
    The City of St. Louis, a Municipal Corporation, Appellant, v. Butler Company, a Corporation, et al., Defendants; Trinidad Asphalt Manufacturing Company, a Corporation, Respondents.
    No. 40868.
    219 S. W. (2d) 372.
    Court en Banc,
    April 11, 1949.
    
      
      Georg'e. '.L. Stemmier, James-B. Steiner, and Oliver-I. Johnson for appellant.
    
      
      ■■Greensfelder, Kemker <<& Wiese, Kent Chappelow, and Mark Gale for respondent. ■■
   [373]

ELLISON, J.

This is a condemnation snit brought by the appellant City of' St. Louis to condemn for use as an alleged public street a strip of land forming a cuLde-sac and known as Edward Street, from the south line of Market Street to the north line of the right of way of the Wabash Railroad Company. Oh the defendants’, side of-’ the case only the Asphalt Company appears here. ■ At the outset it must be determined whéther this court has appellate jurisdiction of the cause under Art. Y, Sec. 3, Const. Mo. 1945, on one or another- of three theories, or whether that jurisdiction is in the St. Louis Court- of Appeals. These questions are:

(1)'whether the City was acting merely as a municipal corporation in 'bringing and prosecuting the suit, or was acting in its capacity as a 'county under Art. YI, Sec. 31;

(2) whether the title to real estate is involved within the meaning of Art. Y, Sec. 3;

(3) whether a constitutional question: was raiséd below and kept alive, so as to 'make this court the appellate forum under Art. V, S'ec: 3. Appellant maintains 'such a question was raised by its contention that the contemplated condemnation is for public use [which can be- done, tinder Art.'1, Sec. 26]- as opposéd to the respondent’s contention tha-t it is for a private use [which cannot be done, with specified' exceptions, under Art. 1, Sec: 28, and Art. XIV, Sec. 1, Oohst: II. S:]

This appeal was first lodged here in Division 2, and an opinion by Tipton, P. J. was adopted holding this court did not have appellate jurisdiction on either the first or second ground stated above. As to the third-ground, the opinion held that assuming but not deciding a constitutional question had been''properly raised' in the trial court, nevertheless it had not been preserved in appellants motion for new trial or in the,briefs here, in consequence of which it was not before this court. But inasmuch 'as ■ the opinion conflicted with certain decisions of,Division 1 and the court en banc as to the second ground, supra, the case was, transferred to the court, en banc to resolve these conflicting views. The appellant’s brief here stresses the third ground of jurisdiction, and since the opinion of Division 2 did not decide it, the cause was reassigned for a new opinipn to cover it, if - justified.

As to the first-ground; supra, we think it is clear that the City is "acting as a municipal corporation .and not as a .'county, in maintaining, this suit. Art. YI, S,ee. 31, Const. 1945 recognized St. Louis both as acity and as a county. But'this suit is based on its charter powers as a city. Nrt. V, See. 3, gives this, court appellate jurisdiction in civil cases. only .when the City is a party, in its character as a county. We therefore' hold that we have no appellate [374] jurisdiction on this first ground, and that the divisional opinion was properly ruled on that point. Superior Press Brick Co. v. City of St. Louis (Mo. Div. 1) 152 SW. (2d) 178, 179(2); Lovins v. City of St. Louis, 336 Mo. 1194, 84 SW. (2d) 127.

As to the second ground, supra, we hold the title to real estate is not involved, though it may be affected by the outcome .of the instant condemnation suit; and that the divisional opinion was properly ruled on that point under Art. Y, Sec. 3, supra. That ruling was based on Nettleton Bank v. Estate of McGauhey, 318 Mo. 948, 952, 2 SW. (2d) 771, 774-5(7, 8, 12), decided in Division 1, and Mo. P. & L. Co. v. Creed, 325 Mo. 1194, 1196(2), a unanimous decision, of the court en banc. , The latter adjudicated the exact-point and overruled four prior decisions3 of this court to the contrary. The reason given in one of these.-oyerruled' decisions, the. Moberly case, where an easement oyer land was condemned, was that the landowner’s right to the use and exclusive possession of the land was' either lessened or taken away, and his interest thereby affected.

The Creed case, supra, has been followed in three decisions. One of them,.the Day case, held a condemnation suit prosecuted for the purpose of determining the amount of damages due the landowner, does not involve the. title to real estate except incidentally, unless the question of public use be drawn into the proceeding. And since shortly thereafter a line of eleven decisions3 has been rendered, holding that if the plaintiff’s power to. make,the condemnation is challenged in the suit, title to real estate is involved in a constitutional sense, and appellate jurisdiction will be in this court. The first of these decisions was. the. Gordon case;-written by Ragland, C. J., who had also written the Day case just a month earlier. But the Gordon case cited no precedent. .

