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court permitting the witness Russell to be re otherwise. It means a person who is concalled at the instance of the jury and again nected with the crime by unlawful act or detail his testimony. In this there was no omission on his part, transpiring either beerror. White's Ann, Code Cr. Proc, art. 735. fore, at the time of, or after the commission

Bill No. 6 shows that the state was per- of the crime, and whether or not he was mitted to prove by Sheriff Russell and Bud present and participated in the commission Roberts, city marshal, that in their opinion of the crime. The corroborative evidence appellant had sufficient mental capacity to must be such as of itself, and without the aid know it was wrong to attempt to kill prose- of the testimony of the accomplice, tends in cutor. Appended to the bill is this explana- some degree to show that the defendant was tion: "That at the time the question was engaged in the commission of the crime. asked with reference to the mental capacity And where circumstances are relied upon as of defendant the court was of the opinion corroboration, these circumstances must be that the evidence as to defendant's age made criminative; that is, these circumstances, if an issue as to whether defendant was under the accomplice had not testified at all, must the age of 13 years when it was alleged he to some extent be inconsistent with the incommitted the offense, but after investiga- nocence of defendant of the crime charged. tion of the record the court became satisfied So, if you believe from the evidence that the no such issue was raised and then withdrew witness Marvin Rhodes, who has 'testified bethe testimony." The record before us shows fore you, is an 'accomplice,' within the meanthat defendant was 13 years of age. We see ing of that word as used in this charge, then no reason for holding that this testimony, you cannot convict the defendant on his tesand especially its subsequent exclusion, timony, even though you should believe his could have injured appellant. The mere ad- testimony, unless you believe his, testimony mission of the testimony would indicate has been corroborated by other evidence in some doubt as to the mental condition of ap- the case, outside of his testimony, and outpellant, and to that extent redounded to his side of any evidence that may merely show benefit.

the commission of the crime, that tends in Appellant complains of the following por- some degree to connect defendant with the tion of the court's charge: “You are further commission of the offense charged; and you instructed that, where the state puts a con- must further believe from the evidence that fession in evidence, the whole of said con- the facts and circumstances relied upon by fession is to be taken together, and the state the state as corroboration are criminative bound by it, unless it is shown by the evi- that is, inconsistent to some extent with the dence to be untrue in whole or in part.” It innocence of defendant of such unlawful was not necessary for the court to have giv- killing." Appellant criticises said charge, as en this charge, since there was other testi- we understand, because the court says the mony than the confession. However, the evidence must tend in some degree to concharge of the court was in proper form, if

nect defendant with the commission of the the confession was relied upon alone for con- offense, and that by the use of the words viction. Pharr v. State, ī Tex. App. 472; "some degree" the court required less corJones v. State, 29 Tex. Cr. App. 20, 13 S. roboration than the statute. Article 781, W. 990, 25 Am. St. Rep. 715; Slade v. State White's Ann. Code Cr. Proc., reads, “Unless (Tex. App.) 16 S. W. 253.

corroborated by other evidence tending to On the question of accomplice, the court connect defendant with the offense commitcharged the jury as follows: "You are in- ted." For decisions on this question, see structed that under the law of this state a section 997, White's Ann. Code Cr. Proc. In person charged with a crime cannot be con- Jones v. State, 3 Tex. App. 575, a charge victed upon the evidence of an accomplice, containing the language here criticised on unless the testimony of such accomplice is the question of corroboration was approved. corroborated by other evidence tending to However, we believe that it is better practice connect the defendant with the commission to follow the statute. This is not a case of of the offense charged; and the corrobora- circumstantial evidence. Appellant's confes. tion is not sufficient if it merely shows the sion takes it out of the rule; and, besides, the commission of the crime. An accomplice,' testimony of Marvin Rhodes clearly does so. as the word is here used, means any one con- The evidence is sufficient to support the nected with the crime committed, either as verdict of the jury, and the judgment is afprincipal, an accomplice, an accessory, or


Action by the city of Sedalia, on the relaCITY OF SEDALIA ex rel. GILSONITE tion of the Gilsonite Construction Company,

CONST. CO. v. MONTGOMERY et al. against John Montgomery, Jr., and others. (St. Louis Court of Appeals. Missouri. March Judgment for defendants. Plaintiff appeals. 15, 1904.)


This, an action on special tax bills, part ADOPTION OF REPORT OF COMMITTEE.

