The plaintiff-respondent recovered judgment below in a replevin suit brought originally in a justice of the peace court to recover possession of certain personal property which the appellants were retaining under an innkeeper's lien claimed by virtue of Section 13090, Revised Statutes 1929. An agreed statement of facts showed that while the property had been *Page 756 brought to the hotel by a guest, yet in truth it belonged to respondent although the appellant innkeepers were ignorant of that fact.
At the trial the respondent's sole contention was that the statute is unconstitutional insofar as it attempts to create a lien in favor of an innkeeper on property not belonging to his guest but owned by a third party. The appellant, of course, maintained the contrary. The respondent offered appropriate declarations of law raising its said constitutional questions but the trial court refused to give them. Yet, nevertheless, the court gave judgment for the respondent, and the innkeepers appealed to the Springfield Court of Appeals.
By an opinion reported in 48 S.W.2d 92, that court transferred the cause to this court. The opinion recognizes this court will not take jurisdiction of a case on the ground that a constitutional question is involved, when the question was ruled below in favor of the party appealing citing Lux v. Milwaukee Mechanics' Ins. Co. (Mo. Div. 2), 285 S.W. 424; Shell v. Mo. Pac. Ry. Co., 202 Mo. 339, 344, 100 S.W. 617, 619. But the opinion goes on to say, quoting from Schildnecht v. City of Joplin,327 Mo. 126, 129, 35 S.W.2d 35, 36, "where a case is such that no judgment can be rendered therein without deciding a constitutional question, or, in other words, when it must be said the trial court necessarily determined such a question" the Supreme Court is vested with appellate jurisdiction on constitutional grounds, though no such question was affirmatively and specifically raised below. After setting out the above quotation in its opinion the Springfield Court of Appeals holds the rule announced therein should be applied in this case as, otherwise, "there may be a miscarriage of justice," since the respondent won the case below and yet concedes the judgment in its favor should be reversed unless the statute is held unconstitutional.
[1] The principal opinion here, holds that since the respondent claimed the radio solely on the ground that the lien statute is unconstitutional, and since the case was decided in its favor, therefore we necessarily must conclude the trial court ruled the constitutional question in accordance with its contention. I respectfully disagree with that conclusion and submit it is directly contrary to what the record shows. The respondent submitted to the trial court, as it had a right to do under Section 967, Revised Statutes 1929, declarations of law presenting its constitutional questions. The principal opinion concedes these declarations of law were "appropriate;" and yet the court refused to give them. In the face of that affirmative record what right have we to say the lower court ruled against the constitutionality of the statute — which fact alone would give the appellant innkeepers the right to bring the case to this court by appeal? *Page 757 The appellants made no such point in their motion for new trial, and in a supplemental brief filed here say they do not know on what theory the trial judge decided the case "but surely it was not because he believed that statute unconstitutional."
[2] From the facts that the respondent claimed the property solely on the theory that the statute is unconstitutional, and that the circuit court decided in its favor, the conclusion does not necessarily follow that the court ruled the case on that question. A party may bind himself and the court by his admissions of fact but not by his admissions of law. [22 C.J. sec. 325, p. 298; State ex rel. McCaffery et al. v. Aloe et al.,152 Mo. 466, 476, 54 S.W. 494, 495, 47 L.R.A. 393.] The rejection of the respondent's declarations of law assailing the constitutionality of the statute, which were unexceptionable in form, presumptively establishes that the court held the statute was valid. [State v. Barr, 326 Mo. 1095, 1100, 34 S.W.2d 477, 479.] This would be taken as conclusively true if the judgment had gone the other way.
The trial court may have taken the view that Section 13090, on a proper construction, only creates a lien on propertybelonging to a guest. As a matter of fact ever since 1877 we have had such a statute in Missouri, now Section 3199, Revised Statutes 1929. That statute makes the lien cover "the baggage and other valuables of their guests or boarders brought into such hotel . . . by such guests or boarders." Section 13090 was first enacted by Laws Mo. 1913, page 351, and did not purport to repeal said Section 3199, though it did expressly repeal some others. Both sections have since been carried forward in our statutory revisions. Section 13090 makes the lien cover "the baggage and other property in and about such inn brought to the same by or under the control of his guests," etc., and it contains elaborate provisions with respect to the enforcement of the lien. Without questioning in the least the conclusion reached by the principal opinion on the merits, it is not beyond the range of possibility that the trial judge may have thought the later statute supplemented the earlier, and that both applied to the same property.
This of course is speculative, but to say the circuit courtmust have held Section 13090 unconstitutional also is speculative or worse, in view of the record showing that the court refused to declare it so when appropriate declarations of law on that point were requested. The case illustrates the wisdom of the rule that our jurisdiction must affirmatively appear.
In my opinion the cause should be retransferred to the Springfield Court of Appeals. *Page 758