author: MASSEY, 'Chief Justice.

text:
    G. A. WHITE, Appellant, v. ZONING BOARD OF ADJUSTMENT OF the CITY OF ARLINGTON et al., Appellees.
    No. 16381.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 28, 1962.
    Rehearing Denied Jan. 26, 1963.

      Mack & Mack, and Theodore Mack, Fort Worth, for appellant.
    Robert M. Burnett, City Atty., James H„ Knapp, Arlington, Brown, Herman,, Scott & Young and Ardell M. Young, Fort Worth, for appellees.
   MASSEY, 'Chief Justice.

Matters at issue in the case on appeal’ were born in the action of thé Board of Adjustment of the City of Arlington, Tar-rant County, Texas, granting a permit to-one Bill B. Coleman to use Lot 19, Toliver 'Acres for trailer park purposes, nonconforming to that City’s zoning ordinance. Adjacent property was already in use for trailer park purposes. The nonconforming use of said adjacent property antedated' the zoning ordinance of the City of Arlington. An adjoining property owner, G. A.. White, was devoting the premises belonging to him for residential purposes. White’s, premises and Lot 19 were zoned for residential use. White objected to the proposed use of Lot 19 as a trailer park. He contested Coleman’s application before the Board. The Board granted Coleman’s application over White’s protest.

White carried his complaint into District Court by procedure conceded to be proper. Following a trial before the court without intervention of a jury, the determination there made was also against him. He perfected his appeal to this court.

Judgment affirmed.

White’s points of error all contend that the action of the Board of Adjustment amounted to an abuse of its discretion and deprived him of his property without due process of law or due course of law in violation of the United States Constitution, Amendment XIV, and the Texas Constitution, Article I, Section 19, Vernon’s Ann. 3t., because:

1. The action extended a nonconforming use when such an extension is not permitted by law.

2. The action was based upon the recommendation and report of the Arlington Planning and Zoning Commission, pursuant to its meeting held on October 11, 1961, at which meeting White was denied a hearing on the merits.

3. The action of the Board of Adjustment, which occurred at a meeting held November 21, 1961, took place at a time when White was not given sufficient advance notice.

4. The zoning ordinance of the City of Arlington sets forth no adequate legislative standard upon which the Board of Adjustment could base its decision.

5. The action constituted spot zoning.

Except as .related to his complaint about insufficiency of notice of the hearing, White seemingly concedes that if a test is possible tq be made of the propriety of the action of the Board of Adjustment under the substantial evidence rule he must lose. He attempts to demonstrate that the case is not one in which such a test would be proper, but, instead, is essentially one in which the action of the Board of Adjustment was without the scope of its jurisdiction, and was patently illegal or without authority of law, for which reason its action should be avoided and set aside.

The City of Arlington being a Home Rule city under V.A.T.S. Title 28, “Cities, Towns and Villages”, Chapter 13, “Home Rule”, Art. 1165 et seq., we may examine the ordinance under which the action of which complaint is made in the same manner and by the same tests to be made were it a statute enacted by the legislature. Unless prohibited by statute, and no such prohibition is applicable in the instant situation, the City of Arlington is as fully empowered to legislate and govern within its own city limits as the state could in the same area had the municipality never been incorporated. Stated another way, the City of Arlington had the authority to do what its Board of Adjustment did do in the instant situation if the Legislature of the State of Texas would have had the authority to have done the same thing absent the Home Rule Amendment. Therefore, if the City of Arlington, having this power, did delegate such to the City’s Board of Adjustment in its place and stead, under authority of legitimate ordinance, the Board’s action was jurisdictionally proper.

In City of San Angelo v. Boehme Bakery, 1945, 144 Tex. 281, 190 S.W.2d 67, the court said that the San Angelo Board of Adjustment had the authority, under the city’s ordinance, to permit an extension of a nonconforming use. San Angelo was a Home Rule city. A careful reading of the ordinance in question reveals that it expressly authorized the Board to permit an extension of a nonconforming use. It is the contention of White, in the instant case, that the ordinance of the City of Arlington neither expressly permitted an extension of the nonconforming trailer park use nor was such permitted by any necessary implication of the ordinance.

White, obviously implying that no other section of the zoning ordinance needs be considered, refers to its Article 12, sections 1 to 5, inclusive, wherein consideration is given to the use to which property is devoted at and prior to the time the ordinance was enacted, and provision made for a continuation of such use even though nonconforming within the provisions elsewhere therein stated.

Conceding that said Article 12, of itself, does not contain any provisions which either expressly or impliedly authorizes any extension of the nonconforming use therein contemplated, the City of Arlington directs our attention to Article 4 of said zoning ordinance under which uses denominated “Conditional Uses” are considered. Thereunder is provided that the Zoning Board of Adjustment of the City of Arlington may, after public notice and hearing, grant a permit applying for what is considered as a “conditional use”, subject to the right of the Board to impose such conditions it might deem essential to insure that the use is consistent with the spirit, purpose and intent of the ordinance, will not substantially and permanently injure the appropriate use of neighboring property, and which will substantially serve the public convenience and welfare.

One of the types of “conditional uses” specifically dealt with under Article 4 is that of “Trailer Park”. It is provided by Article 4, under its first section, that such use may be permitted by the Zoning Board of Adjustment in a district where not otherwise permitted (in view of other provisions of the ordinance) in accordance with procedure specified under its second section. The second section provides that when an application is made to the Board of Adjustment for a “conditional use” the application shall be referred to the Planning and Zoning Commission for its investigation as to the manner in which the proposed location and character of use will effect the city’s master plan, after which said Commission shall .report the results of its study of the application to the Board for action, if any it desires to take. Further provisions of the section confer the authority upon the Board to grant the permit for the “conditional use” under such appropriate conditions as it might deem proper to impose, as heretofore mentioned in the paragraph of this opinion next preceding.

Under authority of City of San Angelo v. Boehme Bakery, 1945, 144 Tex. 281, 190 S.W.2d 67, we are of the opinion that the ordinance of the City of Arlington lawfully entitled and expressly authorized its Board of Adjustment to grant the permit which substantially amounted to an extension of the nonconforming use to the lot adjacent to Coleman’s property. If, as White contends, the language of the Supreme Court on the matter of the city’s power in this regard was dicta, such was not the case in the Court of Civil Appeals (185 S.W.2d 601) where it was a part of that court’s decision upon which it rendered judgment. The Supreme Court expressly agreed with that part of the lower court’s opinion. It is true that the ordinance under consideration in this case treats the permission authorized to be granted as a “conditional use”, but a proper construction of the matter is that said permission was actually for an extension of the existing lawful nonconforming use subject to conditions imposed, or which could be imposed, upon the nonconforming use as so extended. Simply stated, the ordinance authorizes the Board to impose a degree of control upon the use of the property to which the nonconforming use is extended which it had no authority to impose upon the nonconforming use being made of the other property.

We furthermore hold that the ordinance in its Article 4 provides an adequate legislative standard upon which the Board of Adjustment could base its decision.

As applied to this case the ordinance contains no provision for any form of quasi judicial action by the Planning and Zoning Commission of the City of Arlington. Therefore White could not have been prejudiced by the manner in which said commission conducted its investigation in its decision as to what recommendation it might make to the Board of Adjustment. White’s point of error complaining because said commission conducted no hearing on the merits of his contentions is overruled.

We next consider White’s complaint because he was not given sufficient advance notice of the meeting of the Board of Adjustment on November 21, 1961, at which it took action approving the application of Coleman to use Lot 19 for trailer park purposes. Notice of the hearing had been published in a newspaper of general circulation in the City of Arlington. Letters of notification were mailed to all interested parties, including White, six days before the date set for the hearing, although he did not receive the letter until several days later. In any event White did appear at the hearing with his attorney and was availed the opportunity to introduce evidence. The trial court, as the trier of fact, is presumed to have determined upon the conflicting evidence that White made no request for continuance or postponement of the hearing, nor complaint that he had insufficient notice of the hearing.

