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(273 S.W.) The petition filed with the county court | district was a constitutional county of the state gave a description of the lands sought to be of Arkansas." embraced in the subdistrict, and the county

The area covered by the subdistrict, which court entered an order directing the com

was organized by order of the county court, missioners of district No. 9 to "cause a sur-lies partly in the Osceola district and partly vey to be made to ascertain the limits of the in the Blytheville district, and these proceedregion which would be benefited by the pro- ings for the formation of the subdistrict were posed system of improvement.” The commis- instituted and progressed to final judgment sioners of the original district complied with in the county court sitting at Osceola. the order of the county court by employing

[1] The first contention of counsel for apan engineer and causing a survey to be made, pellants, in their assault upon the validity and the commissioners made a report accom

of the organization, is that the county court panied by a map, showing plans for the ad

was without jurisdiction, for the reason that ditional improvement, and a description of

a part of the lands involved are situated in the area which would be benefited thereby. the Chickasawba district. Counsel rely on the This report was filed with the county court on language of the statute, quoted above, confer. December 1, 1924, and the court ordered pub- ring jurisdiction of the county court within lication of notice, and set the date for hear the chickasawba district over "persons and ing on December 23, 1924. On November 15, property resident and being therein,” and 1924, there was filed with the county court also that part of the statute which declares a petition of owners of property in the pro- that the Chickasawba district shall exercise posed subdistrict, claiming to be a majority jurisdiction “the same and in like manner as thereof in acreage, and praying for an order if said district was a constitutional county.” of the county court creating the subdistrict. This contention is, we think, unsound. In Certain other owners of real property in the the recent case of Bonner v. Jackson, 158 district filed a remonstrance, and there was a Ark. 526, 251 S. W. 1, we held that the stathearing by the court on the day set for the ute providing for separate terms of the counhearing (December 23, 1924), and the court ty court in each of the court districts of the granted the prayer of the petitioners, and

county did not destroy the constitutional created the proposed subdistrict, to be desig- unity of the county, and was valid. The parnated as subdistrict No. 3 of Grassy Lake tition and allotment to the respective county and Tyronza drainage district No. 9 of Mis- courts to be held in the two districts of the sissippi county. The remonstrants prayed

constitutional jurisdiction of the county an appeal to the circuit court of Mississippi court over the local concerns of the county, county, where there was a hearing on Jan. is purely statutory, and does not, as we held uary 17, 1925, which resulted in a judgment in the case cited above, in any wise offend of the circuit court affirming the order of against the Constitution. It must be assumed the county court, creating the subdistrict in that the framers of the statute did not ataccordance with the prayer of the petition

tempt, either to take away from the county therefor, and an appeal has been duly prose

court any of its constitutional jurisdiction cuted to this court. There are two court districts in Mississippi circuit court, nor that there was any inten

over its local concerns, and confer it upon the county where terms of all the courts-cir

tion to entirely exclude the exercise of juriscuit, chancery, county, and probateare held. One of the districts is designated as

diction by one or the other of the county

courts authorized to sit in the county, merely the Osceola district, wherein the courts are held at Osceola, the county seat, and the other because the subject-matter of the exercise district is designated as the Chickasawba of jurisdiction was situated partly in one of district, and the courts are held at Blythe It is our duty to give the statute a reasonable

the court districts and partly in the other. ville. The act originally creating the court dis- interpretation so as to confine its operation

within constitutional limits, and in approachtrict was enacted in the year 1901 (Acts 1901, p. 136), and merely provided for the holding ing the interpretation in that spirit it is of circuit, chancery, and probate courts in evident that the language of the statute Chickasawba district, but a statute enacted means that the jurisdiction of the courts in in 1919 (Act No. 468), amending the original

the Chickasawba district extends exclusively statute, provided for holding sessions of the over lands situated wholly within the discounty court in Chickasa wba district, and trict, and over persons to a controversy all of this statute reads as follows:

whom reside in the district. All other juris

diction remains in Osceola court. This view "That all matters of county and probate ju- is in entire accord with prior decisions of our risdiction pertaining to that part of Mississippi court (Pryor v. Murphy, 80 Ark. 150, 96 S. county within the Chickasawba district and to w. 445; Murrell v. Exchange Bank, 271 S. persons and property resident and being therein shall be subject to the jurisdiction and exam- W. 21), and we therefore hold that the jurisination of the county and probate courts of the diction of the Osceola district was not decounty of Mississippi for the Chickasawba dis- feated because part of the area involved was trict, the same and in like manner as if said / situated in the Chickasawba district.

