# Jurisdictional Statement — Texaco, Inc. v. Short > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1918%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1982 - **Citation:** 454 U.S. 516 ## Text 80-965 ory r''> S. No. DEC 29 1980 ieee, CLERK In THE United States Supreme Court OcTOBER TERM, 1980 TEXACO, INC., ROBERT BRASELTON, ELECTRA FIELDS, CHARLES BRASELTON, CHESTER BRASELTON, ROBERT E. BRASELTON, CLIFFORD N. BRASELTON, OSBORNE T. BRASELTON, Jr., DAvip E. BURKHART, JOHN P. BRASELTON, Rosa G. BuRKHART, D. W. MAYHEW, d/b/a MAYHEW Olt AND Gas DEVELOPMENT, Appellants, vs. Louise F. SHort, Appellee, STATE OF INDIANA, Intervenor. JURISDICTIONAL STATEMENT JOHN L. CARROLL JOHNSON, CARROLL & GRIFFITH 2230 West Franklin Street P.O. Box 6016, Station B Evansville, Indiana 47712 Telephone: (812) 425-4466 Attorneys for Appellants St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477 QUESTIONS PRESENTED BY THE APPEAL This is an appeal of the decision of the Supreme Court of In- diana in holding the Dormant Mineral Interests Act, (also known as the Indiana Mineral Lapse Act) Indiana Code 32-5-11-1, et seq. to be constitutional where the Act provides that a mineral interest severed from the surface ownership is deemed extinguished if use of the mineral interest is not made within twenty (20) years or a statement of claim setting forth the ownership is not filed in the county recorder’s office. 1. Due Process. Does the Dormant Mineral Interests Act of the State of In- diana (Indiana Code 32-5-11-1 et seq.) violate the United States Consitution as to the Fourteenth Amendment by depriving landowners of their property without due process of law, in that non-use of a mineral right for twenty (20) years under the Act purports to extinguish the right without any notice or hear- ing? 2. Equal Protection. Does the Dormant Mineral Interests Act of the State of In- diana (Indiana Code 32-5-11-1 et seq.) violate the United States Constitution as to the Fourteenth Amendment by denying cer- tain persons of the equal protection of the law when it provides that the owners of ten or more mineral interests in a county who inadvertently fail to file a statement of claim must be given writ- ten notice and a chance to file their claim prior to extinguish- ment of their interest when similar treatment is not afforded to those having less than 10 mineral interests. 3. Impairment of Contract. Does the Dorman Mineral Interests Act of the State of In- diana (Indiana Code 32-5-11-1 et seq.) violate the United States Constitution as to Article 1, Section 10, by unreasonably im- pairing the obligations of contracts in that it purports to ter- minate a contract right without consent or action of the parties? 4. Just Compensation. Does the Dormant Mineral Interests Act of the State of In- diana (Indiana Code 32-5-11-1) violate the United States Con- stitution as to Section 1 of the Fourteenth Amendment by the taking of private property without any compensation when mineral rights are extinguished after 20 years of non-use. PARTIES TO THE PROCEEDING All parties to the proceeding are listed in the caption of the case in this court. DeBeers Diamond Investment Ltd. was named a party below but a stipulation filed in the trial court shows they have no interest and are not a party before this Court. There is a companion (but not consolidated) case raising the same issues in the Supreme Court of Indiana, No. 12788303, in which Ulysses G. Walden, Jr. and Carolyn Sallee Walden were Appellants and Eden H. Pond, Edna H. Bobe and Consolidation (eal Com- pany were Appellees. This appeal attacks the constitutionality of the Indiana Dormant Mineral Act on behalf of oil and gas in- terest holders. The Walden case attacks the same act on behalf of coal interest holders. The Supreme Court of Indiana made no distinction between the two interests, holding both to be vested property interests. TABLE OF CONTENTS Page NE od nce b bus occcavduaveskauveeses i Parties to the Proceeding ...0cccccccccccccccccccecs iii PU ci enc bheakecbapicccvesbeseeecsss v Opinion of the Court Below ...............cceeeeees 1 RD OU IID 0 6 db 0006 0 vicbvccnnseenesners 2 Comstitutional Provisions ooo. ccsccccsvccccccscesess 2 PCP MEE PMO Nccadsecevovetsncansesccesens 3 RIL hws sc veendcdedscdncebevesecs 8 Se, MUNN s CRANK b5N 000s chenecveeneees 8 De EEE cicdcenecurcccdeséceceass 11 So | MRE OF COMERS. oon ie cc cccccccccs 12 Sy) BERNER. cobb cdccdcccccdccncees 13 RE nu tdbi hsb aches naedekipdeneinnce caves 14 APPENDIX Appendix A Opinion of the Supreme Court of Indiana........ A-l Appendix B Opinion of the trial court .........ccccccccccecs A-14 Appendix C Judgraent appealed from ...............0ee000% A-20 vi Appendix D Denial of petition for rehearing...............+. A-27 Appendix E> eS Se ndnns bap adeGbdbedcneces oe A-28 Appendix F The Indiana Dormant Mineral Interests Act, (1.C. Pc stb neoebnedbvcrtocscces A-32 Appendix G Chicago & North Western Transportation Co. v. Paderson, (1977) 80 Wis 2d 566, 259 NW 2d DLAC Cae e ha cdee ob Lbe's web edeceeneces A-35 Appendix H Contos v. Herbst, (Minn 1979) 278 NW 2d 732.... A-44 Appendix I Wilson v. Bishop, (1980, Ill.) NE2d__.... + A-72 Appendix J Wheelock v. Heath, (1978) 201 Neb 835, 272 NW RUS AGAELe PARA ne een bises cv eertecacpes A-80 TABLE OF AUTHORITIES Anderson National Bank v. Luckett, (1944) 321 U.S. 233, 64S.Ct. 599, 88 L.Ed. 692............0005- 10 Chicago & North Western Transportation Co. v. Pader- son, (1977) 80 Wis 2d 566, 259 NW 2d 316........ 8,13 Contos v. Herbst, (Minn 1979) 278 NW 2d 732 ........ 8,13 vii Fuentes v. Shevin (1972) 407 U.S. 67, 92 S.Ct. 1983, 32 Ce ee i ves Home Building and Loan Association v. Blaisdell, (1934), 290 U.S. 438 54S.Ct. 231, 78 L.Ed. 413... Memphis Light, Gas & Water Division v. Craft, (1978) 436 US 1, 56 L.Ed 2d 30, 98 S.Ct. 1554 .......... Mullane v. Central Hanover Trust Co., (1950) 339 US - § ee bee. rrr y ere Ohio v. Dollison, (1904) 194 US 447, 48 L.Ed. 1062.... Sniadach v. Family Finance Corporation of Bayview, (1969) 395 U.S. 337, 23 L.Ed. 2d 349, 89A S.Ct. United States Trust Co. of New York v. New Jersey, (1977) 431 U.S. 197S.Ct. 1505, 52 L.Ed2d92.... Wheelock v. Heath, (1978) 201 Neb 835, 272 NW 2d Wilson v. Bishop, (1980, Ill.) . NE2d___......... 10,13 9,11 11 No. IN THE United States Supreme Court OcToBER TERM, 1980 Texaco, INC., ROBERT BRASELTON, ELECTRA FIELDS, CHARLES BRASELTON, CHESTER BRASELTON, ROBERT E. BRASELTON, CLIFFORD N. BRASELTON, OSBORNE T. BRASELTON, Jr., DAvip E. BURKHART, JOHN P. BRASELTON, Rosa G. BurkKHArT, D. W. MAYHEw, d/b/a MayHew OiL AND Gas DEVELOPMENT, Appellants, vs. Louise F. SHort, Appellee, STATE OF INDIANA, Intervenor. JURISDICTIONAL STATEMENT OPINION OF THE COURT BELOW The opinion of the Supreme Court of Indiana which appears in the Appendix herein, (page A-1) is reported at 406 NE 2d 625. It is not yet published in the official Indiana Reports. The opinion of the Gibson Circuit Court appears in the Appen- dix herein (page A-14). a ae GROUNDS OF JURISDICTION This is a direct appeal from the decision of the Supreme Court of Indiana (the highest court of the State) holding the In- diana Dormant Minerals Interests Act (Indiana Code 32-5-11-1) to be constitutional under the United States Constitution. Jurisdiction of this Court is founded on 28 U.S.C. §1257(2). Judgment was entered by the Gibson Circuit Court on September 18, 1978. The Indiana Supreme Court rendered its decision on June 23, 1980. A timely petition for rehearing was filed and it was denied by the Supreme Court of Indiana on September 24, 1980. Notice of Appeal to the Supreme Court of the United States was filed with the Supreme Court of Indiana on November 17, 1980. (Appendix, page A-28) 28 U.S.C. §1257(2) reads as follows: ‘Final judgments or decrees rendered by the highest court of a state in which a decision could be had, may be reviewed by the Supreme Court as follows: **(2) By appeal, where is drawn in question the validity of a statute of any state on the ground of its being repug- nant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity.’’ CONSTITUTIONAL PROVISIONS Constitution of the United States of America Fourteenth Amendment, Section 1: **No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protec- tion of the laws.”’ Section 10, Clause 1: **No state shall enter into any treaty, alliance, or con- federation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of al- tainer, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.’’ STATEMENT OF FACTS In Indiana and in many of the states there are many instances where the ownership of minerals (such as coal, oil or gas) underlying property is in the hands of persons other than those who own the surface of such property. In some instances these mineral rights have not been used for many years. In an apparent effort to solve a perceived preblem, Indiana in 1971 passed the INDIANA DORMANT MINERAL IN- TERESTS ACT (I.C. 32-5-11) (also known as the Indiana Mineral Lapse Act) (Hereafter referred to as the Act) (Set forth in full text at Appendix F). The Act provides: 32-5-11-1 [46-1808]. Lapse of mineral interest—Prevention.