« ΠροηγούμενηΣυνέχεια »
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 the laws of the United States concerning the sale of agricultural land, and admit that, if the plaintiff's patent conveyed what it purported to convey, then, subject to a question to be mentioned later, the plaintiff must prevail.
single vein, while the new law gave him all veins having their apex within the surface, and that when he accepted this advantage he had to comply with the conditions, as otherwise he would be given a preference over later comers. It is said further that in the present case no rights had been acquired. These arguments do not command our assent, for reasons which we will state.
Before the act of 1872 it was not required that the end lines should be parallel (118 U. 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, that the construction of the act of 1872 adopted at the time by the land office agreed with the decisions of the courts. Unless, therefore, the meaning of the act of 1872 is pretty plainly the other way, this consensus of opinion and practice must be accorded considerable weight.
Apart from the last-mentioned considerations we are of opinion that the act of 1872 authorized the plaintiff's patent. Under the former law the miner located the lode. Calhoun Gold Min. Co. v. Ajax Gold Min. Co. 182 U. S. 499, 508, 45 L. ed. 1200, 1206, 21 Sup. Ct. Rep. 885. When the act of 1872 substituted the location of a piece of land by surface boundaries, it preserved the rights of locators to all mining locations previously made in compliance with law and local regulations, and provided that they should "have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface-lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of said surface locations." § 3. Rev. Stat. 2322. It is argued that this refers only to possessory rights, and that when a patent was applied for it
last is plain. The chance of a possible advantage to outstanding applicants does not seem to us to outweigh the injustice of preventing them from getting what the law had promised as the reward for the steps they had taken in accordance with its invitation.
The provision that the acts shall not impair existing rights is, perhaps, some indication that it extends to inchoate rights which constitutionally it might have impaired. At all events, it should be taken in a liberal sense. There was no sufficient reason why the United States should not be liberal, and, as we have said, it was just that it should be. We are of opinion that in the present case rights had been acquired within the meaning of the act. It is said that the survey of the mineral patent was not approved or payment made to the United States until after the passage of the act of 1872. But the location had been made and the proceedings under the act of 1866 so far advanced as to exclude adverse claims. The locator had done all that he could do, and we are satisfied that the act of 1872 intended to treat parties that were in that position as having rights that were to be preserved. If Congress were unrestricted by the Constitution, the word "rights" still would be the natural word to express the relation of persons to this kind of property, where the facts required the officers of the government to take steps necessary to permit them to
Plffs. in Err.,
CHARLES W. HUNTER, A. Hackler, and the Board of Directors of the St. Francis Levee District.
Constitutional law-equal protection of the laws-privileges and immunities-notice to nonresidents.
acquire it, and they were seeking to ac- | A. B. BALLARD and Josephine W. Ballard, quire it, and had manifested their intent and desire by occupation, labor, and expenditures. Yet, on Yet, on that supposition, there could be no technically legal right. We believe that Congress used the word in a somewhat popular sense, as no doubt it would have used it in the case supposed, without considering what injustice might be within its constitutional power to commit. See Clipper Min. Co. v. Eli Min. & Land Co. 194 U. S. 220, 48 L. ed. 944, 24 Sup. Ct. Rep. 632; Creede & C. C. Min. & Mill. Co. v. Uinta Tunnel Min. & Transp. Co. 196 U. S. 337, 342, 49 L. ed. 501, 505, 25 Sup. Ct. Rep. 266. The plaintiff is not responsible for the form of the patent. It grants the rights that would have been granted under the act of 1866, and the fact that it also purports to grant all that would have been acquired by a location under the act of 1872 does not import an election by the grantee to abandon the former. We do not mean to disparage the additional grant, but, as was pointed out by the California court, the question before us does not touch that point.
