Little River Drainage District v. Houck

• Decision Date: 21 May 1920
• Citation: 222 S.W. 384,282 Mo. 458
• Parties: LITTLE RIVER DRAINAGE DISTRICT v. LOUIS HOUCK et ux., Appellants
• Court: Missouri Supreme Court

222 S.W. 384

282 Mo. 458

LITTLE RIVER DRAINAGE DISTRICT v. LOUIS HOUCK et ux., Appellants

Supreme Court of Missouri

May 21, 1920

Appeal from Cape Girardeau Circuit Court. -- Hon. Frank Kelly Judge.

Transferred to St. Louis Court of Appeals.

A. M Spradling and Giboney Houck for appellants.

Oliver & Oliver for respondent.

GRAVES J. Woodson, J., absent; Blair and Williams, JJ., concur in result.

OPINION

In Banc

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 attorneys' fees. The taxes are claimed to have been levied pursuant to Section 5538, Revised Statutes 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 attorneys' 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. Defendant's 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 is 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. Neither party, after there has been a fixed record in the trial court, as here, can change the jurisdiction of this court upon that case by either acts of omission or commission. The record nisi fixes the jurisdiction, and not the acts of the parties. In so far as State ex. rel. Crow v. Carothers, and Scott v. Dickinson supra, seemingly hold that by abandonment here, the appellant...