Stine v. Kansas City, 25307

• Decision Date: 01 June 1970
• Docket Number: No. 25307,25307
• Parties: Louis STINE et al., Appellants, v. KANSAS CITY, Missouri, Respondent, Borg-Warner Corporation, et al., Respondent-Intervenors. WALDO PLUMBING AND HEATING COMPANY et al., Respondents, v. KANSAS CITY, Missouri, Appellant, Celanese Corporation, et al., Respondent-Intervenors.
• Court: Missouri Court of Appeals

Page 601

458 S.W.2d 601

Louis STINE et al., Appellants, v. KANSAS CITY, Missouri, Respondent, Borg-Warner Corporation, et al., Respondent-Intervenors.

WALDO PLUMBING AND HEATING COMPANY et al., Respondents, v. KANSAS CITY, Missouri, Appellant, Celanese Corporation, et al., Respondent-Intervenors.

No. 25307.

Kansas City Court of Appeals, Missouri.

June 1, 1970 Motion for Rehearing or Transfer to Supreme Court Denied Oct. 5, 1970.

Charles C. Shafer, Jr., Kansas City, for appellants Stine, and others.

Aaron A. Wilson, Jr., Acting City Counselor, L. B. Saunders, Associate City Counselor, Kansas City, for appellant-respondent Kansas City.

Kent E. Whittaker, Charles G. Young, III, Kansas City, for respondents-intervenors.

SHANGLER, Presiding Judge.

This review involves appeals taken from two separate judgments in suits, consolidated for trial, in which the Uniform Plumbing Code--Ordinance No. 34894-only latterly adopted by the City of Kansas City, Missouri, was the subject of controversy. One suit sought to enjoin the enforcement of the Uniform Code and the other asked for the court's declaration as to the rights and obligations of the parties under its provisions and those of Chapter 341, V.A.M.S., relating to the licensing of journeyman plumbers in Kansas City. The City was the initial defendant in each case. Later, upon their motions, numerous other interested parties were allowed to intervene as defendants.

There had been in effect in the City of Kansas City a Building Code, Articles XXXVI, XXXIX and XL of which, providing for the licensing of plumbers and the regulation of plumbing materials, comprised the Plumbing Code. On August 9, 1968, the City adopted Ordinance No. 34894 (later referred to and approved by the electorate) which repealed those three Articles and enacted a New Uniform Plumbing Code. This new code provided for the regulation of plumbing materials and other features but was entirely silent as to the licensing of journeyman plumbers.

It is required by Sections 341.010 to 341.080, R.S.Mo., 1959, V.A.M.S., however, that each city of 15,000 or more inhabitants establish a board of examiners of plumbers to examine, qualify and license journeyman plumbers, master plumbers and employing plumbers. It is provided by Section 341.030 that all persons to be licensed as plumbers shall apply to the 'board of the city where they reside or to the board nearest their place of residence'.

Louis H. Stine and others, all qualified journeyman plumbers and licensed as such by the City of Kansas City, filed suit to enjoin the City from enforcing the Uniform Plumbing Code because it made no provision for the examination, qualification and certification of journeyman plumbers as required by the statutes cited. That lacuna, they contend, results in a conflict between the statutes and the ordinance and hence, the invalidity of the latter. A temporary restraining order issued and the effectiveness of the Uniform Plumbing Code was stayed. Thereafter, Borg-Warner Corporation, Celanese Corporation, Uni-Royal, Inc. and the Plastics Pipe Institute, all interested in the validation of that section of the Uniform Plumbing Code regulating Plumbing materials (and authorizing the use of plastic pipe) were permitted to intervene as additional defendants. Defendant City made answer to the petition, as did the intervenors.

The second petition, for declaratory judgment, was brought by Waldo Plumbing and Heating Company, a plumbing contractor, and by Associated Plumbing Contractors of Greater Kansas City, a commonalty of plumbing contractors. As their business activities entailed the employment of journeyman plumbers to work within Kansas City and as that City's Code made no provision for their licensing plaintiffs were concerned lest they and the journeymen would thereby be subject to penal sanctions. This is because Section 341.080, V.A.M.S., makes it a misdemeanor to violate Chapter 341 which requires that plumbing work be done only by licensed plumbers in cities of 15,000 or more inhabitants. Accordingly, plaintiffs sought a judicial declaration as to their rights, duties and obligations under the Uniform Plumbing Code and under Chapter 341, and particularly, whether journeyman plumbers working within the limits of the City of Kansas City are required to be licensed and if so, whether the defendant City has the duty to license them. Once again, Celanese Corporation, Uni-Royal, Inc. and the Plastics Pipe Institute intervene as additional defendants. They made answer to the petition, but defendant City of Kansas City did not.

