Stiewel v. Fencing District No. 6 of Johnson County

• Decision Date: 16 July 1902
• Citation: 70 S.W. 308,71 Ark. 17
• Parties: STIEWEL v. FENCING DISTRICT NO. 6 OF JOHNSON COUNTY
• Court: Arkansas Supreme Court

70 S.W. 308

71 Ark. 17

STIEWEL v. FENCING DISTRICT NO. 6 OF JOHNSON COUNTY

Supreme Court of Arkansas

July 16, 1902

Appeal from Johnson Circuit Court in Chancery WM. L. MOOSE, Judge.

Affirmed.

Judgment affirmed.

P. C Dooley, for appellant.

Appellee had no power to maintain this action. Art. 19, § 27 Const. The consent of the property owners to establish a district and levy a tax must be given in the manner prescribed by law. Sand. & H. Dig., § 1176; 50 Ark. 125; 108 N.Y. 373; 2 Dill. Mun. Corp 769; 59 Ark. 358; Beach, Pub Corp. § 1180; 117 U.S. 683; 71 N.Y. 309; 108 N.Y. 373; 1 Dill. Mun. Corp. § 457. The failure to obtain the consent of a majority of the owners renders all proceedings void. 10 Col. 122; 145 Ill. 80; 58 Cal. 206; 28 Ark. 360; 31 P. 474; 11 Md. 186; 15 Mr. 18. The power to tax is the strongest of government. 20 Wall. 265; 4 Wheat. 431; 42 Ark 87. The tax is void because same is not uniform and equal. Const., art. 16, § 6; Const. U.S. amendment 1. This act is confiscation. 35 Ark. 420; 95 U.S. 294; 50 Cal. 388; 48 Ark. 382, 51 Pa.St. 9; 25 Ark. 289; 32 Ark. 31; 34 Cal. 432; 43 Cal. 331; 19 W.Va. 408; 5 Ohio St. 589. The power to exempt land benefitted from taxation is an absurdity. 57 Ark. 555; 55 Ark. Cooley, Tax. 162-178; Desty, Tax. 1138; Cooley, Tax. 428; 69 Pa.St. 145; 44 Vt. 174; 21 Ark. 40; Cooley, Tax. 661. There can be no justification for proceedings which charge the land with an assessment greater than the benefits. Cooley, Tax. 147; Desty, Tax. 121-146; 53 Miss. 246; 172 U.S. 269; 65 Ark. 343; 68 Ark. 377; 172 U.S. 269. The district as formed does not conform with that asked by the land-owners. Sand. & H. Dig., § 1176; 71 N.Y. 309; 117 U.S. 683. The tax cannot be enforced because appellant's property was not benefitted by it. Cooley, Tax. 416, 417; 48 Ark. 382; 117 U.S. 683; 172 U.S. 269; 3 Ia. 82. There was no legal fencing board when the tax was created, and the property could not bound. Sand. & H. Dig., § 1178; 21 Ark. 284; 52 Ark. 511. The board proceeded without authority. 50 Ark. 131; 134 U.S. 632; 10 Col. 129; 32 Ill. 193; 59 Cal. 233; 59 Ark. 362; 58 Ark. 276; 30 Ark. 131; 48 Ark. 251. Special improvement district statutes must be strictly construed. 67 Ark. 42; 48 Ark. 451; 55 Ark. 562; 58 Ark. 181; 59 Ark. 483; 64 Ark. 439; 56 Ark. 419; 11 Ark. 157; Vanfleet, Col. Att. § 165; 69 N.Y. 242; 2 Brad. & B. 691; 47 Ark. 445. Want of jurisdiction may be shown. 18 Wall. 464; 7 Sawyer, 401; 9 F. 245.

J. E. Cravens, for appellee.

The board was legally formed, and proceeded with authority. Sand. & H. Dgi., §§ 1178-79; 3 Am. St. 176; 74 Ga. 416; 38 Conn. 449; 95 Ill. 593; 5 Am. & Eng. Enc. Law, 96; 49 Ark. 442; 55 Ark. 81; 43 Ark. 243; 52 Ark. 213; 55 Ark. 200. No jurisdiction being clear, the question need not be raised. 45 Ark. 346; 62 Ark. 439. The correctness of county court's judgment will be presumed. 50 Ark. 181; 55 Ark. 275; 56 Ark. 354; 64 Ark. 432. The deviations complained of were slight. 64 Ark. 555. The board was not required to report its plans to the county court. Sand. & H. Dig., §§ 1102, 1184, 1118. All irregularities are barred. Sand. & H. Dig., §§ 5335, 5336, 5322,1189; 52 Ark. 213; 67 Ark. 30; 30 Ark. 101.

OPINION

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 did not have it. State ex rel., etc., 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 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 Little 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, 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 District, 56 Ark. 354, 19 S.W. 969, 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 benefitted, 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 to be taxed under the law, and to have omitted the latter because it was not benefitted. 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 benefitted, there is no proof that any of the property within the district omitted from assessment it benefited. If its inclusion by the petitioners and the county court raised the primary presumption that it was benefitted 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: "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, 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 without injury to the owners."

It...