A city council, authorized by Laws 1892– of the issue in payment for paving West 93, p. 92, $ 110, to make a street improvement Sixth street in the city of Sedalia, originated for which a special tax bill is to be issued only January, 1902, in the circuit court of Pettis where a majority of resident property owners liable for the tax do not file their protest

county, primarily against John Montgomery, against the improvement, adopts the report of

Jr., and the Rollingsford Savings Bank, as a committee that a remonstrance was insuffi-joint defendants. The petition was subdi. cient by introducing and passing an ordinance

vided into three counts upon a like number for the improvement after the report was received and placed on file, though this is not in

of tax bills, each count, with appropriate strict accord with a parliamentary code adopted modification and passing by the formal stateby its rules for guidance of its deliberations.

ments, averring that on the 10th of Feb2. SamEJURISDICTION - CONCLUSIVENESS OF

ruary, 1898, the authorized officers, as offiCOUNCIL'S FINDING. Under Laws 1892-93, p. 92, § 110, pro

cials of the city of Sedalia, issued the bill viding that if, within 10 days after publication under the ordinance referred to, against the of a resolution by a city council declaring neces- realty described, to the Gilsonite Roofing & sary a street improvement for which a special

Paving Company, assignor of the relator, detax is to be levied, a majority of the resident owners of the property liable for the tax shall

scribing the interests of defendants in the not file their protest, the council shall have realty and asking judgment. The defendants power to cause the improvements to be made,

entered their appearances to the action on no jurisdiction to make the improvements vests

the day it was brought, and filed a stipulain the council, except on assent of the majority of the property owners manifested by failure to tion signed by them for judgment at the dissent; and the council's finding of such as- ensuing December term, if prior payment sent is not conclusive.

of the bills had not been made, and in event 3. SAME_WITHDRAWAL FROM PROTEST. Under Laws 1892-93, p. 92, § 110, giving

of payment before such December term the a city council jurisdiction to make street im

case was to be dismissed. In April, 1902, provements for which a special tax bill is to by consent the stipulation was withdrawn, be issued only if a majority of the resident and defendants, by attorney, filed a joint owners of the property liable for the tax shall not, within 10 days after publication of the

answer admitting the usual conventional af. council's resolution that the improvement is firmations of the petition, but averred that necessary, file their protest against the improve- within the period provided by law a majorment, signers of a protest filed may withdraw

ity of the resident owners of property on therefrom within the 10 days. 4. SAME--ACTION ON SPECIAL TAX BILL-Ev

the street liable for taxation for the proIDENCE.

posed improvement duly filed their remonUnder Laws 1892–93, p. 93, § 113, pro- strance against it, whereby the city council viding that special tax bills for a street im

of Sedalia had no power to cause such improvement shall in an action thereon be prima facie evidence of the regularity of the proceed

provement to be made; that, notwithstanding ings, defendants, while having the burden of such protest and want of authority, the proof, may show the absence of material steps council unlawfully passed Ordinance No. 207 therein.

July 19, 1897, providing for the pavement 5. SAME-IMPEACHING PROTEST. A protest, which, under Laws 1892-93, p.

of the street, and the contract was award92, § 110. if signed by a majority of prop

ed to relator and the work completed by erty owners, deprives a city council of juris- it at the contract price and accepted by diction to make a street improvement, may, the city council, which passed an ordinance in an action on a special tax bill for the improvement, be impeached by evidence contro

directing the issuance of special tax bills verting the ownership and authority of the in payment and against the parcels of realty signers.

abutting on the street improved. The an6. SAME_WITHDRAWAL FROM PROTEST.

swer proceeded to set out the respective inOne who, before the filing of a protest, under Laws 1892-93, p. 92, $ 110, against the

terests of defendants severally, as owner and improvement of a street at the expense of prop

mortgagor and mortgagee of the realty, and erty owners, files a letter withdrawing there- terminated with apt allegations of the infrom, is not to be counted as protesting.

validity of the tax bills and prayer for their 7. SAME-PROTEST BY ADMINISTRATOR.

cancellation. The reply of plaintiff specificThe administrator of a deceased owner of land is not the owner of the land, so as to be

ally denied the remonstrance by a majority entitled, under Laws 1892-93, p. 92, g 110, to of the resident owners of property on Sixth protest against the improvement of a street. street liable for taxation for the improve8. SAME-OFFICERS OF CORPORATION.

ment against such improvement, and the Officers of a corporation owning land may not, unless specially authorized by the directors,

consequent absence of power in the city make the protest provided by Laws 1892-93, council to cause the improvement, and averp. 92, $ 110, against improvement of a street red that the pretended remonstrance was at the expense of the property owners.

not signed by such majority; that many of Appeal from Circuit Court, Franklin Coun- the signers were not owners of abutting 'V; Wm. A. Davidson, Judge.

