128 Mo. App. 267 | Mo. Ct. App. | 1908
Action to enforce the lien of a special taxhill issued by the city of Westport on November 9, 1897, in part payment of the work of paving McGee street between Thirty-first and Thirty-third streets. A jury being waived, the cause was submitted to the court, judgment was entered for defendants, and plaintiff appealed.
The taxbills of the series to which the one in controversy belongs were issued before the absorption of Westport by Kansas City and while it was a municipality of the fourth class operating under the provisions of an act providing for the government of cities of the fourth class passed by the Legislature in 1895. [Laws of 1895, p. 65, et seq.] The taxbill was issued to plaintiff, the contractor who laid the pavement, is regular in its recitals and prima facie entitled its holder to a lien against the property described. Its validity is attacked in the answer on a number of grounds, all of which relate to alleged irregularities in the proceedings leading to its issuance, but the evidence introduced removed from controversy all of these grounds except two which deal with acts relating to the preparation and filing of plans and specifications for the proposed improvement.
On July 9, 1897, the board of aldermen passed a resolution “declaring the work of paving M'cGee street from the south line of Thirty-first street or Springfield avenue to the north line of Thirty-third street to be necessary,” and provided “the whole work to be done in conformity with the plans and specifications therefor on file in the office of the city engineer.” August 18th the board passed an ordinance authorizing the improvement which likewise referred to the plans and specifications as being then on file in the office of the city engineer. That officer duly advertised for bids and in the published notice stated they would be opened at four o’clock p. m., Saturday, September 11th, and that “plans
“Q. What do you know of any conspiracy between you or any other agent of the plaintiff in this case, and the officers of the city of Westport in regard to withholding- plans and specifications for this work from the files? A. No, sir; I never did. I had no reason nor such proposition was ever suggested or known to me, and I was agent of the Barber Asphalt Paving Company, having charge of that matter. We would not have bid for that 'work or any other work had not the specifications been on file the requisite length of time. Q. Were you acquainted with the city engineer and city clerk of Westport at that time? A. I knew them both very well. Mr. Abercrombie was the engineer and Mr. Love the city clerk. Q. Did you ever have a talk or conversation or understanding- with either of these officers in regard to withholding plans and specifications from the files? A. No, sir, I never did. I had no reason nor motive for desiring any such condition and, in fact, I would not have bid on the work if I had not understood the plans and specifications had been duly made and filed. Q. What was the general custom in practice with reference to the making and filing of plans and specifications in the office of the city engineer and the city clerk of Westport for street paving work at the time referred to? A, It was that the plans and specifications should be made and filed about the time the improvement was inaugurated. Q. Was that custom varied from in the instance of the McGee street paving? A. It was not to my knowledge.”
Further, for the purpose of weakening the credibility of the engineer, plaintiff introduced the following
“Yours of Feb. 16th is received.
“Accept any thanks for your kindly interest in my welfare. I am acting as deputy surveyor under Mr. Stalnaker and am in charge of the Independence office.
“In taking up the ‘stone situation with Mr. Demurest,’ if you go to the bottom yotí will find that the Barber Company have about $200,000.00 outstanding in Westport taxbills which (plaintiff’s attorney) expects to collect with the assistance of my very bad memory, as to such facts as the filing of plans and specifications and whether you wrote your bids at so much per lineal foot for asphalt pavement, and other trifling incidents which some attorneys here seem to think are of vital importance. (Plaintiff’s attorney) is also enjoying the exclusive use of my private memorandum book in which are recorded all side information as to advertisements, lettings and actions of the Public Improvement committee, etc., etc.
“Now while my natural modesty prevents me from asking any reward for myself for such favors, it does not prevent me from, feeling that your company should pay some attention to my wishes in such minor matters as ‘crushed rock.’ My modesty would also prevent my asking for this favor if I thought for a moment that Adam Armstrong would ask a higher price or give less value in this service than Jim Halpin or anyone else Avith whom you have been dealing.
“I have taken this matter up quite early in the season so that Armstrong Avould have a chance to equip himself to do all your Avork promptly when the work opened up.
“My first interview with (plaintiff’s agent) and his ‘hot air’ promise so barren of results, has made me feel that perhaps I Avas overrating my ‘pull’ Avith the Barber Company and has excited my curiosity as well, so that*275 now instead of asking a ‘fair share’ of your rock business for Adam. Armstrong as I did in my first talk with (plaintiff’s agent), I will say that unless Mr. Armstrong received a contract for all of your rock business for the coming year at Kansas City, I shall feel that the Barber Company has forgotten any favors that I may have done for them in the past and have no expectation of receiving any in the future.
“The only answer that I really care to receive to this rather lengthy and rambling note, I will expect to receive from Adam himself.
“Thanking you in advance for kind attention to such comparatively unimportant matters, I remain,” etc.
The witness who produced this letter stated that plaintiff did not give Armstrong all of its “rock business” during the year mentioned, “but we purchased some stone from him, yes, sir.”
• In rebuttal, defendants recalled Mr. Abercrombie and interrogated him “in regard to this practice of dating back the filing marks on the papers in your office.” The plaintiff objected, but the court permitted the witness to answer the questions. He said “I will state that it was a Sunday at Chief Hale’s picnic, somewhere about a year previous to this when the Barber Company first started to improve streets in Westport, and he (plaintiff’s agent) met me at Chief Hale’s picnic, and he says ‘I understand you and (plaintiff’s attorney) are having some trouble about this work out here.’ ‘Well,’ I said, ‘it is not anything unreasonable,’ and he went on to ask me what it was and I told him that (plaintiff’s attorney) had objected to my putting the filing doAvn on some papers when they were delivered there — that if I did- that it was going to cause them a whole lot of trouble and bother.” Further the witness said, “I didn’t like the way they wanted to carry on this work in regard to the record and he (plaintiff’s agent) says: ‘What’s it to you? What do you Avant out of this?’ He says, ‘Here,
No findings of fact were requested by either party or made by the court. At the request of plaintiff, the court gave the following declaration of law:
(1) “The court declares the law to be that if it is found that Abercrombie, city engineer of the city of Westport, in the discharge of his functions marked and certified that the specifications and plans for the work in question were filed as of a certain date, his testimony upon the stand, unsupported by other evidence, is insufficient to overcome his official acts as made a matter of record.”
