Schildnecht v. City of Joplin
| Decision Date | 02 February 1931 |
| Docket Number | 30469 |
| Citation | 35 S.W.2d 35,327 Mo. 126 |
| Parties | J. J. Schildnecht et al., Appellants, v. City oe Joplin et al |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court; Hon. R. H. Davis, Judge.
Transferred to Springfield Court of Appeals.
James E. Sater, W. H. Foulke and Sturgis & Henson for appellants.
The only question here is whether the attempted extension of the corporate limits of Joplin, a Jasper County city, now in question, was and is void and in excess of its authority because the territory thereby attempted to be made part of the city is in Newton County. Joplin is a city of the second class heretofore wholly in Jasper County and its authority to extend its limits so as to take in part of Newton County is based on Sec. 7973, R. S. 1919. The defendants contend that the right of the city to extend its territorial limits under this section of the statute is unlimited and unrestricted and that there are no such barriers as county, or perhaps state lines beyond which it cannot pass. On the other hand plaintiffs contend that such right to extend its territorial limits must be read and construed in the light of the whole scheme and charter of cities and counties as governmental subdivisions, and in connection with other statutes dealing with the same subject-matter, and so as to harmonize the whole and not arrive at impractical and conflicting results. When so read and harmonized, we think there is an implied limitation on the right of cities of the second class, as there is on other cities, not to expand beyond county lines.
R. A Pearson, Norman A. Cox and Hugh Dabbs for respondents.
The suit is to enjoin the defendant-respondent, city of Joplin, a city of the second class in Jasper County, and its officers, from exercising governmental control over certain adjoining territory in Newton County pursuant to an extension of the corporate limits thereover, under Section 6483, Revised Statutes 1929 (Sec. 7973, R. S. 1919). This statute merely provides the council of a second class city with the consent of a majority of the legal voters voting at an election therefor, shall have power to extend the limits of the city "over territory adjacent thereto." The plaintiffs, who are property owners and taxpayers in the area affected, contend the section does not contemplate or authorize such municipal encroachments across a county line, and that the proceedings in this instance were void. The trial court sustained a demurrer to their petition and dismissed their bill. From that judgment they appealed to this court.
This court does not have jurisdiction of the appeal. There are only two possible grounds upon which it could be said, even argumentatively, that appellate jurisdiction is lodged here: (1) because the amount in dispute exceeds $ 7500; (2) because the case involves a construction of the Constitution of the State.
On the first ground. In Aufderheide v. Polar Wave Ice & Fuel Co., 319 Mo. 337, 365, 4 S.W.2d 776, 788, an injunction suit to restrain the violation of certain building restrictions where the defendant proposed to erect an ice plant in the prohibited area, this court held the fact that the amount in dispute exceeded $ 7500 might be inferred or deduced circumstantially from the general facts of the case; and the concurring opinion of Judge Graves set out a number of photographs of the proposed ice plant, all of which were thought to show the investment exceeded $ 7500. But in the instant case it is hardly necessary to say the mere assumption of municipal jurisdiction over the territory involved does not signify a dispute over a monetary amount exceeding $ 7500. The petition makes no such claim and there is no basis on which such a conclusion could be drawn even inferentially either from the pleading or from the facts.
The other possible ground is that the case involves a construction of the Constitution of the State; but in our opinion that view is equally untenable. The petition does not mention the Constitution. It sets out the proceedings taken by the city of Joplin to extend the corporate limits and alleges the city and its officers are undertaking to enforce the ordinances, laws and regulations of the city in the territory annexed. Following that the charge is that all said municipal acts are void and without authority, and that the defendants are trespassers in attempting to subject citizens of Newton County to the municipal government of Joplin. Clearly this was insufficient to inject a constitutional question into the case, under many decisions requiring a party complaining on that ground to point to the specific provision of the Constitution claimed to have been violated. In particular see State ex rel. Tadlock v. Mooneyham, 296 Mo. 421, 425, 247 S.W. 163, 164-5; City of St. Joseph v. Georgetown Lodge (Mo.), 8 S.W.2d 979, 981.
The defendants filed a demurrer specifically alleging the municipal acts and proceedings are and were valid under said Section 7973. It is further affirmatively charged in the demurrer that the statute strictly conforms with the Constitution, particularly Section 7 of Article 9 and Section 53 of Article 4 thereof; and that if the plaintiffs' construction of the statute were correct then it would be unconstitutional as creating a special classification of the city of Joplin in violation of said two sections of the Constitution.
But granting for argument's sake these assignments in the demurrer were sufficient to raise a constitutional question they cannot put the appellate jurisdiction in this court because they were advanced by the defendants, and the defendants prevailed below and did not appeal. As is said in Bankers' Mortgage Co. v. Lessley (Mo.), 31 S.W.2d 1055, 1058, quoting from Brown v. M. K. & T. Ry. Co., 175 Mo. 185, 188, 74 S.W. 973, 974: "But in order that the case can involve a constitutional question, the protection of the Constitution must be timely and properly invoked in the trial court, and that protection must have been...
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