Barnes v. Board of Supervisors

BURNETT, J.

This is a proceeding to review the action of the board of supervisors of Colusa county culminating in the establishment of what is known as “the Boggs Protection District.”

It is conceded that the warrant for the board’s proceedings in the premises is found in the act of the legislature approved March 27, 1895 (Stats. 1895, p. 247), entitled “An act to provide for the formation of protection districts in the various counties of this state, for the improvement and rectification of the channels of innavigable streams and watercourses, for the prevention of the overflow thereof by widening, deepening and strengthening and otherwise improving the same, and to authorize the boards of supervisors to levy and collect assessments from the property benefited to pay the expenses of the same,” and as amended in 1909. (Stats. 1909,, p. 807.)

Petitioner bases his request and contention for an annulment of the proceedings of the board creating said district upon the grounds: 1. The board of supervisors had no jurisdiction of the subject matter, for the reason that there was no proof that the petition for the organization of the district was signed by ten property holders as required by the statute;, 2. The board proceeded to establish the district without any proof that the notice of intention had been published as required by law; and 3. That the act itself providing for these protection districts is unconstitutional, and therefore void.

The first contention of petitioner is supported—so it is claimed—by the testimony of W. J. King, the county clerk, who testified in this court that he was not present at the meet

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ings of the said board of supervisors when the petition for the formation of the district and the resolution of intention “was up before the board, but after that, at all sessions, I was.’-’ When the objections of Mr. Barnes were heard the witness was present and he declared as to what occurred: “My remembrance of it is that Mr. Weyand, on behalf of Mr. Barnes, objected or began talking to the board in regard to it, that there were not property owners that had signed the petition, and Mr. Freeman answered him that the question had been settled when the resolution of intention was published by the board; that that question had previously been settled; and the board proceeded with the other business of the formation of the protection district immediately after that without any further consideration. I do not remember of any testimony on the subject of the ownership of the land. The statements of attorney Weyand and attorney Freeman were all I remember.” It is to be observed that the witness is somewhat uncertain as to what occurred. No doubt, however, he details the transaction as he remembers it and, probably, as it took place. We may, indeed, accept his testimony as sufficient to overcome the finding of the board of supervisors that “said petition having conformed to all requirements of the law, and being signed by the proper number of property holders of the district and land owners,” and yet this effect must be limited to the particular time concerning which the county clerk testified. We must presume that when the petition was filed the board required and received evidence as to the genuineness of the signatures, and that the signers were “property holders of the district.” The presumption that the supervisors did their duty in that regard and the finding that the petition was signed by “the- proper number of property holders” must certainly prevail in the absence of any evidence to the contrary. It is not denied that the burden in this proceeding is upon the petitioner to show that the board of supervisors had no jurisdiction to form said district, and it would be singular if the board required no proof as to the signatures, before passing a resolution of intention to organize the district. To require such proof is the natural order of procedure contemplated by the statute. And there seems no reason why the evidence should be repeated at the time of the hearing of the objections of the property owners, if any, to said work or