Bill No. 6 shows that the state was permitted to prove by Sheriff Russell and Bud Roberts, city marshal, that in their opinion appellant had sufficient mental capacity to know it was wrong to attempt to kill prosecutor. Appended to the bill is this explanation: "That at the time the question was asked with reference to the mental capacity of defendant the court was of the opinion that the evidence as to defendant's age made an issue as to whether defendant was under the age of 13 years when it was alleged he committed the offense, but after investigation of the record the court became satisfied no such issue was raised and then withdrew the testimony." The record before us shows that defendant was 13 years of age. We see no reason for holding that this testimony, and especially its subsequent exclusion, could have injured appellant. The mere admission of the testimony would indicate some doubt as to the mental condition of appellant, and to that extent redounded to his benefit.

Appellant complains of the following portion of the court's charge: "You are further instructed that, where the state puts a confession in evidence, the whole of said confession is to be taken together, and the state bound by it, unless it is shown by the evidence to be untrue in whole or in part." It was not necessary for the court to have given this charge, since there was other testimony than the confession. However, the charge of the court was in proper form, if the confession was relied upon alone for conviction. Pharr v. State, 7 Tex. App. 472; Jones v. State, 29 Tex. Cr. App. 20, 13 S. W. 990, 25 Am. St. Rep. 715; Slade v. State (Tex. App.) 16 S. W. 253.

On the question of accomplice, the court charged the jury as follows: "You are instructed that under the law of this state a person charged with a crime cannot be convicted upon the evidence of an accomplice, unless the testimony of such accomplice is corroborated by other evidence tending to connect the defendant with the commission of the offense charged; and the corroboration is not sufficient if it merely shows the commission of the crime. An 'accomplice,' as the word is here used, means any one connected with the crime committed, either as principal, an accomplice, an accessory, or

otherwise. It means a person who is connected with the crime by unlawful act or omission on his part, transpiring either before, at the time of, or after the commission of the crime, and whether or not he was present and participated in the commission of the crime. The corroborative evidence must be such as of itself, and without the aid of the testimony of the accomplice, tends in some degree to show that the defendant was engaged in the commission of the crime. And where circumstances are relied upon as corroboration, these circumstances must be criminative; that is, these circumstances, if the accomplice had not testified at all, must to some extent be inconsistent with the innocence of defendant of the crime charged. So, if you believe from the evidence that the witness Marvin Rhodes, who has testified before you, is an 'accomplice,' within the meaning of that word as used in this charge, then you cannot convict the defendant on his testimony, even though you should believe his testimony, unless you believe his, testimony has been corroborated by other evidence in the case, outside of his testimony, and outside of any evidence that may merely show the commission of the crime, that tends in some degree to connect defendant with the commission of the offense charged; and you must further believe from the evidence that the facts and circumstances relied upon by the state as corroboration are criminativethat is, inconsistent to some extent with the innocence of defendant of such unlawful killing." Appellant criticises said charge, as we understand, because the court says the evidence must tend in some degree to connect defendant with the commission of the offense, and that by the use of the words "some degree" the court required less corroboration than the statute. Article 781, White's Ann. Code Cr. Proc., reads, "Unless corroborated by other evidence tending to connect defendant with the offense committed." For decisions on this question, see section 997, White's Ann. Code Cr. Proc. Jones v. State, 3 Tex. App. 575, a charge containing the language here criticised on the question of corroboration was approved. However, we believe that it is better practice to follow the statute. This is not a case of circumstantial evidence. Appellant's confession takes it out of the rule; and, besides, the testimony of Marvin Rhodes clearly does so.

In

The evidence is sufficient to support the verdict of the jury, and the judgment is affirmed.

CITY OF SEDALIA ex rel. GILSONITE CONST. CO. v. MONTGOMERY et al. (St. Louis Court of Appeals. Missouri. March 15, 1904.)

1. STREET IMPROVEMENTS

CITY COUNCIL ADOPTION OF REPORT OF COMMITTEE.

A city council, authorized by Laws 189293, p. 92, § 110, to make a street improvement for which a special tax bill is to be issued only where a majority of resident property owners liable for the tax do not file their protest against the improvement, adopts the report of a committee that a remonstrance was insufficient by introducing and passing an ordinance for the improvement after the report was received and placed on file, though this is not in strict accord with a parliamentary code adopted by its rules for guidance of its deliberations. 2. SAME JURISDICTION CONCLUSIVENESS OF

COUNCIL'S FINDING.