The defendants rely, for a further defense, upon a quitclaim deed, from the plaintiff, of the land under which lies the portion of the vein in dispute. The land was described as lying east of the mining ground known as the Summit quartz mine. Assuming, in accordance with its decision, that the part of the vein under this land was embraced in the patent to the plaintiff, and severed from the surface, the California court held that this instrument did not purport to convey the portion of the vein beneath the surface and within the converging lines, produced, of the plaintiff's location. The court also adverted to the fact, which sufficiently appeared that the real object of the deed was to free the defendants' title from a previous contract on their part to convey the land, and simply to replace the grantees in their former position; and it sustained a finding of the court below. The construction and effect of a conveyance between private parties is a matter as to which we follow the court of the state. Brine v. Hartford F. Ins. Co. 96 U. S. 627, 636, 24 L. ed. 858, 861; De Vaughn v. Hutchinson, 165 U. S. 566, 41 L. ed. 827, 17 Sup. Ct. Rep. 461. The assumption upon which that construction proceeded we have decided to be correct, and it is enough to add that there is nothing in the decision rendered last week in Montana Min. Co. v. St. Louis Min. & Mill. Co. 204 U. S. 204, 51 L. ed. 444, 27 Sup. Ct. Rep. 254, that prevents our agreeing
with the result.
1. Nonresident owners of lands within the levee district created by Ark. act of Feb. 15, 1893, are not denied the equal protection of the laws or the privileges and immunities of citizens of the United States because § 11 of that act, as amended in 1895, while requiring personal service of summons upon resident owners or occupants for at least twenty days before rendering a decree of sale for unpaid levee taxes, provides for constructive service by publication upon nonresident owners of only four weeks.*
Constitutional law-due process of lawvalidity of tax sale.
2. The decree of sale rendered in a suit
to enforce the payment of levee taxes does not deprive the owners of their property without due process of law because of mistakes in ascribing the ownership of the lands, which do not increase the taxation, or cast that which should have been paid by one tract of land upon another tract.i Constitutional law-due process of lawvalidity of tax sale.
costs the law allows in a suit to enforce the 3. An erroneous judgment as to what payment of levee taxes does not deprive the defendants in that suit of their property without due process of law. Constitutional law-due process of law in tax proceedings-notice.
tion to nonresident owners of lands within 4. Four weeks' notice given by publicathe levee district created by Ark. act of Feb. 15, 1893, of the pendency of the suit authorized by § 11 of that act, as amended in 1895, to enforce the collection of levee taxes, is adequate to afford due process of law.‡
Constitutional law-due process of law in
5. Due process of law does not require that the nonresident owners of lands within a levee district should have personal notice of the pendency of a suit to collect the levee taxes assessed upon their lands.t Constitutional law-due process of law in tax proceedings-who may raise question.
6. Nonresident owners of lands within
the levee district created by Ark. act of
*Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Constitutional Law, § 685.
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 warning order. 7. A decree for the sale of lands for unpaid levee taxes based on constructive service cannot be deemed to deny due process of law because there was no sufficient proof of publication of a warning order or notice filed or produced in court when the decree was made, where, under the local procedure, the entry of a warning order, even if required, is not jurisdictional. Judgment-conclusiveness on collateral at
8. A recital in a decree for the sale of lands for unpaid levee taxes that the nonresident defendants were "severally constructively summoned by publication
proof of which has been previously filed herein" is conclusive as against a collateral attack based on the objection that there was no sufficient proof of publication of the warning order or notice filed or produced
in court when the decree was made, where, under the local procedure, the entry of a warning order, even if required, is not jurisdictional.
called for that purpose upon notice by the board, and prescribed the procedure to be observed in the assessment and levy of the tax, and provided that the lands assessed should be entered upon the books, in convenient subdivisions, as surveyed by the United States government, with appropriate columns showing the names and residences of owners of the lands, and mortgages of record, if any, known to the assessors; and that no error in the description of the lands should invalidate the assessments, if sufficient description was given to ascertain where the land was situated. The assessment was made a lien upon the lands in the nature of a mortgage.