273 S.W.-25

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It is next contended that the creation of found to be to the best interests of the ownthe subdistrict was erroneous, for the rea ers of real property in the district that the son that there was no proof of the publica- same shall become a drainage district, or a tion of the notice required by statute, and subdistrict, as the case may be, the court that the notice was insufficient, in that it shall make an order establishing the district failed to give a description of all of the prop- or subdistrict. If a petition or petitions be erty to be affected by the organization of the presented to the county court, signed by a district, and omitted some of the lands de- majority “either in numbers or in acreage or · scribed in the original petition. Subdistricts in value of the holders of real property withare authorized by statute to be organized and in the proposed district, praying that the imadded to original districts on petition of provement be made, it shall be the duty of "three or more owners of real property with the county court to make the order establishin a proposed subdistrict, composed of land ing the district without further inquiry.” It wholly within a drainage district, or partly is thus seen that the county court is emwithin and partly without such district.” powered, upon the original petition of three Crawford & Moses' Digest, § 3650.

or more property owners, to create a drainage Under the statute, the organization of district or subdistrict, if it is found to be original districts and of subdistricts is made “to the best interests of the owners of real in the same manner and by the same proce- property within said district that the same dure, which is, in brief, as follows: When shall become a drainage district," and that, three or more owners of property file a peti- if there is a petition by a majority of the tion with the county court asking for the or- property owners, then it is the duty of the ganization of a district or subdistrict, the pe court, without any finding as to the interests tition “describing generally the region which of the parties, to make an order creating the it is intended shall be embraced," the county district. Jones v. Fletcher, 132 Ark. 328, 200 court enters an order appointing an engineer S. W. 1034. to make a survey, or requiring, in the case of (3-5] It is further seen that the statute subdistricts, the commissioners of the origi- does not expressly provide that the publishnal district to cause a survey to be made. A ed notice shall contain a description of the bond to pay the expenses is required of the property to be embraced in the district, but, petitioners. The statute provides that the if the notice is to be made effectual, it is engineer “shall forthwith proceed to make a necessarily implied that, in order to apprise survey and ascertain the limits of the region the property owners of the proceedings affectwhich would be benefited by the proposed ing their interests, the description of the system of drainage; and such engineer shall property should be contained in the notice. file with the county clerk a report showing The sufficiency of proof of publication is chalthe territory which will be benefited by the lenged on the ground that there was no affiproposed improvement, and giving a general davit filed by the "editor, proprietor, manidea of its character and expense, and mak- ager or chief accountant," as provided by ing such suggestions as to the size of the statute. Crawford & Moses' Digest, § 6808. drainage ditches, and their location as he The answer to this contention is that the may deem advisable.” *Crawford & Moses' statute does not make the affidavit the sole Digest, $ 3607. The section with reference to or exclusive evidence of publication. Whitsubdistricts provides that the commissioners ford v. Whitford, 100 Ark. 63, 139 S. W: 653; shall "forthwith proceed to cause a survey Allen v. Allen, 126 Ark. 164, 189 S. W. 841. to be made and to ascertain the limits of There was other evidence legally sufficient to the region which would be benefited by the establish the fact that the publication of noproposed system of improvements, and the tice had in fact been made in the manner commissioners shall cause a survey to be prescribed by, statute. It is also contended made, and shall file with the county clerk a that the notice was insufficient because the report showing the territory which will be description of the property did not coincide benefited by the proposed improvement, and with the description in the original petition, giving a general idea of its character and ex. in that certain tracts contained in the origipense and making such suggestions as to the nal petition were omitted. We assume that size of the drainage ditches and their loca- counsel in their argument are referring, not tion as the commissioners may deem advis- to the initial petition of three or more propable, and shall file their report with the erty owners, but to the last petition which county clerk.” Crawford & Moses' Digest, s was filed, and which prayed for the forma3650.

tion of the district in accordance with the [2] It is further provided in the statute, report of the engineers. Indulging the prewith reference to both original districts and sumption that the lawmakers intended to resubdistricts, that upon the filing of the re- quire a description of the property in the noport the county clerk shall give notice by tice, it necessarily follows that description publication in weekly newspapers of the hear-should be in accordance with the report of ing before the county court. It is then pro- the engineers in the case of an original disvided that on the day of the hearing, if it is trict, or with the report of the commissioners

