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Hackler, or "that any law on that subject, the decree of sale. Plaintiffs in error, rehad been enacted." That the clerk of the spectively citizens of Georgia and Florida, court was allowed $1 for each of the deeds were allowed and given constructive service, made in pursuance of the sale, and allowed if any were given, only by publication in a the fees set out in the decree, and all said newspaper, published in Crittenden county, sums were taxed as costs and paid out of the and only weekly for four weeks, the first proceeds of sale. That plaintiff in error notice being, and required to be, only four made the tenders to Hunter and Hackler, re- weeks before the rendition of the decree. spectively, as stated in “their answer and Plaintiffs in error had no personal or other motion filed herein on the 25th day of Sep- notice of the suit, and did not appear theretember, 1899, and in the manner and at the in. They were denied thereby the privileges time stated and that the said C. W. Hunter and immunities of citizens of the United and A. Hackler, respectively, refused to re- States and of Arkansas, and denied the equal ceive such tenders, and severally refused to protection of the laws within the state of state the amounts that they claimed they Arkansas, and deprived of their property were entitled to receive in order to redeem without due process of law, in violation of the said tracts of land respectively.” the Constitution of the United States, and
It was also agreed that the record of the the decree of sale and sales thereunder are suit, including all orders, returns of officers, void. (8) In not decreeing that the sales minutes of proceedings, etc., should be read of the land of the plaintiffs in error were in evidence, subject only to objections for void and passed no title, because in the suit irrelevancy and incompetency.
the laws of the state were violated in that The decree of the court, after reciting the (a) the complaint was deficient; (b) that submission of the case and upon what sub- there was no sufficient affidavit made and mitted, concluded as follows: “The court filed to support a warning order or order for orders that all the relief as prayed for in notice to plaintiffs in error; (c) there was the said answer, motion, petition, and origi- no sufficient proof of publication of warnnal complaint of the said A. B. Ballard and ing order or notice filed or produced in court Josephine W. Ballard be and the same is when decree of sale was made; (d) the dehereby denied and refused, and that the said cree of sale did not state, and the record did answer, motion, petition, and original com- not show, the facts essential to the validity plaint be and the same is hereby dismissed.” of the decree of sale as against plaintiffs in
The supreme court of the state affirmed error or other lands. Thereby the plaintiffs the decree.
in error, in violation of the Constitution of The errors assigned are that the supreme the United States, have been denied the bencourt erred in not decreeing that (1) The efit of such laws in this suit. (9) The decree lands of plaintiffs in error were not proper- of sale was rendered in violation of the laws ly described in the complaint. (2) and (3) of Arkansas requiring proof of evidence to In not decreeing that the sale was unlawful support the allegations of the plaintiff as ly made, for the reason that the lands of against plaintiffs in error, persons before the plaintiffs in error were sold as a whole and court only by a constructive service of procfor taxes on the whole west one half of sec- ess. And the decree was pronounced as tion 32, when plaintiffs in error did not own based on an alleged order or decree pro conor claim the N. 1/2 of the N. W. 14 of that fesso entered in the suit, not authorized by section. (4) The decree was void because law, and so was rendered without due procthe lands were sold for sums not legally ess of law, in violation of the Constitution chargeable thereon. (5) That the acts of 1893 of the United States. and 1895 required a notice to be given to the owners of the lands proceeded against in the Messrs. William M. Randolph, George Ransuit they provided for, and no such notice | dolph, and Wassell Randolph for plaintiffs was given, and the sales were therefore un- in error. authorized and void. (6) The notice provid- Mr. L. P. Berry for defendants in error. ed for by the act, assuming notice was given, was insufficient. It was not such a notice Mr. Justice McKenna, after stating the of the pendency of the suit as the act or the case as above, delivered the opinion of the general law required to be given to the own- court: ers of lands resident in the state of Arkansas The assignments of error present the conand Crittenden county, where the lands were tention that plaintiffs in error have been delocated, and to persons owning lands there prived of their property without due procsimilarly circumstanced and subject to the ess of law. One of them