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have been gained by a location and patent was required to conform to the new law; under the act of 1872 alone. The defendants that under the old law the miner got but a derive title from later patents issued under single vein, while the new law gave him all the laws of the United States concerning the veins having their apex within the surface, sale of agricultural land, and admit that, and that when he accepted this advantage if the plaintiff's patent conveyed what it he had to comply with the conditions, as purported to convey, then, subject to a ques- otherwise he would be given a preference tion to be mentioned later, the plaintiff over later comers. It is said further that in must prevail.

the present case no rights had been acquired. Before the act of 1872 it was not required These arguments do not command our asthat the end lines should be parallel (118 U. sent, for reasons which we will state. S. 208, 30 L. ed. 102, 6 Sup. Ct. Rep. 1177);

A broader construction of the passage and when, with some dissent, it was decided quoted from § 3 is favored by other provithat that requirement of that act made a síons in the act. It provided that the repeal condition to the right of a patentee to follow of certain sections of the act of 1866 "shall his vein outside of the vertical planes drawn not affect existing rights. Applications for through his side lines, the decision was con- patents for mining claims now pending may fined in terms to cases where the location be prosecuted to a final decision in the Genwas made since the passage of the act. eral Land Office; but, in such cases, when Ibid. That there is no such condition when adverse rights are not affected thereby, patthe patent was issued in pursuance of pro-ents may issue in pursuance of the proviceedings under the earlier statutes has been sions of this act.” § 9. So in § 12. "Nor decided, so far as we know, when the ques- shall this act affect any right acquired under tion has arisen. See e. g. Argonaut Min. Co. said act” (of 1866). And in § 16, "Provided, v. Kennedy Min. & Mill. Co. 131 Cal. 15, 82 that nothing contained in this act shall be Am. St. Rep. 317, 63 Pac. 148; Carson City construed to impair, in any way, rights or Gold & S. Min. Co. v. North Star Min. Co. interests in mining property acquired under 28 C. C. A. 333, 48 U. S. App. 724, existing laws.” Whatever ambiguity may 83 Fed. 658, 669. The granting of the pat- be found in the first of these quotations, the ent indicates what we believe to be a fact, last is plain. The chance of a possible adthat the construction of the act of 1872 vantage to outstanding applicants does not adopted at the time by the land office agreed seem to us to outweigh the injustice of prewith the decisions of the courts. Unless, venting them from getting what the law had therefore, the meaning of the act of 1872 is promised as the reward for the steps they pretty plainly the other way, this consensus had taken in accordance with its invitation. of opinion and practice must be accorded The provision that the acts shall not imconsiderable weight.

pair existing rights is, perhaps, some indiApart from the last-mentioned considera- cation that it extends to inchoate rights tions we are of opinion that the act of 1872 which constitutionally it might have imauthorized the plaintiff's patent. Under the paired. At all events, it should be taken in former law the miner located the lode. Cal. a liberal sense. There was no sufficient reahoun Gold Min. Co. v. Ajax Gold Min. Co. son why the United States should not be 182 U. S. 499, 508, 45 L. ed. 1200, 1206, 21 liberal, and, as we have said, it was just Sup. Ct. Rep. 885. When the act of 1872 that it should be. We are of opinion that in substituted the location of a piece of land the present case rights had been acquired by surface boundaries, it preserved the rights within the meaning of the act. It is said of locators to all mining locations previously that the survey of the mineral patent was made in compliance with law and local regu- not approved or payment made to the United lations, and provided that they should "have States until after the passage of the act of the exclusive right of possession and enjoy. 1872. But the location had been made and ment of all the surface included within the proceedings under the act of 1866 so far the lines of their locations, and of all veins, advanced as to exclude adverse claims. The lodes, and ledges throughout their entire locator had done all that he could do, and we depth, the top or apex of which lies inside of are satisfied that the act of 1872 intended to such surface-lines extended downward verti- treat parties that were in that position as cally, although such veins, lodes, or ledges having rights that were to be preserved. may so far depart from a perpendicular in If Congress were unrestricted by the Contheir course downward as to extend outside stitution, the word "rights” still would be the vertical side lines of said surface loca- the natural word to express the relation of tions." § 3. Rev. Stat. 2322. It is argued persons to this kind of property, where the that this refers only to possessory rights, facts required the officers of the government and that when a patent was applied for it to take steps necessary to permit them to

