Stiewel v. Fencing District No. 6 , 71 Ark. 17 ( 1902 )

Wood, J.

This is a proceeding by complaint in equity under the statute to have the lands of appellant sold for taxes assessed against them for Fencing District No. 6 of Johnson county. The appellant contends that the assessment is invalid:

1. Because two-thirds of the landowners did not sign the petition asking for the district. The order of the county court establishing the district recites: “The court being convinced that the petitioners are in number more than two-thirds of the owners of land within the district, it is the judgment of the court,” etc.

This is also recited as a fact in the petition. Counsel for appellant says: “The tax book in evidence in this cause shows that there were in the district 154 landowners; that it appears, by comparison of the names on the tax books with those on the petition for the formation of the district, that forty-seven of the names on the petition owned no land in the district. The number of names on the petition is 118. Deduct the 47, and there are only 71 names remaining. To have the necessar3' two-thirds to confer jurisdiction, there should be 102.” Learned counsel thus makes the mistake of treating the tax books as the only and conclusive evidence of who were the owners of land in the district, whereas the tax books, at most, could only be considered as prima facie evidence of who were the landowners of the district. Ownership of land is constantly changing. Lands owned by one man may appear assessed in the name of another. The tax books would not be sufficient, and there is no other evidence in the record sufficient to overturn the recital in the petition and the finding of the county court.

The record of the county court showing the necessary jurisdictional facts should at least be presumed as prima facie correct, placing the burden upon him who questions the court’s jurisdiction to show that it did not have it. State ex rel., etc., v. Nelson, 57 Wis. 147. But see on the burden of proof, section 1193, Sand. & H. Dig., and Kansas City, P. & G. Ry. Co. v. Waterworks Improvement District No. 1, Siloam Springs, 68 Ark. 376. In this view it is unnecessary for us to determine whether or not in this special statutory proceeding the finding of the county court on the question of jurisdiction would be conclusive against collateral attack, as is contended by counsel for appellee.

2. It is contended that the assessment is void because it is not equal and uniform upon all the land of the district subject to the tax. In this connection counsel for appellant says: “Six miles of the right of way and roadbed of the Dittle Rock & Fort Smith Railroad and its station house, side tracks and freight depot are in the district, but not taxed; also a farm owned by Johnson county is in the district, but not taxed.” It is also insisted that certain lands of a college and another tract of Colonel Cravens should have been taxed.

We held in Little Rock & F. S. Ry. Co. v. Huggins, 64 Ark. 432, that the fencing district act does not apply to the property of railroads. The doctrine announced by this court in Board of Improvement v. School District, 56 Ark. 354, would exempt the county farm of Johnson county, held for the care and support of its poor, from this special assessment for the local improvement.

We must conclude, since the law does not permit the right of way, roadbed, etc., of the railroad and the county poor farm to be assessed for the fencing district, that the petitioners included them from considerations of convenience, economy or feasibility, and not because they thought such property would be benefited, or with the view of having it assessed. The county court, whose •duty it is under the law to make the assessment, having omitted to assess the railroad property and the county farm for the poor, as well as .the other property which it is claimed should have been assessed, will be presumed to have omitted the former because they could not be taxed under the law, and to have omitted the latter because it 'was not benefited. This at least would be the prima facie presumption. Kansas City, P. & G. Ry. Co. v. Waterworks Imp. Dist. No. 1, Siloam Springs, 68 Ark. 376.

But, conceding that the railroad and county farm, like the other property in the district, would be liable to assessment, if benefited, there is no proof that any of the property within the district omitted from assessment is benefited. If its inclusion by the petitioners and the eounty court raised the primary presumption that it was benefited in the first instance, this presumption was afterwards overcome by the action of the county court in not assessing it, and the burden would still be upon the appellant to show that the property was benefited. In Moore v. People, 106 Ill. 376, the court says: “I-t is also urged that the assessment is void for the reason that the right of way and franchise of Indianapolis, Bloomington & Western Bailway Company, which runs through the district, and the public highways, were not assessed, while they were benefited. It was a duty resting upon the commissioners to determine what property was benefited, and what was not, and their determination, when called in question for the first time on the application for judgment against the land assessed, must be held conclusive, in the absence of fraud.”

