Kansas City v. Reed , 358 Mo. 532 ( 1948 )

Appellants-interveners' motion for rehearing complains that our opinion has overlooked and misinterpreted material matters of law and fact; and that we have failed to perform our judicial duty under Sec's 3312 to 3316, R.S. 1939, Mo. R.S.A. We shall return to that question presently, but first a word in review.

The statutes here involved provide a proceeding whereby a municipality may seek a pro forma decree in the circuit court approving a bond issue. Sec. 3313 authorizes any taxpaying citizen to file an intervening petition contesting the validity of the bonds. Sec. 3314 provides: "Upon hearing, whether ananswer has been filed or not," (italics ours) "the court shall carefully investigate the record concerning such bond issue, together with all proofs submitted at such hearing, and if the court be of the opinion that said bonds are legal and that the laws of the state have been fully complied with then such court shall make an order and decree adjudging such bonds to be a valid and binding obligation . . ."

At the beginning of appellants' brief, just after its statement of facts, appellants set out concisely what their contentions here are. They said: "Appellants contend that the bonds in question in this case are invalid [518] because (1) the legally qualified voters of the area in Clay County annexed to Kansas City at the election held on November 5, 1946, were not permitted to vote at the bond election held on November 4, 1947, and (2) they further contend that the bonds of Kansas City proposed to be issued together with the other indebtedness of said City will cause the City's debt to exceed the constitutional and statutory limitations applicable to said City." In a later paragraph the brief declared that the instant case presents a flagrant example of denial of due process, taxation without representation, and civil interference with the free exercise of the right of suffrage. Our opinion passes on all those questions.

But later the argument in the brief says: "In truth and in fact these sewer bonds are illegal and invalid under the Constitution and law of the State of Missouri and under the Constitution and laws of the United States, including —." Here follows a citation of twelve sections of our State Constitution; eleven sections of our statutes; four sections of the Federal Constitution; and three sections of the Federal statutes, all set out on page 3 of our opinion. These citations are made by appellants without any explanation of their application, other than as stated in the last paragraph hereof.

Our opinion in answer to that contention said: "We are thus merely invited to speculate as to the respects in which the constitutional validity of the bonds may be thought to be involved, and this we decline to do under `the general rule that, to raise a constitutional question, the particular provision of the Constitution alleged to be violated must be pointed out. And it is not sufficient that certain sections of the Constitution be set out and the assertion made that rights thereunder have been violated, but the facts which constituted such violation must be set out.'" [citing authority]

Returning now to appellants' complaint stated at the outset. They contend that since Sec. 3314, supra, provides "the court shall carefully investigate the record concerning such bond issue," and determine its validity "whether any answer has been filed or not," therefore it is our duty to inquire into all the constitutional questions that conceivably might arise under the sections they have cited, notwithstanding they have failed to point out what those questions are. In other words they say that contrary to the usual rule, the statute puts the burden on this court, not them, because under Sec. 3314 we would have to scrutinize the bond issue carefully even though they had not intervened at all and filed an answer.

We have considered and ruled adversely upon all the questions appellants specifically presented in their original brief, and those are the only questions that occur to us. Even now, on motion for rehearing, appellants do not suggest any new questions, but in effect merely complain of error in the rulings already made. They overlook the probable fact that the value of their property has been greatly appreciated in value by reason of its proximity to a growing city during years when they were not required to pay city taxes. If the annexation be declared void in the pending suit of State ex inf. Taylor, Atty. Gen. relator v. City of North Kansas City [Bean et al. interveners] they will not have to pay City taxes. If it be sustained they must share the common burden after their effective annexation.

The motion for rehearing is overruled.