It is well settled that a party’s appearance in a civil action amounts to a waiver of service or of any irregularity therein. We know of no reason why the same rule should not be held to apply to hearings before an administrative body such as a board of adjustment for a municipality. The case cited by White to support the point presented does not hold otherwise. City of San Antonio v. Pope, 1961 (Tex.Civ.App., Eastland), 351 S.W.2d 269. In that case the complainants had neither received notice nor been present upon the administrative hearing where action complained of was taken. Cases from other states which hold that appearance before bodies similar to our boards of adjustment amounts to waiver of service or irregularity therein include Hopkins v. MacCulloch, 1939, 35 Cal.App.2d 442, 95 P.2d 950; Gerling v. Board of Zoning Appeals of Town of Clay, 1957, 11 Misc.2d 84, 167 N.Y.S.2d 358; and Perrier v. Board of Appeals of City of Pawtucket, 1957, 86 R.I. 138, 134 A.2d 141. Point of error presenting the contention is overruled.

Finally we consider White’s contention that the action of the Board of Adjustment constituted “spot” zoning. We take notice that the zoning or re-zoning of Lot 19 was not at issue in the case, the question involving a “conditional use” of such property at variance with its zoning. “Spot” zoning was not involved in this case. Moody v. City of University Park, 1955 (Tex.Civ.App., Dallas), 278 S.W.2d 912, 923, writ ref. n. r. e. Assuming, arguendo, that the action of the Board of Adjustment did amount to “spot” zoning, it is noticed that the burden of proof would have been upon White to establish that the “zoning” authority acted unreasonably, arbitrarily, abused its discretion, and that the action did not subserve the general welfare. Weaver v. Ham, 1950, 149 Tex. 309, 232 S.W.2d 704. As to this we believe the record shows that White did not discharge his burden of proof, and that in any event the trial court was entitled, under the evidence, to refuse to find that the Board’s action was of such reprehensible character.

Judgment is affirmed.


source: Caselaw Access Project

author: DALTON, Judge.

license: Public Domain

text:
    In the Matter of Philip A. FOLEY, Petitioner.
    No. 49249.
    Supreme Court of Missouri, En Banc.
    Jan. 14, 1963.
    George E. Murray, Clayton, William J. Hough, St. Louis, for petitioner.
    Arthur H. Slonim, Clayton, for the Advisory Committee.
   DALTON, Judge.

This is an original proceeding for disciplinary action, which was instituted in this Court when Philip A. Foley, a duly licensed attorney, filed his verified petition alleging that he had been indicted and convicted in the United States District Court, Eastern District of Missouri, Eastern Division, on two counts for willfully and knowingly attempting to evade and defeat income tax due and owing by him and his wife for the years 1952 (Count I) and 1953 (Count II) by the filing of false and fraudulent joint income tax returns. He has voluntarily submitted himself for disciplinary action.

This Court has original jurisdiction of matters pertaining to the disciplining of members of the Bar in this State, and it may suspend or disbar an attorney in a proper case. In re Richards, 333 Mo. 907, 63 S.W.2d 672, 673(1).

Foley’s petition further alleged that he had pleaded “not guilty” to the charges made against him, but that, after a jury trial of nine days, he was found guilty on both counts and, on July 8, 1960, had been sentenced to concurring terms of imprisonment for three years and had been fined $2500 on each count; that he had appealed to the United States Court of Appeals (8th Circuit) ; that said Court had affirmed the judgment of the lower court (Foley v. United States, 290 F.2d 562); that he had, thereafter,, filed his petition for a writ of certiorari in the Supreme Court of the United States which was denied, 368 U.S. 888, 82 S.Ct. 139, 72 L.Ed. 88; that he had then filed motions for reduction of sentence or parole which were denied; that he had been ordered to report so that sentence could be carried out in conformity to the judgment of the court; that he was willing and anxious to appear voluntarily before this Court to make full and complete disclosure of all the facts and circumstances touching upon his qualifications as a lawyer and give satisfactory assurance that he would “never again be guilty of conduct in any manner reflecting upon his profession.” Thereafter, by order of this Court, his petition was referred to our Advisory Committee (see Supreme Court Rule 5, particularly subdivisions 5.14, 5.17, 5.18 and 5.19, V.A. M.R.) for such action or recommendations as it might deem proper.

The Advisory Committee held a hearing with reference to said matter, at which hearing petitioner appeared, with counsel, and testimony was heard to the extent of some 365 pages of transcript, excluding exhibits filed and considered. On June 1, 1962, the Committee filed its report recommending that petitioner be granted leave to appear before this Court for disciplinary action and stating that after a careful consideration of the entire record the Committee was unanimously of the opinion that petitioner should no longer be entrusted with the duties and responsibilities belonging to an attorney; that by failing to maintain his moral character and honesty he had rendered himself an unfit person to further engage in the practice of law; that he should be disbarred and his name stricken from the roll of attorneys in this State, or that if the Court deemed a suspension rather than disbarment adequate to protect the public interest the suspension should be of indefinite duration, with leave granted petitioner to apply for reinstatement after the expiration of a substantial period and upon a showing that petitioner was then of good moral character and fully qualified to be licensed as a member of the Bar of Missouri.

Thereafter, on September 28, 1962, the cause was heard in this Court and submitted upon petitioner’s petition and the record made before the Advisory Committee and the Committee’s report in said cause.

Before reviewing the evidence in this record perhaps we should say that, regardless of the verdict and judgment of conviction above mentioned, and regardless of the affirmance of said judgment by the United States Circuit Court of Appeals, petitioner took the position before the Advisory Committee, and further takes the position here, that he was at no time guilty of willfully and knowingly filing false and fraudulent joint income tax returns as charged in said indictment hnd as found by the jury.

Philip A. Foley was born in 1903 in St. Louis, Missouri, and at the date of the hearing before the Advisory Committee resided in Creve Coeur, St. Louis County, Missouri. He attended St. Mary’s College and St. Louis University, studying law at St. Louis University, but he did not graduate therefrom. He took his Bar examination and was admitted to practice in Missouri on November 19, 1926. He commenced practice in Clayton, Missouri, in 1926 and has continued to practice in St. Louis County. He served as City Attorney of Richmond Heights, Missouri, for twenty years, and was City Attorney of Olivette, Missouri, for two or three years. He also served as City Attorney of Fenton, Missouri. At one time he served as an Assistant Attorney General of Missouri under Attorney General Roy McKittrick. At all times he maintained law offices in Clayton, Missouri. He engaged in the general practice of law, but the greater portion of his practice has been in the handling of criminal cases, divorce cases, and an occasional damage suit. Much of his practice was trial work in the Justice of Peace Courts or later in the Magistrate Courts. He was married on February 23, 1926, and he and his wife have a son and daughter and five grandchildren.

Mr. Foley assisted in organizing the St. Louis County Bar, and he thereafter served as Vice-President and then as its President. He served as Legal Adviser of the Draft Board during World War II.

The indictment returned against petitioner on February 5, 1959, in the United States District Court, Eastern District of Missouri, Eastern Division, alleged that the petitioner’s 1952 return showed a net income of $4,053.27 and a tax due thereon of $500.22, whereas the net income from that year was $8,684.78, upon which there was owing a tax of $1,597.66; that the return filed for 1953 showed a net income of $4,-231.34 and a tax due thereon of $672.96, whereas the net income for that year was $11,805.60, with a tax owing thereon of $2,627.62. At the trial the government showed a net income in 1952 of $8,036.04, with a tax due of $1,438.06, and for 1953 a net income of $9,700.89, with a tax of $2,017.26. The government further proved that petitioner had gross receipts of $19,-890.78 in 1952 while his return showed only $11,351.00, and a gross income of $20,450.-48 in 1953, while his return for that year showed a gross income of $9,526. In other words, by some 130 witnesses the government established large amounts of fees and rentals and other income so that his returns were for roughly half of what his actual gross income was.

