Kingshighway Presbyterian Church v. Sun Realty Co.

• Decision Date: 03 February 1930
• Docket Number: No. 28052.,28052.
• Citation: 24 S.W.2d 108
• Parties: KINGSHIGHWAY PRESBYTERIAN CHURCH, Appellant, v. SUN REALTY COMPANY and NATIONAL REFINING COMPANY.
• Court: Missouri Supreme Court

24 S.W.2d 108

KINGSHIGHWAY PRESBYTERIAN CHURCH, Appellant, v. SUN REALTY COMPANY and NATIONAL REFINING COMPANY.

No. 28052.

Supreme Court of Missouri, Division No. 1.

February 3, 1930.

Appeal from Circuit Court of City of St. Louis. — Hon. John W. Calhoun, Judge.

TRANSFERRED TO ST. LOUIS COURT OF APPEALS.

Benjamin J. Klene and A. Lowell Morris for respondent.

(1) "Transactions commenced, but not completed during the existence of a law, vary with the changes of the law and are governed by the law in force at the time of their completion." Robinson's Elementary Law, p. 20. (2) "As a general rule, a building permit has none of the elements of a contract and may be changed or entirely revoked, even though based on a valuable consideration, if it becomes necessary so to change or revoke it, in the exercise of the police power." 43 C.J. 349, sec. 380. "A statute expressly repealed is thereby abrogated, and all proceedings commenced thereunder, which have not been consummated, are thereby rendered nugatory, unless the repealing act is modified by a saving clause." State ex rel. v. Hackmann, 272 Mo. 607. Where ordinances are repealed all proceedings under them are repealed. Kansas City v. Clark, 68 Mo. 588; St. Louis v. Wortman, 213 Mo. 131. A statute or ordinance speaks as of the date it becomes effective and not otherwise. State v. Bockelman, 240 S.W. 212. In a zoning law case this court held that the "filing of an application for a building permit to erect an automobile show and store room, two days before zoning ordinance restricted the district to multiple dwellings, did not give applicant such vested right as to render the ordinance inoperative as to him." State ex rel. v. Christopher, 298 S.W. 720. It was further held that the property of owner was "subject at all times to every valid exercise of the police power. The filing of its application gave it no vested right... . Had the permit been granted on the date it was applied for it would have conferred upon respondent no additional property right." State ex rel. v. Christopher, 298 S.W. 726. (3) The exercise of the police power of the State shall never be abridged, or so construed as to infringe the equal rights of individuals or the general wellbeing of the State. Art. XII, sec. 5, Mo. Constitution; Tranbarger v. Railroad Co., 250 Mo. 46, 238 U.S. 67. The building of the filling station and the judgment of the court infringe and limit the exercise of the police power in direct violation of Article XII, Section 5, Missouri Constitution. (4) Every citizen holds his property subject to the exercise of the police powers. St. Louis Gunning Co. v. St. Louis, 235 Mo. 166; Dillion on Municipal Corp. (3 Ed.) sec. 1954; Eichenlaub v. St. Joseph, 113 Mo. 404; Story on Const. (5 Ed.) sec. 1954; Bluedorn v. Railroad Co., 108 Mo. 439; St. Louis v. Theater Co., 202 Mo. 690; St. Louis v. Investment Co., 226 Mo. 148; Ex parte Lerner, 281 Mo. 25; St. Louis v. Nash, 260 S.W. 985; State ex rel. v. Public Service Co., 308 Mo. 345.

Wm. J. Becker and George E. Mix for respondents.

(1) The statute will be construed to operate in the future only (that is, it will not be given a retroactive effect by construction), unless the Legislature has so explicitly expressed its intention to make the act retrospective that there is no place for reasonable doubt on the subject. Auffmordt v. Rosin, 102 U.S. 620, 26 L. Ed. 262. (2) A statute will not be held to affect transactions which antedate it, especially where such application would render it unconstitutional. Royal Arcanum v. Hitzman, 140 Mo. App. 105.

