A STEP BACKWARD.

But, while the bonding feature of the drainage law of 1903 was very popular with the land-owners in that respect, it was doomed to be a failure because of the fact that when the schedule of assessments was filed, it required personal service upon the land-owner, which is impracticable. This was a long step backward in drainage legislation and the law was, in that respect, inferior to the drainage law of 1891 which required notice to be given the land-owner of the filing of the schedule of assessments by posting hand-bills along the route of the ditch and not by personal service. In other words, it was a proceeding in rem binding upon the whole world. It looks like absolute fairness to the land-owner to serve him with personal notice, but such a provision of the law is impracticable. When it comes to organizing drainage districts conditions and not theories must be dealt with as we find them. The organization of a ditch of any magnitude will involve many, sometimes hundreds, of land-owners, each of whom, if a resident of the county, or if he had an agent or tenant in the county, was entitled under the act of 1903 to be personally served with notice, without which the assessment levied upon his land was a nullity, and there is where the trouble begins when you undertake to sell your drainage bonds.

When you go to the deed records and undertake to ascertain the names of several hundred land-owners distributed over 100,000 acres of land, it involves responsibility from which the lawyer shrinks and labor from which he runs. It is by no means an easy task, even with the aid of a good set of abstract books, for a lawyer to always determine who is the owner of the record title to a tract of land, but even if he ascertain who is the owner of the record title, he still does not always know who is the owner of the real title, because wherever drainage is needed in Arkansas the lands have been sold over and over again for taxes, and while the tax sales are, as a rule, void, they are a stumbling block in the way of the bond buyer, and even when you convince him and his attorney that they are void, you are then confronted with the two years statute of limitations, under

which, after two years actual possession, even a void tax title becomes absolute against all persons except minors, insane people, and those imprisoned beyond seas. This leads to trouble without end and the only safe rule was to serve every man who had a deed to the land with notice whether the deed was worth the paper it was written on or not.

The personal service section of the drainage act of 1903 applied to every resident of the county whose place of residence could be learned and to every non-resident who had an agent or tenant residing within the county, and the provision for publication applied to all non-residents and to residents of the county whose place of residence could not be learned, provided they had no agent or tenant residing within the county.

Kirby's Digest, 1422.

To authorize constructive service some person interested in the construction of the ditch had to make affidavit that the land owner proceeded against was,

Ist. A non-resident of the county, or,

2d. That his place of residence could not be learned.

3d.

That such land-owner had no tenant or agent resident in such county.

This affidavit could not be made upon information and belief but its averments must be stated as facts. When we take into consideration the fact that the organization of a ditch of any magnitude includes hundreds of land-owners, many of whom are non-residents who have agents or tenants within the county who may be known or unknown, a man who has regard for his veracity balks at making such an oath. This is largely a case of conscience with the petitioner, and after you pass that point your troubles have only begun, for, while you may comply with the law literally, you must satisfy the bonding attorney that you have done it and that is hard to do. If the land-owner was a resident of the county and the sheriff made a return showing that he served the summons upon him, how does the bonding attorney at the other end of the line know that the return is true? Even if true, how does the bonding attorney know that the land owner will not, after the ditch is constructed and the day of payment arrives, go on the stand and testify that the

return of the sheriff was false, that he was not, in fact, served with a summons, and thus annul the assessment upon his land? On the other hand, suppose the land-owner is a non-resident of the county and was proceeded against as such, he could avoid the assessment by showing that while he was, in fact, a non-resident, yet he had an agent or tenant at some remote or secluded spot in the county at the time the ditch was being organized, and, among so many land-owners, how could the contrary be proven? On the other hand, suppose he is a nonresident of the county in point of fact and has no agent or tenant within the county and he is proceeded against as a non-resident in making the assessment, the way is still open to him, if he is as careless with his oath as many witnesses who testify in courts, when the day of payment arrives, to swear that he was not a non-resident, but a resident, of the county, and, therefore, entitled to personal notice and thus annul an assessment which was in point of fact legal.