. The Richter case was not, based. on the Gordon case, but on the Tarkio case, which .had been overruled in the Creed ease. The Mitchell, Thomas, Franklin Bank, School-District and Kirkwood cases, all followed the Gordon case, and held if the right to establish a public road is challenged [not necessarily on constitutional, but even on statutory grounds]’title is involved and- appellate jurisdiction-is in this court. The Palmer 'case held the condemnation- of a highway easement over land would directly take from the owner that much of his title, and therefore involve title, thus following (but not citing) the overruled Moberly case. The--Hall and Welch eases followed the Palmer case. In the Union'Electric-cáse that company'claimed an award of $3150 damages in a condemnation proceeding on the theory that it owned the fee title- to the land condemned, and the court ruled" it was not entitled to the money because it "did not have any -interest in the land. Held:" title to real estate was involved;-and this court had appellate jurisdiction. - - • • - ’ '

All these decisions3 are wrong and should be overruled on the jurisdictional point, in "the opinion of- the writer. As held [375] in the Creed ease, quoting from the Nettleton Bank "case, the- title to real estate is not involved in any case in a constitutional sense- under- Art. V, See. 3, Const. Mo. 1945, and Art. YI;-See. 12,-Const. 1875, unless it be directly, and not collaterally, in issue. In-a condemnation suit the plaintiff does not dispute the landowner’s antecedent title.- ' On the contrary he affirms it. That is the reason the owner -is made- a defendant. The object of the suit is-to.subject the land as his to a public use by condemnation - undér our Constitution and statutes. True, a condemnation suit does take part- (or-sometimes all) of the landowner’s title and giyes it to the condemnor for just compensation. But it does not follow that the title is in. issue. It was always subject to that paramount right emanating from the Government.. The issue is on the right to take all or a part of a conceded title -in the particular ease and on the compensation to be paid.,. It is analogous to the enforcement of á lien. . • - -

We have consistently held,-ever since-the adoption of. the Constitution of 1875, that.suits to foreclose mortgage, tax, mechanics’ and other similar liens, voluntary or involuntary, do not involve title in a constitutional sense, even .though the foreclosure there also may culminate in the taking of a part or all of the landowner’s. title. And it would not be asserted by anyone that if ■ the lienholder’s right or power to foreclose his lien is-.disputed, and made-an issue in the case, title would be “involved” in such sense as to give this court appellate jurisdiction. r ■ . ...

The third ground for the .appellant City’s contention-that-this court has appellate jurisdiction under Art., Y, Sec. 3, Const. 1945,.necessi-tates the. decision of two questions: whether a construction of the Federal and State Constitutions is involved; and whether the point has been sufficiently preserved for review. Before discussing them further facts must be stated.

The City’s petition for the condemnation1 alleged-the strip- of- land would be taken for use as a public street, pursuant to an ordinance. On the return date of the summons the respondent contemporaneously .filed an answer and a motion to dismiss on the ground that the petition failed to state a claim upon which relief could be granted... The filing of both at once- was permissible under Sec’s 62 and 66 of the .Ciyil Code. The answer alleged.the strip of land was. not subject to- condemnation and that the condemnation would be null and void,, as •shown on the face of the,petition ,and attached plat, because the proposed street would be. a cul-de-sac solely for private use, “in violation of' its constitutional rights under .the' .Constitution of -the United. States and the State of Missouri.”- The, motion said it would be, null-and void “under the - applicable -provisions of the Constitutions of the United States, State of Missouri” and the City Charter, which latter also provided for the condemnation of -private property for, public use. Neither- the answer nor the- motion cited any article or section of either Constitution. ■ = -

' Under See. -69 of the -Civil Code the trial court held a hearing on the-motion, at which'the respondent introddced-:oral testimony and ■documentary evidence verifying .respondent’s contention that-'"the strip of land would be a cul-de-sac términating at the north property line of the Wabash Railroad; and that part of-the strip had formerly been a private 'road and had been- abandoned as such; The railroad land was shut off by a-gate and there-Avere tracks on it, but no buildings. The City did not dispute this- evidence, but objected that it was immaterial. • . c...:

