State v. Smith

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

75 S.W. 468

176 Mo. 44

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

Supreme Court of Missouri.

June 15, 1903.

SUPREME COURT — JURISDICTION — CONSTITUTIONAL QUESTIONS — HOW RAISED — RECORD.

1. In order to bring an appeal within the jurisdiction of the Supreme Court on the ground of "constitutional construction involved," it must clearly appear from the record either that a constitutional construction was essential to the determination of the case, 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.

2. In mandamus to compel a city auditor to deliver to relator a city warrant of which it claimed to be the assignee, respondent set up that he was prohibited from so doing by a city ordinance. Relator, in answer, alleged that the ordinance was null and void, and of no binding effect on respondent, and objected to it in evidence on that ground. Held not to necessarily challenge the constitutionality of the ordinance.

3. Such a general allegation could not inject a constitutional question into the case.

In Banc. Mandamus by the state, on the relation of the Kansas City Loan Guarantee Company, against Jackson L. Smith and others, Judges of the Kansas City Court of Appeals. Alternative writ quashed, and a peremptory writ denied.

Henry L. Jost, for relator. R. J. Ingraham and L. E. Durham, for respondents.

BRACE, J.

This is an original proceeding by mandamus to compel the respondents, as 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, Respondent, 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. 11,125, approved February 10, 1899, from paying wages of city employés to any other persons than the said employés, and from delivering warrants to any other person than the said employé." The answer of the relator to the return was as follows: "(1) That Ordinance No. 11,125 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, and 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 Constitutions 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 53 of article 4, and section 23 of article 9 of the...