in the lot except a mere easement or burial a ten-foot fill near the northwest corner of right subordinate to the ownership of the the cemetery, and placed a ten-inch pipe so cemetery by the corporation; that the spe- as to lead the water from the cemetery into cial tax bills were properly issued against the manhole at that point, thus preventing the entire grounds of the cemetery; that the formation of a pond; that there are two fraud in laying out the sewer district, if water-closets in the cemetery grounds not such there were, was not a defense to the connecting with these sewers; that the Assoaction on the tax bills unless the alleged ciation has an eight-inch pipe about 400 feet fraud was known to the contractor who did long laid in the cemetery for the purpose of the work. In the third case, 268 Mo. 691, 187 drawing the water to the west; that about S. W. 1169, the court affirmed a judgment in one-half of the land in the cemetery had been favor of Mullins against the Cemetery Asso- disposed of in lots for burial purposes. Oth ciation, holding that the presumption was iner facts, not essential to be considered in the favor of the reasonableness of an ordinance disposition of the Federal questions were which included a cemetery in the sewer district, and assessed its property with the cost of lateral sewers laid in the alleys and streets adjacent to the cemetery, and that such presumption must be satisfactorily overcome by proof in order to be defeated; that when it was shown that the sewer for which the tax bills were issued served to carry away the surface water in the cemetery, and there was no evidence that the sewers were not beneficial in the sanitation of the cemetery, it would be presumed that the city council was fully informed upon the subject, and that its ordinance was reasonable; that the tax, though large, must stand in the absence of a showing that it was unreasonable; that it was not reversible error to exclude evidence that the city in two other cases had made cemetery associations separate sewer districts in the absence of a showing that this was done under a state of facts like those then presented; that such assessments required no notice of the proceedings unless required by some charter, ordinance, or statutory provision; that the sewer tax bills could be issued against the land in its entirety, such ownership being in the Association. *503 *504 So far as the judgment of the Supreme Court of Missouri turns upon matters of state law it is conclusive. The final judgment is here upon writ of error because of the contention that it violates the Fourteenth Amendment to the federal Constitution in that its effect is to deprive the plaintiff in error of its property without due process of law, and to deny to it the equal protection of the laws. In passing upon the case the Supreme Court of Missouri, *in the decision under review, found that the sewer district contained about 407 acres; that the Cemetery Association owned about 34 acres of land in said district which was assessed for sewer purposes; that the effect of the sewers was to drain the surface water from some of the land of the Association; that there were no openings in the sewer pipes for house connections, but the evidence showed that such openings were often made by the plumbers when the connections were made; that the grading contractor in grading a street on the west side of the cemetery, made found. [1] The plaintiff in error contends that it was deprived of its property without due process of law in as much as about one-half of the tract of 34 acres belonging to the Cemetery Association had before the assessment been conveyed for burial lots; that the assessment against the entire tract had the effect to impose a lien upon much of its property arbitrarily as the burial lots had been conveyed to others. But the Supreme Court of Missouri held that the fee in the title to the burial lots, which had been sold or leased, was still in the Association, with an easement of the right of burial in the lot purchasers. We see no deprivation of due process of law in this holding, making the ownership of the Association the subject of, assessment. The right of burial, which was all that the lot purchasers or lessees *acquired, for obvious reasons could not be put upon the market and sold to pay assessments. The Association had a title which the court held might be and was the subject of assessment. [2] It is urged that the Cemetery Association was not benefited by the assessment. But the court found, with evidence to support its conclusion, that the sewers served to carry away surface water; and that there was no evidence to show that the cemetery would not have been benefited as to sanitation as a result of the construction of the sewers. It is well settled that unless such assessment is arbitrary and unreasonable the extent of the benefit, essential to justify the assessment, was a matter within the control of the local authorities. Spencer v. Merchant, 125 U. S. 345, 356, 8 Sup. Ct. 921, 31 L. Ed. 763; Wagner v. Baltimore, 239 U. S. 207, 36 Sup. Ct. 66, 60 L. Ed. 230. This case is not within the principle of Myles Salt Co. v. Drainage District, 239 U. S. 478, 36 Sup. Ct. 204, 60 L. Ed. 392, where it was sought to embrace property in nowise benefited within the limits of a drainage district. [3] It is contended that the Cemetery Association might have been made a sewer district of itself and not have been included in so large a district. Again, this was a matter for the local authorities to decide, and in 505 the absence of arbitrary action, their judg- [ of Act Feb. 8, 1887, confirming to it, with ment is conclusive. Spencer v. Merchant, certain exceptions and on certain conditions, supra; Wagner v. Baltimore, supra; Houck the grant, was bound by its unfavorable proviV. Little River District, 239 U. S. 254, 36 Sup. Ct. 58, 60 L. Ed. 266. sions. 