A state may make reasonable discriminations in regard to service
of process for enforcement of liens for taxes and assessments on
real estate between resident and nonresident owners, providing for
personal service on the former and constructive service by
publication on the latter.
Land stands accountable to the demands of the state, and owners
are charged with knowledge of laws affecting it and the manner in
which those demands may be enforced.
Whether provisions as to notice and service in a state statute
have been complied with is wholly for the state court to
determine.
Due process of law has never been precisely defined; while its
fundamental requirement is opportunity for hearing and defense, the
procedure may be adapted to the case, and proceedings in court are
not always essential.
Page 204 U. S. 242
The laws of a state come under the prohibition of the Fourteenth
Amendment only when they infringe fundamental rights.
The St. Francis Basin Levee Act of Arkansas of 1893 does not
deprive nonresident owners of property assessed and sold pursuant
to the statute of their property without due process of law or deny
such owners the equal protection of the laws.
74 Ark. 174 affirmed.
This writ of error is prosecuted to review a judgment of the
Supreme Court of Arkansas, sustaining the validity of a sale of the
lands of plaintiffs in error for levee taxes.
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 five percent of
the increased value or betterment estimated to accrue from the
protection given by the levee against floods from the river. The
act prescribed that the landowners should determine upon the
assessments and levy of the tax in a meeting 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.
Page 204 U. S. 243
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
twenty-five percent should at once attach for such delinquency. The
board of directors was required to enforce the collection of the
taxes by chancery proceedings 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 cash by
a commissioner of a court after advertisement, 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 form of notice which might be given is inserted in the
margin.{1}
Page 204 U. S. 244
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
Page 204 U. S. 245
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 the payment of the taxes on said
lands for 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 section 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 section 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."
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:
Page 204 U. S. 246
"
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"
"Taxes for 1896, 19.20"
"Taxes for 1897, 19.20"
"West half northeast quarter, section 32, T. 4 N. R. 7 E. 80
acres, assessed to A. B. Ballard --"
"Taxes for 1895, $3.20"
"Taxes for 1896, 3.20"
"Taxes for 1897, 3.20"
"Northeast quarter, section 31, T. 4 N. R. 7 E. 160 acres,
assessed to A. B. Ballard --"
"Taxes for 1895, $6.40"
"Taxes for 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
Page 204 U. S. 247
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."
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 were also approved.
At September term of the court, 1899, the following order was
entered:
"A. B. Ballard and Mrs. Josephine W. Ballard 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. 1/4 of section
31, the southwest 1/4 of section 32, and the south 1/2 of the
northwest 1/4 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.
Page 204 U. S. 248
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 sections 5839-5843,
Sandels & Hill's Digest, and as an original complaint, under
sections 4197-4199 of same, and under sections 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 fourteenth of
February, 1898, be "reviewed, reversed, and vacated, and that the
report of the sales and the sales be set aside and the deeds
cancelled."
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
twenty-first 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, and that they
would testify that they had no knowledge of the suit or its
pendency, or that taxes for levee purposes had been levied prior to
the date of the sale of their lands and the purchase thereof by
Hunter or Hackler, or "that any law on that subject had been
enacted." That the clerk of the court was allowed one dollar for
each of the deeds made in pursuance of the sale, and allowed the
fees set out in the decree, and all said sums were taxed as costs
and paid
Page 204 U. S. 249
out of the proceeds of sale. That plaintiff in error made the
tenders to Hunter and Hackler, respectively, as stated in
"their answer and motion filed herein on the twenty-fifth day of
September, 1899, and in the manner and at the time stated and that
the said C. W. Hunter and A. Hackler, respectively, refused to
receive such tenders, and severally refused to state the amounts
that they claimed they were entitled to receive in order to redeem
the said tracts of land respectively."
It was also agreed that the record of the suit, including all
orders, returns of officers, minutes of proceedings, etc., should
be read in evidence, subject only to objections for irrelevancy and
incompetency.
The decree of the court, after reciting the submission of the
case and upon what submitted, concluded as follows:
"The court orders that all the relief as prayed for in the said
answer, motion, petition, and original complaint of the said A. B.