property at the time of signing such remonstrance or when it was filed; that within vided, the council shall, by resolution, dethe period legally fixed, and before the re- clare such work or improvements necessary monstrance was filed, after the remonstrance to be done, and cause such resolution to be was filed, and before the expiration of the published in some newspaper published in time appointed, six of the parties signing, by the city for two consecutive weeks; and if a writing filed with the city clerk, withdrew majority of the resident owners of the proptheir names and petitioned to have the street erty liable to taxation therefor shall not, improved as provided by the resolution of within ten days thereafter, file with the the council. At the same time there were clerk of the city their protest against such filed a stipulation for change of venue to improvements, then the council shall have the circuit court of Franklin county, and al- power to cause such improvements to be so, by the attorney of various other owners made and to contract therefor and to levy of parcels of realty fronting on the recon- the tax as herein provided." The publication structed street against which similar tax of the resolution of the council was combills had issued, a verified suggestion and pleted June 6, 1897, thus confining the 10motion as amicus curiæ, averring and cbar- | day limit within which the remonstrance ging that there were no adverse interests should be presented to June 16th, and June involved in such action, but the interests of 14th such instrument was filed with the city the opposite parties were identical, and the clerk, to which names of owners of 41 parplaintiff and defendants had conspired to im- cels of realty appeared to be subscribed. It pose upon the court a pretended controversy; was admitted that one signer, Fannie Hartthat the action was a fictitious proceeding shorn, withdrew her name from the remonin which the parties collusively sought, by strance before it was filed, and that six of medium of removal of the cause to a county those remaining had filed with the clerk, within the jurisdiction of the St. Louis Court the day following its filing, their written of Appeals, to obtain a decision of the latter withdrawals and request for erasure of their court, overturning the decision of the Kan

names from the protest before its considerasas City Court of Appeals adjudging the same tion by the council. At regular session, June special tax bills invalid, and thereby ulti- | 21st, the remonstrance, together with the mately secure a certification of the case to communications of withdrawal of signers, the Supreme Court, wherein defendants was read, referred to a special committee would seek to insure judgments against composed of the city counselor, the city enthemselves, thus defeating defendants in gineer, and the street and alley committee other cases affecting the validity of like bills. of the council, whose report, signed by the The motion and suggestion concluded with a city engineer and two of the three members prayer to have the cause stricken from the

of the street and alley committee, with opindocket, or a refusal to transfer the cause to ion of the city counselor attached, was reany court outside of the jurisdiction of the turned June 28th, received, and placed on file. Kansas City Court of Appeals. The court The ordinance for the reconstruction was withheld any immediate action, and in the thereupon introduced and subsequently duly interim W. E. Bard, Jr., by attorney, in- passed. The report of the committee announterposed for leave to become a party as suc- ced that the total number of resident propercessor to interest of the defendant Mont

ty owners was 61, and the number of signers gomery. January, 1903, the court overruled to the remonstrance 32, but deducting names the motion of the amicus curiæ and awarded withdrawn, 5, left 27 counted on the remona change of venue to the circuit court of strance, and number left in favor 34, and furFranklin county, where, in July, 1903, Bard ther embodied that the names of the parties was made party and entered his appearance competent to be counted for or against the as defendant, and on the same day Lee paving had been determined upon the advice of Montgomery, alleging he had succeeded Bard the city counselor, as shown in the letter apin interest in lot numbered 3 described in pended. The opinion of the city counselor ad. the petition, was admitted as defendant, and dressed to the city engineer in reply to the with Bard adopted the answer of the orig- questions pertinent hereto, particularly what inal defendants, and a nonjury trial resulted constituted a resident owner of property, in judgment for defendants, from which this whether a person signing a remonstrance appeal followed.

could change the effect of his signature, so as The improvement was made and the tax to be counted for, instead of against, the bills were issued under sections 108, 109, and pavement, when made in form of a written 110 of an act of the Thirty-Seventh General request, signed and filed before the time for Assembly, repealing article 4, c. 30, Rev. St. the remonstrance expired, and whether an 1889, and substituting a new article provid- administrator could sign a remonstrance and ing for the government of cities of the third be counted where property of the estate class (Laws 1892-93, p. 65), especially sec- fronted on the street, contained his opinion tion 110, providing that “when the council defining resident ownersbip, replying in the shall deem it necessary to pave, etc., any affirmative to the second inquiry, and exstreet within the limits of the city for which pressing the conclusion that an administraa special tax is to be levied, as herein pro- | tor, for reasons assigned, was without au

thority to sign in favor of or remonstrate ing each other as plaintiff and defendants. against such improvement.

