# City of St. Louis v. Butler Co.

> Supreme Court of Missouri · April 11, 1949 · 358 Mo. 1221

URL: https://www.frixlaw.com/law-library/cases/3532034

## Case

- **Full name:** The City of St. Louis, a Municipal Corporation, Appellant, v. Butler Company, a Corporation, Et Al., Defendants; Trinidad Asphalt Manufacturing Company, a Corporation, Respondents
- **Court:** Supreme Court of Missouri
- **Decided:** April 11, 1949
- **Citations:** 358 Mo. 1221; 219 S.W.2d 372; 1949 Mo. LEXIS 579
- **Precedential status:** Published
- **Opinion:** Dissent by Clark
- **Judges:** Hyde, Tipton, Conkling, Douglas, Leedy, Ellison, Cüvconcur, Clark, Tlyde, Contcling
- **Cited by:** 101 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## Opinion text

CLARK, J.
(dissenting). — I respectfully dissent from the principal opinion of Judge Ellison because I believe that a constitutional question, which only this court has jurisdiction to decide; is inherent in this appeal.
In the trial court defendant filed answer alleging that the attempted condemnation is for a private use “in violation of its constitutional rights under the constitution of the United States and the State of Missouri and in excess of the power of plaintiff under the charter of the City of St. Louis. ’ ’ At the same time defendant filed a motion to dismiss the petition, briefly setting up the same facts alleged in the answer and stating that “the attempted condemnation is for a. private use as distinguished from a public use and is illegal,' null and void under the applicable provisions of the constitution of the United
*1234
States, State of Missouri and the' charter of the City of St. Louis.”
After-hearing'evidence, the trial court dismissed the petition and plaintiff appealed. Both appellant and respondent, by their briefs and oral arguments in this court, contend that a constitutional question is involved.
Under Article V, Section 3, of our Constitution, the Supreme Court has exclusive' appellate jurisdiction in all cases involving the construction óf the constitution. If an appeal can be properly decided on other grounds,: a constitutional question may be waived, and it will be waived by failure to timely and properly- raise and preserve it. But, If an appeal cannot be decided without construing the constitution, the supreme court alone -has jurisdiction to deeidé ' the case. This 'court cannot rightfully vest a court of appeals with power to decide a case1 which cannot - be decided without construing the constitution. Nor can the parties, either by inaction or by positive agree-riient', confer jurisdiction in such a ease upon a court of appeals.
To require a construction of the constitution, it is not always necessary that the constitutionality' of a statute or ordinance be attacked; or''that a specific provision of the constitution- be pointed out'in thé trial court; or that a constitutional question be invoked' in the trial court by thé losing party. [Messenbrink v. Boudreau, (Mo. App.) 171 S. W. (2d) 728 ; Wooster v. Trimont Mfg. Co., (Mo. App.) 197 S. W. (2d) 710 ; Wooster v. Trimont Mfg. Co., 356 Mo. 682 , 203 S. W. (2d) 411 ; Dye v. School District, 355 Mo. 231 , 195 S. W. (2d) 874 .]
' In the instant case .the trial court dismissed the petition because it believed, -under the facts, that appellant is attempting to' take respondent’s property for a private use. Neither the city charter nor ordinance is - attacked as being unconstitutional, but the case cannot be deeidéd by a construction of the charter or ordinance. The charter authorizes the condemnation of property for public use, but, of course, it can give no different meaning to “public use” than the constitution does. The ordinance'recites that respondent’s property is being taken for a public use, but whether the use be public, or- private is a judicial question to be decided “without regard to any legislative declaration that the use is public.”. [Mo. Constitution, Art. I, Sec. 28.] ' ' . ' ’
I think the real and only question here is one "of law as to whether the attempted taking, under the proven facts, is for “public use” or “private use’.’ as those terms are used in Article I, Section 28, of the i Constitution. That involves a construction of the constitution.
To “construe” a constitution is to determine its meaning and apply it to 'a given set of facts. [Black’s Law Dictionary; 11 [382] Am. Jur., p. 658, sec. 49; Dorrance v. Dorrance, 242 Mo. 625, 1 . c. 643-647, 148 S. W. 94 .]
. I think w.e have exclusive jurisdiction of this appeal.' . .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3532034. Public record. Not legal advice.