Kersting v. City of Ferguson
| Decision Date | 12 April 1965 |
| Docket Number | No. 2,No. 50888,50888,2 |
| Citation | 388 S.W.2d 794 |
| Parties | Carl V. KERSTING et al., Appellants, v. CITY OF FERGUSON, Missouri, a Municipal Corporation, et al., Respondents |
| Court | Missouri Supreme Court |
Lester W. Duggan, Jr., Florissant, for plaintiffs-appellants.
Carleno & Nick, Ferguson, for defendants-respondents.
PRITCHARD, Commissioner.
The question which is of primary concern here is whether there is presented a constitutional question necessary to vest this court with appellate jurisdiction.
Appellants' first amended petition alleges in both Counts I and II thereof that they are representatives of a class of resident taxpayers and property owners in Ferguson, Missouri. In Count I of the petition it is alleged that the Charter of the City of Ferguson is void in toto because it is violative of the 1945 Constitution of Missouri, and further that certain specified sections of the Charter are individually void because also violative of the Constitution of Missouri. For the purpose of this opinion it is unnecessary to set out with particularity the charter sections alleged to be unconstitutional and the reasons advanced therefor. In Count II of the petition it is alleged that certain acts of the city council of the City of Ferguson are void because they are in violation of, contrary to, or not in conformity with certain provisions of the Charter, and also that certain ordinances of the City are contrary to the Constitution of Missouri, 1945.
Appellants' jurisdictional statement in their brief states that such constitutional question is presented in that their petition charges that the Charter of the City of Ferguson is violative of the Constitution of this state; that an adjudication on the merits of appellants' petition--a dismissal with prejudice constituting such an adjudication--would necessarily involve a construction of certain specified sections of the Constitution as they apply to the Charter of the City, its specific provisions and the ordinances thereof referred to in the petition.
The mere assertion that a constitutional question is involved does not of itself raise such a question within the meaning of Art. V. Sec. 3, Mo.Const. 1945, V.A.M.S. Cohen v. Ennis, Mo., 308 S.W.2d 669, 672[3, 4]; Nelson v. Watkinson, Mo., 260 S.W.2d 1, 2, and cases cited. Although the respondents do not attack this court's jurisdiction, we must make that determination upon our own motion. Gennari v. Norwood Hills Corporation, Mo., 322 S.W.2d 718, 720[1, 2]; Shepherd v. Department of Revenue, Mo., 370 S.W.2d 381, 382[1, 2].
Respondents' motion to dismiss the first amended petition was argued, submitted to and taken under advisement by the trial court. It was thereafter sustained and the petition was dismissed as to both counts. The order of dismissal does not specify any ground stated in the motion upon which the motion was ruled. The motion to dismiss presented the following grounds therein contained to the trial court:
As to Count I of the petition: a failure to state a claim upon which relief can be granted; plaintiffs' action was a collateral attack upon the Charter of defendant City, which can be done only by the proper state officer directly in Quo Warranto proceedings; that plaintiffs cannot maintain this action for declaratory judgment under Sections 527.010 and 527.020, RSMo 1959, V.A.M.S., because they are not the real parties in interest; that there is no justiciable controversy between the parties; that plaintiffs do not allege facts to show their rights, status or legal relations are affected by a statute, municipal ordinance or franchise as required by Section 527.020 RSMo 1959, V.A.M.S.; and that plaintiffs pleaded conclusions in paragraphs 6 and 7 of Count I.
With respect to Count II, the grounds are again that plaintiffs have pleaded conclusions, without facts; that they are not the real parties in interest; that they have no legally protectible interest at stake or in the relief sought of any claims asserted; that there is no justiciable controversy between the parties; and that no claim to relief is stated.
The only way that this court could have appellate jurisdiction (and that the Court of Appeals could not have jurisdiction) is that the court below ruled upon the issue of whether both counts of the petition state a claim to relief upon constitutional grounds; that is, do the counts of the petition properly and sufficiently allege facts which present an issue involving a construction of the Constitution of this state within the meaning of Section 3, Article V thereof? See Goodson v. City of Ferguson, Mo., 339 S.W.2d 841, 842, where only one ground, 'failure to state a claim upon which the requested relief may be granted.' was specified in the motions to dismiss the petitions...
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State ex rel. State Highway Commission v. Wiggins
...answer. Therefore, I respectfully dissent because I do not believe this Court has jurisdiction of this appeal. Kersting v. City of Ferguson, Mo.Sup., 388 S.W.2d 794; City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372, HENLEY, C.J., concurs. ...
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Missouri Utilities Co. v. Scott-New Madrid-Mississippi Elec. Co-op., SCOTT-NEW
...raised in or considered by the trial court, which has been held to be a prerequisite to its consideration on appeal. Kersting v. City of Ferguson, Mo., 388 S.W.2d 794. The defendant alleged generally in its answer that a permanent injunction against it would violate its 'constitutional righ......
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Estate of McCluney, WD
...trial court must have ruled thereon. 1 Atkins v. Department of Bldg. Regulations, 596 S.W.2d 426, 433 (Mo.1980); Kersting v. City of Ferguson, 388 S.W.2d 794, 796 (Mo.1965). The personal representative says that the trial court, in applying section 473.444 in the face of the claimant's cons......
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Kersting v. City of Ferguson
...grounds and that the constitutional grounds were avoided in the trial court and are therefore not in the case on appeal. * * *' (Mo., 388 S.W.2d 794, l.c. We are first faced with the disposition of the defendants' motion to dismiss this appeal on the grounds that the plaintiffs' brief fails......