or betterment to the adjacent property abutting on said street of a permanent character, for which a tax bill might be lawfully issued, and that all of the pretended ordinances relied on by plaintiff in its petition are each and all of them unreasonably oppressive, against common right, and an attempt to take defendant's property and subject it to unreasonable burdens without due process of law as defined by the Constitution of the United States and of the state of Missouri, and that each and all of said ordinances, resolutions, contracts, estimates, and assessments are illegal and void, not having been authorized, enacted, or passed by any proper authority of the law.'
A critical examination of the abstract of record discloses that no claim of a constitutional right was asserted by appellant at the trial. Neither the motion for new trial nor the motion in arrest of judgment refers to a constitutional question or charges the denial to appellant of any constitutional right. If the general averment of the answer can be said to raise any constitutional question at all, the question is not preserved and saved in either the motion for new trial or the motion in arrest of judgment. It is not made apparent to us wherein a construction of either the state or federal Constitution was involved in the decision and judgment of the court nisi.
While neither party to this action had challenged the right of ...
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