The trial court sustained the motion to dismiss by a general order without specifying its reasons,'or whether'it was ruling under the State and Federal Constitutions or'the Charter. The appellant "City filed, a motion for new trial which made only general assignments- of error. The most specific ones were that the trial court’s sustention of the motion-was against “the law that a cul-de-sac is a public highway,” and “the law that’ a public highway is a public use.” No mention is made of the constitutional questions. The City’s brief here in Division 2 invoked bur jurisdiction' merely by quoting the aforesaid statement in 'respondent’s''motion to dismiss bélow, that the condemnation is Void under.the'“applicable” provisions of the Federal and State Constitutions, leaving out the reference to [376] the Charter. Only in a suppleméntal typewritten brief recently filed in banc has the City stated that the “applicable” provision of the State Constitution is Art. 1, Sec. 28,-Const. 1945. " '

We concede that the appellant City is"not debarred from raising the constitutional question "merely, because it took'the negative side thereon below. It was, the'respondent who invoked it and was suceessful,thereon — if the trial court decided the case on that ground. .But even so, the City was the losing party and could raise it on appeal.

However, granting that, we think the facts" set out -in. the second preceding paragraph show the appellant did not preserve -the constitutional .question for review because it failed to comply with the following requirements. It has long been the law that the question must be raised at the first available opportunity: Woodling v. Westport Hotel Operating Co., 331 Mo. 812, 819(2), 55, SW. (2d) 477. The-sections of the Constitution claimed to, have, been .violated must be specified: Robinson v. Nick, 345 Mo. 305, 309(5), 134 SW. (2d) 112, 115 (11). The point must.be presented in the motion .for .new trial, if any: Red School Dist. v. West Alton School Dist. (Mo. Div. 2) 159 SW. (2d) 676, 677(2). And it must be adequately covered, in the briefs: McGuire v. Hutchinson, 356 Mo. 203(4), 201 SW. (2d) 322, 327(8).

It seems clear in this case that the appellant City did not raise the constitutional question negatively at the first opportunity., And it did not specify the section of the Constitution claimed,by.respondents to have been violated, until about a month ago. in an amended reply. Very rarely we have waived the. requirement of the Robinson-Niek case,.supra, that the invoked section of the Constitution-must, be specified by article and. section number. We did..that in,: the. Dye ease, supra, where.the vital opening part of a constitutional provision of general application [Sec. 12, Art.- X, Const. 1875] was practically quoted, and it was stipulated the constitutional question had. been raised below. ■ Another similar recent decision is City of St. Louis v. Friedman (Mo. Div. 1) 216 SW. (2d); 475, 477(3). But in the instant case the respondent’s answer merely said the condemnation would violate its rights under “the Constitution of .the United States and the State of Missouri,” and its motion to dismiss stated the condemnation would be void under “the applicable provisions” of those Constitutions. There was no effort to point out any particular provision, and appellant did not do so. . - .... .. , -

... We ar.e,.unwilling to say. that merely because the case involves .a question of eminent domain we should treat these,;vague references,to the Constitution as referring to Sec’s 26 and .28, Art. I, C.onst, 194.5, on the same subject — especially since the trial court’s order-did, not state, whether it was ruling on the constitutional question, or :not. .Wedhink we should-not depart from the practice; now-in- force.1 -Its purpose has npt been alone to insure that we , understand the exact constitutional question presented. A further purpose ..has- been -to prevent “afterthoughts” on appeal — the raising of new issues which had not been presented below on questions of such dignity and importance.

If the foregoing views be correct, no constitutional question is presented on this record unless it inheres in the case notwithstanding the point was not properly raised below and .preserved. This doctrine of inherency is based on four early cases in this State. In the first of these, the Mulholland case, it was held that where , a cause is submitted on an agreed statement of facts, a question on the validity of an ordinance as violating “vested rights” may be raised for the first time in the appellate court without' further or more definite [377] statement, because the solution of that question necessarily required a construction of the Constitution.

' In the second, or'Smith case, the question was whether the_Board of Police Commissioners of Kansas City had the power to discharge a policeman. That in turn depended on whether the Charter of the City or certain General Statutes were controlling. The Court of Appeals held on a comparison of the two that the statutes governed. This court, on mandamus, ordered the record sent up on the ground that a correct interpretation of the statutes could only be reached by consulting the Constitutional provisions authorizing the adoption of the. Charter. Later'this court decided the cause on the merits, State ex rel. Goodnow v. Police Comr’s, 184 Mo. 109, 127, 132, 71 SW. 215, and' held the Court of Appeals, decision (80 Mo. App. 206) was correct.

