State ex rel. Rose v. Webb City

• Decision Date: 19 October 1933
• Docket Number: 31288
• Parties: State of Missouri at the relation of W. E. Rose et al., Appellants, v. City of Webb City et al
• Court: Missouri Supreme Court

64 S.W.2d 597

333 Mo. 1127

State of Missouri at the relation of W. E. Rose et al., Appellants, v. City of Webb City et al

No. 31288

Supreme Court of Missouri

October 19, 1933

Appeal from Jasper Circuit Court; Hon. R. H. Davis, Judge.

Transferred to the Springfield Court of Appeals.

S. W Bates for appellants.

Sections 1 and 10 of Article X of the State Constitution impose the limitations upon the taxing power of the Legislature, and upon the power to delegate such authority to municipalities and Section 3 of Article X of the State Constitution limits and defines the purpose for which taxes may be levied and collected, to-wit, "public purposes" only. State ex rel. Field v. Smith, 49 S.W.2d 77.

Morrison Pritchett, T. E. Sinnard and A. G. Young for respondents.

The motion for a new trial in this case did not raise the question of the constitutionality of the Band Tax Law, hence it cannot be considered on appeal and is not properly before this court. Coffey v. Carthage, 200 Mo. 629; First Natl. Bank of Cape Girardean v. Foster, 271 S.W. 537; State v. Hiller, 295 S.W. 133; City of Ferguson to Use of United Const. Co. v. Steffen, 300 S.W. 1041; Lohmeyer v. St. Louis Cordage Co., 214 Mo. 690, 113 S.W. 1108; Syz v. Milk Wagon Drivers' Union, 18 S.W.2d 444; St. Joseph v. Georgetown Lodge, etc., 8 S.W.2d 980; Utz v. Dormann, 39 S.W.2d 1056.

OPINION

Hays J.

The plaintiffs, property-owning, taxpaying citizens of Webb City, which contains less than 25,000 inhabitants, seek by this proceeding to enjoin the defendants, Webb City, the mayor and councilmen thereof, from levying, extending or collecting any taxes under a certain ordinance of said city purporting to authorize such taxation for the support of free public band concerts to be given in said city. The defendants prevailed in the trial below and the plaintiffs appealed from the decree dismissing plaintiffs' bill.

The assailed ordinance, No. 2583, was enacted June 25, 1930, under purported authority of Session Acts of 1927, page 137, to be found in Sections 7278-7281 of the Revised Statutes of 1929, and of a municipal election held pursuant thereto. The Act of 1927 purports to authorize any city, village or town having a population of less than 25,000 inhabitants "to levy a tax for use in providing a fund for free band concerts, or equivalent musical service, upon occasions of public importance," by one of the two methods specified in the act. Under one of the methods such tax may be levied when initiated by a petition signed by ten per cent of the qualified electors; the proposition so initiated is required to be submitted at a general or special municipal election and a majority of the votes thereat is sufficient to carry the proposition, and it thereupon becomes the duty of the mayor and council to levy the tax so petitioned for and voted.

Plaintiffs' right to the relief sought in their bill, or petition, is predicated upon two grounds, separate and distinct yet joined in one count, namely: (1) The statute, in pursuance of which said ordinance levying the tax was enacted, contravenes certain provisions of our State Constitution; which provisions and the nature thereof are properly set out in the bill in conformity with established rules of pleading pertaining to the raising of constitutional questions. (2) "The election held under the provisions of the aforesaid act was illegal and void for the reason that there was no proper resolution passed by the city council calling said election; that there was no proper petition filed with said council or the city clerk initiating said election; that there was no petition filed" containing the requisite number of names of qualified voters, no proper record of the filing of the same, no canvass made by the council of the election returns, "and no valid election held on such proposition as provided in the Act of 1927, . . . and the pretended tax levied under said ordinance is therefore illegal and void." (Italics ours.)

The answer of the respondents contains a general denial and alleges in substance that all of the proceedings required by said act were duly initiated and duly carried out in a manner set out in detail; that pursuant to due call and notice said proposition was submitted at a general municipal election, the vote duly canvassed and properly found and declared to have been carried by a certain majority of the votes of the qualified voters; and that said ordinance levying said tax pursuant to the result of said election was duly enacted. The answer also pleaded laches.

