ON MOTION FOR REHEARING. The respondent has filed a motion for a rehearing and also a motion to transfer the case to the Supreme Court for the reason that the case involves and turns upon the construction of the revenue laws of this state.
Before considering the motion, we desire to modify the original opinion by striking out an inaccurate statement, as follows:
"The difference between the parties in the instant case is, that the appellant contends that the tax judgment and sale only extinguished the drainage taxes for the year 1932 and subsequent years" (p. 3 of opinion, last paragraph, first sentence), and substituting therefor:
"The difference between the parties in the instant case is that the appellant contends that the tax judgment and sale did not extinguish the drainage taxes for the year 1932, and subsequent years."
The opinion also says, on page 3: "(Why it concedes the extinguishment of the 1931 assessment is not very clear but is now immaterial)." This should be omitted.
The opinion should further be modified by striking out, on page 7, the following:
". . . The fact that, in discussing the case, the opinion refers to the 1928 taxes only, instead of to the 1927 and 1928 taxes, is evidently the basis for the concession by the appellant in the instant case, that the 1931 taxes were extinguished and destroyed. But, as *Page 825 before stated, the correctness of this concession is no longer involved in the instant case," for the reason that we are informed by respondent's brief, pages 5 and 6 (which we overlooked), that the assessment for the year 1931 was dismissed from the present suit because the drainage taxes for that year had been included in another suit (No. 17081).
Respondent's contention that this case involves "a construction of the Revenue Laws of the State of Missouri," is raised for the first time in his motion for a rehearing and to transfer the case to the Supreme Court. As it goes to the jurisdiction of the court, the question could no doubt be raised at any time but for the well established rule in this State that, in order to confer jurisdiction of a constitutional question on the Supreme Court, it must be raised at the first opportunity, and perhaps, by analogy, this question should have been raised at the first opportunity. If so, it is raised too late in the instant case. We do not, however, place our ruling on the ground that this question was raised too late.
We have carefully considered the matter and have arrived at the conclusion that this case does not involve the construction of the revenue laws of this State within the meaning of Section 12 of Article 6 of the Constitution of Missouri. The respondent does not contend that it does so involve the revenue laws of the State because the purpose of the suit is to obtain judgment for delinquent drainage assessment taxes, but concedes that our Supreme Court has held that drainage taxes are not within the meaning of the constitutional provision supra, and, hence, the drainage cases holding that this court, and not the Supreme Court, had jurisdiction where the amount sued for or recovered was less than $7500, do not apply.
The second ground alleged in the motion to transfer, contains the following:
". . . that this Court has overlooked decisive questions in the case, and which were duly submitted by Counsel for Respondent as follows: That this Court overlooks entirely and does not pass (on) nor give any construction to Sections 9947, 9937, 9956, 9958, 10764, 10760 and 10766 of the Revised Statutes of the State of Missouri, and all of which express statutory provisions were called to the attention of this Court in Respondent's Brief beginning at page 17 thereof."
The above quotation is sufficient to indicate clearly the basis for the respondent's contention that this case involves the revenue laws of the State. In a very broad and general sense this is no doubt true. The judgment under which the respondent acquired title to the property is based on the laws of the State relating to the general revenue. It will be observed, however, that such fact is not of itself sufficient to confer jurisdiction on the Supreme Court.
But, in addition thereto, it must be one of those cases "involving the construction of the revenue laws of this State." Although the revenue laws there involved were the basis for the judgment under *Page 826 which the respondent acquired title, the case is not brought within the constitutional provision unless it involves the construction of such laws.
It has been held that, in order to give the Supreme Court jurisdiction of a constitutional question, under this constitutional provision, it must appear that a constitutional question was essential to the determination of the case. [Miller v. Connor, 250 Mo. 677, 157 S.W. 91; Rollins v. Assn., 213 S.W. 52; State v. Goad, 296 Mo. 452, 246 S.W. 52.]
For the same reason, in order to give the Supreme Court jurisdiction of a revenue case, it must appear that the construction of the revenue laws was essential to the determination of the case. It is not sufficient to confer jurisdiction on the Supreme Court to merely cite a constitutional provision. Neither is it sufficient to merely cite a statute relating to the general revenues. The revenue statutes cited by the respondent are perfectly plain and unambiguous and are in no way decisive of the question dealt with in the opinion of this court. No provision of the revenue statute is cited or pointed out which it is claimed is decisive of the case. It is clearly not necessary to construe either of said statutes in order to decide the case. Where the statute is perfectly plain and unambiguous there is nothing to construe. All that is necessary in such a case is to read it.
The sole and only question involved in the instant case is whether the drainage taxes for the year 1932 and subsequent years, which became liens prior to the date of the sale in July, 1936, were extinguished by the sale, or whether only the assessments for the corresponding years for which the judgment was rendered for general taxes were destroyed. The solution of this question involves only a general question of law and not a construction of the revenue statutes. In addition to this we think, as the original opinion holds, that it has been directly decided by our Supreme Court in the case of McAnally v. Little River Drainage Dist., 28 S.W.2d 650. If so the construction of the revenue laws is no longer involved for it has also been decided by our Supreme Court that a plea of the unconstitutionality of the statute will not confer jurisdiction where the Supreme Court has already held the statute valid. [Dickey v. Holmes, 208 Mo. 664, 106 S.W. 511, and subsequent cases.] On exactly the same principle, if, as the original opinion holds, the Supreme Court has directly decided the question, jurisdiction cannot be conferred on the Supreme Court by again raising it in this court as a ground to transfer the case to the Supreme Court.
If the respondent's contention — that this case involves a construction of the revenue laws of this State — is well taken, our opinion can be quashed by applying for a writ ofcertiorari, and if and when it is quashed for such reason, we would be compelled to transfer the case to the Supreme Court. If we have misconstrued the McAnally case, as *Page 827 the respondent contends, the opinion can be quashed on a writ ofcertiorari and, if quashed for that reason, we would, of course, be compelled to render an opinion disposing of the case in accordance with the Supreme Court's opinion.
After carefully considering the matter we think the motion for a rehearing and the motion to transfer the case to the Supreme Court, should be and are denied. Smith and Fulbright, JJ., concur.