We do not go so far. But we do hold that the establishment of the fencing district, on the petition of the land owners by the order of the county court, the agency named by the legislature for that purpose, and the finding by the county court that certain lands in the district are subject to assessment, raise the prima facie presumption that such lands are benefited by the improvement, and, on the other hand, the finding by the county court that certain lands within the district are not subject to assessment raises the prima facie presumption that they are not benefited, unless otherwise exempt under the constitution and statutes.

3. It is urged that “the district, as formed by the county court, does not correspond with the district asked for by the landowners.” The original petition describes the boundaries of the district proposed, and recites: “The line of the fence around said proposed district will be the lines aforesaid, except when necessary deviations may be made to cross streams or to avoid special injury to the owners of the lands over which the line passes, or to find ground near by over which it is more practical to erect a fence, when the same can be done witho.ut injury to the owners.”

It is recited in the order of the court establishing the district that: “The line of the fence around said district shall be upon the lines aforesaid, except when necessary deviations may be made to cross streams or to avoid special injury to the owners of the land over which the line passes, or to find ground near by over which it is more practical to erect a fence, when the same can be done without injury to the owners, and, if on land not within the lines aforesaid, with the permission of the owners, without the same being subject to tax for erecting and maintaining' the fence.”

After the filing of the original petition, one J. J. Quick presented a petition, in which he says: “He did not sign the original petition, but that he is willing to sign the same provided the line shall be extended west through the south half, southwest quarter of seeton 32, township 10 north, range 24 west, to the western border of said section, and thence south to the point of beginning, and that this will not lengthen the line of fence an inch, and that, with the assent of the original petitioners, he prays that this be taken and regarded as his and their petition for such change.”

The order of the court recites: “The lines through the two westerly forty-acre tracts above-named, viz: Southwest half of the southwest quarter of section 32, township 10 north, range 24 west, being made at the instigation of the petitioners and J. J. Quick, the owner of said lands, and -not lengthening the line of the fence.”

It appears from this that the owners on the original petition adopted the change proposed by Quick’s petition. It is tantamount to amending their petition to cover the change proposed by Quick. There was therefore no material divergence from the petition in establishing the boundaries of the district. The petition and the order contemplated slight variations. The petition for local improvements as the statute requires is, of course, jurisdictional. Here there was such petition, and an order establishing the district in substantial conformity therewith.

4. What we have said under the second subdivision disposes of appellant’s contention that his property cannot be taxed because it is not benefited. There is no proof that his property is not benefited, and the determination of the county court in that regard is prima facie correct.

5. The statute, section 1178," Sandels & Hill’s Digest, requires each member of the board to take the oath of office prescribed by article 19, section 20, Constitution of Arkansas, and in addition thereto an oath “that he will not, either directly or indirectly, be interested in any contract made by the board, which oath shall be filed in the office, of the county cleric .” An oath was made on March 3, 1900, but omits the statutory requirement in italics above. On March 20 the contract was made. On March 24, four days after, an amended oath was filed, embracing the statutory requirements. Appellant contends that the full and complete statutory oath was necessary to constitute a board. These special statutory proceedings whereby landowners may be deprived of their property without their consent must be strictly pursued. Every provision intended for the protection of the landowner must be regarded as mandatory. It is not for the courts to declare immaterial what the legislature has required to be done. That the legislature did not consider that the oath prescribed by the constitution would be sufficient is shown in the fact that they prescribed that each member of the board should take the oath that “he will not, either directly or indirectly, be interested in any contract made by the board.”