The reply contained a general denial and specific denials of the matter affirmatively set up in the answer.

The exception record contains some nine pages of oral and municipal record evidence all of which pertains alone to the issues joined upon the initiation of the election, the acts done by defendants in pursuance thereof, the election, the canvass of the returns, and so forth, and the enactment of the ordinance, as such issue was tendered in that portion of plaintiffs' bill designated supra as "(2)."

There is no mention made in the decree of any constitutional question in the trial, although there is in general terms a finding of the issues for the defendants. Nor does the motion for new trial filed by appellants refer to any constitutional question or call attention to any provision of the Constitution as being involved.

Before the submission of the cause in this court the respondents filed herein a motion to transfer the cause to the Springfield Court of Appeals on the alleged ground that this court is without jurisdiction, because the constitutional questions set out in the petition were, for want of preservation in the motion for new trial, waived or abandoned. This motion was by the parties submitted with the case. It therefore presents the first, if not the only, question for our determination.

Upon this question the position of appellants is stated in the language of their counsel as follows: "Plaintiffs, by their petition, grounded their action on the alleged unconstitutionality of the act in question; defendants by their answer contended and yet contend that the act is constitutional; the trial court could not have determined the case without passing upon the constitutional question involved. In such case, with the assignment of errors properly setting out the constitutional questions, the brief and argument going to these questions, the appeal lies to the Supreme Court, and even though no special mention is made of such questions in the motion for new trial it will be assumed the trial court did pass upon them and this court will retain jurisdiction."

One of the propositions included in appellants' grounds as quoted may be disposed of summarily. The briefing of the case and the raising of the constitutional questions by assignment of errors could have no greater effect than to serve a jurisdiction already obtained. Unless some constitutional question was planted in the record as made in the trial court and continued therein on appeal this court is without jurisdiction. [Littlefield v. Littlefield, 272 Mo. 163, 167, 197 S.W. 1057.]

In order to bring this appeal within our appellate jurisdiction on constitutional grounds, "It must clearly appear from that record either that a constitutional construction was essential to the determination of the case (State ex rel. v. Smith, 152 Mo. 444, 54 S.W. 218; State ex rel. v. Smith, 141 Mo. 1, 41 S.W. 906; State ex rel. Curtice v. Smith, 177 Mo. 69, 75 S.W. 625), or that the protection of the Constitution was expressly invoked, was denied by the trial court, and its action in that behalf excepted to, and saved for review in some appropriate manner by the losing party." [State ex rel. v. Smith, 176 Mo. 44, 48, 75 S.W. 468.]

The rule as thus comprehensively stated in the last mentioned Smith case was extracted from our previous decisions on the subject. It runs through divers intermediate decisions and is reiterated in varying from in our recent cases, including Syz v. Milk Wagon Drivers' Union, 323 Mo. 130, l. c. 137, 18 S.W.2d 441; State ex rel. Schuler et al. v. Nolte et al., 315 Mo. 84, l. c. 90, 91, 285 S.W. 501; and Sheets v. Iowa State Life Ins. Co., 226 Mo. l. c. 618-619, 126 S.W. 413-415, the specially mentioned cases being cited and relied upon by the appellants, but having no application here as regards the first branch of said rule because they were ruled upon records distinctly different from the record now before us. They do, however, in their discriminating application of the remainder or main branch of the rule point out that the application of the first or complementary branch proceeds upon the assumption that "either directly or by inexorable implications a constitutional question must be involved in the rendition of the judgment and decision against appellant" (Lohmeyer v. Cordage Co., 214 Mo. l. c. 690), "or obtruded itself upon the judicial notice with such insistent demand for recognition that consideration of it could not be escaped (Strother v. Railroad, 274 Mo. l. c. 284)," before such question can be said to be "involved." And if it is not thus involved, it should of course, under our appellate procedure, have been saved and kept alive by being incorporated in appellants' motion for new trial, which, as stated above, was not done in this case.

Among our cases applying this branch of the rule we are cited to none, and have found none, decided on a record having much resemblance to the record now before us. The leading ...