Drainage District No. 9 of Miller County v. Merchants' & Planters' Bank

• Decision Date: 20 February 1928
• Docket Number: 226
• Citation: 2 S.W.2d 1079,176 Ark. 474
• Parties: DRAINAGE DISTRICT NO. 9 OF MILLER COUNTY v. MERCHANTS' & PLANTERS' BANK
• Court: Arkansas Supreme Court

2 S.W.2d 1079

176 Ark. 474

DRAINAGE DISTRICT NO. 9 OF MILLER COUNTY v. MERCHANTS' & PLANTERS' BANK

No. 226

Supreme Court of Arkansas

February 20, 1928

Appeal from Miller Circuit Court; J. H. McCollum, Judge; reversed.

Judgment reversed and remanded.

B. E Carter and J. D. Head, for appellant.

Henry Moore, Jr., for appellee.

OPINION

MCHANEY, J.

Appellant Drainage DistrictNo. 9, Miller County, Arkansas, was organized under the provisions of §§ 3607 et seq. of C. & M. Digest, and was begun by petition filed in Miller County Court on August 16, 1927.The procedure provided by statute having been complied with, the court, on August 17, 1927, made an order fixing September 3 thereafter as the day on which the court would hear said petition, and directed the clerk to give notice, calling upon the property owners to appear at such hearing and show cause for or against the establishment of the district.The clerk complied with the order of the court by publishing such a notice in the Texarkana Evening News, a newspaper actually printed in the State of Texas, about one-half block across the State line from the Arkansas side, but which carried a Texarkana, Arkansas, headline and dating, and the whole issue of such newspaper, after being so printed in Texas, was actually carted to the office of the Texarkana Evening News on the Arkansas side of the State line, and about one-half block therefrom, and there, for the first time, released and distributed to the public, both by newsboys and by mail.

On the day so appointed for the hearing a majority petition was filed, and the court made an order establishing the district and appointing commissioners, in which it found that the clerk "has given due notice by publication for more than two weeks in the Texarkana Evening News, a newspaper published and having a general circulation in Miller County, Arkansas," etc.Thereafter the commissioners appointed by the court filed their assessment of benefits, and the court fixed October 3, 1927, for a hearing thereon, and the clerk was again directed to publish a notice of this hearing.The notice thereof was published in the same newspaper.On October 1the appellee, being a property owner in the district, filed its protest against the assessment, on the ground that the assessment of benefits was void, for the reason, as alleged, that no notice had been given by the clerk to property owners of the date fixed by the court to show cause for or against the establishment of the district "by any publication in a newspaper published in and having a general circulation in Miller County, and no notice has been given as required by law of the assessment of benefits by publication for two weeks in any weekly newspaper published and issued and having a general circulation in Miller County, Arkansas."

On October 3, the date set for the hearing, the court entered an order finding "that the Texarkana Evening News is run through the presses and printed in Texarkana, Texas, and is thereafter brought in bulk to the office of said paper at 217 Vine Street, in Texarkana, Miller County, Arkansas, and is there distributed to newspaper boys for sale on the street and to carriers for delivery to subscribers.The court finds that said newspaper is not published in Miller County, Arkansas, that no other notice of said hearing was given, and that said order establishing said district is void."

From that order appellant took an appeal to the circuit court, where, on December 15, 1927, it made a finding substantially in the same language as the finding of the county court, and in addition that "said paper has a bona fide circulation in Miller County, and there is no other paper which purports to be published or issued in said county."And entered an order confirming the judgment of the county court, from which the drainage district has appealed to this court.

The only question we find it necessary to decide in this case is whether the above notices were published in compliance with the statute.If so, then the district was legally organized, and notice of the assessment of benefits was properly given, otherwise the judgment of the circuit court is correct.

That part of § 3607, C. & M. Digest, relating to the publication of a notice to the property owners in the establishment of the district, reads as follows: "The county clerk shall thereupon give notice by publication for two weeks in some newspaper published and having a general circulation in the county, calling upon all persons owning property within said district to appear before the court on some day to be fixed by the court, to show cause in favor of or against the establishment of said district."

And that part of § 3615 relating to the notice to be given by the clerk on the filing of the assessment of benefits reads as follows: "Upon the filing of said assessment the county clerk shall give notice of the fact by publication two weeks in some weekly newspaper issued in each of the counties in which the lands of the district may lie."

The act of May 8, 1899, brought forward in the Digest as § 6807 under the head of "Legal Notices and Advertisements," reads as follows:

"All advertisements and orders of publication required by law or order of any court, or in conformity with any deed of trust, or real estate mortgage, or chattel mortgage, where the amount therein received exceeds the sum of $ 350, or power of attorney or administrators' notices to be made, shall be published in some newspaper published and having a bona fide circulation in the county in which the proceedings are had, to which such advertisement or order of publication shall pertain; if there be no newspaper published in such county, then by posting five written or printed notices in five of the most public places in such county; provided, the provisions of this act shall not apply to sales under executions issued by justices of the peace; and provided further, that, as to amounts under $ 350, notices, written or printed, may be posted in five conspicuous places in the county, and notice shall be served in all cases upon the debtor as summons are now served."

It will be noted in none of the statutes above quoted that the word "printed" is anywhere used therein so as to require such notices to be "printed" and "published" in the county.In the first statute quoted, § 3607, the notice is required to be given by publication "in some newspaper published and having a general circulation in the county."The next section quoted, § 3615, is that the publication shall be in some newspaper "issued" in the county, and that the general statute pertaining to...