Since petitioner still takes the position, and so testified before the Advisory Committee, that he did at no time “wilfully and deliberately falsify or fraudulently prepare or cause to be prepared and filed any fraudulent returns for 1952 and 1953 or for any other years”, we shall adopt and include in this opinion the statement of facts in the opinion adopted by the United States Court of Appeals for the 8th District. Substantially the same facts appear in the record before the Advisory Committee, including the opinion itself and the record upon which it was based. The statement is as follows:

“Concededly, the defendant failed to keep adequate records for the purpose of recording his income and deductible expenses ; rather, he relied upon his memory and bank book which disclosed his deposits. Apparently he would total the deposits for the year, deduct therefrom items which were not taxable, such as amounts due clients included in the deposits and then he would add an arbitrary amount which ran between $1,500 and $2,100 estimated by him to represent cash receipts. In order to reconstruct the true income, the Government brought into court numerous former clients of the defendant who testified as to the amounts paid by them. Of the total of 130 witnesses who testified in behalf of the Government, 113 were former clients and others called to establish legal fees paid to defendant during the two years in question. There were, in addition, stipulations received in evidence of 58 other clients who had paid defendant legal fees during the period under consideration. It was also stipulated that 7 attorneys who had officed in the same suite with defendant, paid defendant $2,254.-63 in 1952 and $2,637.69 in 1953, as their share of rent, secretarial assistance and office expense. None of the amounts so received by defendant was reported as gross income, but it appears that defendant deducted as a business expense only his share of these expenses, the amount not covered by payments from other attorneys.

“The trial of the case was somewhat unusual, in that with the exception of one Roy Graham, there was no effort made by defendant to discredit any of the witnesses or their testimony. Thus, the issue which was litigated and resolved by the jury was whether the misstatement of income was the result of unintentional error or mistake on the part of one wholly unfamiliar with the exacting requirements of the revenue laws, as contended by defendant, or whether the defendant filed false and fraudulent returns for the purpose of evading taxes, which was the Government’s position throughout the trial.

“Graham, the controversial witness, was a professional bondsman and he also operated a tavern known as ‘Graham’s Grill.’ Until about August, 1953, Graham and defendant were close friends. During the year 1952 Graham gave defendant five checks totaling $2,837.35, and in 1953 five checks totaling $3,154.38. Graham testified that defendant had represented him and taken care of his legal matters since 1933, without compensation; that in 1952 Graham found himself in a financial position where he was able to pay defendant for past services, and although not requested by defendant to do so, Graham paid defendant the amounts represented by the checks above mentioned. Graham emphatically denied that he had a partnership arrangement with defendant whereby the latter was to receive one-half of the net income derived by Graham from signing appearance bonds. On the other hand, defendant’s version was that he had been instrumental in procuring bond business for Graham, in that he had, in early 1952, prevailed on the Sheriff of SC Louis County, Missouri, to permit Graham to sign appearance bonds; that in consideration for this service Graham had agreed to split all net bond income with the defendant, that is, all expenses were to be first deducted, and, as an additional consideration, Graham agreed to pay defendant’s share of the tax on the income received by the latter. Defendant testified that one of the 1953 checks, in the amount of $1,000 was endorsed and returned to Graham in consideration for a $937.50 check of Foley’s, payable to Foley’s secretary, which had been ■ cashed for her by Graham. Both she and defendant testified that this represented back salary due heir.

“Not only did defendant fail to report the income so received from Graham, but concededly he did not deposit any of the checks in his bank account. Defendant testified that Graham gave him small amounts of cash from time to time, and each time defendant received a check, he would endorse it and Graham would give him the cash difference above those sums previously advanced. Graham made a record of the checks so furnished and endorsed them ‘Graham’s Grill,’ after which they were deposited in Graham’s bank account. Graham did not produce any of his records at the trial, claiming that they had been destroyed after the records had been fully and completely investigated and checked by the Internal Revenue Service and after Graham had paid additional taxes on his income.”

Petitioner’s testimony before the Advisory Committee tended to show that he had never taken any tax courses or attended any seminars or lectures on tax law nor with regard to taxation; that he “knew nothing about income taxes or the process of it”; that Shad Bennett had made his income tax returns prior to 1952, after petitioner had provided him with the information; that he and Bennett had been together for twenty-five years; that his 1952 return was prepared by his half brother, Anthony Foley, who worked at the Department of Revenue in St. Louis; that he had furnished him with the records he had, to wit: bank deposits and statement of the expenses and other things to be transcribed into his income tax return; that he had never filled out any forms with reference to income tax; that no one had said anything to him about it in the past, nor had he ever estimated his tax; that he had never prepared a tax return of his own; that the 1953 return was prepared by John Molloy “because I could never figure out what the tax, [sic] never attempted to figure it out, never made a return in my life of my own”; that his clients were poor and that he received small fees and his practice had been of the same general pattern for thirty-three years ; that on two occasions he had been sued for office rent; that the only records that he did have in his office were his files and his diaries as to court appearances; that he kept no records of receipts in his office; that money he would get in the courtroom or out on the street or some place like that from people, he would take that and sometimes make a notation on a piece of paper and set it down and at the end of the year sometime gather up some of those papers and some would be accurate and some wouldn’t be accurate and he tried to over-estimate the income and thought he was doing it; that he lost thousands of dollars in fees by virtue of the fact that he did not keep any kind of an account book of fees due him. As to why he didn’t keep some record of the money that he was receiving, he gave only one explanation: “I got busy and my practice picked up and I was running back and forth to the Court I just failed to do it, just pure neglect, I presume, from going into a situation. That is all I could explain to you.” He said he did not understand that the government would not permit him to estimate and guess at his income; that in making his returns he was only guessing at the cash, since the big items went into the bank and that the only checks he would cash “would be checks when one would come in and I would cash that for ready cash.” A great many of such checks were for small fees of three, five and ten dollars; that the fees he put in his pocket or the checks that he cashed he made no record of, only those that he deposited in the bank; that at the end of the year he would make his estimate of “what I had cashed in and got in cash and checks I had cashed”; that neither his half brother nor Mr. Bennett or anyone else, who had made his returns, had called his attention to the fact that he was supposed to keep a record of his income and expenses. While he admitted renting office space to lawyers, he kept no record of rents as to whether or not they were paid, and relied on the tenants as to what they owed him. He said: “We were all living from hand to mouth and they couldn’t pay and, therefore, if they couldn’t pay me I couldn’t carry the whole load.” The rent was not treated as income and he deducted the whole year’s rent on the premises from his deposits whether it had been paid or not: “I took that off each year and sort of carried it on that way”; that the office spaces he was subleasing totaled around $2,300 per year and he deducted that from his deposits because he figured “well, that wasn’t income.” When questioned about it, he answered : “Well, all I can say is what I told you, how I was treating it I don’t know, that’s the way I did it.” He described his indictment by saying: “I think the whole thing was political”, and he also said that his indictment was due to the fact that he didn’t know a single, solitary thing about income taxes in the first place. He still claimed he was completely ignorant in that area, although admitting that he was reputed to be one of the best trial lawyers in St. Louis County. He said that the only excuse for his trouble was that he didn’t realize he had to keep any books or records with reference to receipts from clients. A further excuse was that he believed it was legally possible for him to receive some $5,-000 in money from Roy Graham in such a way that it would not be taxable income, even though it was the earnings and profits from a bond business. When asked about his ignorance of tax laws, he insisted: “I never, never done any tax matters.” As to his 1953 tax return, he said: “All I know, as far as those figures are concerned, what, Molloy figured this out, I know nothing about it, about them. I couldn’t figure what he has done there to save me, follow back and forth. I relied upon him to make this amended return, relied upon his ingenuity as an accountant.” As to the Graham money, he testified that from time to time he did meet Graham on the street or in the court house and would say, “Roy, have you got any money,” and he would hand him five, ten, fifteen, or twenty dollars and that couldn’t have started until March of 1952, while the first check from Graham in the amount of $195.68 was dated May 19, 1952. As to the Bennett matter, he said the $2,500 was a loan from Shad Bennett made on two different occasions, one for $1,500 and the other for $1,000; that Bennett did not owe any back rent that he knew of; and that his debt to Bennett was evidenced by a note with six per cent interest. He admitted that he had never paid the notes or any interest on them. He said Bennett had never made any demand upon him and that he had expected Bennett to continue to pay his rent monthly regardless of the loan. Bennett had testified in the trial of the criminal case that the $1,000 was a loan and the $1,500 was for rent due petitioner.