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(273 S.W.) in the case of the creation of a subdistrict, / same effect, with reference to petitions under for the report is the thing which forms the the prohibition law. Bordwell v. Dills, 70 basis of the court's action in determining Ark, 175, 66 S. W. 646; Colvin v. Finch, 75 whether or not the district or subdistrict Ark. 154, 87 S. W. 443. Counsel argue that should be created, Crawford & Moses' Di- these cases have no application, for the reagest, $ 3650.

son that under the statutes involved in those Counsel fail to satisfactorily make it ap- decisions the jurisdiction of the court depear to us from the record that there is a pended upon the filing of petitions, whereas variance between the description in the no- in the present case the jurisdiction does not tice and that contained in the report of the so depend. commissioners. They refer to a map in the [7,8] We are of the opinion that this is record, but the map to which they refer has not a sound distinction, for the jurisdiction not been made a part of the report, but was or authority of the court to create the dismerely introduced in evidence, and we do not trict, without finding it to be to the best interdiscover any discrepancy between the de- ests of the parties, depends upon the petition scription in the notice and that in the map of a majority of landowners, and the same which was filed with the report. These maps reasons which required a prohibition petiwere before the trial court, who examined tion, or a petition for the creation of a stock them, and heard the evidence with reference law, apply to the drainage statute, which thereto and we do not feel at liberty to disturb provides for a petition of a majority of the the finding of the trial court that there is no property owners. The filing of a petition is discrepancy in the notice and the report. We in the nature of an election, and, if the remust indulge the presumption that the court quirements of the statute are complied with found that there was no such discrepancy. and the petition is found to contain the

[6] The next assault upon the correctness names of a majority of landowners, either in of the judgment is that the petition praying numbers or in acreage or in value, the statute for the creation of the district did not con- makes it the duty of the court to create the tain a majority in acreage of the owners of district. Jones v. Fletcher, supra. There is property. This general charge of insufficien- no attempt to show in the present case any cy of the petition embraces in detail the con- grounds for permitting the withdrawal of tention that many of the names of persons names for cause. The authenticity of the and corporations were signed without au names on the petition was challenged in thority, and that many of those who original- many instances, and it is contended that the ly signed the petition should have been ac- burden of proof rested upon those who precorded the privilege of withdrawing their sented the petition. We have held to the names before the petition was acted on, and contrary, and said that the burden of proof is before the order creating the district was upon those who contest the petition of propmade by the county court. The district as erty owners to show that the names appearcreated by the county court contained 171,- ing thereon were not signed by authority. 680.07 acres, and it was therefore necessary, Board of Improvement v. Offenhauser, 84 in order to constitute a majority, that the Ark. 257, 105 S. W. 265; City of Malvern v. petition should be signed by the owners of Nunn, 127 Ark. 418, 192 S. W. 909; Walton land in excess of 85,810.04 acres. There were v. Light Improvement District, 144 Ark. 249, many of the petitions grouped together and 222 S. W. 1056; Lewis v. Forrest City Spefiled, and all of them contained the names cial Imp. Dist., 156 Ark. 356, 246 S. W. 867. of individual and corporation owners of land it is argued that, as those decisions related of the aggregate acreage of 93,5+3.04, which, to municipal improvement districts, in suits constituted a majority of 7,703 acres. After questioning the validity of the signatures the petition was filed, but before the hearing after they had been accepted by the city by the county court, persons owning land of council, the question of their authenticity the aggregate acreage of 5,386 acres filed a was not raised in an original proceeding such remonstrance, asking that their names he as the present one. Counsel mistake the efwithdrawn from the petition. It was a bare fect of those decisions, for they were renderrequest for withdrawal, without stating any ed in chancery cases, which, under the statgrounds. Subsequently four of the same per- ute, constituted an original review and a sons, owning 1,070 acres, re-signed the origi- direct proceeding challenging the sufficiency nal petition, and the court refused to allow of the petition for the improvement. We see any of the parties to withdraw their names no reason why the same rule should not apafter the petition was filed. It is contended ply in a case like the present one. The sigthat this was error. We decided, in the re- natures are presented with apparent authorcent case of O'Brien v. Root, 266 S. W. 931. ity, and, if they are questioned, tbe burden which involved petitions for the formation of proof rests upon the person challenging of a stock district, that signers could not the authority. The petitioners are in the at. withdraw their names, except for cause, aft- titude of being represented in court by those er the filing of the petition. This was in ac- who present the petition to the court, and if cord with our prior decisions holding to the there is any lack of authority it should be