Ballard and Josephine W. Ballard be, and the same is hereby, denied
and refused, and that the said answer, motion, petition, and
original complaint be and the same is hereby dismissed."
The supreme court of the state affirmed the decree.
The errors assigned are that the supreme court erred in not
decreeing that (1) the lands of plaintiffs in error were not
properly described in the complaint; (2) and (3) in not decreeing
that the sale was unlawfully made, for the reason that the lands of
plaintiffs in error were sold as a whole and for taxes on the whole
west one-half of section 32, when plaintiffs in error did not own
or claim the N. 1/2 of the N.W. 1/4 of that section; (4) the decree
was void because the lands were sold for sums not legally
chargeable thereon; (5) that the acts of 1893 and 1895 required a
notice to be given to the owners of the lands proceeded against in
the suit they provided for, and no such notice was given, and the
sales were therefore unauthorized authorized and void; (6) the
notice provided for by the act, assuming notice was given, was
insufficient. It was not such a notice of the pendency of the suit
as the act or the general law required to be given to the owners of
lands resident in
Page 204 U. S. 250
the State of Arkansas and Crittenden County, where the lands
were located, and to persons owning lands there similarly
circumstanced and subject to the same taxation, or persons having
tenants on such lands. All such persons were entitled by said act
and had personal service for at least twenty days before the
rendition of the decree of sale. Plaintiffs in error, respectively
citizens of Georgia and Florida, were allowed and given
constructive service, if any were given, only by publication in a
newspaper, published in Crittenden County, and only weekly for four
weeks, the first notice being, and required to be, only four weeks
before the rendition of the decree. Plaintiffs in error had no
personal or other notice of the suit, and did not appear therein.
They were denied thereby the privileges and immunities of citizens
of the United States and of Arkansas, and denied the equal
protection of the laws within the State of Arkansas, and deprived
of their property without due process of law, in violation of the
Constitution of the United States, and the decree of sale and sales
thereunder are void. (8) In not decreeing that the sales of the
land of the plaintiffs in error were void and passed no title,
because in the suit the laws of the state were violated in that (a)
the complaint was deficient; (b) that there was no sufficient
affidavit made and filed to support a warning order or order for
notice to plaintiffs in error; (c) there was no sufficient proof of
publication of warning order or notice filed or produced in court
when decree of sale was made; (d) the decree of sale did not state,
and the record did not show, the facts essential to the validity of
the decree of sale as against plaintiffs in error or other lands.
Thereby the plaintiffs in error, in violation of the Constitution
of the United States, have been denied the benefit of such laws in
this suit. (9) The decree of sale was rendered in violation of the
laws of Arkansas requiring proof of evidence to support the
allegations of the plaintiff as against plaintiffs in error,
persons before the court only by a constructive service of process.
And the decree was pronounced as based on an alleged order or
decree
pro
Page 204 U. S. 251
confesso entered in the suit, not authorized by law,
and so was rendered without due process of law, in violation of the
Constitution of the United States.
Page 204 U. S. 254
MR. JUSTICE McKENNA, after stating the case as above, delivered
the opinion of the Court.
The assignments of error present the contention that plaintiffs
in error have been deprived of their property without due process
of law. One of them urges, in addition, the clauses of the
Fourteenth Amendment, which prohibit a state from making or
enforcing any law which will abridge the privileges or immunities
of citizens of the United States, and from depriving any person
within her jurisdiction of the equal protection of the laws.
Plaintiffs in error invoke those provisions against the statutes of
Arkansas, because of the different manner and time of service of
summons of the suit authorized by said statutes to enforce the
payment of the levee taxes. It is contended that, by requiring
personal service of summons upon resident owners or occupants of
lands for at least twenty days before the rendition of the decree
of sale, and providing for constructive service by publication upon
nonresident owners of only four weeks, a discrimination is made
between owners of lands, and that nonresident owners are thereby
denied the rights secured to them by the Constitution of the United
States. We have no doubt of the power of the state to so
discriminate, nor do we think extended discussion is necessary.
