I concur in the principal opinion. After eliminating two other 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, Sec. 3, Constitution 1945. It holds our jurisdiction on that ground has not been invoked. *Page 1233
[7] 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.
[8] 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, Conkling, Ellison, JJ., and Leedy, C.J., concur.