Dickey v. Holmes

• Decision Date: 24 December 1907
• Citation: 106 S.W. 511,208 Mo. 664
• Parties: DICKEY v. HOLMES et al.
• Court: Missouri Supreme Court

106 S.W. 511

208 Mo. 664

DICKEY v. HOLMES et al.

Supreme Court of Missouri, Division No. 2.

December 24, 1907.

COURTS—APPELLATE JURISDICTION.

Where a section of the city charter has been declared unconstitutional, the question cannot be raised in a subsequent action, in order to give the Supreme Court jurisdiction on an appeal.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by Walter S. Dickey against James T. Holmes and others. From a judgment for defendants, plaintiff appeals. Transferred to the Kansas City Court of Appeals.

Karnes, New & Krauthoff, for appellant. Gage, Ladd & Small, for respondents.

BURGESS, J.

This is an action for the enforcement of the liens of two special tax bills against the properties of the defendants in Kansas City. The judgment in the trial court was for the defendants, from which judgment, after the filing and overruling of a motion for a new trial, plaintiff appeals.

Although the amount of the tax bills sued on is insufficient to give this court jurisdiction of this appeal, it is claimed by plaintiff that the Supreme Court has jurisdiction because of a constitutional question being involved. This question, if properly before this court, involves the validity of section 23, art. 9, of the charter of Kansas City, by which it is provided that the owner or owners of any tract or parcel of real estate charged with the payment of installment bills shall, within 60 days from the date of issue of the tax bills, file with the board of public works a written statement of each and all objections which he or they may have to the validity of the tax bills, the doing of the work, the furnishing of the materials charged therefor, the sufficiency of the work or materials therein used, and any mistakes or error in the amount thereof. It is further provided that in any suit on any tax bill issued pursuant to section 23, art. 9, no objection shall be pleaded or proved other than those that have been filed with the board of public works within the period aforesaid. The only way this question is raised, if at all, is by the replication to the defendant's answer. It is not raised by the answer, instructions, or motion for new trial; but plaintiff contends that it is necessarily involved in the decision in the case. The same question was raised in the same way in State ex rel. Curtice v. Smith, 177 Mo. 69, 75 S. W. 625, and must be held to be properly raised in the case at bar.

This identical section of the charter of Kansas City has been before this court on several different occasions and has as often been held unconstitutional and void. Barber Asphalt Paving Co. v. Ridge, 169 Mo. 376, 68 S. W. 1043; State ex rel. v. Smith, supra. It was before this court in Paving Co. v. Munn, 185 Mo. 552, 83 S. W. 1062, in which Gantt, P. J., speaking for the court, said: "We have been urged to reconsider our ruling in that case (Barber Asphalt Co. v. Ridge, supra), and to hold said provision of the charter a valid one. We have carefully considered the argument and authorities pressed on behalf of the plaintiff; but, without repeating what was said in Ridge's Case, we see no reason for departing from the views then expressed and conclusions reached in that case. We are still of opinion that it is in conflict with the fundamental principles of our state Constitution and out of harmony with our whole judicial system. Richter v. Merrill, 84 Mo. App. 150; Winfrey v. Linger, 89 Mo. App. 161." It was again before division 1 of this court in Curtice v. Schmidt et al., 202 Mo. 703, 101 S. W. 61, and again in Gilsonite Construction Co. v. Arkansas McAlester Coal Co., 103 S. W. 93, and in both cases held to be unconstitutional; and the question must, therefore, be considered as settled. Plaintiff, however, says that the fact that this court may have heretofore decided that the charter provision in question is invalid does not prevent the question from being involved in this appeal. It is true that the Supreme Court decided in State ex rel. Dugan v. Kansas City Court of Appeals, 105 Mo. 299, 16 S. W. 853, that where one, prosecuted for violating the local option law, defended on the ground that the law was unconstitutional, the Court of Appeals had no jurisdiction on appeal by defendant, notwithstanding the Supreme Court had already declared the law unconstitutional; and also in State ex rel. Curtice v. Smith, supra, "that the rule of practice in this state is that, when a constitutional question has once been decided in a case, it can be raised in a subsequent case, and when so raised in the trial court it is so far in the case as to direct the course of the appeal to the Supreme Court." The same rule is announced in Schafstette v. St. L. & M. R. R., 175 Mo. 142, 74 S. W. 826. But this is not an iron-clad rule to which there are no exceptions.

In the very nature of things, the constitutional question involved must be a live one, not expressly foreclosed by prior decisions of this court; otherwise, no such question could ever be settled, no matter how often adjudicated upon by this court. In Gabbert v. Railroad, 171 Mo. 84, 70 S. W. 891, it was held that the amendment to the Constitution allowing nine jurors to return a verdict was legally adopted and was constitutional, and the Supreme Court has always since declined and refused to consider cases where appeal was taken solely on the ground of the alleged unconstitutionality of that amendment, except where the appeal was taken prior to the date of that decision, December 24, 1902. In Murray v. St. Louis Transit Co., 176 Mo. 183, 75 S. W. 611, plaintiff received a judgment for $500 damages for personal injuries sustained by him in a collision with one of the defendant's street cars, caused by the alleged negligence of the servants of defendants. Valliant, J., wrote the opinion of the court, in which all the other members of that division concurred. He said: "Defendant appeals from the judgment, and as the appeal was taken before this court had passed on the question of the validity of the constitutional amendment authorizing nine jurors in a civil case to return a verdict, and as that question was raised in the trial court in this case, the appeal was brought to this court. Since the appeal in this case was taken, however, that constitutional question has been decided by this court, and it is no longer in doubt. Gabbert v. Railroad, 171 Mo. 84, 70 S. W. 891." The same rule was announced by the court in banc in Tandy v. St. Louis Transit Co., 178 Mo. 240, 77 S. W. 994, and by division 1 of the Supreme Court in Portwright v. St. Louis Transit Co., 183 Mo. 72, 81 S. W. 1091. In Lee v. Jones, 181 Mo. 291, 79 S. W. 927, 103 Am. St. Rep. 596, there was a verdict for the plaintiff for $1,500, upon which there was judgment rendered, and the defendant appealed. Valliant, J., speaking for the court, said: "The appeal was taken to the St. Louis Court of Appeals; but when the attention of that court was called to the fact that only nine of the jurors concurred in the verdict, and that the constitutionality of such a verdict was challenged in the circuit court, the Court of Appeals transferred the cause to this court. At the time the appeal was taken this court had not passed on the question of the constitutionality of a verdict by three-fourths of the...