Cypress Creek Farms v. L'Anguille Improvement District No. 1

Richard B. Adkisson, Chief Justice. By order of December 27,1979, the Cross County Circuit Court established the L’Anguille Improvement District No. 1, hereinafter District, which included parts of Woodruff, Cross, St. Francis, and Lee Counties. Prior notice of the hearing was given by publication for two weeks in a newspaper having general circulation in each county of the District. It is admitted that all proceedings were conducted in accordance with the provisions of Ark. Stat. Ann. § 21-1001 —- 1002 (Repl. 1980) and that appellant did not appeal the order creating the District within 30 days as required by § 21-1002. On March 27,1980, appellant filed a motion to set aside the order forming the District on the grounds that the notice by publication permitted by Ark. Stat. Ann. § 21-1001 (Repl. 1968) was unconstitutional as a violation of his right to due process. This appeal is from the court’s order denying this motion. We affirm. The District encompassed 350,000 acres in Woodruff, Cross, St. Francis, and Lee Counties, Arkansas. Appellant is a partnership owned in part by Edward P. Russell, a resident of Memphis, Tennessee. Appellant owns 240 acres which is part of 124,192.93 acres included within the District in St. Francis County. After a petition for formation of the District was filed, notice of the hearing on the petition was given pursuant to Ark. Stat. Ann. § 21-1001: Upon the filing of said petition, the petition shall be presented to the Judge of the Circuit Court, either in term or vacation, and the Court shall make an Order directing the Clerk of the Circuit Court in which the petition is filed to give notice by publication for two (2) weeks in some newspaper or newspapers published and having a general circulation in each of the Counties embraced within the proposed boundaries of said district, calling upon all persons owning property therein 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. An appeal from an order granting the petition is provided by Ark. Stat. Ann. § 21-1002: The Order of the Circuit Court establishing the said district shall have all of the force and effect of a judgment. Any owner of real property within the district may appeal from said judgment within thirty (30) days after the same has been made, but if no appeal is taken within that time, such judgment authorizing and creating the district shall be deemed conclusive and binding upon all of the property within the bounds of the district and upon the owners thereof; and any owner of property in the district may within a like manner appeal from any order refusing to establish such district. Evidence presented at the hearing on appellant’s motion reflects that tax notices on this property for the past few years had been sent to Cypress Creek Farms, c/o Edward P. Russell, Union Planters Bank Building, Memphis, Tennessee, 38103, and that appellant had no actual notice of the proceeding regarding the formation of the District until informed of its existence on March 25, 1980. Appellant acknowledges that notice was given in accordance with the statutory provisions for notice in § 21-1001, but argues that such notice is void and unconstitutional as to him for failure to comply with the due process clause of the Fourteenth Amendment. Appellant argues that he had involved substantial property rights and due process required that he be given notice by certified mail, which he argues was the only means available that could reasonably convey to him the information regarding the formation of the District. The hearing to establish the District is the only opportunity a landowner has to contest the necessity of the inclusion of his land in the District. The land included will then be subject to having benefits or damages assessed. Ark. Stat. Ann. § 21-1005 (Repl. 1968). Therefore, substantial property rights of appellant were involved at the hearing to establish the District, and before such right could be affected, he was entitled to notice and opportunity for hearing appropriate to the nature of the case. Mullane v. Central Hanover B. & T. Co., 339 U.S. 306 (1950). Although appellant’s substantial property rights were involved at the hearing on the formation of the District, appellant is not necessarily entitled to notice by mail. The United States Supreme Court stated in Mullane that it “has not hesitated to approve or resort to publication as a customary substitution in another class of cases where it is not reasonably possible or practical to give more adequate warning.” Statutes are presumed to be constitutional and there is no evidence of record that the statutory notice was not appropriate to the nature and circumstances of this case. In St. Francis County there was involved in the District 124,192.93 acres, of which 240 acres were owned by appellant. The record does not reflect the number of persons owning the various parcels of land within the District but even if a small town was included in the District, the number of owners requiring notice by certified mail would likely be in the thousands. In any event, appellant has not shown that the statute providing for notice by publication is unconstitutional. Therefore, we are unable to say that the trial court’s decision that the statutory notice was sufficient is clearly erroneous. Questions regarding the adequacy of the notice of assessment of benefits and damages are not before this Court in this case. Also not before the Court is the adequacy of notice to bar a suit for damages. Our decision is limited to the sufficiency of the notice in establishing the District. Affirmed. George Rose Smith, J., concurs. Hickman and Purtle, JJ., dissent.