Gibson v. Lower Running Water Drainage District
Decision Date | 29 January 1917 |
Docket Number | 123 |
Citation | 191 S.W. 908,127 Ark. 165 |
Parties | GIBSON v. THE LOWER RUNNING WATER DRAINAGE DISTRICT |
Court | Arkansas Supreme Court |
Appeal from Lawrence Chancery Court; Geo. T. Humphries, Chancellor reversed.
Decree reversed, and cause remanded.
The appellant pro se.
1. The pretended formation of the district and all proceedings thereunder are void for the reason that no order of the county court was made fixing the day for the hearing of the preliminary report of the engineer. Act 221, Acts 1911; 115 Ark. 165; 48 Id. 238; 51 Id. 34; 61 Id. 259; 55 Id. 30; 56 Id. 419; 14 Id. 408; 25 Id. 541; 30 Id. 719.
W. A Cunningham, for appellees.
Notice was given and published by the clerk as required by law. This was sufficient. The intention of the Legislature was thus given due effect. 36 Cyc. 1107; 86 Ark. 304. The court is not required to have anything to do with the notice until after the publication. An order or direction of the judge is sufficient. The cases cited by appellant are not in point. Here the law has been complied with.
W. E Beloate and Jno. W. and Jos. M. Stayton, amici curiae.
The county court must fix the day. 71 Ark. 226; 75 Id 420; 86 Id. 596; 89 Id. 36; 103 Id. 571. Giving notice is a condition precedent. 113 Id. 568; 124 Id. 234; 123 Id. 383; 116 Id. 361.
Appellant is the owner of land within the boundaries of a drainage district in Lawrence County known as the Lower Running Water Drainage District, and he instituted this action in the chancery court of Lawrence County to prevent the imposition of assessments on his land. The district was organized in the year 1915, pursuant to the terms of the act of May 27, 1909 (Acts of 1909, p. 829), as amended by the act of April 28, 1911 (Acts of 1911, p. 193). It is contended that the county court never acquired jurisdiction because the publication of the notice to property owners was not based on an order of the county court fixing a day for the hearing.
The act of 1911 provides that "when three or more owners of real property within a proposed district shall petition the county court to establish a drainage district to embrace their property, describing generally the region which it is intended shall be embraced within the district, * * * it shall be the duty of the county court to enter upon its records an order appointing an engineer to be selected by the petitioners;" that "said engineer shall forthwith proceed to make a survey and ascertain the limits of the region which would be benefited by the proposed system of drainage; and such engineer shall file with the county clerk a report showing the territory which will be benefited by the proposed improvement, and giving a general idea of its character and expense, and making such suggestions as to the size of the drainage ditches, and their location as he may deem advisable." The statute then further provides as follows:
It is undisputed that the clerk of the county court gave the notice prescribed in the statute just quoted, and that the court convened on the day named in the notice and made an order establishing the district, but it is also undisputed that the county court did not make an order fixing the day for the hearing. It is contended on behalf of appellant that the notice must be given on the day previously fixed by the county court, and that the jurisdiction of the court to make an order organizing the district is dependent upon such previous order of the court fixing the day of hearing and the notice published pursuant to that order.
We are of the opinion that the argument of appellant is well founded, and that the order of the county court establishing the district was void for lack of jurisdiction. It will be observed upon a consideration of the statute that the proceedings are entirely ex parte until the notice is published and the owners of property in the district are thus given an opportunity to be heard. The order of the court fixing the day and the publication of the notice is necessary in order to give jurisdiction to hear and determine the question of advisability of the organization of the district. It is perfectly clear from the language of the statute that the day for the hearing must be fixed before the clerk is authorized to publish the notice, because the notice...
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Gibson v. Lower Running Water Drainage Dist.
... ... 908 ... LOWER RUNNING WATER DRAINAGE DIST. et al ... (No. 123.) ... Supreme Court of Arkansas ... January 29, 1917 ... Appeal from Lawrence Chancery Court; Geo. T. Humphries, Chancellor ... Action by H. K. Gibson against the Lower Running Water Drainage District and others. Decree for defendants, and plaintiff appeals. Reversed and remanded, with directions ... Appellant, pro se. W. A. Cunningham, of Walnut Ridge, for appellees ... McCULLOCH, C. J ... Appellant is the owner of land within the boundaries of ... ...