urges, in addition, same taxation, or persons having tenants on the clauses of the 14th Amendment, which such lands. All such persons were entitled prohibit a state from making or enforcing by said act and had personal service for at any law which will abridge the privileges least twenty days before the rendition of lor immunities of citizens of the United States, and from depriving any person with 160 U. S. 389, 40 L. ed. 467, 16 Sup. Ct. Rep. in her jurisdiction of the equal protection 344. of the laws. Plaintiffs in error invoke those In Davidson v. New Orleans, 96 U. S. 97, provisions against the statutes of Arkansas, 24 L. ed. 616, a proposition was laid down because of the different manner and time of which has since been quoted many times. service of summons of the suit authorized by The court said, at pages 104 and 105, L. ed. said statutes to enforce the payment of the on pages 619 and 620: “That whenever, by levee taxes. It is contended that, by requir- the laws of a state or by state authority, ing personal service of summons upon resi- a tax, assessment, servitude, or other burdent owners or occupants of lands for at den is imposed upon property for the public least twenty days before the rendition of use, whether it be for the whole state or the decree of sale, and providing for con- of some more limited portion of the comstructive service by publication upon nonres- munity, and those laws provide for a mode ident owners of only four weeks, a discrimi- of confirming or contesting the charge thusnation is made between owners of lands, imposed, in the ordinary courts of justice, and that nonresident owners are thereby de- with such notice to the person or such pronied the rights secured to them by the Con- ceeding in regard to the property as is apstitution of the United States. We have propriate to the nature of the case, the no doubt of the power of the state to so dis- judgment in such proceedings cannot be said criminate, nor do we think extended discus- to deprive the owner of his property without sion is necessary. Personal service upon due process of law, however obnoxious it. nonresidents is not always within the state's may be to other objections." And Mr. Juspower. Its process is limited by its bound tice Bradley, in a concurring opinion, said, aries. Constructive service is at times on pages 107 and 108, L. ed. on pages 620 a necessary resource. The land stands ac- and 621, “that, in judging what is ‘due proccountable to the demands of the state, and ess of law, respect must be had to the the owners are charged with the laws affect cause and object of the taking, whether uning it and the manner by which those de- der the taxing power, the power of eminent mands may be enforced. Huling v. Kaw domain, or the power of assessment for local Valley R. & Improv. Co. 130 U. S. 559, 32 L. improvements, or none of these; and, if ed. 1045, 9 Sup. Ct. Rep. 603. This account found to be suitable or admissible in the ability of the land and the knowledge the special case, it will be adjudged to be due owners must be presumed to have had of the process of law;' but if found to be arbilaws affecting it is an answer to the conten-trary, oppressive, and unjust, it may be detion of the insufficiency of the service. Cer-clared to be not 'due process of law. Such tainly it was not so insufficient that it can an examination may be made without inbe said that a difference in the time allowed terfering with that large discretion which for such service was not the equivalent of every legislative power has of making wide that allowed to resident owners. Mixed modifications in the forms of procedure in with the contention is a charge that the no- each case, according as the laws, habits, custice to nonresidents did not comply with toms, and preferences of the people of the the act of 1893 or the general law of the particular state may require.” See also state, but this is decided against plaintiffs Marchant v. Pennsylvania R. Co. 153 U. S. in error by the supreme court of the state, 380, 38 L. ed. 751, 14 Sup. Ct. Rep. 894, and and we accept its ruling.
Holden v. Hardy, 169 U. S. 366, 42 L. ed. In passing upon the other contentions of 780, 18 Sup. Ct. Rep. 383. plaintiffs in error we are brought to the
In Castillo v. McConnico, 168 U. S. 674, 42
. . consideration of what is due process of law. L. ed. 622, 18 Sup. Ct. Rep. 229, prior deci
sions defining due process of law were apA precise definition has never been attempt. plied to a law assessing taxes. The case ined. It does not always mean proceedings involved the validity of a title derived from a court. Den ex dem. Murray v. Hoboken Land tax sale made to enforce delinquent state
. & Improv. Co. 18 How. 272, 15 L. ed. 372; taxes. The title thus acquired was assailed McMillen v. Anderson, 95 U. S. 37, 24 L. ed. 335. Its fundamental requirement is an op- which is was based was void because the