3. PUBLIC LANDS 128-PATENTS-TRUSTS -SUIT BY UNITED STATES-"TO PROTECT." The United States, by Act Feb. 8, 1887, confirming, with exceptions and on conditions, a railroad land grant to the assignee thereof, having undertaken to invest settlers coming in their possession, and also "to protect" them within its provisions with the title to the lands in that right, meaning that they were to receive a clear title, and having therein charged the Secretary of the Interior with the duty of adopting appropriate measures to that end, had such interest, by reason of its obligation to such settlers, as authorized it, when other means failed, to bring suit to declare a trust in favor of such settlers in lands patented to such assignee. [4] The denial of equal protection of the laws is said to result from the fact that other cemetery grounds had been placed in districts by themselves. But the record fails to show similarity of situation and conditions. In the absence of arbitrary action the making of this assessment upon the district as constituted will be presumed to have been warranted by the circumstances of the case. [5] It is insisted that no notice was given, or opportunity to be heard, prior to the creation of the sewer district, and, therefore, due process of law was denied. These tax bills were levied upon districts the creation of which was authorized by legislative authority. The record discloses that the owner has had full opportunity to be heard, in judicial proceedings to enforce the tax, and its contentions of arbitrary action and lack of benefits conferred have been considered and decided. This is due process. Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616; Embree v. Kansas City Road District, 240 U. S. 242, 251, 36 Sup. Ct. 317, 60 L. Ed. 624. 4. This court has more than once declared that it does not interfere with the taxation and assessment laws of the states as violative of the Fourteenth Amendment unless the state's action has been palpably arbitrary or grossly unequal in its application to the persons concerned. In this case the assessment is a large one, but we are unable to find that the judgment sustaining it has had the effect to deprive the Cemetery Association of its property without due process of law, or has denied to it the equal protection of the laws. Affirmed. Withdrawal from sale and entry by the Secretary of the Interior of land within the indemnity limits of the grant by Act March 3, 1871. in aid of railroad construction was ineffectual; the statute providing for it only as to land within the primary limits. UNITED STATES 133-SUIT BY-LACHES. The defense of laches is not available, when the United States sues to enforce a public right or to protect a public interest, but when -LACHES. Settlers on land within the limits of railroad land grant, having been in peaceable possession under equitable claim, and their claims having been sustained by land department, held not guilty of laches because of delay in resorting to equity to establish their claims against holders of legal title under patent, where the latter manifested no purpose to disturb them, or to assert any right against them. 6. PUBLIC LANDS 89(3)-BONA FIDE PURCHASERS-NOTICE OF OCCUPANCY. Act Feb. 8, 1887, confirming a railroad land grant to the assignee thereof, but excepting land occupied by actual settlers, being a public law, subsequent purchasers from the patentee assignee were not bona fide purchasers against occupying settlers. 7. PUBLIC LANDS 80-WITHDRAWAL. As to land patented to and sold by the assignee of a railroad land grant before Act Feb. 8, 1887, confirmed to the assignee the grant with exception of land occupied by actual settlers, the purchasers from such assignee took full title as against occupying settlers, whose occupancy commenced after the lands were withdrawn from entry and sale; such withdrawal preventing initiation of valid claim by settlement. Appeal from the United States Circuit Court of Appeals for the Fifth Circuit. Three suits by the United States against the New Orleans Pacific Railway Company and others; Josephine Brown intervening in the first suit, William R. Turner in the second, and Stephen N. Grant in the third. Decrees for defendants were affirmed by the Circuit Court of Appeals (235 Fed. 841, 846, 149 C. C. A. 153, 158), and interveners and 2. PUBLIC LANDS 83-RAILROAD GRANT -CONFIRMATION TO ASSIGNEE-ACCEPTANCE. The assignee of a land grant in aid of railroad construction having accepted the provisions For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *510 *511 the United States appeal. Reversed in part, [ without interest or concern; and (c) that, if and affirmed in part. such a trust had arisen, it had become unen forceable by reason of inexcusable laches on the part of the homestead claimants. Mr. Assistant Attorney General Francis J. Kearful, for the United States. Messrs. Mark Norris, of Grand Rapids, Mich., F. G. Hudson, of Monroe, La., and H. The grant of March 3, 1871, was made to the New Orleans, Baton Rouge & Vicksburg signs," to aid in the construction of a railRailroad Company, "its successors and as road from New Orleans to Shreveport, and *Mr. Justice VAN DEVANTER delivered the embraced all the odd-numbered sections of opinion of the Court. public land within 20 miles (the primary These suits are so related that they may limits) on each side of the road, subject to be disposed of in a single opinion. Three enumerated exceptions, one of which extracts of land in Vernon parish, Louisiana, cluded any land to which a pre-emption or each containing 160 acres, are in contro- homestead claim may "have attached" at the versy one in each suit. All are in odd- time the line of the road was definitely lonumbered sections within the limits of the cated. In lieu of the excepted lands others grant of March 3, 1871, to the New Orleans, in odd-numbered sections within prescribed A Baton Rouge & Vicksburg Railroad Company indemnity limits were to be selected. When(16 Stat. 573, c. 122)-one being within the ever, and as often as, 20 *consecutive miles primary and two within the indemnity limits. of road were completed and put in running All were patented under the grant and after-order patents were to be issued for the lands wards sold by the patentee, the purchasers opposite to and coterminous with that porpaying a fair price. Through successive tion of the road. The entire road was to be sales the title under the patents was passed completed within five years. Within two along to other purchasers. Whether the years the company was to designate the "genlatter shall be decreed to hold the title in eral route" of the road and to file a map of trust for certain homestead claimants whose the same in the Department of the Interior. claims are founded on settlements antedating There was no provision directly calling for the issue of the patents, and also the definite a map showing the definite location of the location of the road, is the matter in contro- road, but that such a map was to be filed was versy. plainly implied. [1] The general route of the road was designated on a map filed and accepted in November, 1871. The Secretary of the Interior, complying with an express provision in the granting act, then caused the odd-numbered sections within the primary limits to be withdrawn from entry and sale. That withdrawal became effective in December, 1871, and included the tract in controversy in No. 166. The Secretary also ordered a like withdrawal of the odd-numbered sections within the indemnity limits, but as the granting act did not authorize, but in effect prohibited, their withdrawal, this part of the order was of no effect. Southern Pacific R. R. Co. v. Bell, 183 U. S. 675, 22 Sup. Ct. 232, 46 L. Ed. 383. The suits were brought by the United States, the defendants being the patentee and the present holders of the title under the patents. The relief prayed was that the patents be canceled, or, if that be not done, that the homestead claimants be decreed to be the equitable owners and that a trust in their favor be declared and enforced. Of these alternative prayers, the latter was better suited to the case stated. By leave of the court the homestead claimants intervened, set forth their claims, alleged that the patentee and all the purchasers took the title with full notice of their claims, asserted that the title was held in trust for them and sought relief accordingly. Various defenses were set up in the answers, such as the lapse of the period prescribed for bringing suits to cancel patents, laches on the part of the homestead claimants and good faith on the part of the purchasers. On the final hearing the District Court entered a decree for the defendants in each of the suits, and this was affirmed in the Circuit Court of Appeals. 235 Fed. 841, 846, 149 C. C. A. 153, 158. The during the years 1881 and 1882, it constructDistrict Court did not make any specific find-ed, completed and put in running order, ing of fact or assign any particular reason for the road from Whitecastle to Shreveport. its decree, and the Circuit Court of Appeals It also filed with the Secretary of the Interested its decision on three grounds: (a) rior, on November 17, 1882, a map showing That in so far as the suits sought a cancella- the definite location of the part of the road option of the patents they were barred because posite the tracts now in controversy, and the not brought within the time prescribed by map was accepted. The road as completed law; (b) that, if a trust had arisen in favor was examined and accepted, and the company of the homestead claimants, its enforcement was recognized by the Secretary of the Inte was a matter in which the United States was rior, the Attorney General and the President, No part of the railroad was constructed by the original grantee, and on January 5, 1881, it transferred the grant to the New Orleans Pacific Railway Company. At that time this company had a line of completed railroad extending from New Orleans to Whitecastle in the direction of Shreveport, and thereafter, ed in a proviso "as rightly entitled to patents for the lands | firmed to that company save as it was declarfalling within the terms of the grant and lying opposite the road from Whitecastle to Shreveport. "that all said lands occupied by actual settlers at the date of the definite location of said road and still remaining in their possession or in possession of their heirs or assigns shall be held and deemed excepted from said grant and shall be subject to entry under the public land laws of the United States." Thereafter, in 1885, patents for a large part of the lands were issued to the New Orleans Pacific Railway Company, the