--

Under Laws 1892-93, p. 92, § 110, providing that if, within 10 days after publication of a resolution by a city council declaring necessary a street improvement for which a special tax is to be levied, a majority of the resident owners of the property liable for the tax shall not file their protest, the council shall have power to cause the improvements to be made, no jurisdiction to make the improvements vests in the council, except on assent of the majority of the property owners manifested by failure to dissent; and the council's finding of such assent is not conclusive.

3. SAME-WITHDRAWAL FROM PROTEST.

Under Laws 1892-93, p. 92, § 110, giving a city council jurisdiction to make street improvements for which a special tax bill is to be issued only if a majority of the resident owners of the property liable for the tax shall not, within 10 days after publication of the council's resolution that the improvement is necessary, file their protest against the improvement, siguers of a protest filed may withdraw therefrom within the 10 days.

4. SAME-ACTION ON SPECIAL TAX BILL-EV

IDENCE.

Under Laws 1892-93, p. 93, § 113, providing that special tax bills for a street improvement shall in an action thereon be prima facie evidence of the regularity of the proceedings, defendants, while having the burden of proof, may show the absence of material steps therein.

5. SAME-IMPEACHING PROTEST.

A protest, which, under Laws 1892-93, p. 92, § 110. if signed by a majority of property owners, deprives a city council of jurisdiction to make a street improvement, may, in an action on a special tax bill for the improvement, be impeached by evidence controverting the ownership and authority of the signers.

6. SAME WITHDRAWAL FROM PROTEST.

One who, before the filing of a protest, under Laws 1892-93, p. 92, § 110, against the improvement of a street at the expense of property owners, files a letter withdrawing therefrom, is not to be counted as protesting. 7. SAME-PROTEST BY ADMINISTRATOR.

The administrator of a deceased owner of land is not the owner of the land, so as to be entitled, under Laws 1892-93, p. 92, § 110, to protest against the improvement of a street. 8. SAME-OFFICERS OF CORPORATION.

Officers of a corporation owning land may not, unless specially authorized by the directors, make the protest provided by Laws 1892-93, p. 92, § 110, against improvement of a street at the expense of the property owners.

Appeal from Circuit Court, Franklin Counv; Wm. A. Davidson, Judge.

Action by the city of Sedalia, on the relation of the Gilsonite Construction Company, against John Montgomery, Jr., and others. Judgment for defendants. Plaintiff appeals. Reversed.

This, an action on special tax bills, part of the issue in payment for paving West Sixth street in the city of Sedalia, originated January, 1902, in the circuit court of Pettis county, primarily against John Montgomery, Jr., and the Rollingsford Savings Bank, as joint defendants. The petition was subdivided into three counts upon a like number of tax bills, each count, with appropriate modification and passing by the formal statements, averring that on the 10th of February, 1898, the authorized officers, as officials of the city of Sedalia, issued the bill under the ordinance referred to, against the realty described, to the Gilsonite Roofing & Paving Company, assignor of the relator, describing the interests of defendants in the realty and asking judgment. The defendants entered their appearances to the action on the day it was brought, and filed a stipulation signed by them for judgment at the ensuing December term, if prior payment of the bills had not been made, and in event of payment before such December term the case was to be dismissed. In April, 1902, by consent the stipulation was withdrawn, and defendants, by attorney, filed a joint answer admitting the usual conventional affirmations of the petition, but averred that within the period provided by law a majority of the resident owners of property on the street liable for taxation for the proposed improvement duly filed their remonstrance against it, whereby the city council of Sedalia had no power to cause such improvement to be made; that, notwithstanding such protest and want of authority, the council unlawfully passed Ordinance No. 207 July 19, 1897, providing for the pavement of the street, and the contract was awarded to relator and the work completed by it at the contract price and accepted by the city council, which passed an ordinance directing the issuance of special tax bills in payment and against the parcels of realty abutting on the street improved. The answer proceeded to set out the respective interests of defendants severally, as owner and mortgagor and mortgagee of the realty, and terminated with apt allegations of the invalidity of the tax bills and prayer for their cancellation. The reply of plaintiff specifically denied the remonstrance by a majority of the resident owners of property on Sixth street liable for taxation for the improvement against such improvement, and the consequent absence of power in the city council to cause the improvement, and averred that the pretended remonstrance was not signed by such majority; that many of the signers were not owners of abutting property at the time of signing such remon

