Kansas City v. Howe, 24627

• Decision Date: 05 June 1967
• Docket Number: No. 24627,24627
• Citation: 416 S.W.2d 683
• Parties: KANSAS CITY, Missouri, Respondent, v. Elmer J. HOWE, Appellant.
• Court: Missouri Court of Appeals

Page 683

416 S.W.2d 683

KANSAS CITY, Missouri, Respondent, v. Elmer J. HOWE, Appellant.

No. 24627.

Kansas City Court of Appeals, Missouri.

June 5, 1967.

Henry H. Fox, Jr., Kansas City, for appellant.

Herbert C. Hoffman, City Counselor, Richard W. Mason, Jr., Associate City Counselor, Kansas City, for respondent.

BLAIR, Judge.

Originating in the municipal court of Kansas City, this prosecution for parking a motor vehicle in a prohibited zone in violation of a city ordinance resulted in the conviction of the defendant, Elmer J. Howe. He was fined $10.00. He appealed to the circuit court. There he waived trial by jury and was again fined $10.00. He appeals.

The ordinance on which the prosecution was based is Section 58.1040(F), Chapter 58, Revised Ordinances of Kansas City. It prohibits the 'standing or parking' of a motor vehicle during 'designated hours' on 'described streets' on all days 'except Saturdays, Sundays and public holidays'. The validity of this ordinance stands unquestioned. The city presented only one witness, Police Officer Scobee, who testified that on Thursday, March 27, 1966, he found a 1957 Cadillac automobile bearing Missouri License Plate No. SOR970 parked on Locust Street in Kansas City in direct violation of Section 58.1040(F), supra. He placed a parking violation summons on the vehicle, a copy of which became the information against the defendant in the municipal and circuit courts. On cross-examination he testified he had no knowledge of the identity of the person who controlled, operated or had the vehicle in use at the time he placed the violation summons on it. He was the only witness for the city. The city established by official records that the defendant held the legal title to the vehicle on the day and at the time and place of the violation. The defendant and the city then stipulated that the defendant was the owner of the vehicle at all relevant times. Then the city introduced Section 58.1040(F), supra, the ordinance violated, and in addition, Section 58.010, Chapter 58:

'Section 58.010. Definitions.--Whenever in this chapter the following terms are used, they shall have the meaning respectively ascribed to them in this section:

'Owner--A person who holds the legal title of a vehicle, or in the event the vehicle is subject of an agreement for the conditional sale or lease thereof, with the right of purchase upon performance of the conditions stated in the agreement, and with immediate right of possession vested in the conditional vendee or lessee or in the event a mortgagor of a vehicle is entitled to possession, then such conditional vendee or lessee or mortgagor shall be deemed the owner for the purpose of this chapter. The operation or use of a motor vehicle in violation of the provisions of this chapter shall be prima facie evidence that said vehicle was at the time of such violation controlled, operated and used by the owner thereof.' (Emphasis supplied)

On this appeal the defendant undertakes to challenge Section 58.010, last quoted, as being in contravention of the 5th and 14th Amendments to the Constitution of the United States. Some resume of the occurrences at the trial is of value in determining whether he has validly challenged this ordinance. Before the presentation of the evidence commenced, he addressed himself orally at length in an effort to convince the trial court that the information standing against him did not embrace sufficient specific allegations of fact to charge him with any offense. Nothing was said about any constitution. The city then presented its evidence, including the two ordinances. The defendant raised no objection of any nature, constitutional or otherwise, to the introduction of these ordinances. He then presented an oral motion for a judgment of acquittal. Again he argued at length that the information was insufficient because it did not embrace sufficient specific allegations of fact to charge him with any offense and ended his argument on the motion by finally saying 'The very wording of the prima facie statute would require the defendant to rebut, and to rebut would force the defendant to testify against himself. And under our Fourth--rather Fifth and Fourteenth Amendments, which particularly the Fourteenth Amendment, is applicable on our state statutes, state laws, this simply can't be done.' The 'prima facie statute' to which he was referring was Section 58.010, supra. He stood on his plea of not guilty and his motion for judgment of acquittal. He presented no evidence. His conviction followed.

