Gibney v. Crawford

Battle, J. The county court of Clark county made an order calling in certain outstanding county warrants for cancelling or re-issue, and fixing the time for the presentation of the same. After the time fixed had passed, appellees tendered warrants which had been called in, but had not been presented, to the collector, in payment of the tax assessed against their property for county purposes for the year 1885, and he refused to receive them. They then applied to the Clark circuit court for a mandamus to compel him to do so, which was granted and the collector appealed. The record of the orders made by the Clark county court fails to show that any notice of the calling in of the warrants was given. No return in writing of the sheriff, showing that he had given notice to the holders of the warrants called in, to present the same to the county court, could be found or produced. Two affidavits were on file. One of them, with a copy of the order calling in the warrants attached, was in the words and figures following, to-wit: “State of Arkansas, County of Clark. “Personally appeared before me, Adam Clark, one of the publishers of the Southern Standard, a newspaper published at Arkadelphia, Clark county, Arkansas, who being duly sworn, deposes and says, that the advertisement hereto attached was published in said newspaper for two (2) consecutive weeks prior to the January term, 1881, county court of said county, according to law, and that the fee therefor,. dollars, had been paid, the receipt of which is hereby acknowledged. Adam Clark, Proprietor of Southern Standard. Sworn to and subscribed before me, this 3d day of January, 1881. [seal.] A. M. Crow, Notary Public.” The other was made by Dean Adams, and is like the one made by Clark, except it stated that the order was published in the Arkansas Gazette, and the dates of publication, the last being thirty days before the day fixed for the presenting of warrants. Thomas Sloan testified that he was deputy sheriff when the order was made; that he put up copies of the same at some of the election precincts in Clark county; and that the sheriff, who is dead, presented an account to the county court, in which he charged Clark county with $24.00 for giving notice that county warrants had been called in. This was all the evidence of notice adduced at the hearing of the application for mandamus. The only question presented for our consideration is, were the holders of the county warrants tendered to the collector debarred from receiving any benefit from them, by their failure or neglect to present them as required by the order of the county court? There is no question as to their genuineness or validity, or the duty of the collector to receive them in payment of taxes, if they were not barred by such order. As a general rule the proceedings of a superior court, with respect to jurisdictional facts about which the record is silent, are presumed to be within the scope of its jurisdiction until the contrary is shown. But this rule does not apply to proceedings had under special statutory authority. As said by the supreme court of New Hampshire, “A court of general jurisdiction may have special and summary powers, wholly derived from statutes, not exercised according to the course of the common law, and which do not belong to it as a court of general jurisdiction. In such cases its decisions must be regarded and treated like those of courts of limited special jurisdiction. The jurisdiction in such cases, both as to the subject matter and as to the persons to be affected by it, must appear * * '* ; and everything will be presumed to be without the jurisdiction which does not distinctly appear to be within it. ’ ’ In other words, the jurisdiction of the court in such cases must be shown affirmatively to confer validity on its acts, and unless it is shown its whole proceedings will be invalid, and may be treated as a nullity when called in question in a collateral controversy. Galfin v. Page, 18 Wall., 350; Morse v. Presby, 5 Foster, 302; Lusk v. Perkins, 48 Ark , 238; 1 Smith’s Leading Cases, pt. 2, 8th Ed., 1127, 1105; Freeman on Judgments, secs. 123, 127; Thatcher v. Powell, 6 Wheat, 119; Christie v. Unwin, 3 Perry & Davidson, 208. In this case the Clark county court undertook to act under a special statutory authority. The power it undertook to exercise was wholly derived from the statute. It was special and summary and is not exercised according to the course of the common law. The statutes under which the order calling in the warrants was made, required the clerk to furnish the sheriff with a copy of the order, and made it the duty of the sheriff to notify the holders of the warrants to present the same to the court at the time and place fixed for presentation, “ for cancellation or re-issuance,” by putting up at the court-house door and at the election precincts in each township of the county, at least thirty days before the time appointed for the presentation, a true copy of the order, and by publishing the same in newspapers printed and published in this state for two weeks in succession, the last insertion to be at least thirty days before the time fixed for the presentation of the warrants; and required at least one of the publications to be made in a daily or weekly newspaper published in the county of Clark, provided there was one which had a bona fide circulation therein and had been regularly published in the county for the period of one month next before the date of the first publication of the order; and provided that the affidavit of the editor, publisher, proprietor or principal accountant of the paper in which it is published, stating the length of time it was published in his paper and the number of the insertions, with a printed copy of such advertisement attached, should be the evidence of its publication; and after the notice was given in the manner prescribed, authorized the county court, at the appointed time, to examine the warrants presented in obedience to the call, and cancel or cause the same to be re-issued. Mansfield’s Digest, secs. 1147, 1148, 1152, 4356, 4359. It was the duty of the sheriff to have made a written return and set out in it the manner in which he gave the notice required, and filed the same and the affidavits as to the publication, with the clerk of the county court. Mansf. Digest, secs. S316, 6361. 1. County Warrants: Order calling in. It is evident that the statutes authorizing the calling in of county warrants never intended that the holder of a county warrant, without lawful notice, should lose the benefit of his claim by a failure or neglect to present the same to the county court. Before he can be deprived of the benefit of his warrant, they provide that a certain order shall be made; that a certain notice shall be given; that it shall be given by posting and by publication; and that the posting and publication shall be in a certain manner and for a certain period, and the mode in which the notice was given shall be proven. As these statutes are in derogation of the common law they must be strictly pursued. Notice, etc. 2. Proof of publication. Unless notice of the calling in of the warrants was given in the manner prescribed by the statutes, the order making the call was a nullity as to the warrants which were not presented to the court in obedience to the call. The burden of proving that it was given was upon the appellant. The evidence adduced was not sufficient to prove it. In the affidavits, which are made the evidence of the publication and intended to be made a part of the record as to the calling in of the warrants, affiants fail to swear that either of them was the editor, publisher, proprietor or the principal accountant of the newspapers in which the order of the court was published, and neither of them swears that his paper was a daily or weekly newspaper and had a bona fide circulation in Clark county, and had been published in that county for the period of one month before the date of the first publication of the order therein; and Adam Clark does not state in his affidavit how long it was published in his paper, the length of time the last insertion was made before the time appointed for the presenting of the warrants, or the number of insertions which appeared in his paper. The statutes regulating the publication of legal advertisements, obviously intended that these facts should be sworn to in the affidavit required to be made. Proof of them is a necessary part of the proof of publication. Without it any affidavit made would be a nullity, and fail to be the evidence the statutes declare it shall be. Cissel v. Pulaski County, 10 Fed. Reporter, 891; Gray v. Larrimore, 4 Sawyer, 638; Haywood v. Collins, 60 Ill., 328; Fontaine v. Houston, 58 Ind., 316. 3. Posting notice. There was no evi dence that the notice was given by post--ing as required by law. The statute having prescribed the manner in which the notice should be given, it could not be given legally in any other manner; and having prescribed what shall be the evidence of the publication it can be proven in no other manner. P"acts which should be of record cannot be proven by parol. Iverslie v. Spaulding, 32 Wis., 394; Cissel v. Pulaski County, 10 Fed. Rep., 891; Gray v. Larrimore, 4 Saw., 638; Haywood v. Collins, 60 Ill., 328; Wilcox v. Emerson, 10 R. I., 270; 2 Wharton’s Law of Evidence, sec. 986. Judgment affirmed.