dissenting. I disagree with that portion of the majority opinion holding that the trial court should have annexed the South Crossett area. The error of the majority opinion is that it considers the property owners as the appellant in the circuit court whereas in fact the city was the appellant and as such had the duty under Ark. Stat. Ann. § 19-101 to notify all interested persons by newspaper publication of the time and place of the hearing it desired the court to hold. If the county court had ordered the annexation of the South Crossett area then Perkins v. Holman, 43 Ark. 219 (1884), would be authority for the position here taken. However, the appellant here was also the appellant in the circuit court and in that case the matter stood for trial de novo, as if it had originally been brought in that court, see Pike v. City of Stuttgart, 200 Ark. 1010, 142 S. W. 2d 253 (1940), upon the petition of the city for annexation.
Ark. Stat. Ann. § 19-307, authorizing annexation by a city, provides that after a favorable vote the city must present a petition to the county court praying for such annexation and that the procedure in the county court shall, so far as applicable, be had in accordance with Ark. Stat. Ann. § 19-101 to 19-103 (Repl. 1968).
So far as here applicable Ark. Stat. Ann. § 19-101 provides:
“. . . When any such petition shall be presented to the court, they shall cause the same to be filed in the office of the County Clerk, to be there kept, subject to the inspection of any person or persons interested, until the time appointed for the hearing thereof; the court shall, at or before the time of such filing, fix and communicate to such petitioners or their agent, a time and place for the hearing of such petition, which time shall not be less than thirty [30] days after the filing of such petition, and thereupon the petitioners or their agent shall cause a notice to be published in some newspaper of general circulation in the county, not less than three [3] consecutive weeks; and, if there is no newspaper of general circulation in the county, a notice shall be posted at some public place within the limits of said proposed incorporated town for at least three [3] weeks before the time of such hearing which notice shall contain the substance of said petition, and state the time and place appointed for the hearing thereof.”
Ark. Stat. Ann. § 19-102 provides:
“Every such hearing shall be public, and may be adjourned from time to time, and any person interested may appear and contest the granting the prayer of said petition; and affidavits in support of or against said petition, which may be prepared and submitted, shall be examined by said court, and they may, in their discretion, permit the agent or agents named in the original petition to amend or change the same, except no amendment shall be permitted, whereby territory not before embraced shall be-added, or the character of the proposed incorporated town changed from special to general, or from general to special, without appointing another time for hearing, and requiring new notice to be given as above provided.”
There is no statutory procedure for an appeal by the city to the circuit court from the county court’s denial of a petition for annexation. Its only right of appeal is that set forth in Article 7, § 33 of the Constitution which provides:
“Appeals from all judgments of county courts. . . may be taken to the circuit court under such restrictions and regulations as may be prescribed by law.”
In Pike v. City of Stuttgart, supra, we pointed out that the procedure in the circuit court would be the same as that set out in Ark. Stat. Ann. §§ 19-101 to 19-103 for the procedure in the county court. This would require the city to again comply with the notice required by Ark. Stat. Ann. § 19-101.
Under the procedure outlined above, Joe West had a right to appear at the public hearing required by Ark. Stat. Ann. § 19-102, supra, and without formal pleading to protest the annexation. I submit that when the county court sustained his objection and the city appealed to the circuit court under Art. 7 § 33, supra, Mr. West had the same right to appear and protest at the public hearing required by Ark. Stat. Ann. § 19-102. Mr. West did appear in the circuit court to register his protest and testified that by a petition circulated an overwhelming majority of the people of South Crossett opposed the annexation.
In the case of Perkins v. Holman, 43 Ark. 219, relied upon by the majority, the county court had approved the annexation and the persons objecting to the annexation and wishing to appeal to the circuit court neither lived nor owned any land in the affected territory. This court there properly held that the objectors had no standing in the circuit court to complain of the annexation by the county court. The distinction between the Perkins case and the one at bar is that the city was the petitioner in both the county court and the circuit court and that under Ark. Stat. Ann. § 19-102, supra, Mr. West had a right to appear and be heard.
Another and totally different reason for sustaining the circuit court’s findings is that by Ark. Stat. Ann. § 19-103, the court is required to find, as a prerequisite to annexation, that it is “right and proper” to annex the territory in question to the city. Here the testimony as to South Crossett was much the same as that on North Crossett area.
For either or both of the foregoing reasons, I dissent.
George Rose Smith and Brown, JJ., join in this dissent.