—Any interest in coal, oil and gas, and other minerals, shall, if unused for a period of 20 years, be ex- tinguished, unless a statement of claim is filed in accordance with section five [32-5-11-5] hereof, and the ownership shall revert to the then owner of the interest out of which it was carv- ed. [IC 32-5-11-1, as added by Acts 1971, P.L. 423, § 1.] 32-5-11-2 [46-1809]. Mineral interest—Definition.—A mineral interest shall be taken to mean the interest which is created by an instrument transferring, either by grant, assign- ment, or reservation, or otherwise an interest, of any kind, in coal, oil and gas, and other minerals. [IC 32-5-11-2, as added by Acts 1971, P.L. 423, § 1.] ae yn 32-5-11-3 [46-1810]. Use of mineral interests—Definition.—A Mineral interest shall be deemed to be used when there are any minerals produced thereunder or when operations are being conducted thereon for injection, withdrawal, storage or disposal of water, gas or other fluid substances, or when rentals or royalties are being paid by the owner thereof for the purpose of delaying or enjoying the use or exercise of such rights or when any such use is being carried out on any tract with which such mineral interest may be unitized or pooled for production purposes, or when, in the case of coal or other solid minerals, there is production from a common vein or seam by the owners of such mineral interests, or when taxes are paid on such mineral interest by the owner thereof. Any use pursuant to or authorized by the instrument creating such mineral interest shall be effective to continue in force all right granted by such instru- ment. [IC 1971, 32-5-11-3, as added by Acts 1971, P.L. 423, § 1, p. 1970.] 32-5-11-4 [46-1811]. Statement of claim—Filing—Re- quirements.—The statement of claim provided in section one [32-5-11-1] above shall be filed by the owner of the mineral in- terest prior to the end of the twenty [20] year period set forth in section two [one] [32-5-11-1] or within two [2] years after the ef- fective date [September 2, 1971] of this act, whichever is later, and shall contain the name and address of the owner of such in- terest, and description of the land, on or under which such mineral interest is located. Such statement of claim shall be filed in the office of the recorder of deeds in the county in which such land is located. Upon the filing of the statement of claim within the time provided, it shall be deemed that such mineral interest was being used on the date the statement of claim was filed. [IC 1971, 32-5-11-4, as added by Acts 1971, P. L. 423, § 1, p. 1970; 1972, P. L. 11, § 15, p. 336.] 32-5-11-5 [46-1812]. Extinguishment of mineral interest—Ex- ceptions.—Failure to file a statement of claim within the time a ee provided in section 4 [32-5-11-4] shall not cause a mineral in- terest to be extinguished if the owner of such mineral interest: (1) was at the time of the expiration of the period provided in section four [32-5-11-4], the owner of ten [10] or more mineral interests, as above defined, in the county in which such mineral interest is located, and; (2) made diligent effort to preserve all of such interests as were not being used, and did within a period of ten [10] years prior to the expiration of the period provided in section 4 [32-5-11-4] preserve other mineral intersets, in said county, by the filing of statements of claim as herein required, and; (3) failed to preserve such interest through inadvertence, and; (4) filed the statement of claim herein required, within sixty [60] days after publication of notice as provided in section seven [32-5-11-7] herein, if such notice is published, and if no such notice is publied, within sixty [60] days after receiving actual knowledge that such mineral interest had lapsed. [IC 1971, 32-5-11-5, as added by Acts 1971, P. L. 423, § 1, p. 1970.] 32-5-11-6 [46-1813]. Successor in interest—Notice re- quirements—Prima facie evidence.