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acquire it, and they were seeking to ac- A. B. BALLARD and Josephine W. Ballard, quire it, and had manifested their intent

Plffs. in Err., and desire by occupation, labor, and expenditures. Yet, on

on that supposition, there CHARLES W. HUNTER, A. Hackler, and could be no technically legal right. We be- the Board of Directors of the St. Francis lieve that Congress used the word in a some

Levee District. what popular sense, as no doubt it would

have used it in the case supposed, without Constitutional law—equal protection of the

laws-privileges and immunities-notice considering what injustice might be within

to nonresidents. its constitutional power to commit. See

1. Nonresident owners of lands within Clipper Min. Co. v. Eli Min. & Land Co. 194 the levee district created by Ark. act of U. S. 220, 48 L. ed. 944, 24 Sup. Ct. Rep. 632; Feb. 15, 1893, are not denied the equal proCreede & C. C. Min. & Mill. Co. v. Uinta tection of the laws or the privileges and Tunnel Min. & Transp. Co. 196 U. S. 337, immunities of citizens of the United States 342, 49 L. ed. 501, 505, 25 Sup. Ct. Rep. 266. because § 11 of that act, as amended in

The plaintiff is not responsible for the 1895, while requiring personal service of form of the patent. It grants the rights that for at least twenty days before rendering

summons upon resident owners or occupants would have been granted under the act of a decree of sale for unpaid levee taxes, pro1866, and the fact that it also purports to vides for constructive service by publicagrant all that would have been acquired by tion upon nonresident owners of only four a location under the act of 1872 does not weeks.* import an election by the grantee to aban- Constitutional law—due process of law, don the former. We do not mean to dispar

validity of tax sale.

2. The decree of sale rendered in a suit age the additional grant, but, as was point to enforce the payment of levee taxes does ed out by the California court, the question not deprive the owners of their property before us does not touch that point.

without due process of law because of misThe defendants rely, for a further defense, takes in ascribing the ownership of the upon a quitclaim deed, from the plaintiff, lands, which do not increase the taxation, of the land under which lies the portion or cast that which should have been paid of the vein in dispute. The land was de- by one tract of land upon another tract. scribed as lying east of the mining ground Constitutional law—due process of law,

validity of tax sale. known as the Summit quartz mine. Assuming, in accordance with its decision, that the costs the law allows in a suit to enforce the

3. An erroneous judgment as to what part of the vein under this land was em: payment of levee taxes does not deprive braced in the patent to the plaintiff, and the defendants in that suit of their propsevered from the surface, the California erty without due process of law. court held that this instrument did not pur. Constitutional law--due process of law in port to convey the portion of the vein beneath tax proceedings—notice. the surface and within the converging

4. Four weeks' notice given by publicalines, produced, of the plaintiff's location. the levee district created by Ark. act of

tion to nonresident owners of lands within The court also adverted to the fact, which Feb. 15, 1893, of the pendency of the suit sufficiently appeared that the real object of authorized by § 11 of that act, as amended the deed was to free the defendants' title in 1895, to enforce the collection of levee from a previous contract on their part to taxes, is adequate to afford due process of convey the land, and simply to replace the law.f grantees in their former position; and it constitutional law—due process of law in

tax proceedings-notice. sustained a finding of the court below. The

5. Due process of law does not require construction and effect of a conveyance be that the nonresident owners of lands withtween private parties is a matter as to in a levee district should have personal nowhich we follow the court of the state. tice of the pendency of a suit to collect the Brine v. Hartford F. Ins. Co. 96 U. S. 627, levee taxes assessed upon their lands. I 636, 24 L. ed. 858, 861; De Vaughn v. Hutch- Constitutional law-due process of law in inson, 165 U. S. 566, 41 L. ed. 827, 17 Sup.

tax proceedings-who may raise question.

6. Nonresident owners of lands within Ct. Rep. 461. The assumption upon which the levee district created by Ark. act of that construction proceeded we have decided Feb. 15, 1893, who do not assert the existto be correct, and it is enough to add that ence of conditions which, under § 11 of that there is nothing in the decision rendered last act, as amended in 1895, would entitle them week in Montana Min. Co. v. St. Louis Min. to personal service of summons in a suit to & Mill. Co. 204 U. S. 204, 51 L. ed. 444, 27 enforce the payment of levee taxes, cannot

object that they were deprived of their Sup. Ct. Rep. 254, that prevents our agreeing property without due process of law by a with the result.

decree of sale because the verified complaint Judgment affirmed.

