Kansas City v. Douglas

• Decision Date: 08 November 1971
• Docket Number: No. 56274,No. 1,56274,1
• Citation: 473 S.W.2d 101
• Parties: KANSAS CITY, Missouri, Respondent, v. Ora Eugene DOUGLAS, Appellant
• Court: Missouri Supreme Court

Page 101

473 S.W.2d 101

KANSAS CITY, Missouri, Respondent, v.Ora Eugene DOUGLAS, Appellant.

No. 56274.

Supreme Court of Missouri, Division No. 1.

Nov. 8, 1971.

Motion for Rehearing or to Transfer to Court En Banc Denied

Dec. 13, 1971.

Aaron A. Wilson, City Counselor, Charles A. Lewis, Associate City Counselor, Kansas City, for respondent.

James L. Muller, Legal Aid and Defender Society of Greater Kansas City, Inc., Kansas City, for appellant.

HOUSER, Commissioner.

Ora Eugene Douglas was convicted in Municipal Court of Kansas City of two misdemeanors: careless driving in violation of a city ordinance (for which he was fined $25) and driving while under the influence of intoxicating liquor (fine $100).He appealed to the Circuit Court of Jackson County, where he was retried to the court without a jury.Again found guilty of both charges he was assessed a fine of $50 on the first charge and $250 on the second.He appealed to the Kansas City Court of Appeals, which ordered the cause transferred here on the ground that this Court has exclusive jurisdiction in cases involving construction of the state and federal constitutions.

The constitutional question (first sought to be raised in appellant's brief filed in the court of appeals) is whether the penalty section of the ordinance prohibiting driving while under the influence of intoxicating liquor violates the equal protection clause of Amendment XIV of the federal constitution and the equal rights guarantee of Article I, Section 2 of the state constitution, V.A.M.S.In support of the transfer order we are urged to retain jurisdiction of this appeal, notwithstanding it involves a conviction of misdemeanors and despite the fact that the constitutional question was not raised at the earliest available opportunity, because the unconstitutionality of an ordinance on which a prosecution is based cannot be waived--that its invalidity goes to the subject matter of the action, is jurisdictional, and its constitutionality is open to attack at any stage of the proceedings, even after conviction, judgment and appeal, for which rules Kansas City v. Hammer, Mo.Sup., 347 S.W.2d 865;Ex Parte Lerner, 281 Mo. 18, 218 S.W. 331;State v. Finley, 187 Mo.App. 72, 172 S.W. 1162, andEx Parte Smith, 135 Mo. 223, 36 S.W. 628, have been cited.Assuming without deciding that these cases provide an exception to the general rule that constitutional questions must be raised at the first available opportunity, appellant still has the burden of demonstrating that he has standing to assert and has properly and in good faith presented issues involving the construction of the constitutions; that the issues presented are genuine and not fictitious in that a colorable issue only is presented, and are otherwise before us for consideration.State v. Civella, Mo.Sup., 368 S.W.2d 444.

Appellant claims that he is denied equal protection of the laws and equal rights because the punishment prescribed for the first offense under said ordinance (imprisonment for not less than thirty days nor more than one year or a fine of not less than $100 nor more than $500, or both such fine and imprisonment) is heavier than that prescribed under § 564.440, RSMo 1959, V.A.M.S. as amended Laws 1967, p. 410, § 1, for the same offense in the same city as well as the other parts of the state(a...