It was shown in this case that a subcontractor, who had a contract to supply and set fence posts to inclose the district, gave toWestmoreland, a brother-in-law, who was president of the fencing district board, a half interest in his contract to assist in getting out and setting up the posts called for by his contract, and the witness swears that such contract was given to the president of the board because he was a member of the board, and had the acceptance or approval of the fence. We would not impugn the integrity of the parties to this arrangement. Their contract might have been performed with the utmost fidelity and honesty. But the apprehension that, where such conditions exist, the conduct of the parties would not be marked by good faith and efficiency, doubtless induced the legislature to incorporate the special features in the oath to be taken. No court should question the wisdom or ignore the mandatory character of such a provision. The landowners who signed, and who did not sign, the petition were alike vitally interested in its enforcement. Judge Cooley, speaking of the imperative character of such statutory enactments, says: “Where, therefore, the commissioners for such an improvement are required to take an oath faithfully and fully to discharge their duties, and they fail to take it, or take a different onej their proceedings are illegal and void.” Cooley, Tax. 660; citing Merritt v. Port Chester, 71 N. Y. 309, which cites Cambria Street, 75 Pa. St. 357, and other'eases.

We agree, therefore, with counsel for appellant that the board was not properly constituted on account of the failure of its members to take the oath prescribed by the statute before the contract was let for building the fence.

What was the effect of this on the assessment?

This statute provides that', “within seven days from the making of the order [of assessment] mentioned in the .last section of this act, the county clerk shall publish a copy of the same in some newspaper published in the county one time, if a newspaper be published in the county; and, if not, then by posting said copy at the court house door, and posting not less than ten copies thereof in the district; and anyone who may feel aggrieved thereby may object to the assessment; and such person shall commence legal proceedings for the.purpose of trying the validity of said assessment within twenty days after the date of publication, or else he shall be forever barred in all courts of law or equity from questioning the validity of the assessment and the lien created thereby.” Sand. & H. Dig., § 1189. Defects in the proceedings that were jurisdictional and therefore fundamental and indispensable from the beginning, the legislature could not cure by a limitation statute. The landowner is entitled to his day in court as to these at any time during the progress of the proceedings to subject his property. Such jurisdictional objections, for instance, as we have been, considering, viz., that'there was no petition such as the statute requires. These the legislature could not dispense with in the first .instance, and therefore it is powerless to cure their omission. Radcliffe v. Scruggs, 46 Ark. 96.

But the failure to take the oath prescribed was not one of these prerequisites. It was not foundational. The legislature might have provided an entirely' different agency and method of getting at the cost of the improvement, and might have dispensed with the oath prescribed, or any oath whatever. Therefore, however fatal to the assessment, if raised in time, the twenty days is an effectual bar.

6. It appears that $8,668.80 was the cash value of the fence.' The fencing district did not have the cash. To enable it to procure the cash, it approved a epntract for $13,390, a sum which could be discounted for the requisite cash. The board could only pay but of the annual levies, and these could not exceed one per centum of the assessed'value, of the land within the district.

The proof showed that about one thousand dollars annually were realized from the levy. It would have taken something over twelve years to repay the loan of' $8,668.80, at 6 per cent, per annum interest. The -board recommended, and the court ordered, •an assessment of'$13,000 as the total-cost of The ■ improvement. The extra $610, it appears from the report of the board asking for the assessment, were “for surveyor’s fees and such other agents as might be needed.”

Assuming, for the purpose of considering this point, that the board was duly constituted, it did not exceed its powers in entering upon this contract. Fitzgerald v. Walker, 55 Ark. 148. For aught that appears to the contrary, it was the best and only method for having the work done. The board had authority to have the work done. No fraud is charged or shown. The $13,000, reported as the estimate of the cast, were correct, in view of the facts of which the county court was cognizant when it approved the contract by making the levy as asked for by the board.