Personal service upon nonresidents is not always within the state's
power. Its process is limited by its boundaries. Constructive
service is at times a necessary resource. The land stands
accountable to the demands of the state, and the owners are charged
with the laws affecting it and the manner by which those demands
may be enforced.
Huling v. Kaw Valley Railroad,
130 U. S. 559.
This accountability
Page 204 U. S. 255
of the land and the knowledge the owners must be presumed to
have had of the laws affecting it is an answer to the contention of
the insufficiency of the service. Certainly it was not so
insufficient that it can be said that a difference in the time
allowed for such service was not the equivalent of that allowed to
resident owners. Mixed with the contention is a charge that the
notice to nonresidents did not comply with the act of 1893 or the
general law of the state, but this is decided against plaintiffs in
error by the supreme court of the state, and we accept its
ruling.
In passing upon the other contentions of plaintiffs in error, we
are brought to the consideration of what is due process of law. A
precise definition has never been attempted. It does not always
mean proceedings in court.
Murray v.
Hoboken, 18 How. 272;
McMillen v.
Anderson, 95 U. S. 37. Its
fundamental requirement is an opportunity for a hearing and
defense, but no fixed procedure is demanded. The process or
proceedings may be adapted to the nature of the case.
Dent v.
West Virginia, 129 U. S. 114;
Lent v. Tillson, 140 U. S. 316;
Hagar v. Reclamation District, 111 U.
S. 701;
Iowa Central R. Co. v. Iowa,
160 U. S. 389.
In
Davidson v. New Orleans, 96 U. S.
97, a proposition was laid down which has since been
quoted many times. The Court said at pages
96 U. S.
104-105:
"That whenever, by the laws of a state or by state authority, a
tax, assessment, servitude, or other burden is imposed upon
property for the public use, whether it be for the whole state or
of some more limited portion of the community, and those laws
provide for a mode of confirming or contesting the charge thus
imposed, in the ordinary courts of justice, with such notice to the
person or such proceeding in regard to the property as is
appropriate to the nature of the case, the judgment in such
proceedings cannot be said to deprive the owner of his property
without due process of law, however obnoxious it may be to other
objections."
And Mr. Justice Bradley, in a concurring opinion, said, on pages
96 U. S.
107-108,
"that, in judging what is 'due process of
Page 204 U. S. 256
law,' respect must be had to the cause and object of the taking,
whether under the taxing power, the power of eminent domain, or the
power of assessment for local improvements, or none of these; and,
if found to be suitable or admissible in the special case, it will
be adjudged to be 'due process of law;' but if found to be
arbitrary, oppressive, and unjust, it may be declared to be not
'due process of law.' Such an examination may be made without
interfering with that large discretion which every legislative
power has of making wide modifications in the forms of procedure in
each case, according as the laws, habits, customs, and preferences
of the people of the particular state may require."
See also Marchant v. Pennsylvania R. Co., 153 U.
S. 380, and
Holden v. Hardy, 169 U.
S. 366.
In
Castillo v. McConnico, 168 U.
