Ingle v. City of Fulton

• Decision Date: 14 September 1953
• Docket Number: No. 1,No. 43409,43409,1
• Citation: 260 S.W.2d 666
• Parties: INGLE et al. v. CITY OF FULTON
• Court: Missouri Supreme Court

Page 666

260 S.W.2d 666

INGLE et al. v. CITY OF FULTON.

No. 43409.

Supreme Court of Missouri, Division No. 1.

Sept. 14, 1953.

Frazier Baker, City Atty., Fulton, for appellant.

John M. Cave, Fulton, for respondent.

VAN OSDOL, Commissioner.

This action was instituted by plaintiffs to enjoin defendant, City of Fulton, from enforcing city's Ordinance No. 1189. Answer having been filed by defendant city, plaintiffs moved for judgment on the pleadings. The motion was sustained, and the trial court entered a decree perpetually enjoining defendant, its officers, agents and employees 'from enforcing or attempting to enforce against these plaintiffs Ordinance No. 1189 of the City of Fulton.' Defendant city has appealed.

In defendant-appellant city's brief, it is said this court has appellate jurisdiction of the case on the grounds that 'the construction of the Constitution of the United States and of the State of Missouri' is in issue; that a 'political subdivision of the State' is a party; and that the 'amount in dispute' exceeds $7,500, exclusive of costs. V.A.M.S. Const. Art. V, Sec. 3. Plaintiffs-respondents have filed no brief herein and there has been no challenge of this court's appellate jurisdiction; nevertheless, before examining the merits of the appeal, it is our duty to examine the record and to ascertain if this court has appellate jurisdiction of the cause.

May 9, 1949, plaintiff Ingle, owner of land in Callaway County part of which land is within the corporate limits of the City of Fulton, entered into a mining lease with plaintiffs Clyde and Walter Pierson. By the lease, the lessees, plaintiffs Clyde and Walter Pierson, who were obligated to pay a stated royalty to plaintiff Ingle if suitable fire clay were found, were given the right to enter upon the land and prospect for and mine the clay.

June 9, 1949, city's council enacted Ordinance No. 1189 providing that 'No person, firm or corporation, either in person or by agent, shall prospect or mine any property within the limits of the City of Fulton, * * *' and 'No person, firm or corporation, either in person or by agent, shall permit any prospecting or mining on property owned or controlled by them within the limits of the City of Fulton.' The ordinance also provided that persons violating the same should be deemed guilty of a misdemeanor.

Plaintiffs, by their petition, alleged the ordinance is invalid in that it interferes with the right of plaintiffs to the enjoyment of the gains of their own industry and is violative of V.A.M.S.Const. Art. I, Sec. 2; deprives them of their property without due process of law in violation of V.A.M.S.Const. Art. I, Sec. 10, and the Fourteenth Amendment to the Constitution of the United States; and impairs the obligation of a contract and is retrospective in operation in violation of V.A.M.S.Const. Art. I, Sec. 13. Plaintiffs also alleged the ordinance is without the statutory powers of a city of the third class.

Defendant city, by answer, alleged the mining operations contemplated by plaintiffs would necessitate the use of explosives; would necessitate an extensive use of machinery; and would necessitate the making of deep excavations, leaving deep pits, dangerous in the urban area of Fulton. Defendant city further alleged that, if conducted within the corporate limits of Fulton, the mining operations as contemplated would be detrimental to the public health; would inconvenience the public; and would damage and depreciate the value of other property in the neighborhood.

As we have observed, plaintiffs undertook to allege the unconstitutionality of the ordinance, but in our examination of the transcript of the record we have found no further reference to a constitutional question, or issue of construction of the constitution, Federal or State. The trial court, in sustaining plaintiffs' motion for judgment on the pleadings and in rendering the decree of injunction, did not by its order and decree disclose any issue of constitutional construction as a basis for its ruling and judgment. Defendant city's motion to set aside the judgment and, in the alternative, to render judgment for defendant or to grant a new trial, was 'on the grounds and for the reasons that the said judgment is, under the pleadings and the law, contrary to the law.'

Defendant city had the negative of any constitutional question which plaintiffs had raised; and if defendant desired to urge and preserve the point that the trial court erred in ruling any constitutional issue which may have been the basis of the trial court's decree, defendant city could and should have called the trial court's attention to the point by assignment of error in the motion for a new trial. It has been written that in order to preserve a constitutional question for review the question must be raised at the first available opportunity; the sections of the constitution claimed to have been violated must be specified; the point must be presented in the motion for a new trial, if any; and it must be adequately covered in the briefs. City of St. Louis v. Butler Co., 358 Mo. 1221, ...