Little River Drainage Dist. v. Houck

• Citation: 282 Mo. 458,222 S.W. 384
• Decision Date: 21 May 1920
• Docket Number: No. 20910.,20910.
• Parties: LITTLE RIVER DRAINAGE DIST. v. HOUCK et al.
• Court: United States State Supreme Court of Missouri

222 S.W. 384

282 Mo. 458

LITTLE RIVER DRAINAGE DIST. v. HOUCK et al.

No. 20910.

Supreme Court of Missouri, in Banc.

May 21, 1920.

Appeal from Circuit Court, Cape Girardeau; Frank Kelly, Judge.

Suit by the Little River Drainage District against Louis Houck and another. Judgment for plaintiff, and defendants appeal. Case transferred to Court of Appeals.

A. M. Spradling, and Giboney Houck, both of Cape Girardeau, for appellants.

Oliver & Oliver, of Cape Girardeau, for respondent.

GRAVES, J.

From our learned commissioner we borrow the facts as follows:

"This is a suit by plaintiff, drainage district, to foreclose a lien claimed by it for certain special taxes, levied by said district upon the real estate described in the petition, together with the interest, costs, and attorney's fees. The taxes are claimed to have been levied pursuant to section 5538, R. S. 1909, which authorizes a levy of 25 cents per acre against lands in the district for certain purposes therein set forth. The amount of the taxes sued for was less than $1,000. The answer, among other things, pleaded that the said act was unconstitutional, in that it violated certain specified sections of the Constitution of this state, and of the United States; also contained a counterclaim against the plaintiff, drainage district, asking $5,000 damages. On motion of the plaintiff, the counterclaim was stricken out: There was judgment for the plaintiff as prayed for $926.79 taxes and 10 per cent. attorney's fees and other costs. Defendants asked a demurrer to the evidence, which was refused. The defendants filed a motion for new trial on the ground the court erred in refusing their demurrer, and in which they preserved their constitutional questions, also their exception to the ruling of the court in striking out their counterclaim., Defendants' motion for new trial being overruled, they appealed to this court.

"In this court, the appellants nowhere in their brief, points, and authorities, or in any manner, assert said act is unconstitutional, but simply assert the act does not authorize any lien on their property, and there is no provision for enforcing such lien or collecting such taxes."

I. From the statement of the case it appears that the constitutional question was duly lodged and preserved below, and when the appeal was taken it was properly granted to this court. Before the jurisdiction can be divested it must appear to this court (1) that the constitutional question is merely colorable, or (2) that although, at one time substantial, it has been previously passed upon by this court, and therefore no longer a live question. By previously, we mean prior to the appeal in the case, because we have often ruled that if a constitutional question was a live issue at the time the appeal was taken, our jurisdiction will not be ousted by reason of the fact that this court had decided the question adversely to appellant, after his appeal was taken.

But we have indicated in State ex rel. Crow v. Carothers, 214 S. W. 857, and Scott v. Dickinson, 217 S. W. 270, that the mere abandonment of the constitutional question in this court (although a live one when our jurisdiction obtained) would transfer the case to the Court of Appeals. To the doctrine of these cases we do not consent.

With appellate jurisdiction fixed by the record, nisi, in this court, neither party can change that jurisdiction by mere waiver of the jurisdictional question. We determine our own jurisdiction without the consent, or other action of either or both parties. Jurisdiction is not the subject-matter of consent. We mean jurisdiction of the subject-matter. Neithe...