It was full of loop holes and invitations to unscrupulous men to perjure themselves to escape the payment of assessments that were in point of fact valid, and while the bond buyer's attorney might be perfectly satisfied as to the legality of your organization, yet the bare possibility of litigation caused them to look with disfavor upon our bonds. How does the bond buyer's attorney know that the return of a sheriff upon a summons is not fictitious, and if not fictitious, how does he know that some of the hundreds of land-owners will not turn up in the future, perhaps after the sheriff is dead, or when his memory has failed, and testify that the return is false and that there was, in fact, no service upon him? There was absolutely no way under the law of 1903 by which you could place it with certainty beyond the power of a dishonest man to escape his assessment by false swearing. The attorneys for bond dealers all know this and, as a rule, they are the very embodiment of technicality gone to seed, and when they began to look at this provision of the law of 1903 they saw in it a breeding-place for endless litigation with possible defeat, and consequently there was little or no market for drainage bonds issued under the act of 1903.

A drainage contractor of long experience told me of one small drainage district in which they discovered after the ditch was organized that thirty-five land-owners were not served and the bonds could not be sold until these thirty-five land-owners were induced to execute an instrument waiving all irregularities including the want of notice.

AMENDMENT OF 1907.

A brief experience under the law of 1903 convinced every lawyer who had anything to do with drainage proceedings of the folly of requiring personal service in any instance, consequently in 1907 the Legislature passed an act amending the act of 1903 so as to proceed against all land-owners by the publication of a notice, upon the filing of the final report containing the schedule of the land assessed, and calling on all persons to appear at the time set and show cause why the land should not be assessed, and, whether he appears or not, he is nevertheless bound by the proceeding. This is a long stride in the right direction. It is simple and easy and converts the whole proceeding into a proceeding in rem, and the fact of compliance with the law can be so easily and conclusively established that the most technical bonding attorney will be easily satisfied and a more ready market will be found for the drainage bonds.

ACTS OF 1907, p. 1162.

The constitutionality of this act will scarcely be questioned on the ground of the sufficiency of the notice, for the Supreme Court has held that the act of 1891, which provided for giving notice to the land-owners by posting hand-bills, was not subject to criticism on constitutional grounds.

Cribbs vs. Benedict, 64 Ark. 562.

Driver vs. Moore, 98 S. W. 735.

And, if the act of 1891 providing for the giving of notice by posting hand-bills, was free from constitutional infirmity, surely the act of 1907, providing for the giving of notice by publication in a newspaper, is free from such objection.

FORTY ACRE FOLLY.

Another provision of the law of 1903 which is still in force and not free from objection is the provision requiring

that the land be assessed in tracts of forty acres, and less. I have given some little study to the drainage movement and have organized several drainage districts, and I have never yet found a person able to offer any reason why land should be assessed in tracts not exceeding forty acres. This provision only encumbers the record and entails heavy cost upon the district in making up the records and publishing the notice. For instance, we are now organizing a drainage district in Mississippi County embracing about 250,000 acres of land in which the publication of the notice alone will cost between $1500 and $2000, and when the schedule of lands is placed upon the drainage record it will cover about three hundred pages, and while this makes fat picking for the newspaper man and the county clerk, it falls heavy upon the landowners. I can see no reason for it.

No statute can have a greater virtue than that of simplicity and common sense, and it does seem that instead of requiring the land to be cut up into forty acre tracts, it would be infinitely better and more simple to classify the lands according to the assessments, whether in whole sections or quarter sections. This could be done by the viewers simply stating that "All lands in certain sections (naming the sections) we assess at $2.50 per acre, all lands in certain sections (naming the sections) we assess at $3.00 per acre, and all lands in certain sections (naming the sections) we assess at $4.00 per acre," and so on. If this were the law we could organize the district mentioned in Mississippi County, covering 250,000 acres of land, and the schedule of assessments made would not cover exceeding eight or ten pages of the drainage record, whereas, under the present law it will cover three hundred.

But even if a plausible reasonor excuse could be offered for making a separate assessment on each tract of forty acres or less, there is no reason why the law should require the publication of these separate forty acre tracts in the notice. It would serve the ends of justice equally as well to publish a notice containing a description of the route of the ditch and stating that the schedule of assessments filed by the viewers affected certain lands in certain sections and calling on the owners to appear