*561CONCUEEING OPINION.
EOBEETSON, P. J.The appellant in this case, while a member of the city council, claims ¡to have been elected city clerk. This action is prosecuted and submitted here on the theory that he has the right to hold both offices at the same time.
By reason of the constitutional provision quoted in the majority opinion he was disqualified from holding this office, and, 'therefore could not be legally elected. The fact that there was no constitutional question invoked in the trial court, or here, by the parties does not prevent the application of such a provision as this, since it goes to “the very vitals of the case.” [Wabash Railroad Co. v. Flannigan, 218 Mo. 566, 569, 117 S. W. 722.] However, if I am right, this court yet has jurisdiction, as the majority opinion is not based on a construction of the Constitution (State ex rel. v. Smith, 173 Mo. 398, 73 S. W. 211), as I think an opinion in this case should be (State ex rel. v. Smith, 177 Mo. 69, 75 S. W. 625), hut I concur in the result.