those set off to the Southern Pacific, and thus the title of the purchasers be perfected. It is needless, therefore, to consider the merits of the cross appeal of the United States.

The decree of the Circuit Court of Appeals of the Ninth Circuit, affirming the decree of the Circuit Court for the Southern District of California will be reversed, and the case remanded to the Circuit Court, with instructions to enter a decree quieting the title of the United States to an equal undivided moiety in ail alternate sections within the place or granted limits of the At

It is also unnecessary to determine the rights of the Southern Pacific to lands outside the limits of conflict. It having been adjudged that the Southern Pacific, by the construction of its road eastward from Mo-lantic & Pacific in California, so far as those jave to Needles, became entitled to the bene fit of the grant made by the 18th section of the act of 1866, the adjustment of the grant is properly to be had in the Land Depart ment, subject, of course, if necessary, to fur-bill as to all other lands without prejudice ther contests in the courts.

limits conflict with the like limits of the Southern Pacific, excepting therefrom those lands in respect to which there has been some prior adjudication, and to dismiss the

to any future suit or action.

22 S. C.-11.

▲ nonresident executor is not denied any rights or privileges secured to him by the Constitution of the United States because Ind. Rev. Stat. §8560, under which omitted property belonging to the estate was added to the tax duplicate by the county auditor, contains no provision for notice to any person not a resident of the county in which such omitted property is proposed to be assessed, where he not only had an opportunity to appear and set up any defense that he had, but actually did appear, and, after his demurrers and motion to dismiss had been overruled, answered and was fully heard in the trial court, and his objections to the findings and rulings of that court have been heard and considered by the supreme court of the state.

[No. 100.]

amount of personal property belonging to and in possession of said decedent had not been listed for taxation for the years 1881 to 1893 both inclusive; and upon that day, acting under 8560, Burns's Rev. Stat. 1894, caused to be served by the sheriff upon Edward P. Gallup, as executor, who was at the time in Indianapolis, engaged in the settlement of said estate, notice in writing of his intention to add such omitted property to the tax duplicate, and requiring such executor to appear before him within five days to show cause, if any, why such property should not be so added. The notice specified the property to be added as county, township, town, and other bonds, notes, mortgages, claims, dues, demands, and other credits, money on hand and on deposit.

"January 19, 1895, the executor appeared before the auditor, and filed written objections to the authority of the auditor to proceed further, which were overruled. The executor then filed an answer to the notice, and on the 21st day of January, 1895, the auditor issued a subpoena for the executor, requiring him to appear forthwith before him, and to bring with him all notes, mortgages, and bonds in his possession, as such execu

Argued October 31, November 1, 1901. De- tor, to testify in said proceeding. The ex

cided January 6, 1902.

ecutor appeared on the 24th day of January, 1895, and filed further objections to the jurisdiction of the auditor, which were over

IN ERROR to the Circuit Court of Marion ruled; and thereupon he was examined un

County, State of Indiana, to review a judgment in favor of the county treasurer in proceedings to assess omitted property for taxation, entered in pursuance of a final judgment of the Supreme Court of Indiana. Affirmed.

Statement by Mr. Justice Shiras:

der oath.

"Upon consideration of the evidence the auditor found that William P. Gallup, in addition to the property returned by him for taxation, was the owner and in possession of other taxable personal property not listed and not taxed during the several years from 1881 to 1893 specifically stated This is a writ of error to a judgment of for each year, and January 25, 1895, placed the circuit court of Marion county, state of the same upon the tax duplicates, and comIndiana, entered in pursuance of a final puted and extended taxes thereon for the judgment of the supreme court of that state, whole of said period, including statutory in a case wherein Edward P. Gallup, execu- penalties and interest, the sum of $61,233.59. tor of William P. Gallup, deceased, was After the same was placed upon the dupliplaintiff in error, and William H. Schmidt, cate in the treasurer's hands he made detreasurer of said Marion county, was defend-mand upon the executor to pay said addi-* ant in error. tional taxes, but he refused to pay all or any part thereof.

The main facts in the case were thus stated in the opinion of the supreme court (154 Ind. 196, 56 N. E. 443):

"The executor on the 4th day of January, 1895, filed in the circuit court his final set"William P. Gallup, having for thirty-tlement report, and gave notice that the one years been a resident therein, died, tes- same would be finally heard on the 26th tate, in the city of Indianapolis, Marion day of January, 1895; and upon the day set county, in December, 1893, the owner and in for the hearing of the report, the same bepossession of a large personal estate in said ing the next day after the additional assesscounty. His will was duly admitted to pro- ments had been placed upon his duplicate, bate in the Marion circuit court, and Ed-Holt, as treasurer of Marion county, filed ward P. Gallup, a resident of the state of New Hampshire, the principal and residuary legatee, was qualified as executor in January, 1894, and March 5, 1894, filed an inventory showing a personal estate of $492,628.26. Subsequently, in the spring of 1894, said executor listed to the assessor for taxation for the year 1894 personal property of the estate aggregating $383,906.46. January 15, 1895, Taggart, then auditor of Marion county, discovered, on what he believed to be credible information, that a large

in said court, under § 8587, Burns's Rev. Stat. 1894, in the term thereof that was then running, his petition for an order upon the executor to show cause why he should not pay the taxes assessed by the auditor. The order was granted, and on February 9, 1895, the executor appeared and filed his motion to dismiss the said proceedings for the reason that the court had no jurisdiction to proceed to hear the cause, for the reason that the county treasurer was not authorized, under the law, to present said

⚫301

⚫303

claim to the court at the January term, | erty to the tax duplicate, describing it in

1895.

