City of Excelsior Springs ex rel. McCormick v. Ettenson
86 S.W. 255
Mo.
1905
Check Treatment
VALLIANT, J.

This is a suit on special taxbills issued to pay for work done in the improvement of a *131street in the plaintiff city, charged as a lien on certain property of the defendant. The judgment was in favor of the plaintiff, establishing the lien. The amount of the judgment in money was less than forty-five hundred dollars. Defendant ‍​​​​‌‌‌‌​​​‌​​​​​‌‌​‌​​​​​‌​​​‌‌‌​​‌​​‌‌‌‌‌‌​‌​‌‍took an appeal to the Kansas City Court of Appeals, but that court transferred the cause to this сourt, because it was of the opinion that a question as to the constitutionality of a certаin ordinance of the city was involved.

We are of the opinion- that there is no constitutional quеstion in the case. It is the defendant who would now insist that the ordinance is unconstitutional, but he made no suсh assertion in the circuit court, he gave that court no opportunity to pass on the question. On the trial of the cause in the circuit court the ordinance was introduced in evidence by the defendant himself with the only purpose, so far as the record shows, of showing by it that the work was not done in conformity to its requirements, and in the argument on the merits now the force of the brief of the learned cоunsel for the appellant is directed to that object. The point is made in the answer, that the ordinance delegates to the city engineer authority to say in what manner the work shall be done instead of setting out in the ordinance itself the specifications, and also that at the date of the ordinance a city engineer had not .yet been appointed, but no reference is made to any constitutional right that is infringed; the inference is rather that the city council had not followed the requirements of the statute. The only reference to the Constitution that we find in the record is this sentenсe in the answer: “That the statute authorizing the appointment of an engineer is unconstitutional and vоid.” The particular statute there referred to is not specified and we would have to go through the books relating to this city or to cities of this class to find a statute conferring power to apрoint a city engineer, and when we had found what we might consider the statute intended, we *132■would then have to go carefully through our Constitution to see if there was any infringement. The language is: “ unconstitutional and void. ’ ’ It does ‍​​​​‌‌‌‌​​​‌​​​​​‌‌​‌​​​​​‌​​​‌‌‌​​‌​​‌‌‌‌‌‌​‌​‌‍not say whether it is our State Constitution or our Federal Constitution that is violated; the language used applies as well to the one as to the other.

There was no instruction oh the point asked and no reference to the Constitution in the motion for a new trial. In Hulett v. Railroad, 145 Mo. 35, the party essayed to raise a constitutional question by asking this instruction: “To hold the defendant liable in this case would viоlate its rights guaranteed by the Constitution of the State of Missouri and of the United States, and would deprive the defendant of its property and rights without due process of law.” That was a more specific reference to the particular constitutional provision intended to be invoked than we have in this case, yet it was held to be insufficient to ‍​​​​‌‌‌‌​​​‌​​​​​‌‌​‌​​​​​‌​​​‌‌‌​​‌​​‌‌‌‌‌‌​‌​‌‍give this court jurisdiction. In that case this court, per Sherwoоd, J., said: “As to the generalities contained in the instruction relative to the Constitution of this State and of thе United States, it suffices to say that neither the court below nor this court has any call to search thrоugh the respective organic laws of the State or the Union in order to find' out in what particular either of them may have been supposed to be violated.” In Kirkwood v. Meramec Highlands Co., 160 Mo. 111, the plea was that a certain act of the General Assembly “is unconstitutional, null and void and is no law of thе State of Missouri binding upon the plaintiff.” It was held not sufficient to raise a constitutional question.

In Ash v. City of Independence, 169 Mo. 77, it was said that to bring into question the constitutionality of a statute the specific provision of the Constitution ‍​​​​‌‌‌‌​​​‌​​​​​‌‌​‌​​​​​‌​​​‌‌‌​​‌​​‌‌‌‌‌‌​‌​‌‍thought to be infringed must be pointed out. The same rule was declared in City of St. Joseph v. Life Ins. Co., 183 Mo. 1. The only excеption to the rule is when the question is in the record in such a form that the case *133cannot be deсided without deciding that the statute, or ordinance, as it may ‍​​​​‌‌‌‌​​​‌​​​​​‌‌​‌​​​​​‌​​​‌‌‌​​‌​​‌‌‌‌‌‌​‌​‌‍be, is or is not valid under the Constitution. [State ex rеl. v. Smith, 141 Mo. 1; State ex rel. v. Smith, 152 Mo. 444; State ex rel. v. Smith, 177 Mo. 69; State ex rel. v. Bland, 186 Mo. 691.]

In the trial of this cause the circuit court was given no opportunity tó pass judgment on the constitutionаlity of this ordinance; it was introduced in evidence by the defendant himself, who did not ask the court to deсide that the work done under the ordinance was not chargeable against the defendant’s prоperty because the ordinance was not valid under the Constitution. Yet that is what the defendant now asks this court to decide. We can review on appeal only those decisions which the trial сourt rendered. The constitutionality of the'ordinance and statutes contained in this record was assumed and unquestioned by the defendant in the trial court, and their constitutionality will have to be assumed and unquеstioned in the review of the case on appeal.

The cause is transferred to the Kansas City Court of Appeals.

All concur, except Brace, P. J., absent.