By their Stipulation filed with the court, all the parties admitted to a set of facts and undertook to agree, as well, that only two 'issues of law (which we later describe), and no others, remain(ed) for the consideration of the Court'. The court thereupon entered its detailed findings and judgments in the consolidated cases. On the petition for injunction, the issues were found against the plaintiffs. The trial court dissolved the temporary restraining order and denied the permanent injunction, thereby sustaining the validity of the Uniform Plumbing Code. From this judgment, the plaintiffs Stine and the others appealed to this court. In this appeal, the defendant City is a respondent.

On the petition for declaratory judgment the court found that the requirement of Chapter 341 that journeyman plumbers in cities of 15,000 or more inhabitants be licensed '(was) not affected by the adoption of Ordinance No. 34,894, or by the absence of licensing procedures (as to journeyman plumbers) in Kansas City, Missouri'. The court further declared that in the absence of licensing procedures in the City, those of its residents not licensed as plumbers, before engaging in plumbing work within the City, must obtain them from the board of examiners nearest their place of residence as provided by Section 341.030, V.A.M.S. Defendant City's posttrial motion to amend judgment was denied. The City appealed from this judgment to the Supreme Court. On its own motion, that court transferred the City's appeal to this court to determine the question of appellate jurisdiction. We proceeded to do so.

Defendant City of Kansas City seeks to invoke the jurisdiction of the Supreme Court under the provisions of Article 5, Section 3 of the Constitution of Missouri of 1945, V.A.M.S., which vests exclusive appellate jurisdiction in that court in all cases involving the construction of the Constitution of the State of Missouri. That section of the constitution which is said to require construction is Article 6, Section 22, which provides:

'No law shall be enacted creating or fixing the power, duties or compensation of any municipal office or employment, for any city framing or adopting its own charter under this or any previous constitution, and all such offices or employments heretofore created shall cease at the end of the terms of any present incumbents.'

The construction defendant City contends for would render the application of Sections 341.040, 341.050 and 341.070 to it, as a constitutional charter city, unconstitutional because, it is asserted, those sections undertake to create and fix the power, duties and compensation of municipal offices--the Board of Examiners and Plumbing Inspector. The precedents of City of Joplin v. Industrial Commission of Missouri, Mo., 329 S.W.2d 687 and State ex rel. Burke v. Cervantes, Mo., 423 S.W.2d 791 suggest that a substantively arguable constitutional issue subsists. But the first step to be taken by a litigant seeking to invoke the appellate jurisdiction of the Supreme Court on the ground that a constitutional question is involved is to raise that question at the first available opportunity. City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372, 376(5, 6); Mooney v. County of St. Louis, Mo., 286 S.W.2d 763, 766(2). Defendant City failed to take that first step. The City's first opportunity to have raised the constitutional question would have been in its responsive pleadings. Its answer in the injunction suit (from the favorable judgment in which, in any event, the City is not an aggrieved party and of which it has no cause to complain) did little more than tender the general issue. No reference to any constitutional provision or question appears there. The City made no answer at all to the petition for declaratory judgment. The constitutional issue was first formally raised in the City's after-trial Motion to Amend Judgment. Obviously, it was not raised at the first opportunity and none was preserved. Luttrell v. State Highway Commission, Mo., 367 S.W.2d 615, 616(1).

The defendant City fixed its intentions as to the law questions to be litigated in the trial court at the very beginning, and a constitutional question was not among them. As a party to the Stipulation, it undertook to agree that the only issues of law, 'and no others, remain(ing) for the consideration of the Court' were: '1. A declaration of the rights, duties and obligations of all of the parties under Ordinance No. 34,894 and Sections 341.010 to 341.080, R.S.Mo., 1959, and, 2. If Ordinance No. 34,894 is in violation of Sections 341.010 to 341.080, R.S.Mo., 1959 for failure of the ordinance to provide for the examination, qualification and certification of Journeymen Plumbers.' It made no mention of Article 6, Section 22 of the Constitution. While it is not competent for litigants to stipulate as to bind the court to circumscribed questions of law, as those decisions must rest with the court, (Wells v. Covenant Mut. Ben. Ass'n of Illinois, 126 Mo. 630, 29 S.W. 607, 609; 50 Am.Jur., Stipulations, Sec. 5, p. 607) the defendant City, by this 'Stipulation', evidenced its intention to forgo asserting the constitutional question it now urges. Appellate jurisdiction of the defendant City's appeal is properly in the Kansas City Court of Appeals, and we accept it. In doing so, we consolidate the appeals from both...