Opinion
February 3, 1947.
1. — Courts — Jurisdiction — Constitutional Law. Where record affirmatively showed that trial court dissolved temporary restraining order and dismissed cause on ground that it appeared on face of petition that defendants in picketing plaintiff's place of business were exercising rights secured to them by virtue of the First and Fourteenth amendments of the Constitution of the United States and certain paragraphs of state Constitution, the Supreme Court had exclusive jurisdiction of plaintiff's appeal.
2. — Constitutional Law. Constitutional questions held properly raised by motion to dissolve temporary restraining order and to dismiss the cause.
Appeal from Circuit Court of Jackson County. — Hon. James W. Broaddus, Judge.
TRANSFERRED TO SUPREME COURT.
Marcy K. Brown, Jr., for appellant.
(1) The court erred in sustaining respondent's motion to dismiss, the petition stating facts sufficient to constitute a cause of action. The court further erred in holding the temporary restraining order deprived respondents of their constitutional rights under the allegations of the petition. Hughes et al. v. Kansas City Motion Picture Machine Operators, 221 S.W. 95, l.c. 97, 99, 122; Purcell v. Journeymen Barbers Union, etc., 133 S.W.2d 662, l.c. 670, 672, 673; Waitresses Union, Local 247, v. Benish Restaurant Company, 6 F.2d 568; Vaughan v. Kansas City Motion Picture Machine Operators Union, 36 F.2d 78. (2) Many cases have been decided that the record must affirmatively show protection of the Constitution was invoked by the losing party in the trial court and there denied, and that before the Supreme Court has jurisdiction, that the proponent to transfer must show a constitutional question to his own disfavor was ruled on to the adversary's favor. Clark v. Porter, 63 S.W. 89, 162 Mo. 516; Hanlon v. Publishing Co., 66 S.W. 940, 167 Mo. 121; Harding v. City, 71 S.W. 673, 171 Mo. 442; Mesenbrink v. Boudreau, 171 S.W.2d 728; Boggs v. Railroad Co., 50 S.W.2d 164; Austin Machinery Co. v. City, 185 S.W.2d 850; Silberstein v. Corporation, 124 S.W.2d 1207. (3) No constitutional right was denied the losing party below. The constitutional question is merely incidental. The real question is whether or not the petition states cause of action, and this court therefore has jurisdiction.
Clif Langsdale, for respondents.
The true rule for determining whether there is a constitutional question for the decision of which the Supreme Court has exclusive jurisdiction, is stated as follows: ( Lux v. Ins. Co., 285 S.W. l.c. 425). "Before this court can take jurisdiction of a case on the ground that a constitutional question is involved, the constitutional question must be ruled in the trial court against the party appealing. Miller v. Connor, 250 Mo. l.c. 684, 157 S.W. 81; Hanlon v. Pulitzer Pub. Co. 167 Mo. l.c. 123, 66 S.W. 940; Brown v. Railroad, 175 Mo. l.c. 188, 74 S.W. 973; Parker Washington Co. v. Field, (Mo. Sup.) 219 S.W. l.c. 600. In the Hanlon case the principle is stated in this way: `Before a party can be in a position to invoke the jurisdiction of this court to decided a constitutional question, he must be able to show that he claimed in the trial court some right under the Constitution which was denied him, or that a constitutional question to his own disadvantage was ruled in his adversary's favor.'" [285 S.W. l.c. 425 — Lux v. Ins. Co.] "To say that where a constitutional question is necessarily involved in a case that nevertheless this court would have jurisdiction of an appeal on the theory that the constitutional question was invoked by the successful defendant and not by the losing plaintiff-appellant, would be contrary to the plain words of Section 3, Art. 5 Const. of Mo. 1945, that, `The Supreme court shall have exclusive appellate jurisdiction in all cases involving the construction of the Constitution of the United States or of this state,' etc. (Emphasis ours.) These words are not ambiguous and clearly mean that regardless of which side may invoke the protection of the Constitution, the Supreme Court has jurisdiction of an appeal if a construction of the Constitution is necessarily involved in the case." Wooster v. Trimont Mfg. Co., 197 S.W.2d 710, 712.