But the court refused plaintiff’s request for the following declarations:
(2) “The court declares the law to be that if it is found from the evidence that the city engineer approved the specifications for this work then it is immaterial whether he prepared the specifications or not.”
(8) “The court declares the law to be that the taxbilL in evidence makes out a prima-facie case for the plaintiff, and that upon the pleadings and evidence the finding and judgment should be in favor of the plaintiff.”
Evidently the judgment in favor of defendants was based on the finding that one or both of these facts had been established by defendants, first, that the engineer
This contention rests on the fact that the record fails to show in express terms that a jury was waived by the parties. The record does show the folloAving entry : “And on June 23, 1906, being the sixty-fourth day of the April, 1906, term of said court, now come again said parties and this cause having been heretofore submitted to the court and by the court taken under advisement and the court now being fully advised in the premises finds the issues in favor of the defendants.” Nowhere does it appear that plaintiff demanded a jury or objected to its absence; no motion in arrest of judgment was filed and, in the tAventy-three assignments of error appearing in the motion for new trial, no claim is made that plaintiff was deprived of the right now asserted for the first time.
It has been the unvarying policy of the laAV to guard Avith zealous care the right to trial by jury and to regard with suspicion even the slightest encroachment on the enjoyment of that right. And, if it appeared in the record before us that the learned trial judge had attempted to clothe himself with powers and duties be- ] onging exclusively to a jury, without the consent of both parties, we would set aside the judgment as the result of a proceeding ¿oram non judice. But that parties may waive a jury and submit the issues of fact to the judge is too well settled to require discussion or the
Addressing ourselves now to the question of the effect on the validity of the taxbill, of the fact, evidently found by the trial court, that the engineer did not prepare the specifications but accepted and marked filed those prepared in toto by plaintiff, we entertain the opinion that this fact was fatal to the legality of the proceedings and to the validity of the assessment. ■ The
To the same effect was the ruling in Dickey v. Porter, 203 Mo. 1; 101 S. W. l. c. 594, but on examination, the opinions in these cases will be found to be in harmony with the rule that a public officer cannot delegate to others the performance of the duties of his office, and, in cases of the character of the one before us, it would seem to be too plain for argument that the property owners against whose property the assessment is pro
But had the engineer done this work in the manner contemplated by the charter and ordinances, the fact that the plans and specifications were not lodged in his office or in that of the city clerk until two days before bids were opened infected the proceeding with a juris
, But it is argued by plaintiff that the fact under discussion should not be construed as one supported by proof for the reasons, first, that the verity of the filing stamped by the engineer on the instrument cannot be
In answer to the contention that the engineer should be held estopped on grounds of public policy from disputing the verity of his own official act, we are of opinion the point would be well taken were the engineer a party to this action. But in an action in which he has no interest and especially one where a property owner is attacking the validity of an in invitmn proceeding, we know of no sound reason for disqualifying him as a witness. Each party has cited us to many cases but we shall content ourselves with a reference to one of them. In Goodrich v. Senate, 42 Atl. 409, decided by the Supreme Judicial court of Maine, it Avas held that a sheriff was a competent witness to show that the record made by him of the facts relating to the incarceration of a prisoner did not truly state the facts. Point was made that “the entry upon the calendar is an official record, which cannot be contradicted or varied by parol evidence and is conclusive.” Tn sustaining the admission of the testimony of the sheriff, the court said: “Records of judicial tribunals, as to parties af
Evidently, from the declaration of law given at the instance of plaintiff, the learned trial judge gave little, if any, heed to the testimony of this witness, Avho stands in the unenviable position of having betrayed a public trust and of attempting extortion. But the testimony was admissible for what it was worth and no error was committed in receiving it.
Point is made that the engineer should not have been permitted to testify to the conversation with plaintiff’s agent which tended to show the existence of a conspiracy between plaintiff and the engineer to falsify records relating to official acts of the latter. The facts we have stated show that plaintiff first raised that issue in the direct examination of its witness McGowan and, therefore, it cannot be heard to complain that the subject of such conspiracy, in fact, was not germane to the issues presented by the pleadings. The error, if any, having been invited by plaintiff, should not now be considered.
These considerations compel the conclusion that the taxbill in suit is void and should not be enforced as a lien against the property sought to be charged.
It is obvious that no constitutional question is fairly presented by the record. [Woody v. Railroad, 173 Mo. 547, 549; Hulett v. Railroad, 145 Mo. 35; Hilgert v. Barber Asphalt Paving Co., 173 Mo. 319; Kansas City v. Baird, 163 Mo. 196.] To hold that a decision of a circuit court pertaining merely to a rule of evidence or of practice or of procedure should afford to the defeated party an opportunity to raise constitutional questions and thereby to divert jurisdiction over the appeal from this court to the Supreme Court necessarily would be to say that the jurisdiction of this court is not fixed by law, but depends in each instance on the whim or caprice of counsel for the defeated litigant, since no case could be imagined wherein an adverse ruling on a question of evidence or practice might not be urged as an
The motion to transfer to the Supreme Court is overruled and the judgment is affirmed.