*1 Cooley guilty. It is so ordered. plea of withdraw leave to CC., Westimes, concur. C., by Fitzsimmons, foregoing opinion PER CURIAM: —The J., Tipton, Ellison, J., P. of the court. adopted as Leecly, J., sitting. concur; al., Appell A. Holt et Corporation, v. J. Co., Music
L. E. Lines (2d) 326. 32; 61 S. (2d)W. W. ants. 60 S. April Two, 20, 1933. Division *2 appellants. G. W. Hamlin for *3 <& respondent.
Gorman Randall and Arch A. Johnson below, suit filed this plaintiff Respondent, WESTHUES, C. Majestic a below, recover to appellants, defendants against replevin Court Circuit in the favor plaintiff’s a From radio. appeal was appealed. County, Missouri, defendants Greene a motion filed Plaintiff Appeals. Court of granted Springfield ground court on this transferred to have the cause so de- Appeals The Court question was involved. constitutional the case here. cided and transferred agreed state- upon an circuit court was submitted to the The case oper- Defendants facts, of which as follows: the' substance ment of Plaintiff Springfield, Missouri. Hotel in the Kentwood Arms ated Brown, hotel, had guest in defendants’ in radio sets. was dealer for demonstration room plaintiff deliver the same. contemplating purchasing purposes pretext paid unknown. He Shortly parts left hotel for thereafter Brown management that he bill and informed the hotel part of his hotel $43.70, get his balance due of and then send for or would send agreed statement of facts further recites: radio. management knowing was still in the room
“Said that said radio good knowing plaintiff be for his bill and not would any permitted any one else or claimed interest said set said away baggage. Brown to take from said hotel all his other Some- aforesaid, hotel, plaintiff’s representa- time after Brown had left the appeared tives at the hotel and demanded of said radio manag'ement and then set informed that said radio set did not belong to Brown but plaintiff. was the The hotel refused to deliver said plaintiff’s inforfiied agent holding it was the said set for the balance due it *4 . said . . Brown. was, controversy property “That in fact, in property of Brown, plaintiff not and that of but of none the defendants knew
that fact until after Brown had left the hotel. That the amount by claimed the defendant hotel is a fair and charge reasonable for rendered to services the said Brown.”
Defendants, trial, at the they claimed that had a valid lien on the due, by Brown, radio for the balance by virtue of 13090, Section Re vised Statutes Plaintiff’s sole contention, trial, at the was that 13090 in far attempted grant Section so as it a lien in the hotel’s property belonging favor on not guest, inwas violation of 2, 30, Article Section State Constitution violation of 10, 1, of Section Article the United States Constitution. Plaintiff appropriate raising of law ques offered declarations the constitutional tion. The trial court refused these declarations but judg entered a plaintiff. Appeals The Court of ment held that it was confronted plaintiff with this situation. raised the question constitutional judgment in the lower court and received a Therefore, its favor. ruling against there was no adverse plaintiff. However, if the Court of Appeals judgment reversed necessarily it would hold Section constitutional, if it judgment affirmed the of the circuit would court it hold the section unconstitutional. Ap Court peals, therefore, decided that a constitutional inherently was in the case and that, therefore, they involved jurisdic were without tion, citing 126, Schildnecht v. City Joplin, 35 S. W. (2d) Mo. 36, l. c. where the court en banc said:
“Where a such ease is no can be rendered therein deciding question, without or, a constitutional words, other when it necessarily must be said the trial court such question, determined a jurisdiction the decisions appellate hold this court will entertain on grounds though affirmatively constitutional does not show record point was specifically made and in terms below.” In the case before us asserted ground giving on the sole that the statute a defendant court, necessity therefore, was unconstitutional. The trial
passed by constitutionality and, rendering judg of the statute plaintiff, ment for held the law circum unconstitutional. Under these Appeals declining jurisdiction. stances the Court of was correct in dispose In order for us to of the case we must decide not whether or 13090, supra, proceed is constitutional. We will with that question.