on the ground that the assessment upon portunity for a hearing and defense, but no property was not assessed in the name of its fixed procedure is demanded. The process owner. The state law made the deed given or proceedings may be adapted to the na. in pursuance of the sale prima facie eviture of the case. Dent v. West Virginia, 129 dence of the fact that the property was U. S. 114, 32 L. ed. 623, 9 Sup. Ct. Rep. 231; subject to taxation and the fact that the Lent v. Tillson, 140 U. S. 316, 35 L. ed. 419, taxes had not been paid, and conclusive evi11 Sup. Ct. Rep. 825; Hagar v. Reclamation dence that the property had been assessed, Dist. No. 108, 111 U. S. 701, 28 L. ed. 569, the taxes levied, and the property advertised 4 Sup. Ct. Rep. 663; Iowa R. C. Co. v. Iowa, 'according to law; also that the property wag. adjudicated and sold, as stated in the deed, it appears that the lands assessed and those and all the prerequisites of the law were decreed to be sold in section 32, T. 4 N., R. complied with, from the assessment up to 7 E., were the W. 12 and S. E. 44, 480 acres, and including the execution and registry of W. 1/2 of N. E. 14, 80 acres. Plaintiffs in erthe deed. The state court sustained the ror, however, allege that they owned only sale. This court, in passing upon the con- the S. W. 14 and the S. Y2 of the N. W. tention that the assessment and sale consti-14, and contend that the two tracts owned tuted a taking of property without due proc. by them made up 240 acres, and the two ess of law, went behind the presumptions tracts sold by the commissioner and concreated by the deed, considered the alleged veyed to Hunter, embracing such 240 acres, defects in the assessment and the advertise- made 480 acres. Thus, is is urged, the lands ment, and decided that a notice of thirty! plaintiffs in error owned were sold to pay days by publication was due process of law. the levee taxes on land they did not own, The court also decided that, although the and their lands were thereby taken without statutes under which the assessment was due process of law. made provided for the placing of the name This point was made in the complaint atof the owner on the assessment roll, where tacking the decree and sale, but was not such name was known, they also provided passed on by the supreme court. Presumthat the property assessed should be de-ably the court regarded the point as precludscribed in the assessment roll; and, there ed by the original decree, and not a ground fore, that the notice required by the statute upon which the decree could be attacked, was not addressed to each person assessed, and this is our view. What lands were but to all persons having property subject properly assessed to Ballard and what lands to taxation. It was held that the statute he owned were facts to be alleged in the orig. afforded both constructive and actual notice. inal suit and established by the proof there “It cannot be doubted,” it was said at page introduced or by admission through the de681, L. ed. at page 625, Sup. Ct. Rep. at page fault of the owners of the lands. If there 232, “that, in the exercise of its taxing pow. was error it cannot be a ground of setting er, the state of Louisiana could have directed aside the decree if the court had acquired that the property subject to its taxing au- jurisdiction to render the decree. Error or thority should be assessed without any ref- irregularities in the suit do not take from it erence whatever to the name of the owner; or its decree the attribute of due process. that is to say, by any such description and Central Land Co. v. Laidley, 159 U. S. 103, method as would have been legally adequate 40 L. ed. 91, 16 Sup. Ct. Rep. 80; Iowa C. R. to convey either actual or constructive no-Co. v. Iowa, supra. It is only this aspect of
. tice to the owner. As said in Witherspoon the suit and decree with which we are conv. Duncan, 4 Wall. 217, 18 L. ed. 342: 'It cerned. No defense, therefore, which could is not the province of this court to interfere have been made or rights which could have with the policy of the revenue laws of the been taken care of in the suit can now be state, nor with the interpretation given to set up to impugn its decree. them by their courts. Arkansas has the right to determine the manner of levying taxes were levied virtually make the land and collecting taxes, and can declare that a party to the suit to collect the taxes. It the particular tract of land shall be charge is from the lands alone, and not from their able with the taxes, no matter who is the owner, that the taxes are to be satisfied, and owner or in whose name it is assessed and each acre bears its part. The burden or taxadvertised, and that an erroneous assess- ation could have been easily and definitely ment does not vitiate a sale for taxes.'” See assigned by the court. Mistakes in ascribalso Turpin v. Lemon, 187 U. S. 51, 47 L. ed. ing the ownership of the lands did not in70, 23 Sup. Ct. Rep. 20, and Leigh v. Green, crease the taxation, or cast that which 193 U. S. 79, 48 L. ed. 623, 24 Sup. Ct. Rep. should have been paid by one tract of land 390.