—Any person who will suc- ceed to the ownership of any mineral interest, upon the lapse thereof, may give notice of the lapse of such mineral interest by publishing the same in a newspaper of general circulation in the county in which such mineral interest is located, and, if the ad- dress of such mineral interest owner is shown of record or can be determined upon reasonable inquiry, by mailing within ten [10] days after such publication a copy of such notice to the owner of such mineral interest. The notice shall state the name of the owner of such mineral interest, as shown of record, a description of the land, and the name of the person giving such notice. If a copy of such notice, together with an affidavit of service thereof, shall be promptly filed in the office of the recorder of deeds in the county wherein such land is located, the pak a record thereof shall be prima facie evidence, in any legal pro- ceedings, that such notice was given. [IC 1971, 32-5-11-6, as ad- ded by Acts 1971, P. L. 423, § 1, p. 1970.] 32-5-11-7 [46-1814]. Statement of claim—Filing—Recorder’s duty.—Upon the filing of the statement of claim, provided for in section 4 [32-5-11-4] of this chapter or the proof of service of notice as provided in section seven [six] [32-5-11-6] of this chapter in the recorder’s office for the county where such in- terest is located, the recorder shall record the same in a book to be kept for that purpose, which shall be known as the ‘‘Dor- mant Mineral Interest Record’’ and shall indicate by marginal nvtation on the instrument creating the original mineral interest the filing of the statement of claim or affidavit of publication and service of notice. [IC 1971, 32-5-11-7, as added by Acts 1971, P. L. 423, § 1, p. 1970.] 32-5-11-8 [46-1815]. Waiver of chapter’s provisions—Time limit.—The provisions of this chapter [32-5-11-1—32-5-11-8] may not be waived at any time prior to the expiration of the twenty [20] year period provided in section 1 [32-5-11-1]. [IC 1971, 32-5-11-8, as added by Acts 1971, P. L. 423, § 1, p. 1970.] Appellants are the owners of fractional undivided interests in oil, gas and other minerals underlying a tract of land in Gibson County, Indiana (the mineral interests). Appellee is the owner of the surface of such land. No use was made of the mineral in- terests for twenty (20) years immediately preceding September 2, 1971 (the effective date of the Indiana Dormant Mineral In- terests Act [I.C. 32-5-11] [the Act]) nor for the two years follow- ing. At no time during the two year period were Appellants the owners of ten or more mineral interests in Gibson County, In- diana. Further Appellants did not file any statement of claim within the two year grace period provided by the Act. Thereafter, Appellee surface owner filed an action for declaratory judgment with the Gibson Circuit Court against the — - mineral interest owners praying that the mineral interest claimed by the Appellants be declared extinguished under the Act. Ap- pellants filed answer claiming the Act to be unconstitutional under the Indiana and United States Constitutions. The matter was heard by the trial court based upon a stipulation where the only issue before the Court was the Constitutionality of the Act under both the Constitution of Indiana and the Constitution of the United States. The trial court by written opinion (Appendix B) held the Act unconstitutional under the Fifth and Fourteenth Amendments to the United States Constitution. On appeal the Supreme Court of Indiana held the Act constitutional under both the Indiana and United States Constitutions (Appendix A). The sole ques- tion before this Court is the constitutionality of the Act under the United States Constitution. Indiana has held, in the opinion of the Indiana Supreme Court in this case, (Appendix A) that: **Interest of estates in oil, gas, coal and other minerals ly- ing beneath the surface of the land are interests in real estate for our purposes here, and as such are entiiled beyond question to the protection of the Constitution from irrational state action. They are vested property in- terests separate and distinct from the surface ownership. The State has no power to deprive an owner of such an in- terest without due process of law. They are entitled to the same protection as are fee simple titles.’’ Given a vested property right, can a State by legislation con- stitutionally determine that because the use of t*« mineral right was dormant for twenty years, the ownership of the mineral in- terests shall revert to the surface owner, without providing notice or opportunity for hearing prior to the extinguishment of the property right? Does this not violate the Fourteenth Amend- ment of due process and Article 1, Section 10 on impairment of contracts? QUESTION IS SUBSTANTIAL 1. Due Process. The question is clear cut. Does the Act violate the procedural due process clause of the United States Constitution? The States of Illinois, Minnesota, Michigan and Wisconsin have passed similar