assignee of the grant. Other lands remained as yet unpatented. About that time this company's rights under the grant were persistently By this section the map of November 17, questioned by persons who insisted that the 1882, was required to be treated as the "defgrant was not assignable, that all rights un-inite location" of the part of the road opposite der it were extinguished when the road was the lands now in controversy. By the third not constructed within the five years pre- section the confirmation in the second was scribed therefor, and that in any event a for- conditioned on the acceptance by the comfeiture could and should be declared for the pany of the provisions of the act. The fourth failure to comply with that condition, al- section is not material here. The fifth secthough the road had been completed in the tion authorized the Secretary of the Interior meantime. Because of this the Secretary of to make all needful rules and regulations for the Interior, although not acceding to the carrying the act into effect. The sixth secinsistence, suspended the issue of patents tion confirmed the patents already issued to and called the matter to the attention of the company, but with the express qualificaCongress, saying in that connection that the tion thatcompany had— "The Secretary of the Interior is hereby fully authorized and in*structed to apply the provisions of the second, third, fourth, and fifth sections of this act to any of said lands that have been so patented, and to protect any and all settlers on said lands in all their rights under the said sections of this act." #4# • * purchased a portion of a line of a railroad already built from New Orleans to Whitecastle, a distance of 68 miles; as to this portion of the road the company waived claim to the land granted. The residue of the road, from Whitecastle to Shreveport, was built by the company upon the belief of the full validity of their right to the land granted, and without this benefit of the grant the road would not have been built. The government railroad examiner reports the road substantially built and equipped, and it would not appear to comport with good faith to those who invested their money on the basis of the grant to take advantage of any technical defect, if such exists, in the transfer to the company. I would, therefore, respectfully suggest for the consideration of Congress the propriety of passing an act curative of defect, if any exists, in the transfer to the New Orleans Pacific Company, and vesting the title, originally granted to the New Orleans, Baton Rouge & Vicksburg Railroad Company from Whitecastle to Shreveply the same rule to all lands for which port, in the New Orleans Pacific road." [2] The company duly accepted the provisions of the act and in that way assented to and became bound by every provision in it-the unfavorable as well as the favorable. The provisions of special importance here are the proviso in section 2 and the latter part of section 6. By one all lands occupied by actual settlers at the time of the definite location of the road and remaining in their possession, or that of their heirs or assigns, were "excepted from said grant" and made "subject to entry under the public land laws"; and by the other the Secretary of the Interior was authorized and instructed to ap patents already had been issued, and to protect all settlers on such lands in their rights under the act. It does not admit of any doubt that these provisions, when accepted, became applicable to all the unpatented lands and to such of the patented lands as had not then been sold by Whether they also became the company. applicable to such of the patented lands as were sold theretofore is a question which will be considered presently. Of the lands in suit, 80 acres were both patented and sold before the act was passed or accepted, 280 acres were patented before the act was passed and sold after it was accepted, and 120 acres were both patented and sold after the acceptance. Thus all but 80 acres came certainly within the reach of the two provisions as accepted. The 80 acres, as to which the question is left open for the moment, are part of the tract in controversy in No. 166. With the matter thus brought to its attention Congress passed the Act of February 8, 1887,1 c. 120, 24 Stat. 391. By its first section a part of the grant, with which we are not here concerned, was declared to be forfeited and was restored to the public domain. By its second section the part of the grant on the west side of the Mississippi river opposite to and coterminous with the road from Whitecastle to Shreveport, which was constructed by the New Orleans Pacific Railway Company as assignee of the grant, was con The general history of the grant, together with the executive and legislative action relating to it, up to the date of this act, is set forth at length in the following: Senate Report No. 711, 47th Cong., 1st Sess.; 17 Op. A. G. 370; Senate Ex. Doc. No. 31, 48th Cong., 1st Sess.; House Report No. 1556, 48th Cong., 1st Sess.; House Ex. Doc. No. 1, pt. 5, p. 43, 49th Cong., 1st Sess.; House Report No. 2698, 49th Cong., 1st Sess.; House Ex. Doc. No. 1, pt. 5, p. 49, 49th Cong., 2d Sess. 89 SUP.CT.