Section 11 of the act was amended in
1895: As amended, it provided that a tax collector should be elected by the board of directors and be furnished a list of assessments for his county; that he should proceed to collect the assessments, and that if the assessments were not paid within thirty days a penalty of 25 per cent should at once attach for such delinquency. The board of directors was required to enforce the col
Argued 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 jurisdiction, and it was provided that the court should give judgment against the persons claiming to be the owners of the lands, if known to the board, for the amount of such assessments, interest, penalties, and costs. It was further provided that, if the ownership of any of the delinquent lands should be unknown to the board, the lands might be proceeded against "as being owned by unknown owners;" that the judgment should provide for sale of the delinquent land for
Statement by Mr. Justice McKenna: This writ of error is prosecuted to review a judgment of the supreme court of Arkan-cash by a commissioner of a court after adsas, sustaining the validity of a sale of the lands of plaintiffs in error for levee
The state of Arkansas, by an act of its legislature passed February 15, 1893, created eight counties, or portions of eight counties, which constituted what was known as "St. Francis basin," a levee district, for the purpose of constructing and maintaining levees against the waters of the Mississippi river, and incorporated a board of directors, giving it power to "levee the St. Francis front in Arkansas and to protect and maintain the same." The board was also authorized, for the purpose of building, repairing, and maintaining the levee, to assess and levy annually a tax on all lands within the district, not exceeding 5 per cent of the increased value or betterment estimated to accrue from the *Ed. Note.-For cases in point, see vol. 10,
vertisement, as hereafter set out; and, further, that the proceedings and judgment should be in the nature of proceedings in rem, and it should be immaterial if the ownership of the lands should be incorrectly alleged; that the judgment should be enforced only as against the land, and not against any other property. All lands for each of the counties might be included in one suit, and all delinquent owners, including those unknown, might be made defendants, notice of the pendency of the suit to be given as against nonresidents of the county and unknown owners respectively by publication weekly, for four weeks prior to the day of the term of court on which final judgment should be entered for the sale of the land, in some newspaper published in the county where the suit might be pending. The 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
It was provided that where the owners were unknown that fact should be stated in the published notice, and against any defendant who resided in the county, and whose ownership appeared on the records, notice should be given by the service of personal summons of the court at least twenty days before the day on which the defendant was required to answer, as set out in the summons. And the suit should stand for trial at the first term of the court after the complaint should be filed, if said four weeks in the case of a nonresident or unknown defendant, or twenty days in case of resident defendants, should expire before the first day of the term or during the term of the court to which the suit was brought, unless a continuance be granted for good cause shown, within the discretion of the court, and such continuance for good cause shown might be granted as to part of the land or defendants without affecting the duty of the court to dispose finally of the others as to whom no continuances might be granted. And it was further provided that actual service of summons should be had when the defendant was in the county, or when there was an occupant upon the land. In all cases where notice had been properly given and where no answer had been filed, and the cause decided for the plaintiff, the court, by its decree, should grant the relief as prayed in the complaint, and should require the commissioner to sell the lands at the courthouse door, at public outcry, for cash, after first having advertised such sale weekly for two weeks consecutively, and convey to the purchasers the lands sold, the titles of which should thereupon vest in the purchaser against all persons whomsoever, saving rights to infants and insane persons. The act contained the following:
"Provided, that at any time within three years after the rendition of the final decree of the chancery court herein provided for, the owner of the lands may file his petition in the court rendering the decree, alleging
"St. Francis Levee District
the year for which they were sold, and, upon the establishment of that fact, the court shall vacate and shall set aside said decree." Section 2 of the act of 1895, amending the act of 1893, provided as follows:
"That § 13 of said act be amended so as to read as follows: Said suit shall be conducted in accordance with the practice and proceedings of chancery courts in this state. except as herein otherwise provided, and except that neither attorneys nor guardians ad litem, nor any provision of § 5877 of Sandels & Hill's Digest of the Statutes of Arkansas, shall be required, and except that said suits may be disposed of on oral testimony, as in ordinary suits at law; and this law shall be liberally construed to give said assessment lists the effect of bona fide mortgages, for a valuable consideration, and a first lien upon said land as against all persons having an interest therein; Provided, That no informality or irregularity in holding the meetings or in the description or valuation of the lands, or in the names of the owners or the number of acres therein, shall be a valid defense to such action." [Ark. Acts 1895, pp. 91, 92.]
Suit was brought as provided for in the acts, and, in the complaint, plaintiff in error A. B. Ballard was made a defendant and named as a nonresident of Crittenden county, Arkansas, Josephine W. Ballard was not made a defendant. In the list of lands attached to and made part of the complaint the following appears:
Township 4 North, Range 7 East.