While it is indisputable that legal tribunals At trial plaintiff rested, after tender in are not created to hear and decide moot evidence of the special tax bills, their as- cases, and that lawsuits contemplate adsignment to plaintiff being admitted, and de- verse parties and hostile interests, and fendants introduced the testimony following: courts will refuse to entertain proceedings The resolution of the council to improve the inaugurated and designed to affect the street; proof that the two weeks' publica- | rights of third parties, strangers thereto, tion terminated June 6, 1897; the minutes of whereby such actions cease to be antagonisthe council to the effect that a remonstrance tic and are rendered collusive (Meeker v. against paving Sixth street was read, also Straat, Adm'r, 38 Mo. App. 239; State ex communications from Fannie Hartshorn and rel. v. Westport, 135 Mo. 120, 36 S. W. 663), other property owners named, six in number, yet this record is devoid of any evidence asking that their names be erased from the

sustaining such arraignment, and, being remonstrance, were read and on motion re- largely an issue of fact, the denial of the ferred to the city counselor, the street and motion by the circuit court of Pettis county, alley committee, and city engineer for in- where the action was commenced, will go vestigation, and the remonstrance bearing

far in controlling such question, and no reanames of 43 subscribers; the report of the

son has been exhibited to overthrow its disabove-named committee; the letter or opin

cretionary action, or requiring any disturbion of the city counselor; the letters of with

ance of its ruling in this regard. drawal from the remonstrance, one of Fannie

2. The contention of respondents, sumHartshorn and one with six signatures, dat

marized in the language of their counsel, ed June 14th and filed June 15th; the min

is that, when the remonstrance was filed utes of the council of June 28, 1897, show

and thereafter, certain withdrawals were ing report of the committee and that on mo

made therefrom, and the council referred the tion of its nonsigning member the report

matter to a committee for investigation, was received and placed on file; and, finally,

which reported that it found 61 resident the ordinance itself. Plaintiff in rebuttal

property owners, of whom 32 had by remontendered the testimony of the city engineer

strance filed a protest against the proposed that various subscribers, including Fannie

improvement, but of the qualified parties Hartshorn, had been included in estimate of

signing the remonstrance 5 had withdrawn, total signers, and that some of the names of

thus leaving but 27 remonstrating, and fur. the remonstrants out of the 32 counted were

ther reporting that the committee had deternot signatures of such parties, and that they

mined the qualification of those remonstratdid not authorize any one to sign for them; but, at objection of defendants, all such tes

ing upon the opinion of the city counselor timony was excluded. Plaintiff offered fur

filed with the report, and which report of ther testimony impeaching other signatures

the committee was received and placed on to the remonstrance as illegal and unau

file; that such report became part of the

record, when the council contemporaneous. thorized, and that in lieu of 61 resident own

ly passed an ordinance directing the im. ers of property liable to taxation on the part of the street improved, there were 82 such

provement, and the passage of such ordiowners entitled to remonstrate, all of which

nance constituted in legal effect the adoption was excluded as incompetent in tending to

of the report, and disclosed the theory of contradict the findings of the council. Plain

the council upon which the latter ascertiff further introduced the rules of the city

tained and determined the remonstrance in. council then in force, particularly that sec

sufficient, and constituted a conclusive dection adopting Cushing's Manual and desig

laration by the record that it had acquired nated sections of Cushing's Manual, and con

jurisdiction to enact the ordinance by reacluded with part of the minutes of the coun

son of the withdrawals attempted after the cil of June 28th indicative of the fact that protest had been filed; that the law made after the above motion was carried a tardy

imperative and essential that the record member appeared, took his seat, and the

should disclose lawful authority to make the council assumed consideration of a measure

improvement, and such record evinced that of grave importance to the city, namely an

the council had found that a majority filing ordinance authorizing the issue of refunding the remonstrance had been converted into a bonds in a substantial amount, which was

minority by the withdrawals, and there. put upon its first reading.

upon, as the record itself displayed a want

of power and jurisdiction, neither the city Geo. P. B. Jackson, for appellant. Bar

nor the owners of the tax bills could connett & Barnett, for respondents. G. W. Bar

tradict such record, but the latter upon nett, amicus curiæ.

