BURGESS, J.
This is an original proceeding by mandamus begun in this court by relators against the respondents, judges of the Kansas City court of appeals, to compel them, as such court, to transfer a cause therein pending on appeal, entitled "The Dollar Savings Bank against Thomas S. Ridge et al.," to the supreme court, upon the ground of the want of jurisdiction in the Kansas City court of appeals to hear and dispose of the same, and the exclusive jurisdiction of the supreme court of said cause, there being involved a constitutional question. To the alternative writ of mandamus issued against respondents they make return as follows:
"Respondents, for return to the alternative writ of mandamus, say that the case of Dollar Savings Bank against Ridge et al. was not certified to the supreme court, and should not be, for the reason that no constitutional point was involved in the decision in said case, and the alleged constitutional point raised in said case not pertinent or relevant to the issues in said case, as will appear by the following opinion filed in said case in the said Kansas City court of appeals: `Defendants claim that a construction of the constitution of this state is involved in the determination of this cause. Plaintiff denies this. The defendants set up, by answer, that the constitution of the state was violated in the mode of adoption of the amendments to the charter of Kansas City, and that, therefore, the amendments are void. The special provision of the constitution is not mentioned, but we infer, from the brief, that it was intended to refer to that portion of the constitution which directs the mode of publication on proposed amendments. They likewise asked an instruction, which was refused, declaring the amendments to be "in violation of that provision of the constitution of this state prohibiting retrospective legislation." During the progress of the trial the plaintiff had entered an admission that the defendants' contention that the amendments were void under the constitution was correct. The admission was in the following words: "Mr. Ingraham: We want to make an admission in regard to this matter (reading). While it is clear that the fact that the upper house did not remain in session until the lower house adjourned does not render the acts of the lower house invalid, especially in view of the fact that both houses met at the same time and entered into a legal session, but such matter is entirely irrelevant to the issues in this case; for, if all that defendant claims be true, it only results that the amendments were not legally adopted, and hence the old charter provisions remain in force and unaffected. We now desire to have the record show that we consent that defendants' contention in regard to the charter amendments be determined in his favor, and that the legality of the tax bills be determined according to the old charter provisions as they existed prior to the amendments; or, that the validity be determined by either or both the old charter or the amendments, at the option of counsel for defendants." Defendants objected to the admission, but the court overruled the objection. The plaintiff contended that the point as to the violation of the constitution was "a sham," and was not brought into the case in good faith; that the defense
in this case was based on points already ruled against defendants' contention in the cases of Forry v. Ridge, 56 Mo. App. 615, McQuiddy v. Vineyard, 60 Mo. App. 610, and Bank v. Ridge, 62 Mo. App. 324; and that this was merely an effort to have those points passed upon by the supreme court. Counsel for defendants conceded, at the argument, that his object in making the point on the constitution was for the purpose of ousting this court of appellate jurisdiction, that the case might be heard in the supreme court, where it was hoped and believed that the cases just referred to would be overruled. Passing by the question of good faith in raising the point as to the constitution, and of the objection to plaintiff admitting that the point was well taken, we will consider the matter as it appears on the face of the record. We interpret plaintiff's admission to concede that the charter amendments were void under the constitution, as contended by defendants. This left the validity of the tax bills to be determined, without the aid of those amendments; in other words, to be determined by the charter as it stood prior to the amendments. But the defendants contended at the argument of the cause that plaintiff cannot obviate their point on the constitution by conceding it to be true and well taken; that, when the record showed such point made in the trial court, this court could not have appellate jurisdiction. The constitution confers jurisdiction on this court "in all cases where the amount in dispute, exclusive of costs, exceeds the sum of two thousand five hundred dollars," unless such cases are those "involving the construction of the constitution of the United States or of this state." It is apparent that the mere fact of a point being made on the constitution during the trial of a cause does not necessarily involve the construction of the constitution in the appellate court; for, if the party making the point should afterwards, in the trial, withdraw it, clearly the case would no longer involve a construction of the constitution. So, it seems to us, if the point made is conceded, and the case is to be determined on other grounds, no construction is involved, and defendants have not been deprived of any right guarantied by the constitution. The question is eliminated from the case. The court is then relieved of the duty of construing the constitution. The reasoning of the supreme court in the recent case of Ash v. City of Independence (not yet officially reported) 46 S. W. 749, is applicable to the question. It is true the trial court refused an instruction, offered by defendants, declaring the charter amendments were in violation of the constitution prohibiting retrospective legislation. But in view of the concession made by plaintiff, as above referred to, we must assume that the court looked upon the instruction as being outside the case, and therefore not pertinent. It may be suggested that in the decision we now make we are construing the constitution, and that the question we are now deciding should be decided by the supreme court. But we necessarily must decide, in the first instance, whether we have jurisdiction of a case. We do this constantly, in certifying cases to the supreme court and in refusing to certify. Our decision of such question is not final, since, if we refuse to certify on the ground that we have jurisdiction, our mistake may...