Petitioner also told the Advisory Committee that he didn’t consider the Graham payments to him as income; that he had never done any legal work for Graham and thought he needed to make no record of Graham’s payments, and accordingly he had treated the Graham payments as “a windfall” rather than income. Petitioner said: “I thought he was going to make his return, pay the taxes on it and the taxes on the money he gave me would have been paid, that’s what I thought he meant. * * * That was my complete understanding and that’s his exact words.” As to his failure to keep a record of legal fees he further said: “I think I was very, very stupid in that respect.”

Most of the transcript before us consisted of the testimony of witnesses as to the petitioner’s good character and reputation. Twenty-five witnesses (including fifteen lawyers, three circuit judges, a prominent pastor and six outstanding business and professional men) appeared and testified as to the excellent reputation and character of petitioner. Substantially all of these witnesses testified that prior to petitioner’s conviction he bore an excellent reputation as a lawyer and as a man, and numerous ones testified that he still bore such a reputation, especially among his friends and acquaintances. His word was his bond and they had found him honest and dependable. It was apparent from the cross-examination of these witnesses that many of them assumed that petitioner’s acts with reference to the filing of said income tax returns was not intentional and, therefore, they did not consider that the conviction affected his reputation and their regard for him. In other words, they felt that in income tax matters a jury might find either way and the verdict of the jury was not in any-wise binding upon them. They refused to accept the verdict of the jury on the issue of willfully and knowingly filing fraudulent returns. A few had had difficulty with representatives of the government in dealing with income tax matters and, therefore, indicated that they were not convinced of any wrongdoing on the part of petitioner regardless of the jury’s verdict. To many the prosecution only evidenced a dispute as to income taxes due. Some testified that as lawyers they were not convinced that petitioner had committed an intentional violation of the income tax law even though petitioner was convicted. A few of them agreed that the conviction had affected petitioner’s reputation adversely. Others said that the conviction had had no effect upon their esteem for petitioner personally, and some of them indicated that they placed income tax convictions in a totally different class from convictions for other crimes. Because of lack of time and other considerations the Advisory Committee permitted petitioner to file letters and affidavits of some fourteen additional witnesses (two circuit judges, eleven lawyers and one businessman) as to petitioner’s good character and his excellent reputation in the community in which he had lived and practiced law.

Petitioner first contends that the conviction in the United States District Court of- an offense under 26 U.S.C.A. § 145(b) is not under the facts and circumstances of the instant case a conviction for an offense involving moral turpitude within the meaning of Secs. 484.240 and 484.-190 RSMo 1959 or Supreme Court Rule 4.47. We find no merit in this contention.

Sec. 484.240 RSMo 1959, in part, provides with reference to charges against an attorney that: “If the charge allege a conviction for any criminal offense involving moral turpitude, the court shall, on production of the record of such conviction, remove the attorney so convicted or suspend such attorney from practice for a limited time, according to the nature of the offense, as the court may deem just, and without further trial.” Sec. 484.190 also provides for the removal or suspension of an attorney “[i]f he he convicted of any criminal offense involving moral turpitude.” Supreme Court Rule 4.47, governing conduct of lawyers, in part, provides that: “A lawyer should always maintain his integrity; and shall not willfully commit any act against the interest of the public * * nor shall he, by any misconduct, commit any offense against the laws of Missouri or the United States of America, which amounts to a crime involving acts done by him contrary to justice, honesty, modesty or good morals; nor shall he be guilty of any other misconduct whereby, for the protection of the public and those charged with the administration of justice, he should no longer be entrusted with the duties and responsibilities belonging to the office of an attorney.” Petitioner argues that the offense of which he was convicted is not a "criminal offense involving moral turpitude” and insists that he has committed no act “contrary to justice, honesty, modesty or good morals.” Petitioner also contends that an attempt to evade a tax due the Nation, wrong as it is, is not an act evidencing baseness, vileness or depravity of moral character. Petitioner cites United States v. Carrollo, D.C., 30 F.Supp. 3, 7, and United States v. Pendergast, D.C., 28 F. Supp. 601, 609. Petitioner also insists that the conviction was for an offense which was merely malum prohibitum and not mal-um in se and that absent a clear showing petitioner cannot be charged with moral turpitude within the meaning of the statutes and Supreme Court Rule..

We think the issue as to whether the conviction for the offense in question involves moral turpitude has been well settled in this State by numerous recent decisions of this Court which hold that a final judgment of conviction for the felony of willfully attempting to evade Federal income taxes by the filing of false and fraudulent returns denotes such moral turpitude as to disqualify one so convicted from continuing in the office of an attorney. In re McLendon, Mo.Sup., 337 S.W.2d 56, 61(3); In re Canzoneri, Mo.Sup., 334 S.W.2d 30, 33; In re Moon, Mo.Sup., 310 S.W.2d 935, 937; In re Landon, Mo.Sup., 319 S.W.2d 553, 557. In this case both the jury, who heard defendant testify concerning the charges against him, and the members of the Advisory Committee, who heard petitioner’s testimony with reference to the same matters, disbelieved his testimony and refused to accept it against the charge of willfully and knowingly attempting to evade and defeat income tax due and owing by him and his wife by filing false and fraudulent joint income tax returns. Further, on the record presented here, we are unable to accept the petitioner’s testimony that he did not know it was necessary to keep records of income and expenses for the purpose of making accurate income tax returns, nor can we accept his statement that he honestly believed that he could receive funds from the income of a business, which income would be classed as “a windfall” and not subject to income tax. A careful reading and study of petitioner’s own testimony before the Advisory Committee necessarily leads to the conclusion reached by both the jury in the criminal case and the Advisory Committee in its hearing on the issues presented by petitioner’s petition for disciplinary action. It further clearly appears that the returns filed were false and fraudulent.

Petitioner further insists that each case of disciplinary action must be governed by its own facts and that the good faith of petitioner in maintaining his disavowal of intent to evade taxes, the fact that full disclosure has been made, together with all the other facts in evidence must be given consideration, citing In re Burrus, 364 Mo. 22, 258 S.W.2d 625; In re Moon, supra; In re Canzoneri, supra. It is true that each case must be governed upon its own facts, but we cannot accept petitioner’s good faith in his disavowal of an intent to evade taxes where it is clear from the record that he has long refused to keep any record of his receipts or expenditures for the purpose of making an honest income tax return; and that absent such records there could be no disclosure of the true facts, nor can it be assumed that the government was able to definitely establish the actual receipts and expenditures of petitioner during the mentioned years. One who has engaged in the practice of law for some thirty-three years and maintained an office in Clayton, St. Louis County, can hardly be permitted to insist that he knew nothing about Federal income taxes or of any duty to keep records for the purpose of making accurate returns. Nor can we accept the petitioner’s statement that he thought he could estimate or guess at the figures; and by so doing over-estimate his actual net income for income tax purposes.

Petitioner further insists that such derelictions as are shown by the record in this case were committed in his personal capacity and not in his professional capacity as an attorney, citing In re Burrus, supra; In re Landon, supra, 319 S.W.2d 553. We think it immaterial to any issues in this case whether the derelictions shown by the record were committed in his personal capacity or as an attorney since a jury has found the existence of such derelictions to be within the provisions of the statutes as having been made willfully and knowingly for the purpose of attempting to evade and defeat income taxes by the filing of false and fraudulent income tax returns. Further, the same conclusions were arrived at by the Advisory Committee who personally heard and saw the defendant as he testified in this cause. Clearly a conviction of the felony of attempting willful tax evasion by the filing of false and fraudulent income tax returns requires disciplinary action whether such offense be regarded as having been committed in a private or professional capacity. In re Moon, supra, 310 S.W.2d 935, 938(3); In re Canzoneri, supra, 334 S.W.2d 30, 32(1,2).

Petitioner further points out that the purpose of a disciplinary action is not to punish the attorney but rather to protect the public and those charged with the administration of justice, and that the facts in the instant case do not warrant any severe action such as recommended by the Advisory Committee. Petitioner refers to In re Connor, 357 Mo. 270, 207 S.W.2d 492; In re Williams, 233 Mo.App. 1174, 128 S.W.2d 1098; In re Burrus, supra; and In re Landon, supra, where it was pointed out that the purpose of disciplinary action is not to punish the attorney but rather to protect the public and those charged with the administration of justice; however, the cases cited do not support a finding that severe action should not be administered under the facts of this case.

Petitioner finally insists that his personal and professional conduct and reputation, both before and subsequent to his conviction, have been excellent and that such facts may be considered in deciding what action is appropriate under the facts of this case. This Court has so held in numerous cases, among them In re Moon, supra; In re Landon, supra; In re Canzoneri, supra. In this case the petitioner has presented the testimony of numerous citizens, attorneys, judges and businessmen who testified as to petitioner’s excellent reputation in the community in which he has lived among the people that have known him both in his personal and professional capacities, and some of them have testified that his reputation was unaffected by the conviction in this case; however, few, if any, of them had any personal knowledge with reference to the facts of this case or of the record as made in the Federal court or as to the facts as testified to by the petitioner both as defendant in the Federal case and as petitioner in this cause. Giving due weight to all of the favorable character and reputation testimony as presented by petitioner, we are nevertheless and necessarily bound by the record as presented to us, and on this record, we must and do find, from a careful review and consideration of the whole record, that a suspension rather than a disbarment would be adequate to protect the public interest. Accordingly, it is ordered that Philip A. Foley be suspended and prohibited from the practice of law in Missouri until the further order of this Court and that he will be permitted to apply to this Court for reinstatement, after the expiration of three years from the date of the adoption of this opinion, upon a showing that he is then a person of good moral character and fully qualified to be licensed as a member of the Bar of this State.

All concur.


author: STORCKMAN, Judge.

text:
    Clark D. NICHOLS et al., Appellants, v. REORGANIZED SCHOOL DISTRICT NO. 1 OF LACLEDE COUNTY, Missouri, and Lawrence Hendrix, John S. Ragland, Ralph Meents, Elmer Young, Russell Caffey, Byron Harris, Members of the Board of Education of said School District, and Mary Lula Miller, Secretary of said Board of Education, Respondents.
    No. 49580.
    Supreme Court of Missouri, En Banc.
    Jan. 14, 1963.

      Weldon W. Moore, Rolla, Claude T. Wood, Richland, for appellants.
    Donnelly & Donnelly, Robert T. Don-nelly, Lebanon, Neale, Newman, Bradshaw, Freeman & Neale, Jean Paul Bradshaw, O. J. Taylor, Springfield, for respondents.
   STORCKMAN, Judge.

This is an action in equity to enjoin the issuance of bonds in the sum of $198,000 for the construction of school buildings. The purported approval of the bond issue at a special election is in controversy. The plaintiffs who are property owners and taxpayers in Reorganized School District No. 1 of Laclede County, Missouri, sued for themselves and as representatives of a class. The defendants are the School District and the members and officers of the Board of Education of the School District. After the issues were joined, certain facts were stipulated. The defendants then filed a motion for summary judgment which was sustained and judgment was entered dismissing plaintiffs’ petition. The plaintiffs’ motion for a new trial was overruled and they have appealed.

At the outset we are confronted with the question of this court’s jurisdiction of the appeal. The relief requested in plaintiffs’ amended petition is the entry of an order “permanently restraining and enjoining the secretary and the board of education of Reorganized School District No. 1 of Laclede County, Missouri, from: (1) Incurring indebtedness of said school district to the amount of $198,000.00, or any part thereof; (2) Issuing and registering any evidence of indebtedness of said school district which purports to be authorized by the voters at said Special Election of April 29, 1961; (3) Collecting taxes to pay any such indebtedness, or any interest thereon; and (4) For such other relief as to the Court may seem just in the premises and for all costs.” The plaintiffs’ petition alleges and the defendants’ answer admits that the defendant School District and the other defendants will, unless restrained and enjoined by the court, incur an indebtedness on behalf of the School District in the amount of $198,-000 and cause a tax to be levied on the taxable property in the School District for the payment of the principal and interest of such indebtedness. The parties now concede that jurisdiction does not exist on the ground that the School District is a political subdivision within the meaning of Art. V, § 3, Constitution of Missouri 1945, V.A.M. S. See Hydesburg Common School Dist. of Ralls County v. Rensselaer Common School Dist. of Ralls County, Mo., 214 S.W.2d 4.

When the object of the suit is for relief other than a money judgment, the amount involved must be determined by the value in money of the relief to the plaintiff, or the loss to the defendant, should the relief be granted, or vice versa, should the relief be denied. Cooper v. School District of Kansas City, 362 Mo. 49, 239 S.W.2d 509, 510 [3] ; Bauer v. City of Berkeley, Mo., 278 S.W.2d 772, 774 [1], Since the action seeks to enjoin the defendants from incurring an indebtedness in the sum of $198,000 and issuing and registering bonds in that amount, pursuant to the purported approval by the voters, and from collecting taxes for the payment of the principal and interest thereof, the amount directly in dispute exceeds the sum of $15,000 and this court has jurisdiction of the appeal. Art. V, § 3, Constitution of Missouri 1945; § 477.040, RSMo 1959, V.A.M.S.; Cooper v. School District of Kansas City, 362 Mo. 49, 239 S.W.2d 509, 511 [5]; Missouri Power & Light Co. v. City of Bucklin, 349 Mo. 789, 163 S.W.2d 561, 562 [1]; Butler v. Board of Education of Consolidated School Dist. No. 1 of Audrain County, Mo., 16 S.W.2d 44 [1].

Plaintiffs’ first amended petition alleges that a special election was held on April 29, 1961, to vote upon a proposition to incur an indebtedness in the sum of $198,000 for the purpose of constructing and furnishing an addition to an existing school building to be used as a high school; that the judges and clerks of the election certified that 923 ballots were cast in favor of the proposition and 457 were voted against it for a total of 1380 ballots, and that the defendants adopted a resolution finding and declaring that the proposition carried by more than a two-thirds majority; and that unless restrained the defendants will incur-indebtedness on behalf of the District in the amount of $198,000 and will cause a tax to be levied for payment of the principal and interest of the indebtedness. The foregoing allegations and others pertaining to more or less formal matters were admitted by defendants’ answer. The parties stipulated that valid and timely notice of the special election was given as provided by law and that the special election was called by the board of directors of the School District at a proper and regular board meeting.

Additional allegations of plaintiffs’ petition relating principally to the use of absentee ballots and the manner in which they were voted were .stricken on defendants’ motion which charged that the allegations were immaterial and that the court was without jurisdiction to hear and determine the issues so raised. In substance the parts so stricken asserted that the ballots cast by voters who appeared personally at the polls were 858 for the proposition and 449 against it and that the proposition was not approved by a two-thirds majority of the votes so cast; that thereafter 83 absentee ballots purporting to have been cast at said election were counted of which 10 were rejected and 65 were counted for the proposition and 8 against it; that if the absentee ballots had not been counted and included in the total vote cast the proposition would not have been approved and certified by the judges and clerks of the election; that the use of absentee ballots in a school bond election is not authorized by existing law; and that if absentee ballots were authorized they were cast by persons not entitled to do so, and that the applications for the absentee ballots and the time and manner of voting them were defective in the respects alleged.