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shown by those persons who contest it. This , improvement. It appears that, since the or. rule applies to signatures of corporations ganization of the original district No. 9, two as well as individuals, if the signatures are other districts have been organized, covering made by those who have the apparent au- a large area-one being district No. 12, and thority under the laws of the state to sign the other district No. 8. The waters in these for the corporation. Lewis v. Forrest City districts are emptied into the principal carSpecial Imp. Dist., supra.

rying ditch of district No. 9, and it is shown There is the name of one corporation on that there is an agreement between district the petition, the Chicago Mill & Lumber Com- No. 9 and the two districts mentioned above pany, which signed for about 4,000 acres of that a price is to be paid for the right to land, and the signature does not appear to flow the waters from those districts through have been made by one in authority, but that the ditches of original district No. 9. The name may be eliminated, and the whole contention is that, as these two districts are acreage represented as owned by that cor contiguous to original district No. 9 and to poration may be deducted without reducing the subdistrict created by this proceeding, the the amount of acreage on the petition below lands will be necessarily benefited, and a majority.

should have been added to the improvement, [9] Proof was offered to the effect that a or that the subdistrict should not have been group of persons who signed the petition held created without the inclusion of those lands. a meeting and gave written directions to Mr. In the case of Sanders v. Wilmans, 160 Wilson, one of the parties who circulated the Ark. 133, 254 S. W. 412, we held that under petition, to withhold their names unless the a certain special road act, which created a commissioners of the main district should district and provided for the annexation of resign. The commissioners did not resign, benefited land by order of the county court, and the names were not withdrawn, but Wil- it was erroneous to annex land upon a showson testified that he was instructed to file ing that other lands not embraced in the anthe petition. But, even if this were not true, nexation were benefited. The doctrine in it does not appear that any of the individ- that case does not, however, apply in the uals of the group who imposed this condition present case, for the reason that, while there ever appeared in court and asked that their was a showing that the lands in districts Nos. names be withdrawn. If they had appeared, 8 and 12 will be benefited by the flow of waand shown that their names were fraudulent- ter through the ditches of the original disly left on the petition in disregard of their trict No. 9, which are to be enlarged by this instructions, it would have afforded sufficient subdistrict, all of the benefits thus obtained cause to permit the names to be withdrawn. are to be provided through the agency of These persons made no objections to the those two organizations, and the rights to signatures and are apparently in accord with flow the water through the ditches of district the others who approved the project of form- No. 9 are to be paid for. Notwithstanding ing the subdistrict.

the omission of these lands from the district, [10] There is also involved the question of if the benefits are to be paid for through ratification of the signature by one of the other agencies, as before stated, assessments corporations after the case reached the cir- cannot be made by a contiguous district to cuit court. Counsel for appellant contend cover the cost of the same improvement, but that it was too late, and they rely upon the there is a statute which provides that, if an decision of this court in the case of Lewis v. adjoining district shall drain its waters into Forrest City Special Imp. Dist., supra. That a ditch belonging to another district, the comcase, however, involved a municipal improve- missioners of the latter shall have authority ment where the ratification occurred after to assess the benefits and levy taxes to pay ordinance providing for the improvement had for same. The fact that the lands in those been enacted and published, and after the two districts were omitted from this organiproceedings had passed out of the hands of zation does not affect the validity of the orthe city council, and we held that it was too ganization. Those lands can be taxed for late to ratify after the litigation arose. In any additional benefit accruing by reason of the present instance the proceedings were still the new improvement. in progress in the circuit court, and it was not [13] It is finally contended that the distoo late for the challenged signature of the trict is not really a subdistrict under the corporation to be ratified by the proper of- statute, and the argument is that this is so ficers.

because the magnitude of the district in area [11] Our decision upon this branch of the and in cost of the improvement is out of case is that it was established that the peti- proportion to the original district and the tion was signed by a majority in acreage of extent of the old improvement. It is a fact the property in the district.

that the area of the subdistrict comprises [12] It is next contended that the judgment nearly the whole of the original district, and should not be sustained for the reason that the cost of the improvement contemplated by the subdistrict as created omitted a large the subdistrict is greater in extent and more body of land which will be benefited by the expensive than that of the original district.

