Ballard v. Charles Hunter
| Decision Date | 21 January 1907 |
| Docket Number | No. 123,123 |
| Citation | 204 U.S. 241,51 L.Ed. 461,27 S.Ct. 261 |
| Parties | A. B. BALLARD and Josephine W. Ballard, Plffs. in Err., v. CHARLES W. HUNTER, A. Hackler, and the Board of Directors of the St. Francis Levee District |
| Court | U.S. Supreme Court |
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...
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