upon another tract. In Doyle v. Martin, 55 In view of these principles let us examine Ark. 37, 17 S. W. 346, it was held that it the contentions of the plaintiffs in error. is no valid objection to a tax proceeding
First. They charge that there is an in- against land owned by one person that it correct description of the lands owned by was described, not separately, but as a porplaintiffs in error in the original complaint tion of a larger tract owned by a different and decree, in that they did not own all the person. See also Minneapolis R. Terminal lands described or sold. In the original tran- Co. v. Minnesota Debenture Co. 81 Minn. 66, script of the record there were apparently 83 N. W. 485. discrepancies between the lands assessed and Second. The fourth error assigned is that those described in the decree. These dis- the lands were sold for sums not legally crepancies have been corrected by the return chargeable thereon. The illegal charges al. to a certiorari granted for that purpose, and ' leged are fees to the commissioner for fur
Arkansas has the The statutes of the state under which the
nishing the printer with a list of lands sold, and the discussion answers as well for the fees to the commissioner for reporting the other assignments of error without specially sale, and to the printer for publishing enumerating them. The ultimate ground of notice of sale. The comment we have made all of them is that the proceedings were conabove applies to this assignment of error. ducted without the notice to plaintiffs in erThe act under which the suit was brought ror required by the demands of due process provided that notice to those interested in of law. In discussing the contention of the delinquent lands proceeded against plaintiffs in error, that they had been deshould specify, among other things, that a nied the equal protection of the laws by the final judgment would be entered, “directing different manner of service upon resident the sale of lands for the purpose of collecting and nonresident owners of land, and the difsaid delinquent levee taxes, together with erent times for appearance after service, we the payment of interest, penalty, and costs declared that it was competent for the state allowed by law.” It was for the court to to make the distinction, and that the notice determine, therefore, what costs were al- and time were adequate to give the plaintiffs lowed by law, and an erroneous judgment of in error the equal protection of the laws. what the law allowed did not deprive the They were also adequate to afford due procdefendants in the suit of their property ess of law. And we will pass to the considwithout due process of law. The supreme eration of the other objections. The most court, in passing on this objection, said: | important are the following: That there “A decree of a court of competent jurisdic-was no sufficient affidavit made and filed to tion is not subject to a collateral attack be- support a warning order or order for notice cause lands were sold thereunder for illegal to plaintiffs in error, and there was no proof penalties and costs. Kelley v. Laconia Levee of such order or notice filed or produced in District, 74 Ark. 202, 85 S. W. 249, 87 S. W. court when the decree was rendered. Reply638; Johnson v. Hunter, 127 Fed. 219.” [74 ing to these objections, the supreme court Ark. 181, 85 S. W. 251.] And this decision said: is an answer to the other decisions of Ar- "3. The act provides that notice by publikansas cited by plaintiffs in error, to the ef- cation shall be given to the defendants in fect that a sale for taxes, in excess of the suits instituted for the collections of levee amount due, or embracing costs not le- taxes, who nonresidents of the gally due, is void. And the case at bar county where the suits are brought. The is also distinguishable from the cases cited plaintiff in the complaint in the proceedings from this court.I
attacked in this suit stated who of the de. Third. The fifth assignment of error is fendants therein were nonresidents of the based on the contention that the supreme county in which the proceedings were pendcourt of the state erred in not deciding that ing; and such complaint was sworn to. This plaintiffs in error were not given the notice was sufficient to authorize notice, by publirequired by the statutes of the state. This cation, without a separate affidavit to the assignment of error is elaborately argued same effect. It was held in Sannoner v. Jaby counsel, but the distinction is not clearly cobson, 47 Ark. 31, 14 S. W. 458, that an affimade between the construction of the stat- davit and complaint may be included in one utes and their effect as construed. What the instrument of writing, if it contains all the statute required was for the supreme court essentials of both. The complaint in the to determine; whether, as determined, it con- proceedings attacked contained the essenstituted due process, is for us to decide. The tials of the affidavit and is sufficient to ancase at bar does not come within Huntington swer the same purpose. Johnson v. Hunter, v. Attrill, 146 U. S. 657, 36 L. ed. 1123, 13 supra. Sup. Ct. Rep. 224, or Scott v. McNeal, 154 "4. The act under which the aforesaid proU. S. 34, 38 L. ed. 896, 14 Sup. Ct. Rep. 1108, ceedings were instituted does not require a or the cases where the statute of a state warning order to be entered on record, or on was assailed as impairing the obligation of the complaint; and, if it had, the proceedings a contract. We come, then, to what was could not be attacked collaterally, unless done in the suit which decreed the sale, such entry was made jurisdictional, as it
was in Gregory v. Bartlett, 55 Ark. 30, 17 French v. Edwards, 13 Wall. 514, 20 L. S. W. 344, and it was not in this case. Clay ed. 704; Den ex dem. Walker v. Turner, 9 v. Bilby, 72 Ark. 101, 78 S. W. 749.” Wheat. 541, 6 L. ed. 155; Moore v. Brown,
The court held, therefore, that, under the 11 How. 411, 13 L. ed. 751; Woods v. Free laws of the state, an "affidavit and comman, 1 Wall
. 398, 17 L. ed. 543; McClung v. plaint may be included in one instrument of Ross, 5 Wheat. 116, 3 L. ed. 46; Thatcher v. Powell, 6 Wheat. 119, 5 L. ed. 221; Gage v.) writing, if it contains all the essentials of Powell, 6 Wheat. 119, 5 L. ed. 221; Gage vi both.""'And it was held that the ccmplaint Pumpelly, 115 U. S. 454, 29 L. ed. 449, 6
” Sup. ct. Rep. 136; Dick v. Foraker, 155' U. in the proceedings attacked did contain those S. 404, 39 L. ed. 201, 15 Sup. Ct. Rep. 124.
