Ballard v. Hunter

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 5 per cent 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.

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 25 per cent 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.

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 court-house 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 § 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 § 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.' [Ark. Acts 1895, pp. 91, 92.]

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: 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 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.

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 §§ 5839-5843, Sandels & Hill's Digest, and as an original complaint, under §§ 4197-4199 of same, and under §§ 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 14th of February, 1898, be 'reviewed, reversed, and vacated, and that the report of the sales and the sales be set aside and the deeds canceled.'

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 21st 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 $1 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 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 25th 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 sucn 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 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 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.

Messrs. William M. randolph, George Randolph, and Wassell Randolph for plaintiffs in error.

[Argument of Counsel from pages 251-253 intentionally omitted]

Mr. L. P. Berry for defendants in error.

[Argument of Counsel from Page 253 intentionally omitted]

Mr. Justice McKenna, after stating the case as above, delivered the opinion of the court: