Ballard v. Hunter/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 14th 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 R. & Improv. Co. 130 U.S. 559, 32 L. ed. 1045, 9 Sup. Ct. Rep. 603. This accountability 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. Den ex dem. Murray v. Hoboken Land & Improv. Co. 18 How. 272, 15 L. ed. 372; McMillen v. Anderson, 95 U.S. 37, 24 L. ed. 335. 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, 32 L. ed. 623, 9 Sup. Ct. Rep. 231; Lent v. Tillson, 140 U.S. 316, 35 L. ed. 419, 11 Sup. Ct. Rep. 825; Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, 28 L. ed. 569, 4 Sup. Ct. Rep. 663; Iowa R. C. Co. v. Iowa, 160 U.S. 389, 40 L. ed. 467, 16 Sup. Ct. Rep. 344.

In Davidson v. New Orleans, 96 U.S. 97, 24 L. ed. 616, a proposition was laid down which has since been quoted many times. The court said, at pages 104 and 105, L. ed. on pages 619 and 620: '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 107 and 108, L. ed. on pages 620 and 621, 'that, in judging what is 'due process of 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, 38 L. ed. 751, 14 Sup. Ct. Rep. 894, and Holden v. Hardy, 169 U.S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383.

In Castillo v. McConnico, 168 U.S. 674, 42 L. ed. 622, 18 Sup. Ct. Rep. 229, Prior decisins 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 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 page 681, L. ed. at page 625, Sup. Ct. Rep. at page 232, '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, 18 L. ed. 342: '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, 47 L. ed. 70, 23 Sup. Ct. Rep. 20, and Leigh v. Green, 193 U.S. 79, 48 L. ed. 623, 24 Sup. Ct. Rep. 390.

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 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 Co. v. Laidley, 159 U.S. 103, 40 L. ed. 91, 16 Sup. Ct. Rep. 80; Iowa C. 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, 17 S. W. 346, it was held that it is no valid objection to a tax proceeding against land 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 R. Terminal Co. v. Minnesota Debenture Co. 81 Minn. 66, 83 N. W. 485.

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, 85 S. W. 249, 87 S. W. 638; Johnson v. Hunter, 127 Fed. 219.' [74 Ark. 181, 85 S. W. 254.] 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.

Third. The fifth assignment of error is based on the contention that the supreme court of the state erred in not 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, 36 L. ed. 1123, 13 Sup. Ct. Rep. 224, or Scott v. McNeal, 154 U.S. 34, 38 L. ed. 896, 14 Sup. Ct. Rep. 1108, 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 eration 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 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, 14 S. W. 458, 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, 17 S. W. 344, and it was not in this case. Clay v. Bilby, 72 Ark. 101, 78 S. W. 749.'

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 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 14th 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 R. & Improv. Co. 130 U.S. 559, 32 L. ed. 1045, 9 Sup. Ct. Rep. 603, 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 Fed. 133, to establish that the verified complaint 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 § 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, 51 S. W. 830.' 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.' Referring to the case of Memphis Land & Timber Co. v. St. Francis Levee District, 70 Ark. 409, 68 S. W. 242, 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 reprentatives, 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 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, 17 S. W. 344, and it was not in this case. Clay v. Bilby, 72 Ark. 101, 78 S. W. 749.' 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, 11 L. ed. 283; Sargeant v. State Bank, 12 How. 371, 13 L. ed. 1028; Voorhees v. Jackson, 10 Pet. 449, 9 L. ed. 490; Applegate v. Lexington & C. County Min. Co. 117 U.S. 255, 29 L. ed. 892, 6 Sup. Ct. Rep. 742.

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. 

Notes