The‘third case was State ex rel. Curtice v. Smith, 177 Mo. 69, 87, 94-5, 75 SW. 625, decided in 1903. It involved paving taxbills in Kansas City. This also was on mandamus from this Court to the judges of the Court of Appeals. The question was whether the defendant property owners could make any defense to taxbills, in view of Sec.-23, Art. 9 of the City Charter depriving them of that right if they failed to object within 60 days after issuance of the' taxbills. The Court of Appeals held that provision did not apply where the •taxbills were void, but only where there was some irregularity in them; This court held the Court of Appeals could not décide the eaáe without determining whether Sec. 23, Art. 9 of the Charter was unconstitutional.

The fourth case was McGrew v. Mo. Pac. Ry. Co., 230 Mo. 496, 511, 612(1), 132 SW. 1076, 1079 1113-4, decided in 1910,' which stated that where a plaintiff’s" cause of action is founded upon a statute, the constitutionality and life of the statute are involved from the start to the finish, and may be challenged by the defendant “at any time- and in any court until the final end of the case.” But that decision was questioned and distinguished in the Syz case, infra, and was- overruled on the' merits in McG-rew Coal Co. v. Mellon, 315 Mo. 798, 810(4), 287 SW. 450, 455(8).

There are numerous- eases where this court raised a constitutional question sua sponte, negatively, to protect the jurisdiction of the Courts of Appeals, and to disclaim our own. And there are several decisions where we already had original or appellate jurisdiction, and raised and decided a constitutional question affirmatively,, as in the Wells and Bass cases, both of which were based on original writs. Likewise in the State Building Commission and Masséy-Harris cases, a constitutional question had been squarely raised, but we nevertheless said the questions at issue were inherent — in the latter on. a question of statutory construction. . .

[378] On the other hand, there are at least seventeen decisions where the doctrine of inherency has been recognized as existing-in “rare” cases, but it was not followed in any of them. And .there are scores of other decisions specifying the strict and detailed requirements, heretofore set out, and saying they must be followed in raising and preserving a constitutional question to give us appellate jurisr. diction. ... .

Further, there is one. case which holds a constitutional question may. be waived in a road condemnation proceeding if not raised in the trial court. The following was said in Seafield v. Bohne, 169 Mo. 537, 551-2(9), 69 SW. 1051, 1055: “There is much force in the argument of learned counsel for plaintiff that a county court ought not to be allowed to .take, private prpperty under the guise of taking it for public use, when in fact it is only for the convenience of private per-sous Who are- willing to 'pay for it. • Suck an act would be an abuse of' power1 and would'violate ' a constitutional property right. But when' private property rights are threatened it is the duty of the owner to avail himself of the process of law for his. protection, and if he-stands' by and' allows a court in the exercise of-its rightful jurisdiction to decide questions' of law or of fact contrary to- the correct interpretation of the one or to the weight of the evidence as to-the other,-and-neglects the means at'hand to correct the error, he cannot afterwards.treat the whole proceedings of:the court as a-nullity.”

• That-ease "has been followed three times by decisions of this-court, and-the' last' sentence of the' above quotation was repeated in this second of these decisions': State ex rel. United Rys. Co. v. Wiethaupt, 231 Mo. 449, 470(7), 133 SW. 329, 335(8); Howell v. Jackson County, 262 Mo. 403, 413(4), 171 SW. 342, 344-5(3); County of St. Louis v. Bender, 350 Mo. 1051, 1054(1), 169 SW. (2d) 889, 890(1).

¡:The Syz,; Rose and Mo. Elec. Pr. Co. decisions, supra,7-speculated that -the-theories on which-the'inherency doctrine has been applied (■Where'it Was); afe: that when the' decision of a constitutional question -is ''essential- to’ the determination of a-cause, or when there was-only a single issue, it will be-assumed the trial court did pass on it1.-Butneither of these theories is sound. We cannot assume a faet whieh the Record shows is not a fact, or even fails to show is a fact. Nor Will 'it 'make any- difference- whether there was only one or more than one issue below. If the constitutional question was not ráised and preserved in the trial récord it cannot be- in the ca'se on appeal, since our-appellate jurisdiction--is'derivative and so limited by the Constitution.' When we-wrongfully accept it on .the unraised constitutional ground this-court is violating the Constitution as much as the litigants. The doctrine of inherency therefore.is unconstitutional. We have erred in preserving for forty years (nearly) the fiction of an appellate jurisdiction based on an inherent constitutional (question not raised below, without applying it in a single cáse.

The objection here urged does not ápply when we already have original'jurisdiction, or appellate jurisdiction on other [379] grounds, and decide a' constitutional question affirmatively, sua sponte, as in the Bass, and State Building, cases, supra.6 For in those circumstances we áre not lifting ourselves jurisdictionally by our own bootstraps.