Plaintiff filed a petition in the Circuit Court of Jackson County to restrain defendants from alleged unlawful picketing of her property known as the Barclay Apartment Hotel at 1010 East 27th Street in Kansas City, Missouri. The court issued its temporary restraining order, as prayed. Thereupon, defendants filed a motion to dissolve the restraining order and to dismiss the cause, on the grounds that it appeared upon the face of the petition that defendants, in doing the things alleged, were exercising the rights secured to them by virtue of the First and Fourteenth Amendments of the Constitution of the United States, and paragraphs 8 and 9 of Article I of the Constitution of Missouri; and that the petition did not state facts sufficient to constitute a cause of action. A hearing was held and the court sustained the motion and dissolved the temporary restraining order, because such restraining order violated defendants' constitutional rights, as above mentioned, and for the same reason held that plaintiff's petition did not state a cause of action, and dismissed the cause.
From that order plaintiff perfected her appeal to this court, and makes but one assignment of error, which is, that the court erred in holding the temporary restraining order deprived defendants of their constitutional rights under the allegations of the petition; and erred in dismissing her petition.
Defendants (respondents) have not filed a brief in this court, but have filed a motion to transfer the cause to the Supreme Court, because there are constitutional questions involved which were directly passed on by the trial court. Plaintiff (appellant) has filed suggestions in opposition to this motion. Her argument is based on the theory that defendants were the successful parties in the trial court and, therefore, no constitutional right of protection has been denied them, and such question has passed out of the case. There are cases in this state supporting that contention. In Brown v. M.K. T.R. Co., 175 Mo. 185, 188, 74 S.W. 973, 974, THE COURT said: "But in order that the case can involve a constitutional question, the protection of the constitution must be timely and properly invoked in the trial court, and that protection must have been denied to the party invoking it by that court, and such party must have been the losing party in the trial court, . . ". That language was quoted with approval by the court en banc in the case of Schildnecht et al. v. City of Joplin, et al., 327 Mo. 126, 128, 35 S.W.2d 35. However, the court en banc in the very recent case of Dye v. School Dist. No. 32 of Pulaski County, et al., 195 S.W.2d 874, 876, modifies or explains the prior rulings. In the Dye case plaintiff (appellant) was the losing party and had not sought constitutional protection in the lower court; the defendants (respondents) had raised such questions. Those are the exact conditions existing in the instant case. In disposing of the question of its jurisdiction and in modifying prior rulings, THE COURT said:
"As will be noted, the aforesaid stipulation says the respondents raised constitutional questions below. And that is a fact. But they won the case and did not appeal. It is the appellant who is invoking our jurisdiction. A banc decision, Schildnecht v. City of Joplin, 327 Mo. 126, 128 (2) 35 S.W.2d 35, 36 (3), in ruling on a similar question quotes a statement from two earlier cases that constitutional `protection must have been denied to the party invoking it by that (trial) court, and such party must have been the losing party in the trial court.' Now the appellants here, being the losing party below, that far comes within the quoted formula: but he did not raise the point and seek constitutional protection there. On the contrary, he maintained the Constitution did not apply. In so doing he took the negative side of the constitutional question raised by respondents. Having lost, he appealed and brings the same question here. Consequently, we believe he is entitled to invoke our jurisdiction on the ground that a constitutional question is involved, if it appears from the record that the trial court ruled the case on that question. . . ."
The record in this case affirmatively shows that the trial court did decide the constitutional questions raised by defendants (respondents) and the correctness of the trial court's ruling on such questions must be decided on appeal. Under such circumstances, the Supreme Court has exclusive jurisdiction. [Sec. 3, Art 5, Const. of Missouri, 1945.] [See, also, Wooster, et al. v. Trimont Mfg. Co., 197 S.W.2d 710.]
Generally speaking, this method of raising the foregoing constitutional questions by motion was permissible under Secs. 61, 62 and 66 of the New Civil Code, Laws Mo. 1943, p. 353, et seq.; Dye v. School District No. 32, supra, (876). It is also to be noted that under the state of the record in this case, a construction of the Federal and State Constitutions is involved. [Wolf v. Hartford Fire Ins. Co., 304 Mo. 549, 462.]
It follows that respondents' motion should be sustained and the cause transferred to the Supreme Court. It is so ordered.
Bland, P.J., concurs; Dew, J., not sitting.