208 Mo. 664 | Mo. | 1907
This is an action for the enforcement of the-liens of two special taxbills against the properties of the defendants in Kansas City. The judgment in the trial court was for the defendants, from' which judgment, after the filing and overruling of a motion for a new trial, plaintiff appeals.
Although the amount of the taxbills sued on is insufficient to give this court jurisdiction of this appeal, it is claimed by plaintiff that the Supreme Court has jurisdiction because of a constitutional question being involved.
This question, if properly before this court, involves the validity of section 23, article 9, of the charter of Kansas 'City, by which it is provided that the owner or owners "of any tract or parcel of real estate charged with the payment of installment bills shall, within sixty days from the date of issue of the taxbills, file with the Board of Public Works a written statement of each and all objections which he or they may have to the validity of the. taxbills, the doing of the work, the furnishing of the materials charged therefor, the sufficiency of the work or materials therein used, and any mistakes or error in the amount thereof. It is further provided that in any suit on any taxbill issued pursuant to section 23, article 91, no objection shall be pleaded or proved other than those that have been filed with the Board of Public Works within the period aforesaid.
The only way this question is raised, if at all, is
This identical section of the charter of Kansas City has been before this court on several different occasions and has as often been held unconstitutional and void. [Barber Asphalt Paving Co. v. Ridge, 169 Mo. 376.] It was before this court in Paving Co. v. Munn, 185 Mo. 552, in which Gantt, P. J., speaking for the court, said: “We have been urged to reconsider our ruling in that case [Barber Asphalt Co. v. Ridge, supra], and to hold said provision of the charter a valid one. We have carefully considered the argument and authorities pressed on behalf of the plaintiff, but without repeating what was said in Ridge’s case we see no reason for departing from the views then expressed and conclusions reached, in that case. We are still of opinion that it is in conflict with the fundamental principles of our State Constitution and out of harmony with our whole judicial system. [Richter v. Merrill, 84 Mo. App. 150; Winfrey v. Linger, 89 Mo. App. 161.]”. It was again before Division One of this court in Curtice v. Schmidt, 202 Mo. 703, and again in Gilsonite Construction Co. v. Arkansas McAlester Coal Co., 205 Mo. 49; and in both cases held to be unconstitutional, and the question must, therefore, be considered as settled.
Plaintiff, however, says that the fact that this court may have heretofore decided that the charter provision in question is invalid does not prevent the question from being involved in this appeal. It is true that the Supreme Court decided in State ex rel. Dugan v. Kansas City Court of Appeals, 105 Mo.
In passing upon the same question in Carpenter v. Hamilton, 185 Mo. 603, Gantt, P. J., speaking for the court, said: “It will be observed that'the judgment in this case was for $800', but the jurisdiction of this appeal vests in this court because of the constitutional question raised in the trial court, which was that the verdict was concurred in by eleven jurors only, and the point was made and urged that the amendment to the Constitution of this State, adopted at the general election in 1900, authorizing three-fourths of a jury to render a verdict in courts of record, had never been duly submitted to the people of this State and adopted by them as required by the Constitution of 1875. This point was decided by this court In Banc adversely to this contention in Gabbert v. Railroad, 171 Mo. 84, December 24, 1902, and that decision has since been uniformly followed, but where it has appeared that the point was made in good faith prior to the decision of this court in the Gabbert case, we have retained jurisdiction. Inasmuch as this appeal was taken at the February term, 1902, of the Andrew Circuit Court and filed in this court July 16, 1902, this case falls within the class of which we have retained jurisdiction on the ground that a constitutional question is involved. But in cases appealed
Boling v. Railroad, 189 Mo. 219; was an action for tort wherein plaintiff recovered a verdict and judgment for one hundred and twenty-five dollars damages. Defendant appealed to the Supreme Court on the sole ground that the amendment to section 28 of article 2 of the Constitution permitting nine jurors in a civil case to return a verdict was never legally adopted. This court, speaking through Gantt, J., said: “Under the recent decisions of this court In Banc and of both divisions, had this appeal been taken to or transferred to this court after the decisions in Russell v.
The case of Barber Asphalt Co. v. Ridge, supra, was decided in Division 2, June 18, 1902, and Paving Co. v. Munn, supra, on December 24, 1904, while the appeal in the case at bar was granted on the 23d day of January, 1905; so that before the appeal in this case was taken Division 2 of this court had twice decided the charter provision in question unconstitutional and void, and both divisions a number of times since. In view of these repeated adjudications, can there be any merit in this appeal? If there is, we fail to appreciate it.
We, therefore, decline to take jurisdiction of this case, and order the record and papers transferred to the Kansas City Court of Appeals, to whose jurisdiction it rightfully belongs.