strance or when it was filed; that within the period legally fixed, and before the remonstrance was filed, after the remonstrance was filed, and before the expiration of the time appointed, six of the parties signing, by writing filed with the city clerk, withdrew their names and petitioned to have the street improved as provided by the resolution of the council. At the same time there were filed a stipulation for change of venue to the circuit court of Franklin county, and also, by the attorney of various other owners of parcels of realty fronting on the reconstructed street against which similar tax bills had issued, a verified suggestion and motion as amicus curiæ, averring and charging that there were no adverse interests involved in such action, but the interests of the opposite parties were identical, and the plaintiff and defendants had conspired to impose upon the court a pretended controversy; that the action was a fictitious proceeding in which the parties collusively sought, by medium of removal of the cause to a county within the jurisdiction of the St. Louis Court of Appeals, to obtain a decision of the latter court, overturning the decision of the Kansas City Court of Appeals adjudging the same special tax bills invalid, and thereby ultimately secure a certification of the case to the Supreme Court, wherein defendants would seek to insure judgments against themselves, thus defeating defendants in other cases affecting the validity of like bills. The motion and suggestion concluded with a prayer to have the cause stricken from the docket, or a refusal to transfer the cause to any court outside of the jurisdiction of the Kansas City Court of Appeals. The court withheld any immediate action, and in the interim W. E. Bard, Jr., by attorney, interposed for leave to become a party as successor to interest of the defendant Montgomery. January, 1903, the court overruled the motion of the amicus curiæ and awarded a change of venue to the circuit court of Franklin county, where, in July, 1903, Bard was made party and entered his appearance as defendant, and on the same day Lee Montgomery, alleging he had succeeded Bard in interest in lot numbered 3 described in the petition, was admitted as defendant, and with Bard adopted the answer of the original defendants, and a nonjury trial resulted in judgment for defendants, from which this appeal followed.

The improvement was made and the tax bills were issued under sections 108, 109, and 110 of an act of the Thirty-Seventh General Assembly, repealing article 4, c. 30, Rev. St. 1889, and substituting a new article providing for the government of cities of the third class (Laws 1892-93, p. 65), especially section 110, providing that "when the council shall deem it necessary to pave, etc., any street within the limits of the city for which a special tax is to be levied, as herein pro

vided, the council shall, by resolution, declare such work or improvements necessary to be done, and cause such resolution to be published in some newspaper published in the city for two consecutive weeks; and if a majority of the resident owners of the property liable to taxation therefor shall not, within ten days thereafter, file with the clerk of the city their protest against such improvements, then the council shall have power to cause such improvements to be made and to contract therefor and to levy the tax as herein provided." The publication of the resolution of the council was completed June 6, 1897, thus confining the 10day limit within which the remonstrance should be presented to June 16th, and June 14th such instrument was filed with the city clerk, to which names of owners of 41 parcels of realty appeared to be subscribed. It was admitted that one signer, Fannie Hartshorn, withdrew her name from the remonstrance before it was filed, and that six of those remaining had filed with the clerk, the day following its filing, their written withdrawals and request for erasure of their names from the protest before its consideration by the council. At regular session, June 21st, the remonstrance, together with the communications of withdrawal of signers, was read, referred to a special committee composed of the city counselor, the city engineer, and the street and alley committee of the council, whose report, signed by the city engineer and two of the three members of the street and alley committee, with opinion of the city counselor attached, was returned June 28th, received, and placed on file. The ordinance for the reconstruction was thereupon introduced and subsequently duly passed. The report of the committee announIced that the total number of resident property owners was 61, and the number of signers to the remonstrance 32, but deducting names withdrawn, 5, left 27 counted on the remonstrance, and number left in favor 34, and further embodied that the names of the parties competent to be counted for or against the paving had been determined upon the advice of the city counselor, as shown in the letter appended. The opinion of the city counselor addressed to the city engineer in reply to the questions pertinent hereto, particularly what constituted a resident owner of property, whether a person signing a remonstrance could change the effect of his signature, so as to be counted for, instead of against, the pavement, when made in form of a written request, signed and filed before the time for the remonstrance expired, and whether an administrator could sign a remonstrance and be counted where property of the estate fronted on the street, contained his opinion defining resident ownership, replying in the affirmative to the second inquiry, and expressing the conclusion that an administrator, for reasons assigned, was without au

thority to sign in favor of or remonstrate against such improvement.