FRANK, J.

Action in equity whereby plaintiffs seek to enjoin defendants from erecting an automobile gasoline filling station on premises described in the petition, and to compel the removal of any such filling station or part thereof as defendants may erect during the pendency of this action. The trial resulted in a judgment dismissing plaintiffs' bill, and Kingshighway Presbyterian Church appealed.

At the oral argument of the case, the question of our jurisdiction was suggested to counsel. In a reply brief thereafter filed, appellant claims that we have jurisdiction, (1) because defendants' answer alleged damages in the sum of $10,000 and prayed judgment for that amount; and, (2) because of a constitutional question raised by defendant National Refining Company's answer.

Appellate jurisdiction of this court on the ground of the amount in dispute, attaches when it appears from the records of the trial court that an amount in excess of $7,500 is involved. The record in this case shows that no amount of money is involved in this controversy.

While the answer claims damages in the sum of $10,000, no evidence of the alleged damages was offered and the record shows that the case was presented by both parties on the theory that this claim was not an issue in the case. In other words, the manner in which the case was tried indicates that defendant abandoned his claims for damages which was in effect a withdrawal of the same. Evidently the trial court so regarded it, because the judgment makes no disposition of defendant's claim for damages, but disposes of the case by dismissing plaintiffs' bill. Defendant makes no complaint of the court's failure to dispose of its alleged claim for damages, and so far as the record shows took no steps to have such claim adjudicated. If the claim was abandoned, it was not an issue in the case, the trial court was warranted in so treating it, and an adjudication thereof was not necessary.

A somewhat similar question was before the Kansas City Court of Appeals in Mitchell v. Violette, 221 S.W. 777, whereat the court said:

"There was no error in plaintiff's Instruction No. 3, which told the jury that defendant's counterclaim had been dismissed. From an examination of the entire record, it is apparent that defendant had abandoned his counterclaim, which substantially amounted to a withdrawal of same."

Where, as here, parties litigant invoke the jurisdiction of this court on the ground that the amount sued for is in excess of $7,500, we will look beyond the pleadings and examine the entire record, if necessary, in order to determine what amount is actually in dispute. "Frequently the amount in dispute is materially affected by eliminating items and elements at the trial, and the record shows this. Would it not be an act sounding to folly for us to say that, for the purpose of jurisdiction on appeal, we must continue to consider such eliminated matter? ... So, in Phoenix Power Mfg. Co. v. Railroad, 196 Mo. 663, 94 S.W. 235, it was held that we would look into the whole record far enough to see if a real and not a mere colorable Federal question was involved." [Vanderberg v. Gas Co., 199 Mo. 455, 460, 97 S.W. 908.]

Looking beyond the answer which claims damages in the sum of $10,000, an examination of the record shows that defendant completely abandoned his claim for damages in the trial court. Neither the parties nor the court treated this claim as an issue in the case. Not having litigated the question of damages in the trial court, it cannot be injected into the case on appeal for the purpose of giving this court jurisdiction.

We will next state the facts necessary to be considered in determining the claim that there is a constitutional question in the case.

On April 11, 1924, respondent Sun Realty Company, was the owner of the lot on which the filling station was erected, and on that day contracted to sell the lot to respondent, National Refining Company, on condition that if the National Refining Company should be unable to secure a permit to erect, maintain and operate a gasoline-filling station on said lot, the contract of sale was to be null and void. Immediately thereafter the Sun Realty Company applied to the authorities of the city for permits to install three one-thousand-gallon gasoline tanks, and to erect an office building on said lot. In July, 1924, a hearing was had on said applications, and after holding the matter under advisement for several months the city refused to grant the permits. Thereafter a suit in mandamus was brought by the Sun Realty Company in the Circuit Court of the City of St. Louis against the proper city officers to compel the issuance of the permits. A peremptory writ of...