Strangely enough, the city does not question our jurisdiction to determine the constitutionality of Section 58.010, supra. Instead it joins with the defendant in an extensive debate regarding the constitutionality of this ordinance. Neither party suggests any awareness that the Supreme Court has exclusive appellate jurisdiction in all cases involving the construction of the Constitution of the United States and of this state, Sec. 3, Art. 5, Const. of Mo., 1945, V.A.M.S. and that jurisdiction which is not ours can never be conferred on this court by acquiescence of the parties where that jurisdiction does not exist. 8 Mo.Digest, Courts, k23, 37(1); In re Wellston Trust Co., Mo., 131 S.W.2d 720; Higgins v. Smith, 346 Mo. 1044, 144 S.W.2d 149; State v. Norman, Mo.App., 193 S.W.2d 391. Our first duty is to determine whether we have jurisdiction before we attempt to decide this appeal and this is true whether our jurisdiction is challenged or not. Edwards v. Sittner, Mo.App., 206 S.W.2d 578; Farrell v. DeClue, Mo.App., 365 S.W.2d 68; Allen v. Smith, Mo.App., 375 S.W.2d 874; 2 Mo.Digest, Appeal and Error, k23.

Our conclusion is that the defendant has not raised and preserved any constitutional question and this is true for more than one reason. The only allegation of error based on constitutional grounds in his motion for a new trial is a claim that Section 58.010, supra, the prima facie evidence ordinance, 'presumed guilty in a criminal or quasi criminal case in violation of Amendment Fourteen of the Constitution of the United States and in violation of Article I, Section 10, of the Constitution of Missouri, 1945, in that defendant was thereby denied due process of law.' To raise and preserve a federal or state constitutional question for appellate review the question must (1) be raised at the first available opportunity, (2) the section or sections of the constitution claimed to be violated must be specified, (3) the question must be kept alive at every stage of the proceeding, (4) the question must be presented in a motion for a new trial and (5) it must be adequately covered in the briefs. Deacon v. City of Ladue, Mo.App., 294 S.W.2d 616; State v. Brookshire, Mo., 325 S.W.2d 497; City of St. Louis v. Friedman, 358 Mo. 681, 216 S.W.2d 475; 8 Mo.Digest, Part 2, Courts, k231(22), (23); 21 Mo.Digest, Municipal Corp., k121.

The defendant's attempt to invoke Art. 1, Sec. 10, Const. of Mo., 1945, is a total failure because it was not mentioned during the trial and was mentioned for the first time in the motion for a new trial. And now there is no mention of it in his briefs in this court. His attempt to invoke Amendment 5, Const. of U.S. is a total failure because although, as observed, he did mention it during the trial, he does not mention it in his motion for a new trial. This leaves only the question whether he has properly invoked Amendment 14, Const. of U.S., which he mentioned during the trial and in his motion for a new trial. As our resume of the occurrences of the trial shows, he allowed Section 58.010, supra, the prima facie evidence ordinance, to be introduced into evidence without invoking any constitutional provision, federal or state. In short, he allowed his 'first available opportunity' to question the constitutionality of Section 58.010, supra, to pass him by. For all these reasons there is no constitutional question in this case and we have jurisdiction.

There is a final reason why there is no state or federal constitutional question in this case. When an identical question involving the constitutionality of an ordinance or a law has been finally settled by the Supreme Court, that question is no longer an open one and that court does not take jurisdiction of the same question in subsequent cases and jurisdiction resides in the courts of appeals. This is particularly true where there is no contention that the constitutional question already settled was settled erroneously. State v. Brookshire, supra, 325 S.W.2d l.c. 500. The decisions substantiating these statements are so numerous that it is only necessary to refer to 8 Mo.Digest, Courts, k231(19).

The identical constitutional questions sought to be presented on this appeal have already been settled by the Supreme Court. City of St. Louis v. Cook, 359 Mo. 270, 221 S.W.2d 468. Although the city relies on this decision and quotes from it at length in its brief, the defendant does not undertake to demonstrate that its ruling is erroneous or even mention it in either his principal or reply brief. In Cook, the city prosecuted a defendant under a city ordinance declaring it to be an offense to park any vehicle on any public street in any prohibited zone. That ordinance was not questioned. The defendant was convicted in the city court for a violation of that ordinance. He appealed to the court of criminal corrections. In that court, the city introduced evidence to establish that a motor vehicle had been parked on a public street in a prohibited zone in violation of that ordinance. Evidence was then presented that the motor vehicle 'was registered on the records of the Secretary of State in defendant's name, and likewise on the records of the City License Collector of St. Louis. No other or direct evidence was introduced tending to identify the person who had actually parked the vehicle. And defendant did not introduce any evidence.' The city invoked an ordinance...