At trial plaintiff rested, after tender in evidence of the special tax bills, their assignment to plaintiff being admitted, and defendants introduced the testimony following: The resolution of the council to improve the street; proof that the two weeks' publication terminated June 6, 1897; the minutes of the council to the effect that a remonstrance against paving Sixth street was read, also communications from Fannie Hartshorn and other property owners named, six in number, asking that their names be erased from the remonstrance, were read and on motion referred to the city counselor, the street and alley committee, and city engineer for investigation, and the remonstrance bearing names of 43 subscribers; the report of the above-named committee; the letter or opinion of the city counselor; the letters of withdrawal from the remonstrance, one of Fannie Hartshorn and one with six signatures, dated June 14th and filed June 15th; the minutes of the council of June 28, 1897, showing report of the committee and that on motion of its nonsigning member the report was received and placed on file; and, finally, the ordinance itself. Plaintiff in rebuttal tendered the testimony of the city engineer that various subscribers, including Fannie Hartshorn, had been included in estimate of total signers, and that some of the names of the remonstrants out of the 32 counted were not signatures of such parties, and that they did not authorize any one to sign for them; but, at objection of defendants, all such testimony was excluded. Plaintiff offered further testimony impeaching other signatures to the remonstrance as illegal and unauthorized, and that in lieu of 61 resident owners of property liable to taxation on the part of the street improved, there were 82 such owners entitled to remonstrate, all of which was excluded as incompetent in tending to contradict the findings of the council. Plaintiff further introduced the rules of the city council then in force, particularly that section adopting Cushing's Manual and designated sections of Cushing's Manual, and concluded with part of the minutes of the council of June 28th indicative of the fact that after the above motion was carried a tardy member appeared, took his seat, and the council assumed consideration of a measure of grave importance to the city, namely an ordinance authorizing the issue of refunding bonds in a substantial amount, which was put upon its first reading.

Geo. P. B. Jackson, for appellant. Barnett & Barnett, for respondents. G. W. Barnett, amicus curiæ.

REYBURN, J. (after stating the facts). 1. At the portal of the cause we are faced with a revival and reiteration of the charges of collusion between the parties confront

ing each other as plaintiff and defendants. While it is indisputable that legal tribunals are not created to hear and decide moot cases, and that lawsuits contemplate adverse parties and hostile interests, and courts will refuse to entertain proceedings inaugurated and designed to affect the rights of third parties, strangers thereto, whereby such actions cease to be antagonistic and are rendered collusive (Meeker v. Straat, Adm'r, 38 Mo. App. 239; State ex rel. v. Westport, 135 Mo. 120, 36 S. W. 663), yet this record is devoid of any evidence sustaining such arraignment, and, being largely an issue of fact, the denial of the motion by the circuit court of Pettis county, where the action was commenced, will go far in controlling such question, and no reason has been exhibited to overthrow its discretionary action, or requiring any disturbance of its ruling in this regard.

2. The contention of respondents, summarized in the language of their counsel, is that, when the remonstrance was filed and thereafter, certain withdrawals were made therefrom, and the council referred the matter to a committee for investigation, which reported that it found 61 resident property owners, of whom 32 had by remon strance filed a protest against the proposed improvement, but of the qualified parties signing the remonstrance 5 had withdrawn, thus leaving but 27 remonstrating, and further reporting that the committee had determined the qualification of those remonstrating upon the opinion of the city counselor filed with the report, and which report of the committee was received and placed on file; that such report became part of the record, when the council contemporaneously passed an ordinance directing the improvement, and the passage of such ordinance constituted in legal effect the adoption of the report, and disclosed the theory of the council upon which the latter ascertained and determined the remonstrance insufficient, and constituted a conclusive declaration by the record that it had acquired jurisdiction to enact the ordinance by reason of the withdrawals attempted after the protest had been filed; that the law made imperative and essential that the record should disclose lawful authority to make the improvement, and such record evinced that the council had found that a majority filing the remonstrance had been converted into a minority by the withdrawals, and thereupon, as the record itself displayed a want of power and jurisdiction, neither the city nor the owners of the tax bills could contradict such record, but the latter upon its face must disclose jurisdiction. Respondents further contended that a remonstrance, containing a majority of the resident property owners, when filed with the city clerk, conclusively ousted the jurisdiction of the city council to continue with the contem

plated improvement, and the power could not be restored by withdrawal of names thereafter, and the council therefore was debarred from progressing except by proceedings anew. The situation, therefore,

may be elucidated into the simple inquiries whether defendants established by competent proof that a remonstrance over the signatures of the requisite majority of the qualified owners of property subject to assessment for the improvement was filed, and, if such duly signed protest was presented, then whether plaintiff should have been accorded the right of impeaching or assailing the signatures thereto, or was such protest, thus executed and tendered, final and conclusive?