Further, the mere fact that Sec’s 26 and.28, Art. I of our Constitution, and Art. XXI, See. 1 of the St. Louis Charter all use the same words “public-use’-’, and that Sec. 28 of the Constitution also uses the antithetieál words “private use”, does not make a constitutional question inhere in a case.’ ■ Would we be willing to say we have inherent appellate jurisdiction in all instances where a statute adopts constitutional language? No doubt there are a great ,many such instances. ....

■ Another-- reason why the inherency ■ doctrine- cánnot be invoked in this case is that- the City’s canse of action is not based on the Constitution, but 'directly upon its Charter. It was recently held by the court en banc-in State ex rel. Highway Com. v. James, 356 Mo. 1161, 1165 (1), 205 SW. (2d) 534, 535(3), that constitutional “provisions-defining the purposes for -which condemnation- may *be had are not-self-enforcing in the sense that they may be enforced by courts except to the- extent and in the manner provided by statute.” (Italics ours). That being true, the City of St. Louis could not have brought the suit if the Charter had not authorized it. While the Charter uses the same words “publicuse” as the Constitution, yet--it is a construction of--those words in the Charter which is primarily involved. •

Respondent’s position therefore must be either that the contemplated úse 'is- not a public use, and conséquently violates the' Charter— which is a'purequestion of statutory (or Charter) construction, Bealmer v. Hartford Fire Ins. Co., 281 Mo. 495, 504-5(4), 220 SW. 954, 957(3); or elsé it must be that the Charted erroneously permits the contemplated use and thereby violates the Constitution. That would be a question of constitutional construction. But respondent’s answer and motion to dismiss pleaded that the contemplated condemnation violates both the Charter and the Constitution. That being true, the two mean the same' thing on the question at 'issue,' and it is not necessary to invoke the Constitution even to arrive at the meaning of the Charter. For respondent has-taken-a definite position on that question, naniely, that a' cul-de-sac is nota public use within the meaning of the Charter.

We are not holding the respondent could not have made the double cóhtention here that’the contemplated condemnation violates both the Charter and' the Constitution, if the constitutionál question had been properly raised below — and, of course, kept alive. But to assert that a constitutional question is inherently involved though not raised below,'is an entirely different matter. That contention would go even further than the four early decisions, supra.5 They held, in effect, that where a Charter (or statute) needs extrinsic aid to construction, and it is necessary to construe the Constitution to determine the meaning of the Charter, then the constitutional question is inherent. But here respondent does not contend the Charter provision, Art'. XXI, Sec. 1 is ambiguous. On the' contrary' it has asserted throughout that the words “public use” in both'the Constitution and the Charter have the same meaning, and stated what'that' meaning is.'

Furthermore, respondent cannot validly make the contention that if the Charter means a cul-de-sac can be condemned, then it is unconstitutional. On the contrary, respondent’s position must be that the Charter “is unconstitutional-whatever it means and under any construction of-which, it is susceptible.” [380.]. We need not inquire whether that is still the law under the new Civil Code [Laws Mo. 1943, pp. 370-1, Sec’s 37, 38, 42; Mo., R. S. A. Sec’s 847.37, 38, 42], which permits a litigant to join independent, alternative and hypothetical claims in one pleading. For no, such constitutional question was properly raised and decided below, and preserved here.

■ We must have a workable-legal rule in. this state on the enigmatic doctrine .of inherency and the only, way to get it is to eliminate the doctrine. -The history of- our decisions during -the last fifty-two years shows .that confusion is .worse confounded by relying upon it. The party -raising or relying on. a constitutional' question should cite the constitutional provision relied on by article and section number, and state his reasons as held in the. Robinson-Nick case, supra, 345 Mo. 1. c. 309(5), 134 SW. (2d) 1. c. 115(11), or, that decision and others of. like .tenor. should be overruled. If .we take the position that the foregoing requirement need no,t be,enforced literally, as was ruled in the Dye case, supra, 355 Mo. 1. c. 236(2.), 195 SW. (2d) 1. c. 876(2), and the Friedman case supra (Mo. Div. 1) 216 SW. (2d) 1. c. 477(3), then it. will be a question for the court .to decide in each case.

, But certainly ft, should not, be held a mere allegation that a given act, claim, right.or statute “violates the- Constitutions of the United States and the State of Missouri,”.or the “applicable” provisions of those. Constitutions, properly raises a constitutional question. The decisions cited.supra, in “marginal notes,6 and 7 should be and are overruled insofar as they hold a constitutional question may inhere in a case and actually be raised in this court for the first time on appeal, thereby vesting us with appellate jurisdiction.