We giving find two sections to hotels and inns liens guest. 3199, of a property 1929, Revised Statutes which has many on our years, been statute books for limits lien in favor Wyckoff property belonging guest. hotels to a v. South Co., App. 382, Lowery, ern 24 Mo. Hotel Mercer v. Mo. App. changed it was held that Section 3199 the common-law regard that, rule. The common-law to owner rule' without guest, a ship, hotelkeeper had a lien on all or control, inn. under his to the hotel or C. [32 p. J. cases there The reason for the rule is sec. cited.] Corpus Juris, page 569, as follows: stated section extraordinary privilege to, corresponds “This and is concurrent with, imposes extraordinary liabilities the law on the inn- contract, by law; keeper. The the inn- lien is created given keeper, being obliged guest, law to the lien receive innkeeper may Consequently an maintain protection. the law as a making capable against legally who is not his lien even *5 binding contract.” 1909, 13090, 8247, now Section Re Revised Statutes by adding by of 1913 was amended Laws 1929, the
vised Statutes innkeepers on all feature, giving hotels and lien that to new of by guest, possession brought the either in his or to hotel property 754
under his control. This section covers to some extent same the sub- 3199, ject supra, as Section is matter but in not conflict therewith. 13090 3199 is broader than Section and extends the to as practically conceded, a lien it existed at the law. Plaintiff common trial, question if at the the statute in was then valid defendants radio, had the that the contended statute was uncon- depriving' plaintiff property process as of his stitutional without due (Sec. 2, Const.), Art. Mo. 30, of law and also the section im- Const.). (See. 10, paired obligation 1, Art. the of contracts U. S. agreed statement of facts discloses that did not the fact that Brown purchased inform the defendants of had not the legal possession thereof. applicable radio. Brown had rule to the 570, Corpus Juris, page 87, at hand is well stated in facts section follows: as jurisdictions
“Except where the has rule been or modified goods abrogated by statute, innkeeper may the lien of an attach to guest brought property which of the but which were are the innkeeper capacity to him the inn and were received the knowledge ownership knowledge or with as such without their true yet servant, another, guest agent, while the title is in that the as otherwise, possession in lawful thereof.” is English Many support American some are cited eases innkeeper property an has a lien on statement of the text that in his inn lawful persons third knowledge innkeeper part oh of the possession without Hunt, Iowa, 586, N. ownership. Shoe Co. v. true [Brown 291; Singer Mfg. v. A. 765, 198, 39 L. R. Co. Rep. 64 Am. St. W. R. 56, 568, 21 L. Rep. N. 38 Am. St. 516, 52 Minn. 55 W. Miller, 143, 121 302, N. 189 N. Y. E. Gerard, v. 229; & Co. A. Waters 397; S.) 958, 12 Ann. Gas. Cook (N. 24 R. Rep. 886, L. A. Am. St. 28; v. Rep. 57 Am. Shaw St. Kane, 13 Ore. Pac. v. 1915D, A. L. 174 W. R. Webb, S. 131 Tenn. 1141.] goods lug- obliged guests and their receive An is insurers innkeepers become relationship, this virtue of gage. By innkeepers cannot guest, the title to property of in the cases are stressed obligations innkeepers These question. extending a lien existing law, common rule at reasons for the as cited payment of the guest’s possession for the in the all Respond- property. ownership of the irrespective of fare hotel guest at the radio in delivered case this ent and control thereof. lawful him with the clothed hotel provisions Sec- known of to have presumed Respondent management of hotel notified respondent If tion would have guest we not the fact that *6 & Gerard, to deal with. Waters Co. v. different a. following the statement: E. l. c. we find N. innkeeper’s luggage goods to all lien extends the and “Unless brings inn, innkeeper and for which guest to the be- which the insurer, an responsible opportunity as an is afforded which comes through might apon innkeeper rel- great perpetrated be a fraud claiming goods ownership luggage and person ative or other guest. long public policy requires as possession of the So extraordinary responsi- innkeeper an be held to the and severe that bility law, prescribed by the same considerations of the common require public policy the rule of the common law be retained entirety, upon luggage have a lien and that the in its guest payment goods of his rea- possession in the and ’’ charges. sonable eases, supra, Wyckoff Mercer the court held that In the and right property belonging of. a lien Section restricted changed the common-law rule. and, therefore, the section to hotel lien 13090 reestablished the common-law Section law is the law. The common innkeepers it at common existed as Section abrogated by Constitution. statute or unless law of our land therefore, un law, it than the common 13090 is no broader Webb, v. supra; Shaw & v. Gerard and Co. constitutional. [Waters 118; National Hotel, App. 243 Ill. Congress v.Co. Baldwin Piano 415; v. App. Halsey 254 Ill. al., et Corp. Crawford Food v. Malted being con N. 203 W. (Minn.), 968.] Svitak ux. et in this facts agreed statement upon the stitutional, it follows property possession to recover not entitled case now, valid lien had, have for; defendants sued in a may be enforced This lien by Brown. balance due radio for the 13090. in Section provided for manner therefore, be reversed will, court judgment of circuit Cooley and ordered. It is so against respondents. the cost assessed Fitzsimmons, CC., concur. C., is Westhues, foregoing PER CURIAM:—The JJ., con- Tipton, Leedy the court. opinion of
