Wilhoit v. City of Springfield , 237 Mo. App. 775 ( 1943 )

SEPARATE CONCURRING OPINION. The main opinion shows great labor on the part of the author, and I concur therein and agree to the affirmance of the judgment in this case.

There is one matter, however, that I do not think is made as clear as it should be, and that is: What was done by defendant City of Springfield in reduction of the revenue from the gasoline tax of the city, when such gasoline tax was reduced from one cent a gallon to one-half cent per gallon.

That matter was not before the trial court and, as such alleged reduction in the gasoline tax was made after the trial of this case, it should not be considered on appeal. The general rule is stated in 3 C.J., page 693, Sec. 582, as follows:

"The rule that questions not raised in the lower court will not be considered on appeal generally applies, sometimes by express statutory provision, in chancery cases as well as at law."

Two Missouri cases are cited under Note 48, to-wit: Kansas City v. Marsh Oil Co., 140 Mo. 458, 41 S.W. 943; and Burdoin v. Trenton, 116 Mo. 358, 22 S.W. 728. These cases fully support the general rule as laid down in Corpus Juris above. The same rule is laid down in 4 C.J.S., page 434, sec. 229.

Our own statute, Section 1227, Revised Statutes 1939, is as follows:

"No exceptions shall be taken in an appeal or writ of error to any proceedings in the circuit court, except such as shall have been expressly decided by such court."

Tidwell v. Waldrup, 151 S.W.2d 1092, and McClure v. Ennis Real Estate Investment Co., 19 S.W.2d 531, Missouri cases also, support the general rule.

Therefore, the question of what later was done by defendant City of Springfield toward lowering the gasoline tax, because the loss of revenue therefrom was largely made up by receipts from the parking meters, was not before the trial court, and should not now be considered by this court.

All that was before the trial court, on the subject of reduction of the gasoline tax, was rather vague statements as to what might be done with the gasoline tax, in the event that the income from parking meters exceeded the cost of the operation, maintenance and replacement of such parking meters. The results of the operation, maintenance and replacement of such parking meters were not before the trial court.

If it had been before the trial court that parking meters as operated, maintained and replaced, returned an income in excess of the cost thereof, a different question might be before this court. Under the evidence which was before him, the trial chancellor cannot now be convicted of error in finding for defendants, and his judgment should be affirmed.

For this reason, and also for the reason given in the majority opinion, I fully concur in affirming the judgment of the trial court.