State ex rel. Kansas City Loan Guarantee Company v. Smith

• Decision Date: 15 June 1903
• Citation: 75 S.W. 468,176 Mo. 44
• Parties: THE STATE ex rel. KANSAS CITY LOAN GUARANTEE COMPANY v. SMITH et al., Judges
• Court: Missouri Supreme Court

75 S.W. 468

176 Mo. 44

THE STATE ex rel. KANSAS CITY LOAN GUARANTEE COMPANY v. SMITH et al., Judges

Supreme Court of Missouri

June 15, 1903

Peremptory writ denied.

Henry L. Jost for relator.

Relator's constitutional rights are infringed and abridged by this ordinance, and are necessarily involved in the decision and judgment of its cause. There was no reason for it to complain of any denial in the circuit court, since that tribunal accorded to it the full protection of the Constitution. Its constitutional guarantees were denied for the first time by the Court of Appeals, and it is now entitled to have its cause transferred to the Supreme Court. State ex rel. v Smith, 141 Mo. 1; State ex rel. v. Smith, 152 Mo. 444; Plack v. Railroad, 140 Mo. 634; Collins v Ins. Co., 84 Mo.App. 555.

R. J Ingraham and L. E. Durham for respondents.

No constitutional question was properly raised in the case of Loan Co. v. Kent, city auditor. It clearly appears from the record of that case that such question was not presented to or passed upon by the trial court. In the alternative writ, the return thereto and in the answer filed by the Loan Company, there is no hint of any constitutional question whatever. Nowhere in the trial of the cause was any such question mentioned. The objection of counsel for the loan company, relator herein to the introduction in evidence of the city ordinance involved, does not even intimate that said ordinance in any way conflicts with the State or Federal Constitutions. The first time that any mention was made that the case involved a constitutional question, was in the briefs of counsel for the loan company, filed in the Court of Appeals. Such question can not be injected into a case by the briefs and argument of counsel. Kirkwood v. Johnson, 148 Mo. 632; Vansandt v. Hobbs, 153 Mo. 655; Commission Co. v. Railroad, 157 Mo. 518; Bennett v. Railroad, 105 Mo. 642; Turley v. Barnes, 131 Mo. 548; Hardin v. City of Carthage, 171 Mo. 442.

OPINION

In Banc

Mandamus.

BRACE J.

This is an original proceeding by mandamus to compel the respondents, the judges of the Kansas City Court of Appeals, to transfer to this court the case of the State of Missouri ex rel. Kansas City Loan Guarantee Company v. D. V. Kent auditor of Kansas City, appellant, on the ground that jurisdiction to hear and determine the appeal is in this, and not in that court. The return of the respondents to the alternative writ asserts jurisdiction of the appeal in that court.

The facts of the case are as follows:

The relator instituted in the circuit court of Jackson county, a proceeding by mandamus to compel the said Kent, city auditor, to deliver to the relator a city warrant drawn in favor of Dock Wilson for the sum of $ 8.75, of which it claimed to be the assignee. The auditor in his return to the alternative writ set up several defenses, among others, "that he is prohibited by the terms of ordinance No. 11125, approved February 10, 1899, from paying wages of city employees to any other persons than the said employees and from delivering warrants to any other person than the said employee." The answer of the relator to the return was as follows:

"1. That ordinance No. 11125 of the city of Kansas City, pleaded by respondent, especially sections 2 and 3 of said ordinance, is void, and of no binding effect upon respondent to prevent him from delivering said city warrants to relator as directed by the alternative writ herein.

"2. For answer to that part of respondent's return embraced in all paragraphs on page 3 of said return, relator denies each and every allegation therein contained."

On the trial the respondent (auditor) offered said ordinance in evidence, to the introduction of which relator objected "for the reason that said ordinance was null and void, and of no binding effect on respondent so as to prevent him from delivering the warrant in controversy to the relator." The objection was overruled and relator excepted. After hearing the evidence the court found the issues for the relator, awarded a peremptory writ of mandamus, and the auditor after unsuccessful motions for new trial and in arrest of judgment appealed.

In due course the case came on for hearing in the Court of Appeals, was argued and submitted, the judgment of the circuit court reversed, and its peremptory writ quashed, in pursuance of an opinion by Ellison, J., in which the other judges concurred, reported in 71 S.W. 1066. Thereupon in due time relator filed motions for rehearing and to transfer the cause to this court, which motions having been overruled this proceeding was instituted, in which it is claimed that the appeal is within the jurisdiction of this court because it is a case "involving the construction of the Constitution of the United States and of this State."

In support of this contention it is argued that said ordinance is in conflict with sections 4 and 30 of article 2; section 13 of article 4, and section 23 of article 9 of the Constitution of Missouri, with the fourteenth amendment of the Constitution of the United States, and with section 895, Revised Statutes 1899.

If this ordinance is in fact thus obnoxious to the organic law, it is unfortunate for the relator in this proceeding that his counsel did not sooner discover its condition, and point the trial court, in the case now sought to be removed to this court, to some of these constitutional infirmities in the course of its progress through that court. For it is well-settled law that the court to which an appeal must go is determined solely by the record of the case made in the trial court, and...