State Ex Rel. State Highway Commission v. Wiggins

FINCH, Judge

(concurring).

I concur in the principal opinion. I file this concurring opinion because I have concluded that there should be some discussion of cases which Commissioners Barrett and Pritchard in their dissenting opinions say dictate a transfer of this case to the Springfield Court of Appeals.

To again summarize the situation, the Highway Commission sought to enjoin the operation o'f defendants’ junkyard under the provisions of Senate Bill 9, Laws of Mo., 1965, p. 905. Defendants’ answer pleaded that they had grandfather rights because on August 4, 1966, the determinative date, their junkyard was not within 200 feet of any state or county road, and, secondly, that the provisions of Senate Bill 9 were unconstitutional in that they violated several specifically enumerated provisions of the Constitution of Missouri. The trial court, after a hearing, found generally for defendants and denied an injunction. No findings of fact or conclusions of law were filed. The Commission then filed a motion for new trial, which made no reference to the constitutional issue. Defendants, at that point, did nothing further because the trial court had decided the case in their favor and had denied the injunction. The trial court overruled the Commission’s motion for a new trial and it appealed to this court.

The brief filed here by the Commission stated that a constitutional issue was involved on the theory the trial court, in deciding all issues for defendants, necessarily held that the Act was unconstitutional. In its points relied on and argument the Commission’s brief in this court presents the issue of whether the statute relied on is constitutional. The brief of defendants .likewise fully briefed and argued the constitutional questions.

The first defense raised by the defendants in the court below and in this court is that they had grandfather rights to operate their junkyard. This issue does not involve constitutional questions. Clearly, it is possible to decide the case without reaching or considering the constitutional issue. The principal opinion does just that by holding that defendants have grandfather rights under the prior Act. However, if, on this appeal, that issue were decided in favor of the Commission and adversely to the defendants, then defendants would be entitled to assert that the judgment in their favor nevertheless should be affirmed for the reason, as pleaded in their second defense, that the Act relied upon by the Commission is unconstitutional. That issue was timely and sufficiently raised by the defendants in the trial court and has been properly preserved and briefed by them in this court. They are entitled, if necessary to sustain their judgment, to a determination of that issue. Turner v. Anderson, 236 Mo. 523 , 139 S.W. 180 ; Kennedy v. Dixon, Mo., 439 S.W.2d 173 ; St. Charles Savings Bank v. Denker, 275 Mo. 607 , 205 S.W. 208 ; Crabtree v. Bankers Life Ins. Co., 233 Mo.App. 1067 , 128 S.W.2d 1089 .

The jurisdictional question presented is whether, in such circumstances, this case involves construction of a provision of the Missouri Constitution so as to give this court jurisdiction under Art. V, § 3, Constitution of Mo., 1945. The dissenting opinions express the view that it does not. One of the cases cited in support of this view is Cohen v. Ennis, Mo., 308 S.W.2d 669 . In that case this court ordered a transfer to the Kansas City Court of Appeals, holding that the issue presented was whether a decision of the Board of Zoning Adjustment in Kansas City was supported by competent and substantial evidence and by necessary findings of fact. The opinion also stated that no constitutional question was raised even though the contention was made that the Board’s order was made without *906 due process of law in violation of specified provisions of the Missouri and Federal Constitutions.

This question of when there is Supreme Court jurisdiction on the basis that a construction of the Constitution is involved has been an extremely troublesome one for the courts. See “The Allocation of Original Appellate Jurisdiction in Missouri,” Washington University Law Quarterly, December 1964, p. 424, and particularly Chapter 1 thereof, beginning at page 442. An example is a series of three cases in which this court first transferred an appeal to the Court of Appeals, it then wrote an opinion transferring the case back, and the Supreme Court finally wrote an opinion deciding the appeal. These cases illustrate the sad story of what can happen in this area.

Following the Cohen v. Ennis case in 308 S.W.2d 669 , the Kansas City Court of Appeals in Cohen v. Ennis, Mo.App., 314 S.W.2d 239 , decided that there was no competent and substantial evidence in the record to support the Board’s order or the affirmance thereof by the Circuit Court. However, the Court of Appeals decided that it could not simply reverse and remand the case. In stating the court’s dilemma, it said, l. c. 244:

“However, upon our review of the record and of the action of the circuit court and the Board, we have found that there was no competent and substantial evidence in the record to support the Board’s order and the circuit court’s affirmance of that order. Ordinarily, this would mean that we must reverse and remand the case. Such action by us would have the direct effect of taking away from respondents their victory obtained before the Board, which victory they say is final because of appellants’ failure to appeal therefrom within 30 days as required by Statutory Section 89.110. This brings us face to face with appellants’ contention that Statutory Section 89.110 is unconstitutional. Thus, our review of the record has now necessarily brought us to a live constitutional question; namely, is Statutory Section 89.-110 unconstitutional as applicants contend?

“We lack authority to. decide constitutional questions, and must transfer this cause to the Supreme Court which has exclusive appellate jurisdiction in such instances.”

The case then was retransferred to the Supreme Court which in Cohen v. Ennis, Mo., 318 S.W.2d 310 , finally decided the case.