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in a suit to collect such taxes was insuffi.

*Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Constitutional Law, $ 685.
+Ed. Note. For cases in point, see vol. 10, Cent. Dig. Cons 'tutional Law, $$ 893,
Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Const.tutional Law, $ 894


cient, by reason of its failure to deny the , protection given by the levee against floods existence of such conditions, to sustain from the river. The act prescribed that the service by publication.*

landowners should determine upon the asConstitutional law-due process of law-sessments and levy of the tax in a meeting

constructive service of process entry of called for that purpose upon notice by the warning order.

7. A decree for the sale of lands for board, and prescribed the procedure to be obunpaid levee taxes based on constructive served in the assessment and levy of the tax, service cannot be deemed to deny due proc- and provided that the lands assessed should ess of law because there was no sufficient be entered upon the books, in convenient proof of publication of a warning order or subdivisions, as surveyed by the United notice filed or produced in court when the States government, with appropriate coldecree was made, where, under the local

umns showing the names and residences of procedure, the entry of a warning order, owners of the lands, and mortgages of receven if required, is not jurisdictional.

ord, if any, known to the assessors; and Judgment-conclusiveness on collateral at that no error in the description of the lands tack.

8. A recital in a decree for the sale of should invalidate the assessments, if suffilands for unpaid levee taxes that the non

cient description was given to ascertain resident defendants were “severally con

where the land was situated. The assessstructively summoned by publication ment was made a lien upon the lands in

proof of which has been previously filed the nature of a mortgage. herein” is conclusive as against a collateral Section 11 of the act was amended in attack based on the objection that there 1895: As amended, it provided that a tax was no sufficient proof of publication of the collector should be elected by the board of warning order or notice filed or produced directors and be furnished a list of assessin court when the decree was made, where, under the local procedure, the entry of a ments for his county; that he should prowarning order, even if required, is not ju- ceed to collect the assessments, and that if risdictional.

the assessments were not paid within thirty

days a penalty of 25 per cent should at once [No. 123.]

attach for such delinquency. The board of

directors was required to enforce the colArgued and submitted December 7, 1906. lection of the taxes by chancery proceedDecided January 21, 1907.

ings in a court of the county in which the

lands were situated, having chancery jurisI

N ERROR to the Supreme Court of the diction, and it was provided that the court

State of Arkansas to review a decree should give judgment against the persons which affirmed a decree of the Chancery claiming to be the owners of the lands, if Court of Crittenden County, in that state, known to the board, for the amount of such denying relief from a decree for the sale ou assessments, interest, penalties, and costs. lands for levee taxes. Affirmed.

It was further provided that, if the owner. See same case below, 74 Ark. 174, 85 S. W. ship of any of the delinquent lands should 252.

be unknown to the board, the lands might be

proceeded against “as being owned by unStatement by Mr. Justice McKenna: known owners;” that the judgment should

This writ of error is prosecuted to review provide for sale of the delinquent land for a judgment of the supreme court of Arkan-cash by a commissioner of a court after adsas, sustaining the validity of a sale of vertisement, as hereafter set out; and, furthe lands of plaintiffs in error for levee ther, that the proceedings and judgment taxes.

should be in the nature of proceedings in The state of Arkansas, by an act of its rem, and it should be immaterial if the ownlegislature passed February 15, 1893, created ership of the lands should be incorrectly eight counties, or portions of eight counties, alleged; that the judgment should be enwhich constituted what was known as “St. forced only as against the land, and not Francis basin," a levee district, for the pur- against any other property. All lands for pose of constructing and maintaining levees each of the counties might be included in against the waters of the Mississippi river, one suit, and all delinquent owners, includand incorporated a board of directors, giving ing those unknown, might be made defendit power to "levee the St. Francis front in ants, notice of the pendency of the suit to Arkansas and to protect and maintain the be given as against nonresidents of the same.” The board was also authorized, for county and unknown owners respectively by the purpose of building, repairing, and main- publication weekly, for four weeks prior to taining the levee, to assess and levy annually the day of the term of court on which final a tax on all lands within the district, not judgment should be entered for the sale of exceeding 5 per cent of the increased value the land, in some newspaper published in the or betterment estimated to accrue from the county where the suit might be pending. The

*Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Constitutional Law, $ 39.


form of notice which might be given is in- | the payment of the taxes on said lands for serted in the margin.t

the year for which they were sold, and, upon It was provided that where the owners the establishment of that fact, the court were unknown that fact should be stated in shall vacate and shall set aside said decree." the published notice, and against any de- Section 2 of the act of 1895, amending the fendant who resided in the county, and act of 1893, provided as follows: whose ownership appeared on the records, “That § 13 of said act be amended so as notice should be given by the service of to read as follows: Said suit shall be conpersonal summons of the court at least ducted in accordance with the practice and twenty days before the day on which the proceedings of chancery courts in this state. defendant was required to answer, as set except as herein otherwise provided, and exout in the summons. And the suit should cept that neither attorneys nor guardians stand for trial at the first term of the court ad litem, nor any provision of § 5877 of after the complaint should be filed, if said Sandels & Hill's Digest of the Statutes of four weeks in the case of a nonresident or un- Arkansas, shall be required, and except that known defendant, or twenty days in case of said suits may be disposed of on oral tesresident defendants, should expire before timony, as in ordinary suits at law; and this the first day of the term or during the term law shall be liberally construed to give said of the court to which the suit was brought, assessment lists the effect of bona fide mortunless a continuance be granted for good gages, for a valuable consideration, and a cause shown, within the discretion of the first lien upon said land as against all percourt, and such continuance for good cause sons having an interest therein; Provided, shown might be granted as to part of the That no informality or irregularity in holdland or defendants without affecting the duty ing the meetings or in the description or of the court to dispose finally of the others valuation of the lands, or in the names of as to whom no continuances might be grant- the owners or the number of acres therein, ed. And it was further provided that actual shall be a valid defense to such action.” service of summons should be had when the [Ark. Acts 1895, pp. 91, 92.] defendant was in the county, or when there Suit was brought as provided for in the was an occupant upon the land. In all cases acts, and, in the complaint, plaintiff in error where notice had been properly given and A. B. Ballard was made a defendant and where no answer had been filed, and the named as a nonresident of Crittenden councause decided for the plaintiff, the court, byty, Arkansas, Josephine W. Ballard was not its decree, should grant the relief as prayed made a defendant. In the list of lands at. in the complaint, and should require the tached to and made part of the complaint commissioner to sell the lands at the court- the following appears: house door, at public outcry, for cash, after

Township 4 North, Range 7 East. first having advertised such sale weekly for West half southeast quarter, section 32, two weeks consecutively, and convey to the T. 4 N. R. 7 E. 480 acres, assessed to A. B. purchasers the lands sold, the titles of which Ballardshould thereupon vest in the purchaser Taxes for 1895, $19.20 against all persons whomsoever, saving

1896, 19.20 rights to infants and insane persons. The

1897, 19.20 act contained the following:

West half northeast quarter, section 32, “Provided, that at any time within three T. 4 N. R. 7 E. 80 acres, assessed to A. B. years after the rendition of the final decree Ballardof the chancery court herein provided for, Taxes for 1895, $3.20 the owner of the lands may file his petition

1896, 3.20 in the court rendering the decree, alleging

1897, 3.20 +"St. Francis Levee District

ers, with a descriptive list of said delin

Notice. quent lands and amounts due thereon, reDelinquent Lands.

spectively, as aforesaid; and said published

notice may conclude in the following form: “The following named persons and corporations, and all others having or claiming others interested in said lands, are hereby

“Said persons and corporations, and all an interest in any of the following described lands, are hereby notified that suit notified that they are required by law to

appear and make defense to said suit, or is pending in the circuit court of county, Arkansas, to enforce the collection the same will be taken for confessed, and of certain levee taxes on the subjoined list sale of said lands for the purpose of collectof certain levee taxes on the subjoined list judgment final will be entered directing the of lands, each supposed owner's lands being ing said delinquent levee taxes, together set opposite his or her or its name, respec. with the payment of interest, penalty, and tively, together with the amounts severally

costs allowed by law." due from each, to wit."

Then shall follow a list of supposed own.