essentials. If we could dispute with the supreme court at all upon the requirements | been levied, or knowledge of the law under of the laws of the state it would have to which the taxes had been levied. be on a clearer showing of error than is Our attention is directed to the case of made in the case at bar. The statute pro- Johnson v. Hunter, decided by the circuit vides that all or any part of the delinquent court of appeals for the eighth circuit, 147 lands for a county may be included in the Fed. 133, to establish that the verified comsuit instituted in such county, and there plaint in the suit to collect the levee taxes may be included in the suit known and un- was not sufficient to sustain the service by known owners; "and notice of the pendency publication. The appellants in that case of such suit shall be given as against nonres- were complainants in the circuit court in a ident owners of the county and unknown suit to quiet their title against sales under owners, respectively," by publication weekly. decrees made in suits prosecuted by the St. The time of publication is specified. The com- Francis levee district,-suits identical with plaint showed that Ballard was the owner that with which the case at bar is concerned. of the lands and that he was a nonresident The court held that an affidavit, "adapted of the county. It was said, however, that to the terms of the levee act,” and placed on Josephine Ballard was not made a defendant record in the suit, was a prerequisite to the in the suit, though the records of the county issuance and publication of the prescribed showed that she was an owner thereof. But warning order, and was strictly jurisdictionthe statute provided against such an omis- al. A number of cases were cited. Considsion. It provided that the proceedings andering the terms of the levee act, the court judgment should be in the nature of pro- quoted the following provisions of g 11 as. ceedings in rem, and that it should be imma- amended February 15, 1893: “And provided terial that the ownership of the lands might further, actual service of summons shall be be incorrectly alleged in the proceedings. had where the defendant is in the county or We see no want of due process in that re where there is an occupant upon the land." quirement, or what was done under it. It “The conditions are," the court said, "that
, is manifest that any criticism of either is the defendant must be a nonresident of the answered by the cases we have cited. The county, and must be absent therefrom, and proceedings were appropriate to the nature that there must not be an occupant upon the of the case.
land. If the defendant be a resident of the It should be kept in mind that the laws of county, or be present therein, or if there be a state come under the prohibition of the an occupant upon the land, actual service of 14th Amendment only when they infringe a summons is required. ... And a defundamental rights. A law must be framed fendant may be a nonresident of the county and judged of in consideration of the practi- and absent therefrom and yet the land be occal affairs of man. The law cannot give per- cupied by a tenant or other representative sonal notice of its provisions or proceedings upon whom a summons can be served. If to everyone. It charges everyone with the land is so occupied the act plairly calls. knowledge of its provisions; of its proceed for such service. Banks v. St. Francis Levee ings it must, at times, adopt some form of District, 66 Ark. 490, 51 S. W. 830.” The indirect notice, and indirect notice is usually court assented to the view that a complaint, efficient notice when the proceedings affect properly verified, containing what was rereal estate. Of what concerns or may con- quired to be set forth, would be a sufficient cern their real estate men usually keep in affidavit to sustain service by publication, formed, and on that probability the law may but observed, that "of the three concurring frame its proceedings; indeed, must frame conditions, without the existence of which them, and assume the care of property to be that mode of service was not permissible, the universal, if it would give efficiency to many complaints alleged the existence of one, and of its exercises. This was pointed out in were altogether silent in respect of the other Huling v. Kaw Valley R. & Improv. Co. two; that is, they stated that Johnson [the 130 U. S. 559, 32 L. ed. 1045, 9 Sup. Ct. Rep. defendant) was a nonresident of the coun603, where it was declared to be the "duty ty, but did not state that he was not present. of the owner of real estate, who is a non- therein or that there was not an occupant resident, to take measures that in some way upon the lands." he shail be represented when his property is Referring to the case of Memphis Land & called into requisition; and, if he fails to get Timber Co. v. St. Francis Levee District, 70notice by the ordinary publications which Ark. 409, 68 S. W. 242, and the decision of have been usually required in such cases, it the supreme court of the state in the case is his misfortune, and he must abide the at bar, it was said: “In one the question
“ consequences.” It makes no difference, actually considered was whether or not any therefore, that plaintiffs in error did not affidavit for publication was necessary, have personal notice of the suit to collect rather than what it should contain, and in the taxes on their lands or that taxes had' the other it was whether or not a verified