If, as suggested in the dissenting opinions, we should transfer this case to the Springfield Court of Appeals on the basis that a decision of the case does not necessarily involve a construction of the Constitution of Missouri or that no constitutional issue was preserved by appellant, then we might well end up with a situation similar to that which occurred in the Cohen v. Ennis cases. If the Springfield Court of Appeals should reach the same conclusion as that set out in the principal opinion, namely, that the defendants had grandfather rights, no problem would arise beL cause that would dispose of the case. However, if the Court of Appeals should conclude that the defendants do not have grandfather rights under the prior statute, then the problem would arise as to what disposition of the case should be made. Presumably, it would do as the Kansas City Court of Appeals did in Cohen v. Ennis and say that it is necessary to reach and decide the constitutional issue, necessitating retransfer of the case to the Supreme Court for decision. Perhaps a second possibility would be for that court to say that since the Supreme Court has said no constitutional issue is involved, when the case is decided on the basis that there are no grandfather rights under the prior statute, that ends the litigation. Such a conclusion would produce the unthinkable result that the defendants never would get an appellate review of the constitutional issues that they raised promptly and have preserved at every level in every way available to them. See Turner v. Ander *907 son, supra, 139 S.W. l. c. 185 [5]. Possibly a third alternative would be to reverse and remand the case to the trial court for a new trial on the constitutional issue, resulting presumably in a new appeal from that decision of the constitutional issue. All three of the possibilities illustrate the undesirable situation which results from a transfer of a case to a Court of Appeals when in fact a constitutional issue is involved and may have to be decided. This necessarily is true because we are sending them a case which they can decide one way but may not decide the other way since they have no jurisdiction to decide the constitutional issue then presented. See Cohen v. Ennis, Mo.App. 314 S.W.2d 239 .

Another case cited in the dissenting opinions is Killian v. Brith Sholom Congregation, Mo.App., 154 S.W.2d 387 . The Court of Appeals in that case concluded that it had jurisdiction of the appeal. In so deciding, the court said, l. c. 393:

“However, before this court can be deprived of jurisdiction upon the ground that a constitutional question is involved, the party who asserts such question must be able to show that he claimed, in the trial court, some constitutional right which was denied him, or that a constitutional question was ruled to his own disadvantage in his adversary’s favor. Hanlon v. Pulitzer Publishing Co., 167 Mo. 121 , 66 S.W. 940 ; Lux v. Milwaukee Mechanics’ Insurance Co., Mo.Sup., 285 S.W. 424 . In short, the constitutional question must have been ruled in the trial court against the party appealing; and absent an adverse ruling denying some constitutional right to the losing party in the trial court, there is no such question left in the case for the purpose of affecting the course of jurisdiction over the appeal.”

If the above test is applied here, this court may not have jurisdiction of this appeal. We cannot say with certainty that the trial court decided the constitutional issue adverse to the Highway Commission, the appealing party. The judgment does not say whether or not the trial court reached a conclusion as to the constitutionality of the statute, and if so, the conclusion it reached. It could have entered the judgment it did purely on the basis of the existence of grandfather rights without ever reaching the question of the constitutionality of the 1965 Act under which the Commission sought its injunction. However, the test set out above in the Killian case overlooks completely the possibility that occurred in the Cohen v. Ennis cases and which would occur here if this case is transferred to the Court of Appeals and it decides that defendants did not have grandfather rights under the old Act. Necessarily, when and if that conclusion is reached, these defendants are entitled to a determination as to the validity of their second defense, namely, that the 1965 Act on which the Commission relies is unconstitutional. Turner v. Anderson, supra; Kennedy v. Dixon, supra; St. Charles Savings Bank v. Denker, supra; Crabtree v. Bankers Life Ins. Co., supra.

In my view, the Supreme Court did not first acquire jurisdiction in Cohen v. Ennis when and because the Kansas City Court of Appeals decided that it could not dispose of the case on the nonconstitutional issue presented and that a decision on the constitutional construction question was necessary. If the constitutional issue was present in the case, as it was, it was there when the appeal was taken from the Circuit Court. I am of the opinion that the Supreme Court had jurisdiction of the appeal from the outset and that the case should have been written and decided here and never sent to the Kansas City Court of Appeals. I would so hold, and would state that any prior decisions inconsistent with such a conclusion no longer should be followed. Necessarily, such ruling would result in retention of this case on the basis that we have jurisdiction thereof.

One of the dissenting opinions also cites City of St. Louis v. Butler Co., 358 Mo. 1221 , 219 S.W.2d 372 . The majority opinion in that case seems to decide first that *908 a constitutional issue was not properly-preserved for- review. It has not been possible to verify this by checking the transcript and briefs in that case because all of these were transmitted to the St. Louis Court of Appeals when the case was transferred as a result of the above cited decision. After deciding that a constitutional issue was not preserved, the principal opinion then went on to a discussion of what is described as the inherency doctrine, referred to in many earlier cases. The majority opinion concludes that the inherency doctrine itself was unconstitutional and that it no longer should be followed.

It may be that in some respects the City of St. Louis v. Butler Company case is distinguishable from this case. I do not consider that the presence of a constitutional issue in this case is based on a theory of in-herency. Instead, it is due to the fact that defendants pleaded the issue and have preserved it at every opportunity. However, it must be acknowledged that some of the language in the Butler Company case would indicate that this appeal should be transferred to the Springfield Court of Appeals. For example, it mentions that the appellant in that case had not negatively raised the constitutional issue in its motion for new trial, and hence the issue was not preserved and the Supreme Court had no jurisdiction. Likewise, in this case the Commission’s motion for new trial did not mention the constitutional issue. I see no useful purpose in this opinion in analyzing the Butler Company case in greater detail. Suffice it to say that if by what is said in the Butler Company case, the court is saying that the Supreme Court would have no jurisdiction in this case, I think it is wrong. I would hold that to the extent it is inconsistent with a decision retaining jurisdiction in this case, it should no longer be followed.