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Northeast quarter, section 31, T. 4 N. R. 7 | lard come by their solicitors and on their E. 160 acres, assessed to A. B. Ballard- motion leave is given them to file herein Taxes for 1895, $6.40

their answer, motion, petition, and bill of “ 1896, 6.40

review herein, and be made parties to this

suit with reference to the N. E. 14 of section A decree in due course passed against de 31, the southwest 14 of section 32, and the fendants. It designated the defendants who south 12 of the northwest 14 of section 32, were duly served with summons, as shown all in township 4 north, range 7 east, and by the return of the sheriff, and made de- the said pleading is ordered to be filed and fault, and the defendants who were, as the they are made defendants and parties to decree recites, “severally constructively this suit for the purposes set out in said summoned by publication in the newspaper pleadings. published in Crittenden county, Arkansas, "And thereupon the said C. W. Hunter, by weekly, for four weeks before this day, proof L. P. Berry, Esq., his attorney, enters his of which has been previously filed herein, appearance herein and has ninety days given and all of the before-named defendants him within which to plead, answer, or demur

having failed to plead, answer, or de herein." mur to the complaint of the plaintiff, the It does not appear that A. Hackler or the court, on motion of the attorney for the board of directors of the levee district ever plaintiff, awards a decree pro confesso as entered their appearance or were made parto them in favor of the plaintiff for the ties to the proceeding. amount of taxes, interest, penalty, and costs In compliance with the order, plaintiffs due for their said lands." The court also in error filed what is called in the record found and recited the steps preceding the “Answer to Motion of Ballard.” It commenassessment of the taxes, the assessment of ces as follows: the same, and that "all of said taxes on said "To the Hon. E. D. Robertson, Chancellor: lands of said defendants are yet wholly un. "The answer and motion of A. B. Ballard, paid and are delinquent.” Alien was de who is a citizen of the state of Florida, residclared, and it was considered and adjudged ing at Tampa, and Mrs. Josephine W. Balthat plaintiff recover from the defendants lard, who is a citizen of the state of Georgia, severally, to be enforced wholly against said residing at Atlanta, also to be taken and lands, the amount of taxes, interest, penalty, considered as a petition, under $8 5839–5843, and costs assessed, levied, and extended Sandels & Hill's Digest, and as an original against the lands belonging to each of said complaint, under $$ 4197–4199 of same, and defendants, respectively, for the years 1893, under $$ 6120-6124 of same, and the amend1894, 1895, 1896, and 1897. A list of the ments thereto, and as a bill of review under lands was given, in which were the lands as the chancery practice, as appears by the sessed against A. B. Ballard (described in prayer herein." the opinion). The lands were decreed to be It then sets out in detail the facts which sold, and it was also decreed that there constitute the basis of the assignment of should be allowed to the commissioner fees errors in this court, presently given, as well as follows:

as specifications of errors under the Consti“For furnishing printer with list of lands tution and statutes of the state. It prayed to be advertised, five cents per tract, and for that the paper be considered in the several attending and making and reporting sale, characters mentioned in its opening paratwenty-five (25) cents per tract; and there graph; that all the parties to the original shall be allowed to the printer for publish suit be considered parties, including the puring said notice fifty (50) cents per tract, chasers at the sale; that the decree of the

, which fee shall be taxed as costs against 14th of February, 1898, be "reviewed, reeach several tract, to be paid by the purchas- versed, and vacated, and that the report of er or person discharging said lien before sale, the sales and the sales be set aside and the and the said commissioner shall report his deeds canceled.” proceedings hereunder to the next term of The case was submitted on a statement this court."

of facts, by which it was agreed that plainIn the report of the commissioner of his tiffs in error were the owners of the land on proceedings under the decree he showed that the 21st day of December, 1897, and that he sold the lands in section 31 to A. Hackler their title appeared of record. That at that and the lands in section 32 to C. W. Hunter, date they were, and continued to be, rehereafter described.

spectively, citizens of Florida and of Georgia, The sale was approved and the deeds made and that they would testify that they had were also approved.

no knowledge of the suit or its pendency, At September term of the court, 1899, the or that taxes for levee purposes had been following order was entered:

levied prior to the date of the sale of their “A. B. Ballard and Mrs. Josephine W. Bal. 'lands and the purchase thereof by Hunter or

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