its face must disclose jurisdiction. Respond

ents further contended that a remonstrance, REYBURN, J. (after stating the facts). containing a majority of the resident prop. 1. At the portal of the cause we are faced erty owners, when filed with the city clerk, with a revival and reiteration of the charges conclusively ousted the jurisdiction of the of collusion between the parties confront- city council to continue with the contemplated improvement, and the power could Const. Co. v. Geist, 37 Mo. App. 509, an acnot be restored by withdrawal of names tion upon a special tax bill issued for imthereafter, and the council therefore was provement of an alley in the city of St. debarred from progressing except by pro- Louis, the defendants resisted recovery upceedings anew. The situation, therefore, on the ground, among others, that a remonmay be elucidated into the simple inquiries strance against the proposed improvement of whether defendants established by compe- the alley had been signed by the owners of tent proof that a remonstrance over the sig. more than the requisite major part of the natures of the requisite majority of the qual- owners of the property in the block interified owners of property subject to assess- sected by the alley, and the court pertinently ment for the improvement was filed, and, says: "It appears inferentially from the if such duly signed protest was presented, record that the board of public improvements then whether plaintiff should have been ac- decided that the remonstrance was not signcorded the right of impeaching or assailing ed by the owners of a major part of the the signatures thereto, or was such protest, block, and the appellant contends that the thus executed and tendered, final and con- finding of this fact by the board of public clusive?

improvements was conclusive. We cannot It is urged by appellant that the disposi- consent to this. This was a jurisdictional tion of the report of the committee employed fact, and the decision of the board, in the was ambiguous and indefinite, and its mere absence of an express legislative provision to reception did not constitute an adoption, be- that effect, would not be conclusive." A like cause not fixed upon by resolution. By put- rule obtains in the state of New York, anting the ordinance for the paving upon its nounced in Miller v. City of Amsterdam, 149 passage after such action upon the report, N. Y. 288, 43 N. E. 632. City of Bloomington the council adopted the latter in as effective v. Reeves, 177 Ill. 161, 52 N. E. 278; Cuma manner as if by formal resolution and mo- mings v. Com’rs, 181 Ill. 136, 54 N. E. 941. tion, and, if such action was not in strict An eminent commentator, in his admiraaccord with the sections of the parliamen- ble treatise on the law of taxation, in the tary code adopted for guidance of the coun- chapter devoted to taxation by special ascil's deliberations, that body, as every de- sessment, under heading “Municipal Action," liberative body, reserved the discretionary expressed the following view: “Municipaliright to exercise, formally or informally, ties having no inherent power in these cases, at its pleasure, the power of suspension, it is necessary to the validity of their action waiver, or modification of such rules. Holt that they keep closely to the authority conv. City of Somerville, 127 Mass. 411; Ben- ferred. Their ordinances and resolutions nett v. New Bedford, 110 Mass. 433. The must be adopted in due form of law, and result of the action of the council was in they must keep within them afterwards. effect a finding that under the law a major- They can bind the taxpayers only in the ity of the qualified owners had not executed mode prescribed and can substitute no oththe remonstrance, and this conclusion of the Their legislative action, if properly takcouncil, illustrated by putting the ordinance en, is conclusive of the propriety of the proupon its passage, was assailed, not by proof posed improvement, and of the benefits that that in fact a legal majority of such quali- will result if it covers that subject; but it fied owners had remonstrated, but by en- will not conclude as to the preliminary condeavor to indicate a fatal infirmity and ditions to any action at all, such, for example, legal defect in the process by which such as that there shall be in fact such a street as conclusion was attained. To sustain such they undertake to provide for the improvecontention it was made essential for re- ment of, or that the particular improvement spondents to concede that the committee shall be petitioned for or assented to by a found that a legal majority did not protest, majority or other defined proportion of the but arrogating the right to reject, as not con- parties concerned. This last provision is clusive, such decision of the committee, and justly regarded as of very great importance, affirm that the record itself attested that and a failure to observe it will be fatal at such majority did remonstrate and the coun- any stage in the proceedings; and any decil was shorn of power to proceed with the cision or certificate of the proper authorities improvement. The inquiry whether the that the requisite application or consent had conclusion of the council upon the validity been made would not be conclusive, but and sufficiency of a petition in favor of or might be disproved.” 2 Cooley on Taxation in protest against the performance of such (3d Ed.) p. 1243. public work is a final adjudication, involv- In a venerable decision from the state of ing decision of a jurisdictional fact, has re- New York, being ejectment for land to which ceived opposing answers, and has been solv- title was asserted by virtue of an assessed at variance in different jurisdictions. ment and sale for improvement in the then

The view expressed in an earlier case by village of Brooklyn, the court says: “The this court appears to negative the conclusive- defendant insists that the petition conferred ness of such decision, in the absence of ex- jurisdiction on the trustees to lay out a wel) press legislative power. In Fruin-Bambrick and pump district, etc., provided they should


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