Stiewel v. Fencing Board of Fencing Dist. No. 6

• Decision Date: 16 July 1902
• Parties: STIEWEL v. FENCING BOARD OF FENCING DIST. NO. 6, JOHNSON COUNTY.
• Court: Arkansas Supreme Court

70 S.W. 308

STIEWEL v. FENCING BOARD OF FENCING DIST. NO. 6, JOHNSON COUNTY.

Supreme Court of Arkansas.

July 16, 1902.

Appeal from circuit court, Johnson county; Wm. L. Moose, Judge.

Action by the fencing board of fencing district No. 6, Johnson county, Ark., against Abraham Stiewel to enforce an assessment for the building of a district fence. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

P. C. Dooley, for appellant. J. E. Cravens, for appellee.

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 necessary 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 v. Nelson, 57 Wis. 147, 15 N. W. 14. But see, on the burden of proof, section 1193, Sand. & H. Dig., and Kansas City, P. & G. Ry. Co. v. Waterworks Imp. Dist. No. 1 of Siloam Springs, 68 Ark. 376, 59 S. W. 248. 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 Little Rock & Ft. 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 Col. Cravens, should have been taxed. We held in Railway Co. v. Huggins, 64 Ark. 432, 43 S. W. 145, 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 Dist., 56 Ark. 354, 19 S. W. 969, 16 L. R. A. 418, 35 Am. St. Rep. 108, 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 of Siloam Springs, 68 Ark. 376, 59 S. W. 248. 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 county 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, the court says: "It is also urged that the assessment is void for the reason that the right of way and franchise of Indianapolis, Bloomington & Western Railway 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, for the first time on the application for judgment against the land assessed, must be held conclusive in the absence of fraud." 106 Ill. 376. We do not go so far. But we do hold that the establishment of the fencing district on the petition of the landowners, 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 on 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 without 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 Sec. 32, T. 10 N., R. 24 W., 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 Sec. 32, T. 10 N., R. 24 W., 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, Sand. & H. Dig.) requires each member of the board to take the oath of office prescribed by ...