This eáuse is ordered transferred to the St. Louis Court of Appeals for want of appellate" jurisdiction' in this court.

Tipton, Conkling, Douglas, JJ., and Leedy, C, J., concur; Douglas, J., in separate concurring opinion in which Tipton, Conkling, Ellison, JJ., and Leedy, CÜVconcur;' Clark and TLyde, JJ., dissent, each in separate dissenting opinion. ...

DOUGLAS, J.

(concurring.)', — I. concur in the principal opinion.. After eliminating two oth,er possible grounds of jurisdiction, it sets out the necessary procedural, requirements for invoking the exclusive appellate jurisdiction of this court in “ cases involving the construction of the Constitution of the,United States or of this state.” Article V,' See. 3, Constitution 1945. ,It holds our jurisdiction on that ground has-not been invoked.

It is now settled that the jurisdiction of this court on the ground a constitutional question is involved must appear affirmatively from the record, and it is not sufficient that such question may be inferred argumentatively from the facts stated.

To invoke our jurisdiction on the ground a constitutional question is involved a party must follow four requirements. 1. He must raise the constitutional question at his first available opportunity; 2. he must designate specifically the constitutional provision claimed to have been violated, such as by explicit reference to the Article and Section or by quotation of the provision itself; 3. he must state the facts showing such violation; 4. he must preserve the constitutional question throughout for appellate review.

The purpose of such a rule is to simplify ,a question which should be made as simple as can be for the speedy determination of cases on appeal. Whether an appeal goes to a Court of Appeals or to this court should not require a judicial determination, prior to and in addition to the decision on the merits.

Accordingly, if a party fails to observe the four requirements a constitutional question will be deemed not to have been raised, and the constitutional right waived.

Constitutional rights may be waived. DeMay v. Liberty Foundry Co., [381] 327 Mo. 495, 37 S. W. (2d) 640. Likewise, “Constitutional provisions intended to protect property may be waived (Shepard v. Barron, 194 U. S. 553, 24 S. Ct. 737, 48 L. Ed. 1115), and in Missouri constitutional questions will be deemed waived unless raised at the earliest possible moment consistent with good pleading and orderly procedure.” Sutton v. Anderson, 326 Mo. 304, 31 S. W. (2d) 1026.

Since the constitutional question now asserted in this court was. not raised in accordance with the four requirements of such rule, our jurisdiction has not been properly invoked. Hence the case should be transferred to the St. Louis Court of Appeals.

Tipton, ConTcling, Ellison, JJ., and Leedy, C.J., concur.

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 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.' . .

HYDE, J.

(dissenting)." I agree that'we do not have- jurisdiction either on the ground that title to' real estate is involved or that'the city'is acting as'a county. However, J do think we have jurisdiction on the ground'that it is a ease “involving the construction of the Constitution . . ". of this-state.” ' (Sec. 3,'Art.-V, Const.)- The motion to dismiss and the answer raised only one issue, the -issue ’ of-public use. Both stated that the use for which the City sought to "take the land was a private use and hot a public use; the motion to dismiss stating that'this appeared on the face of the petition.- "The Court sustained the motion to dismiss. I think this sufficiently raised a constitutional question and since it is the only question in the case it is inherently involved; [See Massey-Harris Harvester Co. v. Federal Reserve Bank, 340 Mo. 1133, 104 S. W. (2d) 385.]

•- -It is true- that the motion, without specifying any provision of the Constitution,- stated that “the attempted condemnation is for a private use as distinguished'from a public use and is illegal and null and "void'under the applicable provisions of the Constitutions 'of the United States, State of Missouri and the Charter of the City of St. Bonis.” However, Sec. 28,'Art. I of the Constitution provides: “That private property shall not be taken for private use with or without compensation, unless by consent of' thé owner '. . (except for ways of necessity, etc.) .' . '. and that when áñ attempt' is made to take private property for á use alleged to be public, the question whether the contemplated use be public shall be judicially determined without'regard to any legislative declaration that the usé is public.” I-think the issue raised as to public use so 'clearly involves the construction of' this provision of the Constitution that we' should hold this'-constitutional- question was sufficiently raised. [See City of St. Louis v. Friedman, (Mo. Sup.) 216 S. W. (2d) 475.]

