Collier v. Board of Directors , 106 Ark. 151 ( 1913 )

McCulloch, C. J.

Appellant, a citizen and land owner of Jefferson County, Arkansas, presented to the circuit court of Jefferson County, his petition for a writ of certiorari to bring np and qnasb tbe proceedings of tbe Board of Directors of the Jefferson County Bridge District finding and declaring that tbe petition for improvement bad been signed by a majority, as prescribed by tbe terms of tbe statute authorizing the improvement named. Tbe improvement district for tbe purpose of constructing a bridge across tbe Arkansas Biver at or near Pine Bluff, was created by-a special act of the General Assembly of 1911. Tbe purposes of the act and tbe proceedings to be bad thereunder aré set forth in tbe recent case of Board of Improvement of Jefferson County Bridge District v. Collier, 104 Ark. 425, 149 S. W. 66. Tbe act is almost identical with tbe act creating tbe Port Smith and Van Burén Bridge District, set forth in tbe case of Shibley v. Fort Smith & Van Buren Bridge District, 96 Ark. 410, 132 S. W. 444. The statute was sufficiently set forth in tbe opinion in those cases and need not be repeated here.

Tbe present proceeding was instituted in tbe circuit court for a review of tbe findings of the board of directors in declaring a majority in favor of tbe improvement. Tbe circuit court sustained a demurrer to tbe petition for certiorari, and entered final judgment dismissing tbe petition, from which judgment an appeal has been prosecuted to this court.

Tbe statute provides, in substance, that, after tbe organization of tbe board of directors, public notice of tbe passage of tbe statute should be given, a day set for bearing petitions, and that “if at said bearing tbe board of directors shall find that tbe petition or petitions are not signed by a majority * * * of tbe holders of real property within tbe district, as shown by tbe last county assessment, they shall so declare and such findings shall terminate all proceedings under this act;” but that “if said board shall find that said petition, or petitions, are signed by a majority * * * of tbe holders of real property within the district, as shown by tbe last county assessment, they shall so declare and shall proceed to carry out tbe purposes of this act.”

So far as relates to tbe question now presented, this statute is almost identical in language with the Fort Smith and Yan Burén bridge statute.

In the above cited case, in disposing of the controversy concerning that act, we said:

“In the statute creating this district, the Legislature has not seen fit to make the power to proceed depend .upon obtaining the consent of a majority of the property owners, but upon the ascertainment and declaration of the commissioners that the petition has been signed by a majority in value of the property owners. The power of the Legislature to directly put the district into operation, without obtaining the consent of the property owners, embraces the power to put it into operation by the ascertainment and declaration of the commissioners, at least where there is a provision for a public hearing before the commissioners on the question. * * # Moreover, it is a well settled principle of law that where the Legislature has erected a tribunal for the purpose of ascertaining and declaring the result of an election upon any subject, the decision of such tribunal is conclusive, and can not be reviewed by the courts.”

The plain effect of that decision was to hold that the finding of the board, as a special tribunal created by the Legislature for that purpose, must be accepted as conclusive, and is not reviewable by the courts. That is to say, not reviewable by superior courts in the exercise of appellate or supervisory control over inferior tribunals.

The effort in this case is not to attack the proceedings of the board as void on the face thereof, but appellant seeks a review of the proceedings under the circuit court’s supervisory power over the judgments and proceedings of inferior tribunals; in other words, to substitute the writ of certiorari for an appeal, and in that manner obtain a review of the alleged erroneous findings of the board.

If we adhere to our decision in the Shibley case, supra, that the finding of the board must be accepted as conclusive, then there can be no review by the circuit court on appeal or any substitute for appeal. If the finding must be treated as conclusive, that is the end of it so far as the machinery of the law is concerned, for the courts can not supply a provision for review where the lawmakers have said there shall be none.

But it does not follow that the land owners have no remedy against fraud practiced by the board in making a false declaration of the will of the majority of the land owners of the district. Fraud vitiates any proceeding or transaction, from the judgment of the highest court of the land down to the smallest transaction between individuals, and there is a remedy to purge the fraud. The court of equity is the proper forum for such relief unless the same is otherwise provided by statute. The act creating the district makes conclusive the finding of the board of directors as to a majority petitioning for the improvement; but no intention is attributable to the lawmakers to give a conclusive effect, beyond the remedial power of the court of equity, to a false finding fraudulently announced by the board.

It is contended by learned counsel for appellee that the land owner can not complain of a fraudulent finding of the board unless the assessments subsequently levied on his property exceed the benefits derived from the improvement. That contention is unsound. It is true that the Legislature has the power to lay off an improvement district without giving the property owners an opportunity to be heard. Shibley v. Fort Smith & Van Buren Bridge District, supra; Fallbrook Irrigation District v. Bradley, 164 U. S. 112. But the property owner has the right to insist, whether his assessments exceed the benefits or not, that they fall within the authority of law and that the power to levy assessments has been duly conferred by the lawmakers. The condition prescribed by the statute now before us upon which assessments may be levied, is that the board of directors must first find that a majority of the property owners have petitioned for the improvement, and each property owner can stand upon his right to resist the collection of assessments unless that condition has been complied with. A fraudulent finding by the board, when ascertained by a court of competent jurisdiction to be fraudulent, is equivalent to no finding at all, and is not a compliance with the prescribed condition, for the statute contemplates a finding honestly made by the board, and not wilfully fraudulent. Hence, a property owner should be allowed to call in question, on the ground of fraud, a finding of the board of directors. Certiorari is not the proper remedy, for the reason that the findings of the board is to be conclusive in the absence of fraud, and no supervisory power is given to any court. Chancery is the proper forum, and affords the only remedy, because it can and will relieve against fraud.

If the allegations of the petition were sufficient the circuit court should have transferred the cause to equity, instead of sustaining the demurrer to the complaint. Newman v. Mountain Path Land Co., 85 Ark. 208. We are of the opinion, however, that the petition does not state facts sufficient to make out such a charge of fraud against the board of directors as will warrant setting aside the findings. Fraud which will vitiate the proceedings of the board does not mean errors of the board either of law or fact. In order to constitute fraud there must have been an intent not to exercise an honest judgment and make a true finding, but to disregard the facts and make a false finding. This is not alleged in the petition. Taking the allegations as a whole, they amount only to a charge of error on the part of the board in refusing to hear and consider protests and evidence affecting the question at issue and that the petition was not, in fact, signed by a majority of the property owners. The statute does not provide any method of procedure for the board, and the board had the right to inquire into the facts in its own way.

Fraud is never presumed, but must be specifically charged before a court of equity wall start an inquiry.

Our conclusion, therefore, is that the circuit court was correct in sustaining the demurrer, though the reasons given therefor are not sound. Affirmed.

Wood, J., concurs.