State ex rel. Curtice v. Smith

• Citation: 75 S.W. 625,177 Mo. 69
• Parties: THE STATE ex rel. CURTICE v. SMITH et al., Judges
• Decision Date: 03 July 1903
• Court: United States State Supreme Court of Missouri

75 S.W. 625

177 Mo. 69

THE STATE ex rel. CURTICE v. SMITH et al., Judges

Supreme Court of Missouri

July 3, 1903

Peremptory writ awarded.

Scarritt Griffith & Jones for relator.

(1) The Constitution of Missouri confers upon this court exclusive jurisdiction on appeal from circuit courts "in cases involving the construction of the Constitution of the United States or of this State." It is by virtue of this language that we assert the Supreme Court and not the Kansas City Court of Appeals has jurisdiction of the case of Curtice v. Schmidt on appeal from the circuit court. (2) The construction of the Constitution is involved because: The charter of Kansas City provides, "in any suit on any taxbill issued pursuant to this section (that is, in a suit on an installment taxbill) no objection or objections to it shall be pleaded or proved other than those that have been filed with the board of public works" by the owner of the land affected within sixty days from the date of the issue of the taxbill. Kansas City Charter, art. 9, sec. 23. No objection to the taxbill in question was filed with the board; such was the admitted fact; such was the fact found by the trial court in plaintiff's instruction number two. The plaintiff pleaded this fact in rebuttal of the defenses set up in the answer. He objected to any and all testimony tending to establish these defenses on the ground that the charter provision had not been complied with. These objections were overruled and excepted to by the plaintiff. He asked an instruction to the effect that the charter provision in question was constitutional and valid and that instruction was refused. It seems too plain for argument that if the charter law involved is constitutional the plaintiff will be deprived of his property in the taxbill in suit as the result of the adjudication of the two courts inferior to this court which have considered his demands, although he asserted in every way possible under the practice his claims under the State Constitution in the trial court, which were denied him, and in the appellate court, where they were evaded. If his constitutional claim is well founded there is no merit in the attack upon him. It can not be seriously disputed that if the charter provision in question is constitutional the judgment of the trial court is for the right party and should be affirmed, and the record of that court shows that the plaintiff pleaded the facts essential to raise that constitutional question and to invoke the constitutional guaranty. It is asserted in the return to the alternative writ that respondent did not file a bill of exceptions in the Curtice case, which is true. But the defendants did; and it is difficult to understand how the record of a judicial proceeding (for the bill of exceptions becomes a part of the record) could avail more if it were evidenced by two bills of exceptions rather than one. It will be a strange doctrine when it is established that a court record by being printed or paid for by one party shall have a different significance or effect as to what is involved in that record than if printed or paid for by the other party. It is the record made and duly preserved in the trial court and now before this court that we rely upon to confer jurisdiction upon this court. It is said we did not appeal. It is equally true that we could not appeal. The judgment of the trial court gave the plaintiff all the relief that was asked. "Appeals are allowed only to those who are aggrieved by judgments, orders or decrees." State ex rel. v. Talty, 139 Mo. 391; Bennett v Railroad, 105 Mo. 642; State ex rel. v. Smith, 141 Mo. 1; Kaukauna W. P. Co. v. Canal Co., 142 U.S 254; State v. Pittsburg S. & C. Co., 41 La. Ann. 467; Minden v. Silverstin, 36 La. Ann. 912; State ex rel. v. Smith, 152 Mo. 444. The Court of Appeals in its opinion says: "At the close of the trial plaintiff requested the court to declare section 23, article 9, of the charter of Kansas City valid. . . . The decision [of this court] in this case is not based upon the conclusion that said charter provision is unconstitutional, but that it has no application in a suit upon a void taxbill. And this holding was approved in Barber Asphalt Paving Co. v. Ridge." We submit that this court in the Ridge case did not adjudicate that the charter had no application in a suit upon a void taxbill, but did adjudge that the charter provision when applied to a void taxbill was unconstitutional and void as being in conflict with section 16, article 9, and sections 10 and 30 of article 2 of the State Constitution. (3) It has, however, been expressly held by this court that because a constitutional question has been passed upon once, or oftener, by this court, if the same constitutional question is again raised in the record this court, and not the Court of Appeals, has jurisdiction of the suit upon appeal. State ex rel. Campbell v. St. Louis Court of Appeals, 97 Mo. 272; State ex rel. v. Kansas City Court of Appeals, 105 Mo. 299. It is also well settled that where the judgment of a circuit court necessarily involves the determination of a constitutional right, this court has jurisdiction of the case on appeal. State ex rel. v. Smith, 141 Mo. 1; State ex rel. v. Smith, 150 Mo. 75; McCarty v. O'Bryan, 137 Mo. 584; Bank v. Bennett, 138 Mo. 494.