West half southeast quarter, section 32, T. 4 N. R. 7 E. 480 acres, assessed to A. B. Ballard
Taxes for 1895, $19.20
ers, with a descriptive list of said delinquent lands and amounts due thereon, respectively, as aforesaid; and said published notice may conclude in the following form: others interested in said lands, are hereby "Said persons and corporations, and all notified that they are required by law to appear and make defense to said suit, or the same will be taken for confessed, and judgment final will be entered directing the sale of said lands for the purpose of collecting said delinquent levee taxes, together with the payment of interest, penalty, and costs allowed by law."
Northeast quarter, section 31, T. 4 N. R. E. 160 acres, assessed to A. B. BallardTaxes for 1895, $6.40
66 1896, 6.40
A decree in due course passed against defendants. It designated the defendants who were duly served with summons, as shown by the return of the sheriff, and made default, and the defendants who were, as the decree recites, "severally constructively summoned by publication in the newspaper published in Crittenden county, Arkansas, weekly, for four weeks before this day, proof of which has been previously filed herein, and all of the before-named defendants. having failed to plead, answer, or demur to the complaint of the plaintiff, the court, on motion of the attorney for the plaintiff, awards a decree pro confesso as to them in favor of the plaintiff for the amount of taxes, interest, penalty, and costs due for their said lands." The court also found and recited the steps preceding the assessment of the taxes, the assessment of the same, and that "all of said taxes on said lands of said defendants are yet wholly unpaid and are delinquent." A lien was declared, and it was considered and adjudged that plaintiff recover from the defendants severally, to be enforced wholly against said lands, the amount of taxes, interest, penalty, and costs assessed, levied, and extended against the lands belonging to each of said defendants, respectively, for the years 1893, 1894, 1895, 1896, and 1897. A list of the lands was given, in which were the lands assessed against A. B. Ballard (described in the opinion). The lands were decreed to be sold, and it was also decreed that there should be allowed to the commissioner fees as follows:
"For furnishing printer with list of lands to be advertised, five cents per tract, and for attending and making and reporting sale, twenty-five (25) cents per tract; and there shall be allowed to the printer for publishing said notice fifty (50) cents per tract, which fee shall be taxed as costs against each several tract, to be paid by the purchaser or person discharging said lien before sale, and the said commissioner shall report his proceedings hereunder to the next term of this court."
| lard come by their solicitors and on their motion leave is given them to file herein their answer, motion, petition, and bill of review herein, and be made parties to this suit with reference to the N. E. 14 of section. 31, the southwest 14 of section 32, and the south 1⁄2 of the northwest 14 of section 32, all in township 4 north, range 7 east, and the said pleading is ordered to be filed and they are made defendants and parties to this suit for the purposes set out in said pleadings.
"And thereupon the said C. W. Hunter, by L. P. Berry, Esq., his attorney, enters his appearance herein and has ninety days given him within which to plead, answer, or demur herein."
It does not appear that A. Hackler or the board of directors of the levee district ever entered their appearance or were made parties to the proceeding.
In compliance with the order, plaintiffs in error filed what is called in the record "Answer to Motion of Ballard." It commences as follows:
"To the Hon. E. D. Robertson, Chancellor:
"The answer and motion of A. B. Ballard, who is a citizen of the state of Florida, residing at Tampa, and Mrs. Josephine W. Ballard, who is a citizen of the state of Georgia, residing at Atlanta, also to be taken and considered as a petition, under §§ 5839-5843, Sandels & Hill's Digest, and as an original complaint, under §§ 4197-4199 of same, and under §§ 6120-6124 of same, and the amendments thereto, and as a bill of review under the chancery practice, as appears by the prayer herein."
It then sets out in detail the facts which constitute the basis of the assignment of errors in this court, presently given, as well as specifications of errors under the Constitution and statutes of the state. It prayed that the paper be considered in the several characters mentioned in its opening paragraph; that all the parties to the original suit be considered parties, including the purchasers at the sale; that the decree of the 14th of February, 1898, be "reviewed, reversed, and vacated, and that the report of the sales and the sales be set aside and the deeds canceled."
The case was submitted on a statement of facts, by which it was agreed that plaintiffs in error were the owners of the land on the 21st day of December, 1897, and that their title appeared of record. That at that date they were, and continued to be, respectively, citizens of Florida and of Georgia,
In the report of the commissioner of his proceedings under the decree he showed that he sold the lands in section 31 to A. Hackler and the lands in section 32 to C. W. Hunter, hereafter described. 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