I understand the 'principal opinion herein to concede that a constitutional question coul'd have been raised in this case if it had been stated ■ by ' defendant that taking its property would have'violated Section -28 of Article I of the Constitution, because the City was taking- it for a private use and if the City had thereafter stated that it was properly taking it for a public use under said section and article. -Suppose that had- been done. ' What law would have been applied to the decision of that question that' will not be applied to it in any event by whatever court decides it? The only question in the'case is whether the proposed use is a public usé or a'private use. No court could decide it on any other issue regardless of whether Section 28, Article T was specified or not.

Section'28, Article I, is a limitation on the power of thé'Legislature to authorize the taking of private property. There was'no such provision in-our original Constitution of '1820, but the same result was reached without it on constitutional grounds. In Dickey v. Tennison, 27 Mo. 373, it was held that an act authorizing the taking of private property for private use was unconstitutional as hostile to the existence of private property, and contrary to the form of government established by the Constitution, without specifying any constitutional provision. However, “the courts have denied the right to take private property for private use on the ground that it would deprive the owner of his property without due process of law.” [29 C. J. S. 819, §29; 18 Am. Jur. 659, §34.] It was also early held, under the provision of our 1875 Constitution against taking private property for private use (now Sec., 28, Art. I), that the question of whether or not any use is á public use is one of law to be determined by the court and is not an issue for submission to a jury. [City of Savannah v. Hancock, 91 Mo. 54.] Therefore, we have a question of law and not a fact issue. By what law is this question to be decided? Must it not be decided on the construction of the fundamental law established by the Constitution? That is either on the construction of Section 28, or, if we had no such provision, of [383] the due process clause. Thus it'would seem that the question of public use has always been recognized as a constitutional question. When this is the only question in the case, I cannot see how any Court can decide it except by a construction of the terms “public use” and “private use” as-used in the Constitution. If there ever can be a case, in which there is an inherent constitutional question, I think this is it.

In Lohmeyer v. St. Louis Cordage Co., 214 Mo. 685, it held that there is an inherent constitutional question only “where on the whole case some provision of the Constitution was either directly or by inexorable. implication involved in the rendition of the judgment and decided against appellant.” I would go further and say that it must be the sole question for decision in the case and that it must be possible, from the issues raised, to identify some provision of the Constitution which must be construed to decide the case. Under such conditions (and I think that is the situation herein) a constitutional question is raised by the issues presented for decision because the decision must depend upon a construction of a constitutional provision. I think the pleadings in the case raised a constitutional question inherently because the issue they presented could only be -decided by, construction of Sec. 28, Art. I of the Constitution.

Thus we have a case where the defendant relied upon a constitutional provision (and I think sufficiently identified it) and ’the Court decided the case on the sufficiency of the petition to state a claim for taking property as against the challenge in the motion to dismiss that it showed on its face only a private and not a public use; and the plaintiff, taking the negative side , of this constitutional question, lost and appealed, seeking to have us hold that its petition did sufficiently show a public use. [See Dye v. School District, 355 Mo. 231, 195 S. W. (2d) 874.] I think this record shows that the trial court did. decide the ease against plaintiff on its construction of a constitutional provision and that plaintiff is entitled to invoke our jurisdiction on the ground that the only question involved is this constitutional question. 
      
       State ex rel. Pulley v. Thompson, 306 Mo. 239, 267 SW. 605; Springfield Sw. Rd. Co. v. Schweitzer, 246 Mo. 122, 151 SW. 128; Moberly v. Lotter, 266 Mo. 457, 464, 181 SW. 991; City of Tarkio v. Clark, 186 Mo. 285, 294, 85 SW. 128.
     
      
       State ex rel. Piepmeier v. Camren (Mo. Div. 2) 33 SW. (2d) 913; State ex rel. Highway Com. v. Carroll (Mo. Div. 1) 34 SW. (2d) 74; State ex rel. Highway Com. v. Day (banc), 327 Mo. 122, 125(1), 35 SW. (2d) 37, 38(2, 3).
     
      
       State ex rel. State Highway Com. v. Gordon (banc) 327 Mo. 160, 163(3), 36 SW. (2d) 105, 106 (4); Richter v. Rodgers (Div. 1) 327 Mo. 543, 550, 37 SW. (2d) 523, 526(1); Mitchell v. Nichols (Div. 1) 330 Mo. 1233, 1236(2), 52 SW. (2d) 885, 886(1); Thomas v. Craghead (Div. 2) 332 Mo. 211, 212(1), 58 SW. (2d) 281(1); State ex rel. Palmer v. Elliff (Div. 2) 332 Mo. 229, 231(1), 58 SW. (2d) 283, 284(1); City of St. Louis v. Franklin Bank (Mo., Div. 1) 98 SW. (2d) 534(2); Consolidated School Dist. v. O'Malley (Div. 1) 343 Mo. 1187, 1189(1), 125 SW. (2d) 818, 819(1); State ex rel. State Highway Com. v. Union Elec. Co. (Div. 1) 347 Mo. 690, 694(1), 148 SW. (2d) 503; City of Kirkwood v. Venable (Div. 1) 351 Mo. 460, 463(1), 173 SW. (2d) 8, 10(1); Hall v. Gernhardt (Mo. Div. 1) 171 SW. (2d) 669, 671(2); Welch v. Shipman (Div. 1). 357 Mo. 838, 840, 210 SW. (2d) 1008, 1009(1).
     