N. F. Heitman for respondents.

We call attention to the fact that the relator was not the losing party in the trial court. Relator won his case on other questions. The only point ruled against the relator in the lower court related to the sixty-day clause of the charter. As to the eight-hour ordinance, and as to relator's instruction 4, the lower court ruled in favor of the relator and against the defendants. On the sixty-day clause of the charter the Kansas City Court of Appeals simply ruled that that clause did not apply to taxbills which were absolutely void. The Court of Appeals in ruling that said sixty-day clause did not apply to the defense of monopoly which rendered the taxbills absolutely void, simply followed its previous ruling in Richter v. Merrill, 84 Mo.App 150. The Court of Appeals assumed that the sixty-day clause was constitutional, but construed it as not applying to taxbills which were void as distinguished from those which were merely voidable. It had jurisdiction to do this. The constitutionality or unconstitutionality of the sixty-day clause, was not necessarily involved. It was not involved at all. If ever involved, it was not involved on appeal, because not saved by either party. If said clause did not apply, then it was immaterial whether the clause was constitutional or unconstitutional. The lower court decided against the relator as to the sixty-day clause, and notwithstanding that fact, found in favor of the relator on other grounds. This proves that the decision of the constitutionality or unconstitutionality of the sixty-day clause was not necessarily involved. Kirkwood v. M. & H. Co., 160 Mo. 118, decides: "To confer upon the Supreme Court jurisdiction upon appeal from a circuit court upon the ground that a constitutional question is involved, it must affirmatively appear that the decision is necessary to the determination of the case, and that it was decided by the court below in violation of the Constitution, and adverse to the rights of the party who appeals." The Kansas City Court of Appeals in this state of the record thought they were bound by the decision in Ash v. Independence, 145 Mo. 121, and the following authorities to the same effect: Vansandt v. Hobbs, 153 Mo. 655; Browning v. Powers, 142 Mo. 322; Parlin & O. Co. v. Hord, 145 Mo. 117; James v. Association, 148 Mo. 1; Kirkwood v. Johnson, 148 Mo. 632; Vaughn v. Railroad, 145 Mo. 57; Hulett v. Railroad, 145 Mo. 35; Security Co. v. Donnell, 145 Mo. 431; Shewalter v. Railroad, 152 Mo. 544; Live Stock Co. v. Railroad, 157 Mo. 518; Kirkwood v. M. H. Co., 160 Mo. 111; Clark v. Porter, 162 Mo. 516; State v. Raymond, 156 Mo. 118; Coleman v. Cole, 158 Mo. 258. A party not appealing has no right to complain of error. C. & S. Co. v. Kelley, 91 Mo.App. 98; Sanderson v. Wirths, 44 Mo.App. 496; Sutton v. Dameron, 100 Mo. 141; Rogers v. Wolf, 104 Mo. 1; Meyers v. Stone, 40 Mo.App. 289; Wood v. Whitton, 66 Iowa 295. Only errors against the party appealing can be considered in the appellate court. Cannon v. McDaniel, 46 Texas 303; Seeley v. Mitchell, 85 Ky. 508; Williams v. Palmer, 2 Baxter (Tenn.) 488; Glass v. Gratehouse, 20 Ohio 503; Harding v. Larkin, 41 Ill. 413; Page v. People, 99 Ill. 424; Brennan v. Bank, 10 Colo.App. 368; City of Kansas v. Hill, 80 Mo. 537; Wickliffe v. Buckman, 12 B. Monroe (Ky.) 424. A party can not appeal from a judgment merely to have it affirmed. Green v. Blackwell, 32 N.J.Eq. 770. An appellate court, in disposing of an appeal, is confined to objections and exceptions of appellant only. Clark v. Porter, 162 Mo. 516; State v. Raymond, 156 Mo. 118; Vansandt v. Hobbs, 153 Mo. 655; Parlin & O. Co. v. Hord, 145 Mo. 117; Shewalter v. Railroad, 152 Mo. 551. The Court of Appeals clearly had jurisdiction to construe the sixty-day clause and determine whether or not its provisions applied to this particular case. This is all they did. By the sixty-day clause the charter-makers plainly meant to do nothing more or less than to write into the charter the doctrine of estoppel. It is well settled that a party can never be estopped by an act that is illegal and void. This doctrine is announced in Verdin v. St. Louis, 131 Mo. 98, in the sixth paragraph of the opinion by Judge Burgess. Wheeler v. Poplar Bluff, 149 Mo. 36. A party can never be estopped by an act that is illegal and void. Keese v. City of Denver, 10 Colo. 122; Mulligan v. Smith, 59 Cal. 234; Wheeler v. Poplar Bluff, 149 Mo. 36; In re Sharp, 56...