S. 674, prior decisions defining due process of law were
applied to a law assessing taxes. The case involved the validity of
a title derived from a tax sale made to enforce delinquent state
taxes. The title thus acquired was assailed on the ground that the
assessment upon which is was based was void because the property
was not assessed in the name of its owner. The state law made the
deed given in pursuance of the sale
prima facie evidence
of the fact that the property was subject to taxation and the fact
that the taxes had not been paid, and conclusive evidence that the
property had been assessed, the taxes levied, and the property
advertised according to law; also that the property was adjudicated
and sold, as stated in the deed, and all the prerequisites of the
law were complied with, from the assessment up to and including the
execution and registry of the deed. The state court sustained the
sale. This Court, in passing upon the contention that the
assessment and sale constituted a taking of property without due
process of law, went behind the presumptions created by the deed,
considered the alleged defects in the assessment and the
advertisement, and decided that a notice of thirty days by
publication was due process of law. The court also decided that,
although the statutes under which the assessment was made
provided
Page 204 U. S. 257
for the placing of the name of the owner on the assessment roll,
where such name was known, they also provided that the property
assessed should be described in the assessment roll, and therefore
that the notice required by the statute was not addressed to each
person assessed, but to all persons having property subject to
taxation. It was held that the statute afforded both constructive
and actual notice. "It cannot be doubted," it was said at
168 U. S.
625,
"that, in the exercise of its taxing power, the State of
Louisiana could have directed that the property subject to its
taxing authority should be assessed without any reference whatever
to the name of the owner -- that is to say, by any such description
and method as would have been legally adequate to convey either
actual or constructive notice to the owner. As said in
Witherspoon v. Duncan, 4
Wall. 217:"
"It is not the province of this Court to interfere with the
policy of the revenue laws of the state, nor with the
interpretation given to them by their courts. Arkansas has the
right to determine the manner of levying and collecting taxes, and
can declare that the particular tract of land shall be chargeable
with the taxes, no matter who is the owner or in whose name it is
assessed and advertised, and that an erroneous assessment does not
vitiate a sale for taxes."
See also Turpin v. Lemon, 187 U. S.
51, and
Leigh v. Green, 193 U. S.
79.
In view of these principles, let us examine the contentions of
the plaintiffs in error.
First. They charge that there is an incorrect description of the
lands owned by plaintiffs in error in the original complaint and
decree, in that they did not own all the lands described or sold.
In the original transcript of the record, there were apparently
discrepancies between the lands assessed and those described in the
decree. These discrepancies have been corrected by the return to a
certiorari granted for that purpose, and it appears that the lands
assessed and those decreed to be sold in section 32, T. 4 N., R. 7
E., were the W. 1/2 and S.E. 1/4, 480 acres, W. 1/2 of N.E. 1/4, 80
acres. Plaintiffs
Page 204 U. S. 258
in error, however, allege that they owned only the S.W. 1/4 and
the S. 1/2 of the N.W. 1/4, and contend that the two tracts owned
by them made up 240 acres, and the two tracts sold by the
commissioner and conveyed to Hunter, embracing such 240 acres, made
480 acres. Thus, is is urged, the lands plaintiffs in error owned
were sole to pay the levee taxes on land they did not own, and
their lands were thereby taken without due process of law.
This point was made in the complaint attacking the decree and
sale, but was not passed on by the supreme court. Presumably the
court regarded the point as precluded by the original decree, and
not a ground upon which the decree could be attacked, and this is
our view. What lands were properly assessed to Ballard and what
lands he owned were facts to be alleged in the original suit and
established by the proof there introduced or by admission through
the default of the owners of the lands. If there was error, it
cannot be a ground of setting aside the decree if the court had
acquired jurisdiction to render the decree. Error or irregularities
in the suit do not take from it or its decree the attribute of due
process.
Central Land Company v. Laidley, 159 U.
S. 103;
Iowa Central R. Co. v. Iowa, supra. It
is only this aspect of the suit and decree with which we are
concerned. No defense therefore which could have been made or
rights which could have been taken care of in the suit can now be
set up to impugn its decree.
The statutes of the state under which the taxes were levied
virtually make the land a party to the suit to collect the taxes.
It is from the lands alone, and not from their owner, that the
taxes are to be satisfied, and each acre bears its part. The burden
or taxation could have been easily and definitely assigned by the
court. Mistakes in ascribing the ownership of the lands did not
increase the taxation, or cast that which should have been paid by
one tract of land upon another tract. In
Doyle v. Martin,
55 Ark. 37, it was held that it is no valid objection to a tax
proceeding against land
Page 204 U. S. 259
owned by one person that it was described not separately, but as
a portion of a larger tract owned by a different person.
See
also Minneapolis Ry. T. Co. v. Minnesota D. Co., 81 Minn.
66.