The original petition was filed on May 13, 1961, and the first amended petition on December 23, 1961. The plaintiffs then filed a motion for permission to inspect and make copies of all applications for absentee ballots and the envelopes in which they were received. The defendants filed a motion to strike the portions of plaintiffs’ petition previously referred to. The defendants’ motion to strike was sustained and the plaintiffs’ motion to inspect was overruled. After the defendants’ answer and the stipulation of the parties were filed, the defendants filed a motion for summary judgment which was heard and sustained on April 21, 1962. These dates are mentioned because an opinion of this court having an important bearing on the outcome of the present case was handed down on October 9, 1961. The various pleadings were filed and rulings were made with knowledge of this decision, State ex rel. School District of City of Jefferson, Cole County v. Holman, Mo., 349 SjW.2d 945, which deals with the use of absentee ballots at a special election held to vote on a proposal to issue school bonds.

In connection with their contention that the use of absentee ballots in a school bond election is not authorized by existing law, the plaintiffs request “serious reconsideration” of our decisions in State ex rel. School District of City of Jefferson, Cole County v. Holman, Mo., 349 S.W.2d 945, and State ex rel. Hand v. Bilyeu, Mo., 351 S.W.2d 457. In State ex rel. School District of City of Jefferson, Cole County v. Holman this court en banc construed the word “district” as used in § 112.010, RSMo 1959, V.A.M.S., relating to absentee voting to include a school district and decided that the Absentee Voting Law authorizes voting by absentee ballot in a school district election held to vote on a proposal to issue bonds for the construction of school buildings. In State ex rel. Hand v. Bilyeu this court en banc on transfer, reached the same result that the Springfield Court of Appeals did, 346 S.W. 2d 221, but limited the court of appeals holding that absentee ballots were not authorized to elections where the vote was taken at a school meeting under the provisions of § 165.267(1), RSMo 1959, V.A.M.S. Such an election was distinguished from a special election conducted in accordance with the general election laws of the state at which the use of absentee ballots was authorized as previously held in State ex rel. v. Holman. The bond issue in the instant case was presented at a special election under § 165.040 as it was in State ex rel. School District of City of Jefferson, Cole County v. Holman. After the present suit was filed,, the mandamus action of State ex rel. School District of City of Jefferson, Cole County v. Holman was brought directly in the supreme court wherein the question to be decided was “whether the absentee ballot law applies to elections held in school districts wherein the voters are called upon to vote for or against a loan as authorized by Section 165.040 RSMo 1959, V.A.M.S.” 349 S.W.2d loc. cit. 946. Since the instant case involved the same issue, counsel for the parties obtained leave and filed briefs as amici curiae in State ex rel. School District of City of Jefferson, Cole County v. Holman.

On this appeal the plaintiffs present the contention that the use of absentee ballots is not authorized by existing law because (a) the statutes which provide for absentee ballots do not apply to school bond elections, (b) under the rule of Ejusdem Generis, absentee ballots are not authorized in a school bond election, and (c) the enumeration of geographical and political subdivisions in § 112.010, RSMo 1959, V.A. M.S., indicates that “School District” is not intended to be within the meaning of the word “district”. Examination of the briefs on file in State ex rel. School District of City of Jefferson, Cole County v. Holman discloses that precisely the same points were presented in that case. The plaintiffs in their amici curiae brief presented points (a) and (b) and the relator’s brief presented (c) as set out above. Furthermore, all of the statutes and decisions now relied on were cited in the previous case. So the plaintiffs are in the unique position of having had a trial run on this particular assignment. Nevertheless, we have reviewed and re-examined the question presented in all of its aspects with the result that we are reassured that State ex rel. School District of City of Jefferson, Cole County v. Holman, 349 S.W.2d 945, and State ex rel. Hand v. Bilyeu, 351 S.W.2d 457, were correctly decided and are controlling in this case. Accordingly the assignment of error is denied.

The plaintiffs further contend that the trial court erred in striking from their petition the allegations with respect to absentee hallots previously referred to. A related contention is that the trial court erred in refusing to permit discovery of evidence in support of the allegations stricken. In this regard, the plaintiffs assert that “the appellants were entitled to plead and prove a violation of mandatory statutes by respondents in the conduct of the special election involved and to thereby establish that the ■election was a nullity, thereby giving equity jurisdiction to afford relief by injunction.” This requires a consideration of the scope and character of relief that can be granted in an action of this kind.

The courts of this state have no jurisdiction to entertain actions to contest the results of school elections because there is no common-law right to do so, no statutory authority exists, and § 26(g), Art. VI, of the 1945 Constitution is not self-executing. Wann v. Reorganized School District No. 6, Mo., 293 S.W.2d 408, 411-412 [2, 3]; Eberle v. Plato Consolidated School District No. C-5, Mo., 313 S.W.2d 1, 2 [1]. In their brief and oral argument, the plaintiffs do not rely upon statutory authority to contest the election but cite cases which state that the procedures for casting .absentee ballots are mandatory and urge that a failure to comply with these mandatory provisions renders the election “a nul"lity”. In Straughan v. Meyers, 268 Mo. 580, 187 S.W. 1159, and Elliott v. Hogan, Mo.App., 315 S.W.2d 840, the offices in-volved were those of presiding judge of a county court and a city councilman, respectively, and the right to contest was provided by law. And so it was in all the cases where the courts took jurisdiction. Absent a statute vesting the courts with jurisdiction, the duty of passing on the qualification of voters and the legality of their votes rests with the election officials, and the results of elections as declared by the supervising officials cannot be re-examined judicially. State ex rel. Wahl v. Speer, 284 Mo. 45, 223 S.W. 655, 659 [2, 3].

The plaintiffs further assert that: “Basically, equity has jurisdiction to restrain the issuance and sale of the bonds involved if the election was a nullity”. Courts of equity do not have inherent powers to entertain and determine election contests without statutory authority. Long v. Consolidated School Dist. No. 7, 331 Mo. 302, 53 S.W.2d 867; Boney v. Sims, 304 Mo. 369, 263 S.W. 412, 414 [2]; Montague v. Whitney, Mo.App., 298 S.W.2d 461, 464 [2]; 29 C.J.S. Elections § 248, p. 359. Plaintiffs’ repeated references to the election as “a nullity” fail to distinguish between the validity of the election as a whole and the legality of individual ballots or category of votes. See Phelps v. Fenix, 345 Mo. 440, 134 S.W.2d 84, 88 [4], and Villag'e of Hinsdale v. Du Page County Court, 281 Ill.App. 571 [3]. No issues remain in this case which would invalidate the election as a' whole and render it a nullity. They were taken out of the case by the stipulation. What the plaintiffs are undertaking to do is to contest the result of the school bond election and under existing law the courts have no jurisdiction to grant such relief.

On the ground that this is the trial of a civil case in which the alleged violation of election laws is an issue, the plaintiffs complain particularly of the court’s action in striking paragraphs 13, 14, 15, and 16 of their amended petition. Art. VIII, § 3, of the 1945 Constitution deals with methods of voting and concludes as follows: “All election officers shall be sworn or affirmed not to disclose how any voter voted; provided, that in cases of contested elections, grand jury investigations and in the trial of all civil or criminal cases in which the violation of any law relating to elections, including nominating elections, is under investigation or at issue, such officers may be required to testify and the ballots cast may be opened, examined, counted, compared with the list of voters and received as evidence.” Section 111.770, RSMo 1959, V.A.M.S., substantially follows the constitutional provision.

