Henderson v. Dearing

• Decision Date: 22 March 1909
• Parties: HENDERSON v. DEARING
• Court: Arkansas Supreme Court

117 S.W. 1066

89 Ark. 598

HENDERSON v. DEARING

Supreme Court of Arkansas

March 22, 1909

Appeal from Independent Circuit Court; Frederick D. Fulkerson Judge; reversed.

Judgment reversed and cause remanded.

S. A Moore and McCaleb & Reeder, for appellants.

1. The only issue is whether the act of April 13, 1907, enlarges or changes the boundaries of the district created by act of March 11, 1891. One section of an act can be amended so as to leave the remainder of the act in force without repeating and re-enacting every other section. Lewis' Sutherland, Stat Const. § 231; 69 Ark. 376; 65 Id. 529; 71 Id. 556; 35 Id. 56, 60; 94 S.W. 610.

2. Though the act of 1907 failed to refer in express terms to the act of 1891, or to any other act, in so far as the provisions of the latter act were in conflict with or repugnant to the terms of the former, the former is amended to that extent. 52 Ark. 329; 47 Id. 481; 60 Id. 349; 59 Id. 54; 64 Id. 469; 58 Id. 407; 64 Id. 95; 49 Id. 131; 77 Id. 383.

3. The act should be construed and enforced with all other laws on the same subject. 35 Ark. 56, 61; 76 Id. 309; 55 Id. 389; 58 Id. 151; 73 Id. 600. See, also, 77 Ark. 383; 85 Id. 228.

Ernest Neill and Rose, Hemingway, Cantrell & Loughborough, for appellee.

1. The act of 1907 imposes no duties on assessors. It amends the act of 1893, not that of 1891.

2. Without the consent of the landowners, a majority in value, no levy can be made. Local assessments are based on benefits alone. In this case no conceivable benefit inures to the owners of lands within the original fence. 1 Page & Jones on Taxation by Assessment, § 118; 71 Ark. 27; 133 N.C. 526.

OPINION

BATTLE, J.

Section one of an act entitled "An act to authorize the enclosing of certain lands on White River in Independence County and for other purposes," approved March 11, 1891, authorized the owner of lands within certain boundaries to enclose the same with one continuous fence.

Sections 2, 3, 7 and 9 of the same act are as follows:

"Section 2. That it shall be the duty of the respective owners of said lands to erect or cause to be erected so much of said fence as would be in proportion to the value of the lands owned by each person within said inclosure, said value to be determined from the assessment of said lands by the county assessor.

"Section 3. That for the purpose of ascertaining what amount of fencing each of such landowners will be required to do, and for the purpose of keeping up said fence, they shall elect on the first Saturday in January of each alternate year three of their number a board of assessors, who shall first take an oath to faithfully perform their duties without prejudice or favor and apportion to said landowners the amount of fencing that would fall to his or her share as provided in section two of this act; provided, that for the year 1891 J. J. Waldrip, F. M. Martin and Albert Arnold shall constitute said board of assessors and hold their offices until the first Saturday in January, 1892, or until their successors are elected and qualified."

"Section 7. That, should any owner of land within said territory fail or refuse to do the amount of fencing provided for in section three [3] of this act, then any other person interested in said inclosure may proceed to do said fencing, and when done have the same valued by appraisers, and if said person who failed or refused to do said fencing shall refuse or fail on demand to pay for said fencing, then said person or persons who shall have done said fencing shall recover against recusant before any court of competent jurisdiction judgment for the amount of the award of the appraisers, together with 50 per centum penalty for refusing to pay said award, and all costs of suit, and said judgment shall become and operate as a lien on the lands lying within said inclosure so fenced, and may be enforced as mechanics' liens are now enforced by law."

"Section 9. The entire fence provided for in this act, when completed, shall be examined and approved by the board of assessors, and if any part thereof is not a lawful or a sufficient fence said board shall have power to condemn the same and to require the person whose duty it was to construct the same originally to reconstruct that part of said fence properly and to make the same a sufficient and lawful fence."

Section one of an act entitled "An act to amend an act entitled 'An act to authorize the inclosing of certain lands on White River, in Independence County, and for other purposes,' approved March 11, 1891," approved March 13, 1893, amends section one of the act of March 11, 1891, changing the boundaries of the fencing district by adding other lands, and authorizing the owners of the lands within the boundaries to inclose the same with one continuous fence.

Section one of an act entitled "An act to amend an act to authorize the enclosing of certain lands on White River, in Independence County, and for other purposes, approved March 13, 1893," approved May 8, 1899, amended section one of the last mentioned act in the same manner.

Section one of an act entitled "An act to amend an act entitled 'An act to authorize the enclosing of certain lands on White River, in Independence County, and for other purposes,' approved March 13, 1893, and amended May 8, 1899," approved April 13, 1907, amended section one of the last mentioned act so as to read as follows: "That the owners of lands lying on and near White River, in Independence County, Arkansas, and within the following described boundaries and limits, towit: [here follows description of lands] be and they are hereby authorized to inclose said land with one continuous fence, provided, that the Black River and the White River boundaries of said lands shall be in lieu of any fence, except at the option of the owners of said lands fronting on said river," etc.

On the 11th of October, 1907, A. A. Henderson and eleven others filed in the Independence Circuit Court a petition for a writ of mandamus against T. H. Dearing, W. J. Waldrip and E. R. Moore, as the board of assessors of the aforementioned fencing district, requiring them to ascertain the amount of fencing required by the foregoing acts to be built by each landowner in the district and to do such other and further acts and things as are required of them as such board of assessors by said acts.

The defendants answered as follows: "Defendants further say that the act of March 11, 1891, creating the fencing district in Big Bottom Township, contained certain provisions for the construction of a fence around the lands embraced in such district and creating a board of assessors, and that the defendants herein held their office as such board of assessors under and by virtue of the provisions of such act, but that the Legislature of 1893, by its act approved March 13, 1893, simply amended certain sections of the former act of 1891, without re-enacting the entire statute, and which amended sections in no wise related to the duty of the board of assessors as to constructing any fence or performing any of the duties sought to be imposed upon these defendants by plaintiffs, and that the said act of 1893 contains no provisions under which a fence could be built.

"That the said act of May 8, 1899, expressly amended section one of the said act of 1893 by enlarging the territory embraced in said fencing district, but was not amendatory to the act of March 11, 1891, and in no wise related or referred to it; nor did said act of 1899 make any provision for constructing any fence, or impose upon the board of assessors any of the...