"More than two years afterwards, to wit, December 18, 1897, the court overruled appellant's [the executor's] motion to dismiss; and on June 18, 1898, appellant [the executor] filed his answer in eight paragraphs. A demurrer to each, the third, fourth, fifth, and sixth was sustained. A trial was had before the court upon the issues joined upon the petition, answers of general denial, payment and set-off, and, upon a special finding of facts and conclusions of law favorable to appellee [the treasurer] judgment was rendered against appellant [the executor] that he pay to appellee [the treasurer] on account of said omitted taxes the sum of $46,996.69."

general terms, and requiring such person to appear before him at his office at a speci fied time, within five days after giving such notice, and to show cause, if any, why such property should not be added to the tax duplicate; and if the party so notified does not appear, or if he appears and fails to show any good and sufficient cause why such assessment shall not be made, the same shall be made, and the county auditor shall in all cases file in his office a statement of the facts or evidence on which he made such correction; but he shall in no case reduce the amount returned by the assessor, without the written consent of the auditor of state, given on the statement of facts submitted by the county auditor."

Appeals were taken by both parties from "Sec. 8587. It shall be the duty of every the decree of the circuit court of Marion administrator, executor, guardian, receiver, county to the supreme court of the state. trustee, or person having the property of That court was of opinion that the executor, any decedent, infant, idiot, or insane peras appellant, was not entitled to a reversal, son in charge, to pay the taxes due upon but that, for error of the circuit court in the property of such decedent, ward, or parallowing the executor a certain credit of $5,- ty, and, in case of his neglecting to pay any 750 upon the amount recovered, the judg-instalment of taxes when due, when there ment must be reversed with instructions to is money enough on hand to pay the same, restate conclusions of law in accordance the county treasurer shall present to the with the opinion of the supreme court, and render judgment thereon in favor of the treasurer for the sum of $52,746.69, with interest from October 31, 1898; and final judgment for said amount was accordingly BO entered by the circuit court of *Marion county, to which judgment a writ of error was allowed, and the cause brought to this

court.

Messrs. W. H. H. Miller, Wayne MacVeagh, John B. Elam, James W. Fesler, and Samuel D. Miller for plaintiff in error. Messrs. William L. Taylor, William A. Ketcham, Martin M. Hugg, Frederick A. Joss, Merrill Moores, and Cassius C. Hadley for defendant in error.

Mr. Justice Shiras delivered the opinion of the court:

To answer the questions presented to us in this record requires an examination of two sections of the Indiana Revised Statutes, which read as follows:

circuit or other proper court of the county, at its next term thereafter, a brief statement in writing, signed by him as such county treasurer, setting forth the fact and amount of such delinquency, and such court shall at once issue an order directed to such delinquent, commanding him to show cause within five days thereafter why such tax and penalty and costs should not be paid, and, upon his failing to show good and sufficient cause for such nonpayment, the court shall order him to pay such tax out of the assets in his hands belonging to the estate of said decedent, ward, or other person; and such delinquent shall not be entitled to any credit, in any settlement of said trust, for the penalty, interest, and cost occasioned by such delinquency, or by the order to show cause, but the same shall be a personal charge against him, and he shall be liable, on his official. bond, for such penalty, interest, and costs."

Having alleged that he was and during all of his life had been a citizen of the Unit "Sec. 8560. Whenever the county auditor ed States, and that at no time during the shall discover or receive credible informa- year 1894 or since has he resided in Marion tion, or if he shall have reason to believe county, Indiana, but that during said year that any real or personal property has, from and ever since he has continually been and any cause, been omitted, in whole or in part still was a resident and citizen of Lebanon, in the assessment of any year or number of in the state of New Hampshire, Edward P. years, from the assessment book or from the Gallup claimed, in the courts below, that in tax duplicate, he shall proceed to correct 8 8560, providing for the assessment of the tax duplicate, and add such property omitted property by the county auditor, no thereto, with the proper valuation, and provision whatever is made for notice to charge such property and the owner thereof any person not a resident of the county ing with the proper amount of taxes thereon, which said omitted property is proposed to to enable him to do which he is invested with be "assessed, but that the sole provision for all the powers of assessor under this act. such notice is to person or persons resident But before making such correction or addi- of such county, and that by reason of the tion, if the person claiming to own such premises said statute is in violation of the property, or occupying it, or in possession 14th Amendment to the Constitution of thereof, resides in the county and is not the United States, in that said statute depresent, he shall give such person notice, in prived him of his property without due prowriting, of his intention to add such prop-cess of law; denied to him the equal proteo

