Grassy Slough Drainage District No. 1 v. National Box Co.

• Court: Arkansas Supreme Court
• Writing for the Court: MCCULLOCH, C. J.
• Citation: Grassy Slough Drainage District No. 1 v. National Box Co., 163 S.W. 512, 111 Ark. 144 (Ark. 1914)
• Decision Date: 26 January 1914
• Parties: GRASSY SLOUGH DRAINAGE DISTRICT NO. 1 v. NATIONAL BOX COMPANY

163 S.W. 512

111 Ark. 144

GRASSY SLOUGH DRAINAGE DISTRICT NO. 1 v. NATIONAL BOX COMPANY

Supreme Court of Arkansas

January 26, 1914

Appeal from Greene Circuit Court; Frank Smith, Judge; affirmed.

Judgment affirmed.

Johnson & Burr, for appellant.

1. The Turner act does not authorize an original proceeding in the circuit court to establish a drainage district, nor to change an old district formed under the prior general statute to the operation of said Turner act. Acts 1909, No. 279 §§ 1-34; Kirby's Dig., § 1414 et seq 1438.

2. The ex parte petition should have been dismissed. The adjournment of court to a day certain, after the term has commenced, is simply a continuation or prolongation of the term adjourned. 1 A. & E. Enc. L. & Prac. 1207, 65 Ark. 404.

M. P Huddleston, Block & Kirsch, for appellees.

1. The Turner act as amended confers jurisdiction on the circuit court. Act 279, Acts 1909, §§ 1-34; Kirby's Dig., §§ 1414 to 1454.

2. Under § 34, Acts 1909, a petition can be presented at any time the court is in session. The court had the right to make an order of publication on any day of the regular term, or any adjourned day of the term. 1 A. & E. Enc. L. & Pr. 1207; 65 Ark. 404.

MCCULLOCH, C. J., SMTH, J., not participating.

OPINION

MCCULLOCH, C. J.

A drainage district, embracing lands in Greene and Clay counties, was organized under the general statutes of the State (Kirby's Digest, §§ 1414 to 1450), the county courts of each of said counties making co-operating orders in the manner prescribed by the statutes for the purpose of effectuating said organization. Assessments were levied and the sale of bonds authorized and contract let for the construction of the contemplated improvement.

The General Assembly of 1909 enacted a statute (act of May 27, 1909), commonly known as the Turner Act, providing for an additional scheme, without amending the old law on the subject, for organizing and operating drainage districts. The plan provided for was in the alternative, giving the petitioning land owners the option to proceed under the former general statutes or under the new act.

This statute was amended in 1911, and the act as thus amended is the controlling one in this proceeding. Public Acts 1911, page 193, Act No. 221.

The first section of the Turner Act, as amended by the Act of 1911, contains the following provisions with reference to districts formed out of lands in more than one county:

"If land in more than one county is embraced in the proposed district the application shall be addressed to the circuit court of either county, and all proceedings shall be had in such circuit court. And the circuit court shall apportion all costs between the county or counties in the proportion of the benefits assessed to each county; and such expenses as are incurred prior to the time when such assessment is made, shall be apportioned between the counties in the proportion which the circuit court shall deem to be just and equitable. Whenever the words 'county court' or 'county judge' are used in this act, they shall be construed to mean 'circuit court' or 'circuit judge,' and the words 'county clerk' to mean 'circuit clerk,' in cases where the district contains lands in more than one county. All notices in that event shall be published in newspapers published and having a bona fide circulation in each county in which the district embraces lands. All of such districts shall be numbered consecutively or else shall receive names selected by the county court. If the county court does not act promptly in complying with the terms of this section, or of any other section of this act essential to the creation and operation of the district, it may be compelled to do so by mandamus."

Section 34 of the Turner Act, as amended by the Act of 1911, contains the following provision:

"Any district which has heretofore been organized or which may be hereafter organized under the existing statutes, may become a drainage district under the terms of this act, as follows: If three owners of real property within any such district shall petition the county court to constitute them a drainage district under the terms hereof, the county court shall give notice of the application by two weeks publication in some newspaper published and having a bona fide circulation in the county, and of a time when said petition will be heard. All owners of real property within the district shall have the right to appear and contest the said petition, or to support the same. The county court shall hear the evidence and shall either grant the petition or deny the same, as it deems most advantageous to the property owners of the district, and if it grants the petition the said district shall have all the rights and powers and be subject to all the obligations provided by the terms of this act; provided, however, that if the majority of the land owners of the district, or the owners of a majority of the acreage therein, petition for the adoption of this act, the county court must make an order declaring that such district shall henceforth be governed by the terms of this act, and shall appoint commissioners of his own selection, who shall carry into effect, without delay, the proposed drainage improvement."

Appellee and other owners of property within the district instituted this proceeding in the county court pursuant to the terms of the statute just quoted, to change the proceedings from the old statute and to bring them within the operation of the Turner Act, as amended. They filed a petition in the circuit court of Greene County (that county being the one in which the greater portion of the lands in the district are situated), setting forth the proceedings in the county courts of the two counties organizing the district, and praying that notice be given in accordance with the terms of the statute and that, upon the hearing of the petition, the court "make such order as may be necessary to constitute such Grassy Slough Drainage District a district under the terms of said acts, and appoint commissioners for said district with full power and authority to proceed with said proposed improvement," etc.

The petition was resisted, and from a judgment sustaining the prayer of the petition an appeal has been prosecuted to this court.

The argument of learned counsel for appellant is that the Turner Act does not authorize an original proceeding in the circuit court to establish a drainage district, nor does it authorize a petition in the circuit court to change an old district, formed under the prior general statute, to the operation of the Turner Act.

This contention would doubtless have been sound under the operation of the Turner Act before it was amended; but we are of the opinion that the Turner Act not only authorizes an original petition to the circuit court where the lands lie in two counties, but it authorizes a ...