Second. The fourth error assigned is that the lands were sold
for sums not legally chargeable thereon. The illegal charges
alleged are fees to the commissioner for furnishing the printer
with a list of lands sold, fees to the commissioner for reporting
the sale, and to the printer for publishing notice of sale. The
comment we have made above applies to this assignment of error. The
act under which the suit was brought provided that notice to those
interested in the delinquent lands proceeded against should
specify, among other things, that a final judgment would be
entered
"directing the sale of lands for the purpose of collecting said
delinquent levee taxes, together with the payment of interest,
penalty, and costs allowed by law."
It was for the court to determine, therefore, what costs were
allowed by law, and an erroneous judgment of what the law allowed
did not deprive the defendants in the suit of their property
without due process of law. The supreme court, in passing on this
objection, said:
"A decree of a court of competent jurisdiction is not subject to
a collateral attack because lands were sold thereunder for illegal
penalties and costs.
Kelley v. Laconia Levee District, 74
Ark. 202;
Johnson v. Hunter, 127 F. 219."
And this decision is an answer to the other decisions of
Arkansas cited by plaintiffs in error, to the effect that a sale
for taxes, in excess of the amount due, or embracing costs not
legally due, is void. And the case at bar is also distinguishable
from the cases cited from this Court.{2}
Third. The fifth assignment of error is based on the contention
that the supreme court of the state erred in not
Page 204 U. S. 260
deciding that plaintiffs in error were not given the notice
required by the statutes of the state. This assignment of error is
elaborately argued by counsel, but the distinction is not clearly
made between the construction of the statutes and their effect as
construed. What the statute required was for the supreme court to
determine; whether, as determined, it constituted due process, is
for us to decide. The case at bar does not come within
Huntington v. Attrill, 146 U. S. 657, or
Scott v. McNeal, 154 U. S. 34, or
the cases where the statute of a state was assailed as impairing
the obligation of a contract. We come, then, to what was done in
the suit which decreed the sale, and the discussion answers as well
for the other assignments of error without specially enumerating
them. The ultimate ground of all of them is that the proceedings
were conducted without the notice to plaintiffs in error required
by the demands of due process of law. In discussing the contention
of plaintiffs in error that they had been denied the equal
protection of the laws by the different manner of service upon
resident and nonresident owners of land and the different times for
appearance after service, we declared that it was competent for the
state to make the distinction, and that the notice and time were
adequate to give the plaintiffs in error the equal protection of
the laws. They were also adequate to afford due process of law. And
we will pass to the consideration of the other objections. The most
important are the following: that there was no sufficient affidavit
made and filed to support a warning order or order for notice to
plaintiffs in error, and there was no proof of such order or notice
filed or produced in court when the decree was rendered. Replying
to these objections, the supreme court said:
"3. The act provides that notice by publication shall be given
to the defendants in suits instituted for the collections of levee
taxes, who are nonresidents of the county where the suits are
brought. The plaintiff in the complaint in the proceedings attacked
in this suit stated who of the defendants
Page 204 U. S. 261
therein were nonresidents of the county in which the proceedings
were pending, and such complaint was sworn to. This was sufficient
to authorize notice by publication without a separate affidavit to
the same effect. It was held in
Sannoner v. Jacobson, 47
Ark. 31, that an affidavit and complaint may be included in one
instrument of writing, if it contains all the essentials of both.
The complaint in the proceedings attacked contained the essentials
of the affidavit and is sufficient to answer the same purpose.
Johnson v. Hunter, supra."
"4. The act under which the aforesaid proceedings were
instituted does not require a warning order to be entered on record
or on the complaint, and, if it had, the proceedings could not be
attacked collaterally unless such entry was made jurisdictional, as
it was in
Gregory v. Bartlett, 55 Ark. 30, and it was not
in this case.
Clay v. Bilby, 72 Ark. 101."