-12 #518 tion." As before stated, the part of the road op- [ missioner of the General Land Office to have posite these lands was definitely located No- been in the possession of actual settlers at date vember 17, 1882. At that time there was an of the definite location of said railway comactual settler on each of the 160-*acre tracts. pany's road, and title is in said railway comIn each instance the settler had the qualifi-pany, said railway company and said trustees agree to make without delay conveyance thereof cations named in the homestead law, was exto the United States; and where such lands pecting to acquire the title under that law, have been sold by said railway company to third had placed on the land a habitable dwelling persons, said railway company undertakes to in which he and his family were living, had recover title thereto without delay and concleared, fenced and was cultivating several vey the same to said settlers or to the United acres and was asserting a claim to the en- States, and the said trustees undertake to join tire tract. The settler in No. 164 continued in such conveyances and to do all acts neceshis residence, occupancy and cultivation until sary on their part to enable the railway com1896, when he died, and thereafter his widow pany, to carry out this agreement and stipulacontinued the occupancy and cultivation, either personally or through tenants. The settler in No. 165 continued his residence, occupancy and cultivation to the time of the hearing in the District Court. And the settler in No. 166 continued his residence, occupancy and cultivation until 1885, when he sold his improvements and possessory right to another, who had the requisite qualifications and wished to acquire the title under the homestead law. The assignee then settled on the tract and thereafter resided thereon with his family and continued the occupancy and cultivation begun by his assignor. While in No. 164 the widow, and in No. 166 the assignee, succeeded to the rights of the original settler, we shall speak of all the claims as if the original settlers were the present claimants. The existence and extent of these claims were well known among the people of the neighborhood, and the improvements and evidences of inhabitancy and cultivation on each tract were such that any one purchasing under the land grant would be charged with notice of the nature and extent of the settler's claim. The settlers applied at the local land office -one in 1888, one in 1890 and the other in 1896-to make homestead entries of the lands and the railway company opposed their applications. Hearings were had and the contests ultimately were determined in favor of the settlers-one in 1893, one in 1896 and the other 1898. The decision in each contest was to the effect that the proofs established *the right of the settler to receive the title under the proviso in section 2 and the latter part of section 6. All the lands had then been patented, and the settlers were advised by the regulations which the Secretary of the Interior had adopted, as also by the decisions in the contests, that the land department would secure a relinquishment of the outstanding title for their benefit. 5 L. D. 688. In 1892, before the contests were decided, the company and the trustees of its land grant had filed the following stipulation with the Secretary of the Interior, New Orleans Pac. Ry. Co., 15 L. D. 576: "That in cases where patents have issued to said railway company for lands which have been or may hereafter be adjudged by the Com After the contests were decided the land department called on the company to reconvey or surrender the title, but this was not done; and the Secretary of the Interior requested the Attorney General to institute judicial proceedings to secure for the settlers the protection promised in the act of 1887, which the company had accepted. Acting on this request the Attorney General, on February 27, 1901, brought a suit in the name of the United States against the railway company and others to cancel and annul the patents to these and many other lands similarly situated. Various obstacles were encountered in *the prosecution of that general? suit, one being that the purchasers from the company were not made parties, and on January 21, 1915, while that suit was still pending, the Attorney General brought the suits with which we are now concerned. As the patents were issued before, and the suits were brought more than five years after, the Act of March 2, 1896, c. 39, 29 Stat. 42 (Comp. St. §§ 4901-4903), the prayer that the patents be canceled must be put out of view, and the alternative prayer-that the title under the patents be declared to be held in trust for the homestead claimants and the trust enforced-must be regarded as if standing alone. [3] The right of the United States to maintain the suits is questioned on the ground that the enforcement of the asserted trust is a matter in which the United States is with out interest or concern. Were the premise tenable, the conclusion would follow as of course. But the premise is not tenable.' A pecuniary interest in the relief sought is not essential; it is enough if there be an interest or concern arising out of an obligation to those for whose benefit the suits are brought. United States v. San Jacinto Tin Co., 125 U. S. 273, 285, 286, 8 Sup. Ct. 850, 31 L. Eq. 823; United States v. Beebe, 127 U. S. 338, 8 Sup. Ct. 1083, 32 L. Ed. 121; United States v. American Bell Telephone Co., 128 U. S. 315, 367, 9 Sup. Ct. 90, 32 L. Ed. 450; Heckman v. United States, 224 U. S. 413, 439, 32 Sup. Ct. 424, 56 L. Ed. 820. By the act of 1887 the United States undertook to invest settlers coming within the provisions of that act with the title to the lands in their possession, and also |
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