      
       Dye v. School District, 355 Mo. 231, 235(1), 195 SW. (2d) 874, 875(3); Lux v. Milwaukee Mechanics' Ins. Co. (Mo. Div. 2.), 285 SW. 424, 425(2); Hanlon v. Pulitzer Pub. Co., 167 Mo. 121, 123(2), 66 SW. 940; Killian v. Brith Sholom Congregation (Mo. App.) 154 SW. (2d) 387, 393(2).
     
      
       State ex rel. Mulholland v. Smith, 141 Mo. 1, 10(1), 41 SW. 906, 908(1); State ex rel. Smith v. Smith, 152 Mo. 444, 448(1), 54 SW. 218, 219; State ex rel. Curtice v. Smith, 177 Mo. 69, 87, 94-5, 75 SW. 625, 632(2, 3); McGrew v. Mo. Pac. Ry. Co., 230 Mo. 496, 511, 612(1), 132 SW. 1076, 1079, 1113-4(1).
     
      
       State ex rel. Wells v. Walker, 326 Mo. 1233, 1245, 1249, 34 SW. (2d) 124, 132-3; Ex parte Bass, 328 Mo. 195, 201, 40 SW. (2d) 457, 460(4); State ex rel. State Building Commission v. Smith, 336 Mo. 810, 813(1), 81 SW. (2d) 613, 614(2); The Massey-Harris Harvester Co. v. Federal Reserve Bank, 340 Mo. 1133, 1138-9(1, 2), 104 SW. (2d) 385, 387, 388(1, 2), 111 A. L. R. 133.
     
      
       Kirkwood v. Meramec Highlands Co., 160 Mo. 111, 118; 60 SW. 1072, 1074-end; State ex rel. Hobart v. Smith, 173 Mo. 398, 420-1, 73 SW. 211; State ex rel. K. C. Loan Guar. Co. v. Smith, 176 Mo. 44, 47-8, 75 SW. 468; State ex rel. Horton v. Bland, 186 Mo. 691, 701, 85 SW. 561, 564; City of Excelsior Springs v. Ettenson, 188 Mo. 129, 132-3, 86 SW. 255; Lohmeyer v. St. L. Cordage Co., 214 Mo. 685, 690, 113 SW. 1108, 1110; Street v. School Dist. St. Joseph, 221 Mo. 663, 671, 120 SW. 1159, 1162; Sheets v. Iowa State Ins. Co., 226 Mo. 613, 618-9, 126 SW. 413, 414; Strother v. A., T. & S. Fe. Ry. Co., 274 Mo. 272, 281-5, 203 SW. 207, 208-11; Kircher v. Evers (Mo. Div. 1) 238 SW. 1086, 1087; State ex rel. Schuler v. Nolte, 315 Mo. 84, 90-1, 285 SW. 501; Syz v. Milk Wagon Drivers’ Union, 323 Mo. 130, 135-7, 18 SW. (2d) 441, 444; Lieber v. Heil, 325 Mo. 1148, 1150, 30 SW. (2d) 143, 144(1); Schildnecht v. City of Joplin, 327. Mo. 126, 129-130; State ex rel. Rose v. Webb City, 333 Mo. 1127, 1130-2(1-4), 64 SW. (2d) 597, 598-9(2-7); State v. Williams, 337 Mo. 987, 988-9(1), 87 SW. (2d) 423, 424(1-3); State ex rel. Mo. Elec. Pr. Co. v. Allen, 340 Mo. 44, 49(1), 50(3), 100 SW. (2d) 868, 870, 871(2).
     
      
       City of St. Louis v. Friedman (Mo. Div. 1), supra, 216 SW. (2d) 475, 477, citing State ex rel. Volker v. Kirby, 345 Mo. 801, 806(4), 136 SW. (2d). 319, 321(5); State ex rel. Clark v. West 272 Mo. 304, 318(4), 198 SW. 1111, 1115(4).
     