The court held, therefore, that under the laws of the state, an
"affidavit and complaint may be included in one instrument of
writing, if it contains all the essentials of both." And it was
held that the complaint in the proceedings attacked did contain
those essentials. If we could dispute with the supreme court at all
upon the requirements of the laws of the state it would have to be
on a clearer showing of error than is made in the case at bar. The
statute provides that all or any part of the delinquent lands for a
county may be included in the suit instituted in such county, and
there may be included in the suit known and unknown owners;
"and notice of the pendency of such suit shall be given as
against nonresident owners of the county and unknown owners,
respectively,"
by publication weekly. The time of publication is specified. The
complaint showed that Ballard was the owner of the lands and that
he was a nonresident of the county. It was said, however, that
Josephine Ballard was not made a defendant in the suit, though the
records of the county showed that she was an owner thereof. But the
statute provided against
Page 204 U. S. 262
such an omission. It provided that the proceedings and judgment
should be in the nature of proceedings
in rem, and that it
should be immaterial that the ownership of the lands might be
incorrectly alleged in the proceedings. We see no want of due
process in that requirement, or what was done under it. It is
manifest that any criticism of either is answered by the cases we
have cited. The proceedings were appropriate to the nature of the
case.
It should be kept in mind that the laws of a state come under
the prohibition of the Fourteenth Amendment only when they infringe
fundamental rights. A law must be framed and judged of in
consideration of the practical affairs of man. The law cannot give
personal notice of its provisions or proceedings to everyone. It
charges everyone with knowledge of its provisions; of its
proceedings it must at times, adopt some form of indirect notice,
and indirect notice is usually efficient notice when the
proceedings affect real estate. Of what concerns or may concern
their real estate, men usually keep informed, and on that
probability the law may frame its proceedings -- indeed, must frame
them -- and assume the care of property to be universal if it would
give efficiency to many of its exercises. This was pointed out in
Huling v. Kaw. Valley Railway & Improvement Company,
130 U. S. 559,
where it was declared to be the
"duty of the owner of real estate who is a nonresident to take
measures that in some way he shall be represented when his property
is called into requisition, and, if he fails to get notice by the
ordinary publications which have been usually required in such
cases, it is his misfortune, and he must abide the
consequences."
It makes no difference therefore that plaintiffs in error did
not have personal notice of the suit to collect the taxes on their
lands or that taxes had been levied, or knowledge of the law under
which the taxes had been levied.
Our attention is directed to the case of
Johnson v.
Hunter, decided by the Circuit Court of Appeals for the Eighth
Circuit, 147 F. 133, to establish that the verified complaint
Page 204 U. S. 263
in the suit to collect the levee taxes was not sufficient to
sustain the service by publication. The appellants in that case
were complainants in the circuit court in a suit to quiet their
title against sales under decrees made in suits prosecuted by the
St. Francis levee district -- suits identical with that with which
the case at bar is concerned. The court held that an affidavit,
"adapted to the terms of the levee act," and placed on record in
the suit, was a prerequisite to the issuance and publication of the
prescribed warning order, and was strictly jurisdictional. A number
of cases were cited. Considering the terms of the levee act, the
court quoted the following provisions of section 11 as amended
February 15, 1893:
"And provided further, actual service of summons shall be had
where the defendant is in the county or where there is an occupant
upon the land."
"The conditions are," the court said,
"that the defendant must be a nonresident of the county, and
must be absent therefrom, and that there must not be an occupant
upon the land. If the defendant be a resident of the county, or be
present therein, or if there be an occupant upon the land, actual
service of a summons is required. . . . And a defendant may be a
nonresident of the county and absent therefrom and yet the land be
occupied by a tenant or other representative upon whom a summons
can be served. If the land is so occupied, the act plainly calls
for such service.
Banks v. St. Francis Levee District, 66
Ark. 490."
The court assented to the view that a complaint, properly
verified, containing what was required to be set forth would be a
sufficient affidavit to sustain service by publication, but
observed, that
"of the three concurring conditions, without the existence of
which that mode of service was not permissible, the complaints
alleged the existence of one, and were altogether silent in respect
of the other two -- that is, they stated that Johnson [the
defendant] was a nonresident of the county, but did not state that
he was not present therein or that there was not an occupant upon
the lands. "
Page 204 U. S. 264
Referring to the case of
Memphis Land & Timber Co. v.