tion of the laws; also denies to him, as a | be permitted to assail a revenue statute on citizen of New Hampshire, the privileges behalf of others who are making no comand immunities enjoyed by a citizen of Ma-plaint. The courts are open to those only rion county, Indiana, contrary to the 2d who section of article 4 of the Constitution of that appellant affirms concerning his resi are injured. Conceding all the United States; and that said statute is dence and the absence of any provision in § further invalid in that it grants to a class 8560 for service of notice on nonresidents, of citizens, namely, residents of the particu- still he is not in a situation to complain lar county in which the property sought to that he has had no day in court. The asbe assessed is situate, privileges and im- sessment by the auditor, right or wrong, munities which, upon the same terms, do was not a final judgment. It was only not equally belong to all citizens. prima facie correct. The courts were open to appellant, even though a nonresident, to challenge it by injunction. Failing thus to seek relief against it, the treasurer appealed to the circuit court for an order against him to show cause why he did not pay the taxes. The jurisdiction of the circuit court over its executor will not be controverted, even though his personal residence is in New Hampshire. He was ordered by the court to show cause, if he had any, why he did not pay the taxes. In response to the order any defense he had or ever had was open to him.

This arraignment of the statute is based on the fact that Edward P. Gallup, though acting as executor of William P. Gallup, deceased, in the county of Marion, Indiana, was, at the time he was served with the auditor's notice, not a resident of that county, but was a resident of the state of New Hampshire; and the contention is that, though he received such a notice, yet he was not within the letter of the statute because not a resident of the county in which the property was situated, and therefore the no tice actually given him was not a notice in point of law, and the auditor, in proceeding with the duties of his office, acted without jurisdiction, and that consequently the plaintiff in error has been deprived of his property without due process of law.

The Supreme Court of Indiana disposed of this contention by holding "that appellant [Edward P. Gallup] was an official resident of Marion county at the time the proceeding by the auditor was commenced, and therefore within the express terms of the section."

"It is no longer an open question in this state that if a party against whose property an assessment has been made is, atr any time in the course of the proceeding before a conclusive judgment, afforded by law an opportunity to contest its correctness, he is accorded due process of law."

It has frequently been held by this court, when asked to review tax proceedings in state courts, that due process of law is af forded litigants if they have an opportunity to question the validity or the amount of an assessment or charge before the amount is determined, or at any subsequent proceedings to enforce its collection, or at any time before final judgment is entered. Walker v. Sauvinet, 92 U. S. 90, 23 L. ed. 678; Davidson v. New Orleans, 96 U. S. 97, 24 L. ed. 616; Spencer v. Merchant, 125 U. S. 345, 31 L. ed. 763, 8 Sup. Ct. Rep. 921; Allen v. Georgia, 166 U. S. 138, 41 L. ed. 949, 17 Sup. Ct. Rep. 525; Orr v. Gilman, 183 U. S. 278, post, 213, 22 Sup. Ct. Rep. 213.

This construction of the section is criticized by the learned counsel of the plaintiff in error as novel, and unsupported by authority. However this may be, it is a construction or application of the statute to the case in hand, and is binding upon us. It is strongly urged that whether the view of the Indiana supreme court be sound or not, in interpreting the section to cover the case of an official residence, the result is to deprive the plaintiff in error of rights and privileges secured to him by the ConstiIn the present case the plaintiff in error tution of the United States; and numerous not only had an opportunity to appear and cases are cited to the effect that assessments to set up any defense that he may have had, and special burdens upon taxpayers are void but actually did appear, and, after his deunless the law provides for notice, and that murrers and motion to dismiss had been notice in fact is not equivalent to notice in overruled, answered, and was fully heard in law. It is claimed that the plaintiff in er- the trial court. His objections to the findror has been afforded no opportunity to beings and rulings of that court have been heard, and that because the section provides heard and considered by the supreme court for notice to residents of the county, and of the state. for no notice whatever to nonresidents of the state and county, a case of discriminative legislation is created whereby nonresidents are denied the equal protection of the laws.

To these suggestions the supreme court of Indiana replied by saying:

"He [Gallup] was in a situation to avail himself of all the rights and privileges he asserts are unjustly denied to nonresidents, and, while himself not aggrieved, he will not

The method followed by the auditor in assessing the additional taxes was perhaps open to criticism, but was approved by the circuit and supreme courts, and presents no question over which we have jurisdiction.

Failing to see that any rights or privi leges secured to the plaintiff in error by the Constitution of the United States have been denied him, we are of opinion that the judgment of the Supreme Court of Indiana must be affirmed.

908.

CHARLES C. MCCHORD, James F. Demp- | for the district of Kentucky, perpetually? sey, and John C. Wood, Appts.,

CINCINNATI, NEW ORLEANS, & TEX-tucky, from doing any of the things reAS PACIFIC RAILWAY COMPANY.

SOUTHERN RAILWAY COMPANY in or passenger rates over its line or lines of