Collier v. Board of Directors of Jefferson County Bridge District

• Decision Date: 13 January 1913
• Citation: 153 S.W. 259,106 Ark. 151
• Parties: COLLIER v. BOARD OF DIRECTORS OF JEFFERSON COUNTY BRIDGE DISTRICT
• Court: Arkansas Supreme Court

153 S.W. 259

106 Ark. 151

COLLIER v. BOARD OF DIRECTORS OF JEFFERSON COUNTY BRIDGE DISTRICT

Supreme Court of Arkansas

January 13, 1913

Appeal from Jefferson Circuit Court; Antonio B. Grace, Judge affirmed.

Affirmed.

Asa C Gracie, Carmichael, Brooks & Powers, for appellant.

1. 96 Ark. 424 and 149 S.W. 66 are not conclusive of this case. As no appeal is allowed by the act, certiorari is the only remedy. 52 Ark. 220, Kirby's Dig., § 1315; 25 Ark 476; 14 Id. 337; 20 Id. 581; 21. Id. 265; 80 Id. 200.

2. The findings of the board are conclusive only on collateral attack. 96 Ark. 424; 32 Id. 553; 55 P. 156; 27 A. 166.

3. The board is an "inferior tribunal;" its acts are "quasi-judicial" only; and its acts are reviewable on certiorari. 16 Cal. 298; 70 Ark. 568, 589; 6 Cyc. 770; 61 Ark. 605; 62 Id. 196-201; 70 Id. 568-589; 96 Id. 410; 78 Id. 432; 198 U.S. 253.

Danaher & Danaher and Coleman & Gantt, for appellee.

1. The finding of the board is not reviewable. 149 S.W. 66; 104 Ark. 425; 96 Ark. 424; 59 Id. 513.

2. The demurrer was properly sustained, no cause of action being stated. 33 Ark. 117; 35 Id. 95; 73 Id. 604.

3. No fraud is alleged except argumentatively. 90 Ark. 29.

4. Where the Legislature has created a tribunal to ascertain and declare a certain result, and no provision for an appeal is given, the action of such tribunal is final. 96 Ark. 424; 170 U.S. 304; 164 Id. 112.

5. Certiorari does not lie, where the action of a board is purely legislative, executive or administrative, although its action involves the exercise of discretion. 62 Ark. 196; 70 Id. 568, 99 U.S. 761; 80 N.W. 942; 29 N.W. 77; 89 Ark. 604.

MCCULLOCH, C. J. WOOD, J., concurs. SMITH, J. dissents.

OPINION

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 up and quash the proceedings of the Board of Directors of the Jefferson County Bridge District finding and declaring that the petition for improvement had been signed by a majority, as prescribed by the terms of the statute authorizing the improvement named. The improvement district for the purpose of constructing a bridge across the Arkansas River at or near Pine Bluff, was created by a special act of the General Assembly of 1911. The purposes of the act and the proceedings to be had thereunder are set forth in the recent case of Board of Improvement of Jefferson County Bridge District v. Collier, 104 Ark. 425, 149 S.W. 66. The act is almost identical with the act creating the Fort Smith and Van Buren Bridge District, set forth in the case of Shibley v. Fort Smith & Van Buren Bridge District, 96 Ark. 410, 132 S.W. 444. The statute was sufficiently set forth in the opinion in those cases and need not be repeated here.

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

The statute provides, in substance, that, after the organization of the board of directors, public notice of the passage of the statute should be given, a day set for hearing petitions, and that "if at said hearing the board of directors shall find that the petition or petitions are not signed by a majority * * * of the holders of real property within the district, as shown by the 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 the holders of real property within the district, as shown by the last county assessment, they shall so declare and shall proceed to carry out the purposes of this act."

So far as relates to the question now presented, this statute is almost identical in language with the Fort Smith and Van Buren 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...