Opinion
No. 21767.
December 8, 1952.
APPEAL FROM THE JACKSON CIRCUIT COURT, JACKSON COUNTY, JOE W. McQUEEN, J.
David M. Proctor and John J. Cosgrove, Kansas City, for appellants.
J. K. Owens and I. I. Ozar, Kansas City, for respondent.
Plaintiff, J. C. Cirese, was the owner of two brick buildings located at 108 and 110 West Third Street, Kansas City, Missouri, which defendants sought to raze because dangerous to the public.
Defendants, Frank L. Lang and Reed McKinley, officers of Kansas City, Missouri, acting in their official capacity, entered into contract whereby defendants Charles and Hyman Spitcaufsky, contractors, were employed to raze said buildings.
Plaintiff instituted this suit against the above named defendants, whereby he sought to enjoin them against further destruction of the buildings, (the Spitcaufskys had begun to raze the buildings) and he also sought a judgment for damages, both actual and punitive.
After preliminary writ had issued, Kansas City, Missouri, a municipal corporation, filed appropriate pleadings seeking to be made a party defendant, alleging that the two first named defendants were its officers and agents and acting for it; that the last named defendants were acting under a contract made on behalf of the city, under and by virtue of Section 302(d) of Ordinance 9519, of Kansas City; and that petitioner "believes that the constitutionality of this ordinance is being attacked and challenged by the plaintiff."
Pursuant to said petition the city was made a party defendant. Its counselor and his assistants filed separate answers for Kansas City, Lang and McKinley, alleging that said defendants entered into a contract with the Spitcaufskys whereby the latter agreed to raze said buildings; that the contract was made under the provisions and authority of the above mentioned ordinance; and that Section 302(d) of said ordinance reads as follows:
"(d) Whenever any building or other structure has become so damaged by wind, fire, deterioration or other cause or causes and is in such condition, in the opinion of the Building Commissioner, as to constitute the same an immediate hazard dangerous to life, limb or property, or to the public, because of immediate danger of collapse, the Building Commissioner shall cause the removal and demolition thereof forthwith and without notice."
Plaintiff filed reply to the above pleadings, in the nature of a general denial, and further answering, alleged: "* * * the ordinance, and particularly that portion thereof as set out in paragraph 3 * * * is unconstitutional and void * * *.?"
The city counselor and his assistants also filed separate answer for the Spitcaufskys, wherein it was admitted that "in accordance with law they entered on plaintiff's property for the purpose of razing said buildings so as to make them safe for the public using the streets, sidewalks and public alleys adjacent thereto."
Plaintiff moved for judgment on the pleadings which motion was overruled. He then filed "Amended Petition; action for equitable relief and damages," wherein it was charged that all of the above-mentioned defendants, except the Spitcaufskys, had conspired among themselves, in violation of plaintiff's rights and contrary to the constitution of the State of Missouri and of the United States, to deprive plaintiff of his ownership, right, title and interest in the property herein-mentioned, including valuable personal property located in said buildings; and that, pursuant to said conspiracy and to accomplish its purposes, they had wantonly and maliciously induced the Spitcaufskys to enter upon and demolish the buildings and carry off parts thereof together with other valuable property stored therein. He prayed for a restraining order and for judgment for $25,000 actual, and $25,000 punitive, damages.
Kansas City, Lang and McKinley refiled their separate answers to the amended petition, wherein the above ordinance was pleaded as before stated.
The court found the issues for plaintiff and against defendants Kansas City and the Spitcaufskys, in the amount of $2,000 actual and $1,000 punitive damages, and discharged Lang and McKinley with their costs.
Defendant city, in its petition wherein it sought to be made a party defendant, pleaded that it acted under the ordinance which, it alleged, plaintiff contended was unconstitutional. After being made a party defendant, the city and its officers, Lang and McKinley, pleaded the ordinance, verbatim, and alleged that their action was taken under and by virtue of the ordinance. To that, plaintiff replied that the ordinance is unconstitutional and void. Thereafter, plaintiff filed an "Amended Petition" alleging that defendants acted contrary to the constitution of Missouri and of the United States and sought to deprive him of his property "without due process of law." To that pleading the city, Lang and McKinley, refiled their separate answer, mentioned in the preceding paragraphs.
The court made the following finding, among others: "The court finds that the ordinance upon which the city based its authority to demolish the buildings as set out in the petition was not binding on this plaintiff."
The ordinance was pleaded by defendants and, in effect, admitted by plaintiff, who challenged its constitutionality. It was not introduced in evidence but it was considered by the court. Defendants contend that it is before us, and they urge its constitutionality, citing 31 C.J.S., Evidence, § 27, p. 541; Dallas Ry. Terminal Co. v. Price, Tex.Civ.App., 94 S.W.2d 884, 892; Frank C. Weber Co. v. Stevenson Grocery Co., 194 Ill.App. 432, 436. Plaintiff had no opportunity to challenge the admissibility of the ordinance but, by the pleadings, its constitutionality has been in issue throughout the trial. He denied that it is in the case because not introduced in evidence, but argues, in effect that, if it is before us, it is unconstitutional. Defendants contend, in their brief and argument in this court, that it is a constitutionally valid ordinance.
If the ordinance is in the case, as defendants contend, we have no power to decide its constitutionality. Art. 5, Sections 3 and 13, V.A.M.S. Constitution of Missouri. If it is unconstitutional, as plaintiff contends, it affords defendants no defense. We cannot decide the case, as presented, without considering the effect of the ordinance, which we have no power to do since its constitutionality is in issue.
The cause should be transferred to the Supreme Court.
BOUR, C., concurs.
The foregoing opinions of SPERRY, C., is adopted as the opinion of the court. The cause is transferred to the Supreme Court.
All concur.