Denied July 15, 1919.
PETITION FOR, REHEARING.
(182 Pac. 559.)
BEAN, J.10. The petition for rehearing suggests, that when this matter was before the County Court the objection was to the publication, and not to the proof of the publication; and that the same question was passed upon by the Circuit Court. Counsel for the irrigation district urge that due notice of the proceedings in this matter was given. It is asserted that the delay caused by setting aside the order of the County Court will work an injustice. We regret that there should be any loss of time in regard to a matter of so much importance. It was with this view that the matter was reversed in order that proper proceedings in the matter could be taken to correct the same, as shown in our former opinion.
The County Court is authorized to grant the petition of an irrigation district upon compliance with Section 1 of Chapter 357, Gen. Laws of Oregon, 1917. The above section requires, among other things, that such petition shall be published once each week for at least four successive weeks before the time at which the same is to be presented, in some newspaper printed *94and published in the county where said petition is presented, together with a notice stating the time of the meeting at which the petition will be presented.
The only way in which the court can determine whether or not that part of the section has been complied with, and the required notice has been given is by the proof of the publication of such notice. The proof of the publication of the notice of the presentation of the petition in the matter of the organization of this irrigation district is admittedly defective and must be so considered. As the matter seemed to us upon the former consideration, and as we still look upon the same, when it is ascertained that the jurisdictional requirement of the statute has not been complied with, and the County Court was without authority to proceed with the final hearing mentioned in Section 2 of the act, there is no alternative for the court, except to set the order of the County Court aside. We fail to see the availability of the distinction attempted to be made between the “publication of the petition and the notice of hearing thereof, ’ ’ and the proof of such publication as the court can only determine what the publication was by the proof thereof. It was held by this court in Rynearson v. Union County, 54 Or. 181 (102 Pac. 785), that when it appears at any stage of the proceedings, upon the trial of a cause, that an inferior court has acted without jurisdiction, and the proceedings are subject to review, the duty devolves upon the court to set aside the proceedings, upon its own motion, and purge the record of informalities, and refuse to proceed further, though the defect has not been challenged in a formal way.
When we notice the provision in Section 41 of this Chapter for the institution of proceedings in the Cir*95cuit Court for the purpose of having a judicial examination and judgment as to the regularity and legality of the proceedings in connection with the organization of a district, and the proceedings of the board and of the district providing for, and authorizing the issue and sale of bonds of the district, it is at once apparent that where there has been a want of legal proof of the notice required by the statute in order to initiate the proceedings for the organization of such a district, that it is the duty of. the court to set aside the attempted proceedings in order that steps be regularly taken for the presentation of such petition. This is for the best interest of all concerned.
Subdivision (b) of Section 41 of the act requires the court upon the hearing of such special proceedings to find and determine whether the notice of the filing of the petition has been duly given and published. It is stated in the brief that the proof of publication in this case was made on the regular printed form in general use by the newspapers in that county. It seems strange that at this late date a form of affidavit of publication should be in use in the office of a newspaper. Twenty-five years ago there might have been some reason for it. It is hoped the form will be changed.
Believing that if the irrigation district should continue its ordinary business, and the proceedings should come up for judicial examination hereafter, that the court would be compelled to hold that they were illegal as heretofore indicated, the petition for rehearing is denied. Under the circumstances of this case as disclosed by our former opinion, after further consideration, each party will be required to pay its own costs.
Reversed With Directions. Rehearing Denied.