450 S.W.2d 182 | Mo. | 1970
In this case Plaintiff-Appellant, a regulated public utility incorporated under Missouri law, seeks to enjoin the defendant Cooperative, also organized under Missouri law (Ch. 394, RSMo 1959, V.A.M.S.), from extending its service in the incorporated Village of Miner, Scott County, to a new customer. Indeed, it also seeks an injunction against the continued service by defendant of 22 customers some of whom the defendant has been serving since before the incorporation of the Village in 1951. Plaintiff has also served customers in the Village for many years, and it was granted a nonexclusive franchise on April 6, 1961, approved by the voters on May 2, 1961. Defendant was denied a franchise by action of the voters of the Village on April 3, 1962, and June 19, 1962. We have determined that this Court has no jurisdiction of the cause, but we shall need to state certain of the facts to demonstrate this.
Plaintiff is serving 228 customers in the incorporated Village under its nonexclusive franchise; defendant, as stated, was serving 22 prior to the beginning of this controversy. Both were serving customers at the time of the incorporation. About September 23, 1968, defendant contracted with Mid-America Motels, Inc., to provide temporary electric service to the construction site of a proposed Ramada Inn in the Village of Miner, and on September 26 and 27 it did install that service
We have determined that this Court does not have jurisdiction of the cause under Section 3 of Article V of our Constitution. Plaintiff, in its jurisdictional statement, relies (1) upon the necessity of a supposed constitutional construction, and (2) upon a statement that the money value of the relief, granted or denied, exceeds $15,000. We consider (2) first. Plaintiff says, very unconvincingly, that plaintiff and defendant each claimed $7,500 in damages (defendant by a counterclaim) and that these claims “aggregated” $15,000. That contention is hardly worthy of discussion. Both parties could not win or lose and, so far as we know, no court has ever “aggregated” any such opposing claims to create jurisdiction. So far as concerns the “money value” of the relief, there is absolutely nothing in the record to show any value, either by way of loss to the defendant if relief should be granted, or gain or loss to the plaintiff if relief was granted or denied. In fact, there was no evidence whatever on any matters of value, even to support the court’s finding of damage to defendant in the sum of $2,000; and, incidentally, the Court clearly liquidated the defendant’s claim of damage at that sum. Where jurisdiction is claimed by reason of a monetary value or amount the record must affirmatively show the money value of the relief to plaintiff or the loss to defendant should the relief be granted, or vice versa should relief be denied. Kansas City Terminal Ry. Co. v. Manion, Mo., 290 S.W.2d 63; Keener v. Berry, Mo., 432 S.W.2d 223; Moretti v. Gustafson, Mo., 433 S.W.2d 809; Cooper v. School District of Kansas City, 362 Mo. 49, 239 S.W.2d 509. And the value or amount in dispute may not be left to
The cases cited by plaintiff on this point, State ex rel. Public Water Supply District v. Burton, et al., Mo., 379 S.W.2d 593, and Missouri Public Service Co. v. Platte-Clay Electric Co-op., Inc., Mo., 407 S.W.2d 883, do not dictate a contrary conclusion. In the first, it had apparently been shown in evidence that the total cost of the waterlines laid by Raytown (from which plaintiffs sought to exclude it) was $66,000; the brief of respondents (presumably based on the evidence) states that nearly half of the total cost per foot of laying the line was exclusive of the value of the pipe itself. Thus, even if the pipe was salvaged, Raytown would have suffered an actual loss far in excess of $15,000. Whether the Court was correct or not in considering the total value of the installation by Raytown as the monetary value of the claim, it is perfectly obvious that there was an affirmative showing that the loss to Raytown would be far in excess of $15,000 if it was excluded from the area. There is no such evidence of value here. In the other case, Missouri Public Service Co. v. Platte-Clay Electric Co-op., Inc., plaintiff sought to exclude the defendant entirely from its operations in the area without payment of any compensation. There was evidence indicating that defendant’s installations were of a value far in excess of $15,000, and indeed that it would cost the defendant $23,860 to dismantle and remove them. Neither of these cases has any real applicability here.
We now consider (1) above. The plaintiff, appellant here, did not raise any constitutional issue whatever in its pleadings, either the petition or the reply. Its first allegation thereof was a most general, and perhaps insufficient, allegation in its motion for a new trial, that the Judgment, Order and Conclusions of Law “will constitute a deprivation of the Plaintiff’s property and business interests in violation of this plaintiff’s constitutional rights as made and provided for by Amendments 5 and 14 of the Constitution of the United States, and Article 1, Subsection 10, of the Constitution of the State of Missouri.” Regardless of the sufficiency of that allegation (which we need not decide, but see: Georg v. Koenig, Mo., 370 S.W.2d 356; State ex rel. Coates v. Parchman, Mo., 346 S.W.2d 74; State ex rel. Chicago, Rock Island & P. R. Co. v. Public Service Commission, Mo., 429 S.W.2d 723), such a question is not timely raised when alleged for the first time in a motion for a new trial. In Re Appeal of Mac Sales Co., Mo., 256 S.W.2d 783; Litzinger v. Pulitzer Pub. Co., Mo., 356 S.W.2d 81, cert. denied 374 U.S. 831, 83 S.Ct. 1872, 10 L.Ed.2d 1053. A constitutional question must be raised at the earliest possible moment that good pleading and orderly procedure will permit, and it must be preserved at all stages thereafter. Meadowbrook Country Club v. Davis, Mo., 384 S.W.2d 611 (question raised at trial); Securities Acceptance Corp. v. Hill, Mo., 326 S.W.2d 65; Jacobs v. Leggett, Mo., 295 S.W.2d 825; State ex rel. Barnett v. Sappington, Mo., 260 S.W.2d 669; Witt v. City of Webster Groves, Mo., 383 S.W.2d 723. Also, there is nothing in the record here to show that any constitutional question was raised in or considered by the trial court, which has been held to be a prerequisite to its consideration on appeal. Kersting v. City of Ferguson, Mo., 388 S.W.2d 794.
The defendant alleged generally in its answer that a permanent injunction against it would violate its “constitutional rights to due process of law” and would deprive the defendant of its rights to “property and business interest” under Amendments 5 and 14 of the Federal Constitution and Article I, Section 10
There is no possible ground of jurisdiction in this Court other than the two which we have discussed. For lack of jurisdiction here, the case is transferred to the Springfield Court of Appeals.
PER CURIAM.
The foregoing opinion by HENRY I. EAGER, Special Commissioner, is adopted as the opinion of the Court.