It is urged by appellant that the disposition of the report of the committee employed was ambiguous and indefinite, and its mere reception did not constitute an adoption, because not fixed upon by resolution. By putting the ordinance for the paving upon its passage after such action upon the report, the council adopted the latter in as effective a manner as if by formal resolution and motion, and, if such action was not in strict accord with the sections of the parliamentary code adopted for guidance of the council's deliberations, that body, as every deliberative body, reserved the discretionary right to exercise, formally or informally, at its pleasure, the power of suspension, waiver, or modification of such rules. Holt v. City of Somerville, 127 Mass. 411; Bennett v. New Bedford, 110 Mass. 433. The result of the action of the council was in effect a finding that under the law a majority of the qualified owners had not executed the remonstrance, and this conclusion of the council, illustrated by putting the ordinance upon its passage, was assailed, not by proof that in fact a legal majority of such qualified owners had remonstrated, but by endeavor to indicate a fatal infirmity and legal defect in the process by which such conclusion was attained. To sustain such contention it was made essential for respondents to concede that the committee found that a legal majority did not protest, but arrogating the right to reject, as not conclusive, such decision of the committee, and affirm that the record itself attested that such majority did remonstrate and the council was shorn of power to proceed with the improvement. The inquiry whether the conclusion of the council upon the validity and sufficiency of a petition in favor of or in protest against the performance of such public work is a final adjudication, involving decision of a jurisdictional fact, has received opposing answers, and has been solved at variance in different jurisdictions.

The view expressed in an earlier case by this court appears to negative the conclusiveness of such decision, in the absence of express legislative power. In Fruin-Bambrick

Const. Co. v. Geist, 37 Mo. App. 509, an action upon a special tax bill issued for improvement of an alley in the city of St. Louis, the defendants resisted recovery upon the ground, among others, that a remonstrance against the proposed improvement of the alley had been signed by the owners of more than the requisite major part of the owners of the property in the block intersected by the alley, and the court pertinently says: "It appears inferentially from the record that the board of public improvements decided that the remonstrance was not signed by the owners of a major part of the block, and the appellant contends that the finding of this fact by the board of public improvements was conclusive. We cannot consent to this. This was a jurisdictional fact, and the decision of the board, in the absence of an express legislative provision to that effect, would not be conclusive." A like rule obtains in the state of New York, announced in Miller v. City of Amsterdam, 149 N. Y. 288, 43 N. E. 632. City of Bloomington v. Reeves, 177 Ill. 161, 52 N. E. 278; Cummings v. Com'rs, 181 Ill. 136, 54 N. E. 941.

er.

An eminent commentator, in his admirable treatise on the law of taxation, in the chapter devoted to taxation by special assessment, under heading "Municipal Action," expressed the following view: "Municipalities having no inherent power in these cases, it is necessary to the validity of their action that they keep closely to the authority conferred. Their ordinances and resolutions must be adopted in due form of law, and they must keep within them afterwards. They can bind the taxpayers only in the mode prescribed and can substitute no othTheir legislative action, if properly taken, is conclusive of the propriety of the proposed improvement, and of the benefits that will result if it covers that subject; but it will not conclude as to the preliminary conditions to any action at all, such, for example, as that there shall be in fact such a street as they undertake to provide for the improvement of, or that the particular improvement shall be petitioned for or assented to by a majority or other defined proportion of the parties concerned. This last provision is justly regarded as of very great importance, and a failure to observe it will be fatal at any stage in the proceedings; and any decision or certificate of the proper authorities that the requisite application or consent had been made would not be conclusive, but might be disproved." 2 Cooley on Taxation (3d Ed.) p. 1243.

In a venerable decision from the state of New York, being ejectment for land to which title was asserted by virtue of an assessment and sale for improvement in the then village of Brooklyn, the court says: "The defendant insists that the petition conferred jurisdiction on the trustees to lay out a well and pump district, etc., provided they should