Paragraph 13 of the amended petition charged that the polls at the Conway voting precinct, were closed prior to the hour fixed by law for closing, and that a large number of legal voters who desired to vote against the proposition appeared at the polling place prior to the hour fixed by law for closing. and. were denied their right to vote. Neither this paragraph nor the petition states -the hour fixed for closing or when the polls were actually closed. There is no allegation of any law that fixes the time of closing. It does not state even approximately the number of persons alleged to have been denied the right to vote. The plaintiffs cite no authority in support of their contention and we have found none. The proviso of § 3 of Art. VIII permits a limited use of ballots as evidence in the trial of a civil case in which the violation of election laws is at issue, but it does not purport to create a cause of action. The plaintiffs have no standing to contest the results of the election and paragraph 13 does not plead facts sufficient to charge a violation of law within the meaning of the constitutional provision which would vitiate the election as a whole. See Armantrout v. Bohon, 349 Mo. 667, 162 S.W.2d 867, and Remington v. Flemington School Dist., Mo., 22 S.W.2d 800. The court did not err in striking paragraph 13 of the petition.

Paragraphs 14, 15, and 16 deal entirely with the validity'of the absentee ballots. We have held that the use of absentee ballots was permissible under existing law and that the plaintiffs could not attack the validity of individual ballots since a contest of the results of the election was not authorized. For the reasons previously stated, these and the other allegations stricken did not plead a cause of action for voiding the election entirely.

In these circumstances the allegations stricken were immaterial and the court did not err in striking them. S.Ct. Rule 55.35, V.A.M.R.; Wann v. Reorganized School Dist. No. 6, Mo., 293 S.W.2d 408, 412 [5]; Eberle v. Plato Consolidated School Dist. No. C-5, Mo., 313 S.W.2d 1, 2 [1]; Arkansas-Missouri Power Corp. v. City of Potosi, 355 Mo. 356, 196 S.W.2d 152, 154—155 [3, 5], Since the motion to strike was properly sustained, it follows that the motion to inspect and copy the applications for the absentee ballots and the envelopes in which they were received was properly overruled. There were no longer any issues in the case that made the absentee ballot applications and envelopes relevaht or material within the purview of the discovery procedures provided by S.Ct. Rules 58.01 and 57.01(b), V.A.M.R.

The plaintiffs’ contention that the trial court erred in entering summary judgment for the defendants is largely based on issues we have already decided. They say there was a genuine factual issue presented as to whether statutory requirements were complied with in the casting of absentee ballots and that if discovery had been permitted: under their motion to inspect the evidence-would have been procured that would have presented a genuine issue as to a material: fact.

S.Ct. Rule 74.04 provides that a party against whom a claim is sought may move for a summary judgment, and in subd. (c) it is provided that: “Judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” The plaintiffs call our attention to the fact that the Missouri rule with respect to summary judgment is the same as Federal Rule of Civil Procedure-No. 56 and cite several federal cases which in general hold that a summary judgment is an extreme remedy and should be awarded only when it is quite clear that there is no genuine issue of fact in the case.

Essentially the plaintiffs claim that they "have by their pleadings created a factual issue as to the validity of the absentee ballots in whole or in part. We have held that ihe pleading in this respect is insufficient to raise an issue as to the validity of the election as a whole and that there is no existing authority for attacking the validity of individual ballots and thereby contesting the •results of the election. The matters stricken were insufficient in law to create any material factual issue. All other factual allegations of the amended petition were admitted or stipulated. Therefore, there was .no genuine issue as to any material fact in ■the case and summary judgment was properly granted. Ieppert v. John Hancock Mutual Life Ins. Co., Mo.App., 347 S.W.2d 436, -444 [3].

The judgment is affirmed.

All concur.


author: GEORGE P.-ADAMS, Special Judge.

text:
    Ben H. FRANKEN, an Individual, d/b/a Ben H. Franken Construction Company, (Plaintiff) Respondent, v. Dorothy V. CARPENTER, (Defendant) Appellant.
    No. 31019.
    St. Louis Court of Appeals. Missouri.
    Jan. 15, 1963.

      William C. Bernhardt, De Soto, Arthur E. Johnson, Morris A. Shenker, Frank' B. Green, Jr., St. Louis, for appellant.
    John W. Thurman, and Thurman, Nixon & Blackwell, Hillsboro, for respondent.
   GEORGE P.-ADAMS, Special Judge.

Defendant-landowner appeals from an adverse -judgment for $4,640.00 and a mechanic’s lien against her land in favor of plaintiff-contractor, entered pursuant to a jury’s verdict.

The jury’s verdict and the judgment below did not dispose of a counterclaim filed by defendant. Even though neither of the parties has raised the point, we are obliged to determine sua sponte, whether we have appellate jurisdiction. Bennett v. Wood, Mo., 239 S.W.2d 325, 328(4); Collier et al. v. Smith et al., Mo.App., 292 S.W.2d 627, 631(5). Having concluded that the appeal is premature, only'such facts as are necessary for this determination will be detailed.

By a written contract, plaintiff agreed to construct a one story commercial building at Murphy, in Jefferson County, for defendant. The contract provided that the “job” was to be done in a “workmanlike manner” and in accordance with plans and specifications identified in the contract; that construction should be complete by June 15, 1960 and if not completed by said date “a penalty of twenty-five dollars ($25.00) per day shall be incurred by the Contractor thereafter, and total of said penalty deducted from the Contract Price”; and that final payment was to be made “upon completion and acceptance without reservation of.building by Mrs. D. Carpenter.”

After inclusion of some “extras” not in dispute on this appeal, plaintiff claimed a total of $15,040.00 upon which defendant paid $6,000.00 on May 17, and $4,000.00 on July 28.' On July 29, 1960, plaintiff filed his “mechanic’s lien” claiming a balance of $5,040.00.

The suit was tried under plaintiff’s second amended petition which was in two counts, one under the contract, and the second in quantum meruit. Both sought the recovery of $5,040.00 and a lien on defendant’s property.

Defendant filed an answer and counterclaim. In her answer, in addition to denying generally the allegations of Counts I and II of plaintiff’s petition, defendant also plead that plaintiff had been fully paid and had waived his lien.

By Count I of her counterclaim, defendant sought recovery of $10,812.00 based on claims that plaintiff failed to perform various phases of the construction in accordance with the contract and the plans and specifications. Included was $1,700.00 claimed due because of plaintiff’s failure to complete the building by June 15th.

By Count II of her counterclaim, defendant sought $1,000.00 actual and $5,000.-00 punitive damages, claiming plaintiff had waived his lien and by “maliciously” filing his notice of lien and the subsequent filing of this suit, defendant was required to defend a “baseless suit”; was prevented from selling the real estate or obtaining a loan thereon; and the filing of the lien resulted in a cloud on the title to the real estate.

On May 16, 1961, the case proceeded to trial before a jury.

At the close of defendant’s evidence, plaintiff’s 'motion for a directed verdict on Count I of defendant’s counterclaim was overruled and his motion for a directed verdict on Count II of defendant’s counterclaim was sustained.

After rebuttal evidence by plaintiff, and at the close of all the evidence, defendant offered motions for directed verdicts, as follows:

“The Defendant at the close of all evidence moves the Court to direct a verdict for Defendant and against plaintiff on Plaintiff’s petition: For the reason that, under law, pleadings and the evidence there is no question for the Jury.”

and,

“At the close of all the evidence, Defendant moves for a directed verdict against the Plaintiff on his claim, and for the Defendant on her counterclaim.”

Both motions were denied.

While no point is made on the appeal as to the instructions (nor was any effective assignment relating thereto contained in the motion for new trial), it is appropriate to say that plaintiff’s theories were submitted in two instructions authorizing a recovery on quantum meruit.

By her instructions, the defendant submitted her right to the $25.00 per day penalty and her right to damages if the jury found that plaintiff had not performed according to the contract and had failed to perform certain specific phases of the construction. By another instruction, the jury was directed to find for defendant under Count I of plaintiff’s petition if they found that plaintiff “failed to construct the building in evidence substantially according to the said contract, plans and specifications.”