7. Objections are made that the board did not advertise for bids, and did not form plans for the work. The statute providing that the board “may advertise for proposals for doing any work by contract.” Section 1200 is directory merely. The statute requires that the board “shall form plans for the building of a good and lawful fence and all necessary gates to enclose and protect said district, and shall procure estimates of the cost thereof.” Sand. & H. Dig., § 1182. In the report made by the board to the county court it is recited that “the board formed plans for the building of a good and lawful fence, * * * and also procured estimates of the cost thereof, which estimates approximate the sum of $13,000,” It thus appears from the report that the baord did “form plans,” and did procure an estimate of the cost, and did report the latter to the court. It is true, however, that no written plans and specifications were filed with the county court before the assessment was made.

Section 1184 provides: “As soon as said board shall have formed said plan and shall have ascertained the cost of the fencing, it shall report the same to the county court.” The proof shows that the members of the board talked over these matters with the county judge, and that he was thoroughly advised of the plans of the work. It will be noticed that the statute does not, in express terms, require a written report to be made to the county court, nor is it specific that both the plans and the estimate of the cost shall be reported. The word “same” might be construed to refer only to “the cost of the fencing.” We are disposed, however, to construe the statute as requiring a written report both of the plans and the estimated cost of the fencing to thp county court, as that construction will best safeguard the interests of the landowner.

The failure to make a written report of the plans of the work and the estimated cost thereof to the county court is one of the things that the legislature might have dispensed with, and therefore cannot avail appellant in this proceeding.

Indeed, all the objections to the validity of this assessment discussed by us in the fifth, sixth and present subdivision of this opinion relate to the methods adopted for the ascertainment of the cost of the improvement and the manner of making same. If otherwise well taken, they are nevertheless under the ban of the twenty days’ limitation. Appellant, being with the fencing district, must be treated as having had notice of them (Fitzgerald v. Walker, 55 Ark. supra), and cannot claim now to have been prejudiced thereby.

8. This brings us to consider that provision of the statute which requires the county court to “assess said cost upon the land in said district, assessing each parcel of land according to its value as shown by the last county assessment on file in the office of the county clerk.” Sand. & H. Dig., § 1184. We held in Ahern v. Board Improvement Dist. No. 3 of Texarkana, 69 Ark. 68, that an assessment according to value did not preclude an inquiry into the special benefits received by the property improved. Special assessments for local improvements find their only justification in the peculiar and special benefits which such improvements bestow upon the particular property assessed. This is generally recognized by the authorities. Cooley, Tax. § 1416; Thomas v. Gain, 35 Mich. 155; 2 Dillon, Dun Corp. (4th Ed.), § 761; Cribbs v. Benedict, 65 Ark. 555; Norwood v. Baker, 172 U. S. 269. Therefore, ,any statute which authorizes an assessment greater than the special benefit to the property would be unconstitutional.

While the statute under consideration does not in express terms limit the assessment to the amount of the benefits received, that must necessarily be understood. For the legislature was familiar with the provisions of the constitution of the United States and our own constitution, forbidding any person to be deprived of property without due process of law and without just compensation. Our statute must be interpreted as if These provisions were written in it. Therefore, while the statute permits the cost of the improvement to be assessed against the property, it must necessarily mean provided such cost does not exceed the benefits received by the improvement.

Opinion delivered December 13, 1902.

The legislature having provided for the improvement district and the manner in which such improvements shall be made and the costs thereof ascertained} when the district is constituted by the designated agents, and the costs of the.improvement are ascertained and assessed, it will be presumed that the property included in the district is benefited, and that the assessments for the costs of the improvements do not exceed the benefits- Matthews v. Kimball, 70 Ark. 451.

This presumption may, however, be rebutted by proof, when’ the action is brought, or within the twenty days allowed the party' aggrieved to call in question the validity of the assessment. Such has not been done, however, in this case.

We have discuásed the various objections raised to this statute, not because they were all necessary to the decision of this cause, but because the constitutionality of the fencing act is raised for the first time in the question of the validity of this assessment, and the settlement of the various questions now may save us much labor hereafter.

Finding no error, the judgment of the circuit court is affirmed.