St. Francis Levee District, 70 Ark. 409, and the decision of
the supreme court of the state in the case at bar, it was said:
"In one, the question actually considered was whether or not any
affidavit for publication was necessary, rather than what it should
contain, and in the other it was whether or not a verified
complaint could perform the office of such an affidavit; but in
neither does the court's attention appear to have been directed to
the provision,"
"and provided further, actual service of summons shall be had
where the defendant is in the county or where there is an occupant
upon the land."
"In the arrangement of the act, this provision is somewhat
separated from the others, which it is obviously designed to modify
and restrain, and, in the absence of any controversy respecting it,
it may well be that it was not observed by the court."
We cannot concur in the supposition. We think those cases can be
better explained by a different supposition. In the case at bar,
plaintiffs in error are not in a position to make the objection.
They do not assert that, though nonresidents of the county, they
were present therein or that their lands were occupied by a tenant
or other representativess, as was the case in
Banks v. St.
Francis Levee District, supra. They, on the contrary, assert,
and make it a ground of relief under the Constitution of the United
States, that, as nonresidents, they were discriminated against, in
that the act of 1895 did not require the same notice to be given to
nonresident owners as to resident owners or to persons owning and
having tenants upon the land.
Plaintiffs in error, it is true, allege that no "sufficient
affidavit of the plaintiff" was filed "stating positively or
sufficiently any one of the facts" required to be stated, and that
the clerk did not make, on the complaint or otherwise, any warning
order to plaintiffs in error, or to either of them, to appear in
the suit as required, or which obliged them to appear therein or
bound them by the proceedings which were had therein. But there was
no allegation that either of them
Page 204 U. S. 265
was in the county or that there was an occupant upon their
lands. Not being defendants who were entitled to personal service,
they cannot urge against the decree that they were not given
personal service, or complain that the complaint was insufficient
as an affidavit for service by publication, because it did not deny
the existence of conditions which there is no pretense existed.
Another assignment of error is that
"there was no sufficient proof of the publication of any warning
order, or any notice to the plaintiffs in error, filed or produced
in court when the decree of sale of their lands was rendered."
To this contention the supreme court replied:
"The act under which the aforesaid proceedings were instituted
does not require a warning order to be entered on record or on the
complaint, and, if it had, the proceedings could not be attacked
collaterally unless such entry was made jurisdictional, as it was
in
Gregory v. Bartlett, 55 Ark. 30, and it was not in this
case.
Clay v. Bilby, 72 Ark. 101."
And the decree recites that the defendants "were severally
constructively summoned by publication, . . . proof of which has
been previously filed herein." The contention of plaintiffs in
error is therefore answered by
Grignon v.
Astor, 2 How. 319;
Sargeant
v. State Bank, 12 How. 371;
Voorhees
v. Bank of United States, 10 Pet. 449;
Applegate v. Lexington &c. Mining Co., 117 U.
S. 255.
The other assignments of error do not require specific mention.
They are either answered by that which we have already said or do
not involve jurisdictional questions.
Decree affirmed.
MR. JUSTICE BREWER concurs in the judgment.
"St. Francis Levee District"
"vs. Notice"
"Delinquent Lands."
"The following named persons and corporations, and all others
having or claiming an interest in any of the following described
lands, are hereby notified that suit is pending in the Circuit
Court of _____ County, Arkansas, to enforce the collection of
certain levee taxes on the subjoined list of lands, each supposed
owner's lands being set opposite his or her or its name,
respectively, together with the amounts severally due from each,
to-wit."
Then shall follow a list of supposed owners, 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:
"Said persons and corporations, and all others interested in
said lands, are hereby 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."
French v.
Edwards, 13 Wall. 514;
Walker v.
Turner, 9 Wheat. 541;
More
v. Brown, 11 How. 411;
Woods v.
Freeman, 1 Wall. 398;
McClung v.
Ross, 5 Weat. 116;
Thatcher
v. Powell, 6 Wheat. 119;
Gage v. Pumpelly,
115 U. S. 454;
Dick v. Foraker, 155 U. S. 404.
