Deal v. Houston County

• Decision Date: 18 April 1918
• Docket Number: 4 Div. 778
• Citation: 78 So. 809,201 Ala. 431
• Parties: DEAL v. HOUSTON COUNTY.
• Court: Alabama Supreme Court

78 So. 809

201 Ala. 431

DEAL v. HOUSTON COUNTY.

4 Div. 778

Supreme Court of Alabama

April 18, 1918

Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.

Suit by L.S. Deal against Houston County. Judgment for defendant, and plaintiff appealed. Transferred from the Court of Appeals under Act April 18, 1911 (Laws 1911, p. 450), § 6. Reversed and remanded.

H.K Martin, of Dothan, for appellant.

Lee &amp Tompkins, of Dothan, for appellee.

THOMAS J.

The suit was based on an itemized, verified account, under the statute. Code, § 3970. The general issue only was pleaded. The judgment by the court, trying without a jury, was for the defendant.

Counsel overlook the construction which has been given the act of September 25, 1915 (Gen. Acts, p. 824)--Alrichs v. Rollo, 76 So. 37; Hackett v. Cash, 196 Ala. 403, 72 So. 52; Finney v. Studebaker Corporation of Amer., 196 Ala. 422, 72 So. 54--to the effect that where the evidence adduced before the judge trying without a jury was developed ore tenus, or partly so, the finding of the court will not be disturbed, unless the conclusion and judgment is plainly contrary to the great weight of the evidence. The evidence was so developed in the instant case, and the statute as construed in the foregoing authorities has application.

The first four assignments of error challenge the correctness of the rulings on the introduction of evidence.

Plaintiff as a witness testified that as editor of the Dothan Home Journal he published the poll list of Houston county by order of the judge of probate; that he solicited the publication, and that Judge Crawford authorized it, furnishing him the copy therefor. Defendant's counsel then asked, "Is it not a fact that Judge Crawford told you at the time he would personally pay you something for the publication of it [the poll list]?" and witness replied, "He did not." This was a proper cross-examination for the purpose of testing the witness' statement that Judge Crawford, as judge of probate, had authorized the publication. So of the question, "He did not tell you that the county would pay for it, did he?" and the answer, "I do not think so."

The question by defendant, "Isn't it a fact that the Dothan Dispatch published the poll lists of Houston county?" was objected to by plaintiff, and the objection was overruled. Without other evidence, or a statement of counsel, in that connection, rendering competent the evidence sought to be thus elicited, the objection should have been sustained. Having permitted the question, it was proper to allow plaintiff to explain that the Dothan Dispatch used the forms set up by plaintiff in getting out its edition containing the poll lists. The fact of such other publication would not have the effect, without more, to prove that the plaintiff was not first authorized by the judge of probate to publish the list. The statute authorized publication only in one paper. The presumption is that the judge of probate did his duty in that regard. Hence the tendency of the evidence was pertinent to the inquiry.

A witness, who was clerk of the probate court at the time of the alleged authorization and publication, was permitted to testify that he did not know of such contract with plaintiff, or that the Dothan Home Journal obtained the poll lists from the probate office, and did not remember that the probate office received a copy of that paper containing such publication. In this there was no error; the plaintiff had testified that he delivered a copy of that issue of his journal to the probate office.

This statutory authorization of the preparation and certification of such lists by the judge of probate, and the publication thereof "in some newspaper," to be paid for by the counties "out of the county treasury," provided for publication to be made in only one newspaper of the designated circulation. This statutory authorization was to the probate judge, and not to the board of revenue or county commissioners, and when exercised by the judge of probate as to one newspaper, in that regard, his powers become functus officio. Having accomplished the purpose to effectuate the publication as required by the statute, the judge in this case had no further authority to contract for such publication by other newspapers. No formal act of authorization was required of the judge of probate; the requirement was only, that when he had made up the list as required of him by the statute, it should be published by him "in some newspaper with a general circulation in said county," etc. That the trial court might ascertain to whom this authorization of publication was made by the judge of probate, it was competent to explain that copies of said poll lists were furnished the Dispatch through the Home Journal.

Statements of Judge Crawford made to Mr. Hilson touching the judge's friendship for Mr. Deal, and the latter's supposed financial embarrassment and Judge Crawford's desire to aid his journal, should not have been admitted in evidence over the plaintiff's objection. For the purpose of showing authorization the instruction of the judge that the cost of setting up the poll lists on the machine should be divided was competent. The same is true of the question, "Isn't it a fact that Judge Crawford gave the contract to both of you [the Dispatch and the Journal] with the understanding that you all should divide the fee?"

The fact that the claim of the Dispatch for the publication was filed and paid during Judge Crawford's administration of the office of judge of probate of Houston county, after a meeting of the board of revenue at which he was present, had a tendency to show to whom the deceased judge had given the publication contract. On the other hand, the testimony of the plaintiff, showing presentation of the claim of the Home Journal for such publication to the board of revenue before Judge Crawford's death, and that said judge of probate stated to J.R. Crawford that "Deal's claim [Dothan Home Journal] was a valid one against the county and would have to be paid," was competent, as showing the judge's knowledge of the claim of the Journal for the publication, and as tending to prove authorization thereof by that official and to rebut the testimony of the defendant to the effect that the authorization was to the Dothan Dispatch. The exclusion of this evidence cannot be justified on the ground that it was offensive to the provisions of section 4007 of the Code, in that it was the admission of an official offered by one affected by interest.

A different rule prevails in respect to the admissibility of acts and declarations of public officials and agents from those ordinarily governing in the case of private agents. The succeeding governmental agency or public authority is bound in such case, only as it manifestly appears that the public agent was acting within the scope of his authority, or of the authority which he had been held out as possessing, to...