The jury returned the following verdict:

“We, the Jury in the above entitled cause find the issues in favor of the Plaintiff and against Defendant, Dorothy V. Carpenter and assess Plaintiff’s damages in the amount of $4,640.00.
“We further find Plaintiff is entitled to a mechanic’s lien against the property of Dorothy V. Carpenter in the amount of $4,640.00.”

Immediately following the foregoing verdict, there appears in the transcript another verdict, as follows:

“We, the Jury find the issues on the Defendant’s Count Two of the counterclaim in favor of the Plaintiff and against the Defendant.”

The latter verdict was signed by a different jury foreman than the former. It is reasonable to assume that the latter verdict was executed pursuant to the trial court’s direction following its sustention of plaintiff’s motion for a directed verdict on Count II of defendant’s counterclaim.

The trial court’s judgment concluded as follows:

“Whereupon the Court adopts the verdict of the jury as his verdict.
“It is therefore Considered, Ordered and Adjudged by the Court that the plaintiff recover of the defendant the sum of $4,640.00, and that plaintiff is entitled to a mechanic’s lien against the real estate described in plaintiff’s petition.”

Obviously the issues raised by Count I of defendant’s counterclaim have not been specifically disposed of by the jury’s verdict or the court’s judgment. Therefore, unless the verdict of the jury necessarily constitutes a finding against defendant on Count I of her counterclaim and such issue has been effectively disposed of, Commercial National Bank of Kansas City, Kansas v. White, Mo., 254 S.W.2d 605, 608(3), there has been no “final determination of the rights of the parties in the action” (Civil Rules 74.01, V.A.M.R.) and the appeal is premature. Collier et al. v. Smith et al., Mo.App., 292 S.W.2d 627, 629(1, 2), 630 (3); Bennett v. Wood, Mo., 239 S.W.2d 325, 327, 328(3-5).

To determine whether the verdict of the jury has effectively disposed of all issues raised by the pleadings and tendered under the instructions, it is essential that the “issues” be defined.

There was substantial evidence from which the jury could have found that plaintiff performed labor of value on, and furnished materials of value for, defendant’s building and that defendant took possession of a building of some value before July 3rd 1960 and thereby received the benefit of plaintiff’s work and materials.

There was also substantial evidence from which the jury could have found that in numerous respects plaintiff failed to perform such1 labor or install such materials in a workmanlike manner as he was obligated to do under the terms of the contract.

There was also substantial evidence that defendant was damaged by plaintiff’s failure to perform at least one phase of the contract, viz.: construct the roof in a workmanlike manner, and that it would cost from $200 to $500 to “re-do” the roof.

Literal compliance with each and every minute specification of a building contract is not a condition to the contractor’s right to recover something for his work and materials. Work on a building is such that “even if rejected, the owner of the land must receive the benefit of the contractor’s labor and materials, which is not the case where a chattel is constructed, as the chattel may be returned. Since the owner must receive the fruits of the builder’s labor, it is deemed equitable to require the former to pay for what he gets.” Cross v. Robinson, Mo.App., 281 S.W.2d 22, 24.

On the other hand, the contractor has obligated himself to perform in the manner prescribed in the contract and if he fails to do so he should compensate the owner for such damage as his failure to literally perform the contract caused.

Therefore, from an early date the courts have followed a fair and equitable rule that protects both the contractor and the owner, and hold that even though the •contractor voluntarily abandons, or breaches the contract “he may recover the actual value of the work and materials, not exceeding the contract price, less such damages as have resulted to the other contracting party from the breach of the contract.” Kelly v. Rowane, 33 Mo.App. 440, 443; Bradley Heating Co. v. Thomas M. Sayman Realty & Investment Co., Mo., 201 S.W. 864, 865, 866(3).

So in our case, even though plaintiff breached the contract in some particulars, he is nevertheless entitled to the reasonable value of his labor and materials, “less such damages as have resulted”' to defendant from his breach of the contract.

Since plaintiff’s recovery is to be diminished by whatever damages, if any, defendant has sustained, the jury must have the opportunity to pass upon that issue and express its findings in its verdict.

Under plaintiff’s Instruction P-1, if the jury found that plaintiff “furnished and delivered the material” called for in the contract and “performed the labor provided therein” and that “the prices charged and claimed are the amounts provided for in the contract” and that “the same are reasonable”, then their verdict would be for plaintiff “in the amount that you find is due him under said contract” for the “materials furnished and labor performed.”

Under plaintiff’s Instruction P-2, if the jury found that the “labor and materials charged for in Plaintiff’s bill of items was done and performed” and the “prices charged therefor are reasonable and fair”, then their verdict would be in such sum as “the evidence shows the labor and materials were' reasonably worth.”

By defendant’s Instruction D-4, the jury were instructed that if they found that plaintiff “failed substantially to construct the building according to contract” and (among 9 other specifications of non-performance) “failed to properly construct the roof”, then they would find for defendant such damage as she may have suffered “by reason of such items, if any, as the evidence shows the Plaintiff failed on.”

Plaintiff’s right to recover, it is seen, was authorized without any reference to defendant’s damages resulting from plaintiff’s failure (if the jury so found) to perform according to the terms of the contract.

Under plaintiff’s instructions, the jury could have found that every item of material called for by the contract was put into the building and that the charges for such material and plaintiff’s labor to install same were reasonable. From such finding they could have given plaintiff judgment for such charges without the necessity of determining whether the materials were incorporated into the building in a workmanlike manner.

In other words, under plaintiff’s instructions the jury were required to pass only on a part of plaintiff’s performance, namely, furnishing of materials and performance of labor, and not whether the “job” was done in a workmanlike manner, the primary issue tendered by Count I of defendant’s counterclaim and her instructions.

Since, under plaintiff’s instructions alone, the jury could have rendered the verdict that it did, the issues of whether the building had been constructed “according to contract” (in a “workmanlike manner”) and whether the roof was “properly” constructed, and if not, what, if any, damages defendant suffered by reason thereof, were not necessarily passed on by the jury.

Reference to, and quotations from the instructions herein should not be construed as an approval of them. This has been done solely to point out the issues that were submitted to the jury for the purpose of determining whether the verdict necessarily disposed of all issues.

As a matter of fact, close attention to the Bradley Heating Co. case, supra, 201 S.W. 864, with its exhaustive review of the authorities on this subject will suggest to the parties the proper manner of drafting instructions to present the legitimate issues to the jury.

It might aid counsel in further proceedings herein if reference is made to defendant’s contention that since there was no dispute that plaintiff failed to complete the work by June 15, 1960, defendant was entitled to money damages of $25.00 per day for each day the building remained unfinished.

This issue was submitted in defendant’s Instruction D-3, concluding: “Now, if you find from the evidence that said building was not completed and submitted to Mrs. Carpenter on June 15, 1960, you may deduct from money due Ben H. Franken, if any, $25.00 per day from June 15, 1960 until date of completion, if you find the building was completed.”

No evidence was offered showing that defendant suffered any damages because of the delay in her taking possession of the building.

A penalty, as such, is not enforceable and it is incumbent upon the party seeking to recover for a delay in performance “to show not only the breach, but that damages have in fact accrued in consequence thereof.” Ward v. Haren, 183 Mo.App. 569, 167 S.W. 1064, 1070(10). Even as an attempt to agree on “liquidated damages”, the amount agreed upon must not be out of proportion to the damages actually suffered, for if it is “the stipulation should be held to be an unenforceable penalty.” Ward v. Haren, supra, 167 S.W. page 1069 (8). Christopher & Simpson Architectural Iron & Foundry Co. v. E. A. Steininger Construction Co. et al., 200 Mo.App. 33, 205 S.W. 278, 285(12).

These fundamentals will assist the parties if this issue remains in the case.

Because it is premature, the appeal is dismissed and the cause remanded for such further proceedings as may be proper.

ANDERSON, P. J., and WOLFE, J., concur.