— The present demand for. a peremptory writ of mandamus against the learned judges of the Kansas City Court of Appeals is founded on the facts given in the statement introducing the report of the case at bar.
The relator claims that the original cause of the City of Westport v. Mulholland falls within the cognizance of the Supreme Court because it involves ‘ ‘the construction of the Constitution of the United States,” and also of the Constitution of Missouri. Const. 1875, art; YI, sec. 12.
The defendants’ counsel insist that no question of the construction of any Constitution was raised in such a way in the trial court as to bring the case within the jurisdiction of the Supreme Court on the ground claimed by relator.
The hearing in the criminal court was had on an agreed statement of facts. The judgment there was in favor of the defendant. Hence no occasion arose for Mulholland to except to the action of the criminal court, or to file any motion there asserting any constitutional provision as a shield against the punishment demanded by the city for breach of its ordinance. He had pleaded “not guilty,” and had gone to judgment on the facts admitted. On the appeal of the city from the judgment in his favor, is he not entitled to advance any theory of law that will sustain the trial court’s result?
It has become settled law in Missouri that the decision of a trial court will not be reversed if it is found to be correct even though it was actually based on erroneous reasons. Bissell v. Warde (1895) 129 Mo. 439 (31 S. W. Rep. 928).
*10It must be conceded, as a general rule, that no one should be allowed on appeal to successfully invoke the protection accorded him by the provisions of the organic law (or of any other law, for that matter) unless he has given the trial court, in some appropriate manner, opportunity to pass upon the bearing of that law upon his case. Bennett v. Railroad (1891) 105 Mo. 642 (16 S. W. Rep. 947); Turley v. Barnes (1895) 131 Mo. 548 (33 S. W. Rep. 172).
But what is necessary to be done to raise a question of constitutional law, or any question of law, in the trial court where a controversy is submitted for judgment upon an agreement of counsel as to all the facts involved? It has been held from a very early day in Missouri that there is no need to ask any findings of fact or any declarations of law in such a case. Stone v. Corbett (1855) 20 Mo. 350; White v. Walker (1856) 22 Mo. 433.
It is the province of the court to apply all the existing law to the facts agreed, and to pronounce thereon the proper judgment. Any proposition of law applicable to the facts is available to either party in the trial court. And when the cause, in' the shape described, has been properly removed to an appellate court for review, any proposition of law found by the court to be applicable to the agreed facts may be relied upon there by either party, if nothing has occurred to indicate a waiver thereof.
It certainly would be odd to declare that all sorts of ordinary legal theories, applicable to agreed facts, might be argued on appeal (whether shown to have been called to the attention of the trial court or not) and yet to hold that no rule of conduct dependent for its sanction on the organic charter of the State could be so invoked!
It appears to us that legal propositions founded on *11the organic law, no less than those deriving their force from law of lesser authority, may be considered on an appeal in such a pase.
Persons who put cases into shape for judgment on agreed facts are assumed to do so with the knowledge that any law justly applicable to those facts may be resorted to by either party, and that the right to claim the benefit of any law that fits the agreed facts exists on appeal as well as in the court of first instance.
In the case at bar the breach of the city ordinance is expressly admitted by the agreed statement. The only possible defense is that the enforcement of the ordinance would infrin.ge on the vested rights of the railroad company, whose agent Mulholland was. Such rights (if really vested, as claimed) are protected by the organic law. The question whether or not the defendant (as an employee of the railroad company) was entitled to act in disregard of the ordinance, because of the protection given by the Constitution to the vested right of the railroad company, was a question whose solution required a construction qf the Constitution of Missouri, if not of the federal Constitution.
On the facts as settled by the agreed statement, the judgment of the criminal court was necessarily based on the proposition that the vested right of the railroad company was paramount to the city ordinance. When the judgment of a court, on agreed facts, obviously and necessarily comprehends a decision on a question of constitutional right, that question is “involved” in the judgment. Kaukauna Co. v. Green Bay etc. Co. (1891) 142 U. S. 254.
The merits of the question of constitutional construction are not now before this court. We have only to decide whether or not such a question is involved in the original action as it stands on appeal in the Kansas City Court of Appeals.
*12In our opinion the Mulholland case does involve the construction of the Constitution of Missouri. Hence we award a peremptory mandamus to require the transfer of that case to the Supreme Court.
Gantt, Sherwood, Robinson and Brace, JJ., concur. Macearlane and Burgess, JJ., dissent.