adopted as the Ellison, opinion. separate ; J.,F. dissents cur recovered plaintiff-respondent (dissenting). The ELLISON, J. justice in a originally brought replevin in a suit below personal certain to recover peace court innkeeper’s an retaining u!nder were appellants An Statutes Revised virtue of claimed been while of facts showed that agreed statement by guest, yet belonged respondent hotel in truth it although ignorant appellant innkeepers were that fact. respondent’s trial
At the sole contention was that the stat- *7 attempts as ute is unconstitutional insofar it create lien in to belonging an on to his favor of course, party. appellant, a third The the owned maintained contrary. respondent appropriate of law The offered declarations questions raising its constitutional but the court refused said trial gave Yet, nevertheless, judgment for the give to them. the court Springfield the Court of respondent, innkeepers appealed the and Appeals. 92,
By opinion reported (2d) in 48 S. W. transferred an that court recognizes opinion court. this will not the cause this The court ground ques- jurisdiction of a case the that a constitutional take on involved, question ivas ruled below the tion is when the favor of (Mo. citing Mechanics’ Ins. party appealing Lux v. Milwaukee Co. 424; Ry. 344, 2), Co., 339, 202 Div. S. W. Shell v. Mo. Pac. Mo. goes say, quoting opinion 100 W. on from 617, S. But the (2d) 36, 129, 35, City Joplin, 126, v. 35 S. W. Schildnecht Mo. judgment can therein “where a case is such that no be rendered question, words, deciding or, in other when without constitutional necessarily ques- trial such a be determined it must said the court appellate jurisdiction on with Supreme the Court is vested tion” affirmatively though grounds, no such constitutional setting quotation above specifically raised below. After out the an- Appeals the rule opinion Springfield Court of holds its the as, otherwise, “there case applied therein in this nounced should be case miscarriage won the may justice,” respondent since the be a judgment re- yet favor be below in its should concedes the unless the statute is held unconstitutional. versed here, respondent principal opinion since
The holds un solely ground that lien statute is claimed on favor, therefore constitutional, since decided in its the case was necessarily ruled the constitutional must trial court we conclude the disagree I respectfully question in accordance with its contention. contrary to what the directly it and submit is that conclusion with court, as it had the trial respondent submitted to shows. The record 1929, declarations Statutes Revised right to do under principal questions. The presenting its constitutional of law yet the “appropriate;” law were concedes these declarations record affirmative face of that give them. refused to court against the con court ruled the lower say we to have what give ap would fact alone stitutionality statute —which by ap- this court bring case to right to innkeepers pellant peal? appellants made such point no in their motion for new trial, supplemental and in a brief say filed they here do not know theory judge, what the trial decided the surely case “but it was not because he believed that statute unconstitutional.”
From the facts
respondent
claimed
solely
theory
that the statute
unconstitutional,
and that the
circuit
court decided
its favor, the
necessarily
conclusion does not
follow that the court
question.
ruled the case on that
A party may
bind himself and the court
his
admissions
but not
fact
298;
admissions of law.
325, p.
C. J. sec.
State ex McCaffery
rel.
[22
al.,
et al. v.
Aloe et
466, 476,
Mo.
The trial court have taken the view that Section on a construction, only proper property belonging creates a lien on to a guest. As a matter of fact ever since we have had such a stat- in Missouri, ute now Revised Statutes That stat- baggage ute cover makes “the and other valuables of their guests brought ... by guests or such hotel boarders into such or boarders.” was first enacted Mo. Laws page purport repeal 3199, though and did not said Section expressly it did repeal some others. Both sections have since been statutory carried forward our revisions. Section makes the baggage such lien cover “the and about inn other guests,” etc., to the same or under the control of his provisions respect and it contains elaborate the enforcement with questioning lien. Without the least the conclusion reached beyond principal merits, range opinion it is not thought possibility judge may the trial have the later statute supplemented earlier, applied prop- and that both to the same erty. speculative, say
This of course is but to the circuit court must speculative worse, have also is held Section unconstitutional showing in view of the record that the court refused to declare it so requested. appropriate point when law on that declarations of were jurisdiction our must The ease illustrates the wisdom of the rule that affirmatively appear. my Springfield be retransferred to the the cause should Appeals.
Court