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(273 S.W.)
The only limitation expressed in the statute that the organization of this district should
with regard to a subdistrict is that it must be be denied on any grounds, recognized by the
formed of lands "wholly within a drainage statute, either expressly or by fair implica-
district, or partly within and partly with- tion.
out such district." Crawford & Moses' Di. That being true, it remains only to say
gest, & 3650. It cannot be composed of lands that the judgment must be affirmed, and it
wholly outside of the district. The statute is so ordered.
says nothing about the extent of the area,
the magnitude of the improvement, or the
cost thereof, but it is necessarily implied

WOOD and HART, JJ., dissent.
that the improvement contemplated by the
subdistrict must be such that it can be treat-
ed as part of the same unit as the improve-
ment provided for in the original district and
not an independent improvement. In other

KIRK V. HIGH, County Judge.
words, this branch of the case turns on the
question of the unity of the two projects—the

MITCHELL et al. v. HAMBY.
original improvement and the new addition
thereto-rather than on the extent and magni-

(No. 88.)
tude of the new project in comparison with
that of the original one. If there is such | (Supreme Court of Arkansas. June 29, 1925.)
unity that the two projects could have been

1. Evidence 23(1)-Matter of common originally joined together as one improve

knowledge courthouse or jail cannot be built ment, then we see no reason why, under the

out of county's revenues for single year. statute, the last one cannot be joined as a subdistrict, notwithstanding its magnitude

It is a matter of common knowledge that and extent. The manifest purpose of the there is no county in the state which could statute authorizing the creation of subdis- such out of revenues for single year.

build a courthouse or jail sufficient for use as tricts was to permit owners of land situated wholly in the original district, or partly in 2. Counties om 150(1)_Where total revenues and partly out of the district, which would

of county for year have been appropriated have been benefited by the original improve and disbursed, expenditures must cease. ment but which would receive additional ben-1

Any payment a county makes for any purefit from an added improvement, to join the

pose during the year is part of expense for new improvement to the original as one proj- that year, and where total revenues have been ect. On the other hand, if the new improve appropriated and disbursed expenditures must ment is wholly independent, it cannot be cease, officers overdrawing at their peril. Joined to the original one merely because the lands in the proposed subdistrict are situat. 3. Counties www 150(2)—Constitutional amended wholly within or partly within and partly

ment restricting county's yearly expenditures without the original district. Now, testing

to its revenues held not to prohibit building

of courthouses or jails exceeding yearly revethe project under investigation, we see no

nues in cost.
reason why it cannot be treated as a part of
the original project because of its compara-

Amendment 11, amending Const. art. 12, 8 tive magnitude. It is an additional drainage 4, and prohibiting yearly expenditures by fiscal scheme, which will furnish additional drain for fiscal year in which expenditures made, held

officers of county in excess of yearly revenues age by the enlargement and extension of the not to prohibit building of courthouses and jails original plans. The statute does not au- | by counties because such buildings exceed yearthorize the changing of original plans by the ly revenue in total cost, but, properly conoriginal district itself after the completion strued, requires only that, in apportioning cost of the improvement (Indian Bayou Drainage of such buildings over term of years, such apDistrict v. Walt, 154 Ark. 335, 242 S. W. 575) portioned cost, together with other governbut it does authorize the organization of a

mental expenditure, is not to exceed the yearly subdistrict for that purpose.

Of course the same result may just as easily have been ac

McCulloch, C. J., dissenting. complished by providing for the croation of a

Appeal from Lonoke Chancery Court; J. new and independent district rather than join it onto the old district, but the lawinakers E. Martineau, Chancellor. have authorized the organization of such a

Appeal from Nevada Chancery Court; C. district, and we have nothing to do with the E. Johnson, Chancellor. policy which prompted this provision of the law. We can only take cognizance of it, and Suit by R. G. Kirk against E. M, High, enforce the provision when the facts justify. County Judge of Lonoke County, to restrain

We are unable to discover any grounds , letting of contract to build courthouse. ACupon which we would be justified in holding i tion by L. L. Mitchell and others against R.

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revenue.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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