laws and in each instance the Supreme Court of the respective State has held the Act un- constitutional as violating the United States Constitution. These cases are as follows: Wilson v. Bishop, (1980, Ill.) NE 2d (Appendix I) Wheelock v. Heath, (1978) 201 Neb 835, 272 NW 2d 768 (Appendix J) Chicago & North Western Transportation Co. v. Paderson, (1977) 80 Wis 2d 566, 259 NW 2d 316 (Appendix G) Contos v. Herbst, (Minn 1979) 278 NW 2d 732 (Appendix H) Thus, the decision of tne Supreme Court of Indiana is in con- flict with the decisions of the court of last resort of four other states. This in itself raises a fundamental question of equality of constitutional treatment among the several states. The Illinois statute is almost identical to the Indiana statute and that statute was held unconstitutional under the United States Constitution by the Illinois Supreme Court in Wilson v. Bishop, (1980 Ill) _-.NE 2d____.. The opinion is set forth in full at Appendix I. There the Court held: “The United States Supreme Court has emphasized that due process of law, at a minimum prohibits the deprivation of property without providing notice and an opportunity for a hearing appropriate to the nature of the case. [Mem- phis Light, Gas & Water Division v. Craft, (1978), 436 U.S. 1 13-16, 56 L.Ed. 2d 30, 41-43, 98 S.Ct. 1554, 1562-63; Mullane v. Central Hanover Trust Co., (1950), 339 U.S. 306, 313, 94 L.Ed. 865, 872-73, 70 S.Ct. 652, | ph 657]...“‘The statute provided no notice of any kind to record owners of oil and gas interests that they must record a statement of their interest in order to prevent the forfeiture of their property interests...Failure to provide those owners with adequate notice and an opportunity to be heard renders the statutory scheme unconstitutional.”’ The basic question presented is whether the Act denies basic constitutional rights under the banner of a perceived public in- terest. In Sniadach v. Family Finance Corporation of Bayview, (1969) 395 U.S. 337, 23 L.Ed. 2d 349, 89A S.Ct. 1820, this Court said: ‘‘The question is not whether the Wisconsin law is a wise law or an unwise law. Our concern is not what philosophy Wisconsin should or should not embrace.’’ The Indiana decision, if left standing, states an erroneous view of Constitutional requirements relating to procedural due process. The court below says that the Act is ‘‘self executing”’ and ‘‘does not contemplate an adjudication before a tribunal before the lapse occurs’’. From that it reasons that due process does not require notice and opportunity for hearing before the lapse occurs. Such reasoning is directly contrary to Mullane v. Central Hanover Bank and Trust Company, (1950) 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed 865, where this Court held: ‘The fundamental requisite of due process of law is the opportunity to be heard.”’ In Memphis Light, Gas & Water Division v. Croft, (1978) 436 U.S. 1, 56 L.Ed.2d 30, 98 S.Ct. 1554, this Court said: **This Court consistently has held that some kind of hear- ing is required at some time before a person is finally deprived of his property interest.”’ In Sniadach v. Family Finance Corporation of Bayview, supra, this Court held that a prejudgment garnishment of wages is unconstitutional ‘‘where the taking of one’s property is so ob- = vious that it needs no extended argument to conclude that ab- sent notice and prior hearing this prejudgment garnishment pro- cedure violates the fundamental principles of due process.”’ In Fuentes v. Shevin, (1972) 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556, this court struck down the Florida and Penn- sylvania prejudgment replevin statutes, holding, inter alia, that the statutes violated the procedural due process clause because there was no hearing before the seizure of property. This Court, speaking through Justice Stewart said (at 401 U.S. 83): **The right to a prior hearing has long been recognized by this Court under the Fourteenth and Fifth Amend- ments. Although the Court has held that due process tolerates variances in the form of a hearing ‘appropriate to the nature of the case’, Mullane v. Central Hanover Trust Co., . . . and ‘depending upon the importance of the in- terests involved and the nature of the subsequent pro- ceedings (if any)’ . . . the Court has traditionally insisted that, whatever its form, opportunity for that hearing must be provided before the deprivation at issue takes effect.’’ The Indiana decision completely misreads Anderson National Bank v. Luckett, (1944) 321 U.S. 233, 64 S.Ct. 599, 88 L.Ed. 692, when it cites that case as authority to support the Act under procedural due process. In Anderson the requirement of notice and opportunity to be heard was fully afforded to the dormant account holder. There was no forfeiture of the account holder’s rights as here. The Kentucky act in Anderson merely transferred the dormant accounts from the Bank to the State. The rights of the account owner to the account were fully preserved in the hands of the State. The Anderson decision was the only case cited by the Court on procedural due process. This case raises the question of whether or not the passage of the Act itself and its presumption that everyone knows the law is sufficient to satisfy the notice requirement of procedural due process. This Court has consistently said that to satisfy pro- cedura! *»e process the notice has to be reasonably calculated to appris. erested parties of the contemplated action. Mullane v. Centra Hanover Bank & Trust Co., supra. On the question of procedural due process, the decision of the Indiana Supreme Court in this case is in direct conflict with at least four other state courts on the same issue and is in conflict with the decisions of this court on an important federal ques- tion. 2. Equal Protection. Section Five of the Act provides that failure to file a statement of claim shall not cause a mineral in- terest to be extinguished if the owner of ten or more interests failed to do so by inadvertance after having filed a statement of claim as to other mineral interests. This section is unique to In- diana and is not found in the statutes of other states. The section raises the question: Can a state constitutionally excuse one property owner from inadvertance in filing a claim because the property owner has more than nine mineral interests when it does not excuse property owners having nine or less in- terests? Does this not violate the equal protection clause of the Fourteenth Amendment? It is submitted that this is arbitrary discrimination based on number of holdings. It can be explained only by realizing that the lobbists for the larger mineral interest holders were able to protect themselves while the smailer holders could not. The Act treats persons of the same class differently in violation of the equal protection clause. Ohio v. Dollison (1904) 194 US 447, 48 L.Ed. 1062. Notice further that this section provides a statutory scheme for giving actual notice to the holder of ten or more interests and if he fails within sixty (60) days after actual notice to file his statement of claim the interest lapses. Thus, the statute provides a scheme or method of complying with the notice requirements of due process as to the holders of ten or more interests but does — 12 — not afford the same due process rights as to the holders of lesser interests. This is invidious discrimination on a fundamental con- stitutional right. 3. Impairment of Contract. The rights of mineral interests holders arises out of a deed or other document of conveyance. Such right thus arises out of contract. The effect of the Act is to destroy that contract right. Under the Act the right is not only impaired it is extinguished. The consequence of such destruc- tion is to take a property right from the mineral interest holder and give it to the surface interest holder. We say that state ac- tion violates the Contract Clause of Article 1, Section 10 of the U.S. Constitution. The ruling of the Supreme Court of Indiana is contrary to the decisions of this Court in Home Building and Loan Association v. Blaisdell (1934), 290 U.S. 438 54 S.Ct. 231, 78 L.Ed. 413 and United States Trust Co. of New York v. New Jersey (1977) 431 U.S. 1 97 S.Ct. 1505, 52 L.Ed 2d 92. In Home Building and Loan Association, this Court held: ‘The obligations of a contract are impaired by a law which renders them invalid or releases or extinguishes them.’’ In the United States Trust Co. of New York, supra, the Court, speaking through Mr. Justice Blackmun held that the contract clause limits the power of the states to regulate con- tracts between private parties. Admittedly, the absoluteness of the contract clause is tempered by the police power of the several states. But even the police power has its limitations. In United States Trust Co. of New York, supra, the Court said that a State is not free to impose a drastic impairment of con- tract when an evident and more moderate course would serve its purposes equally well. Here the action of the state was draco- nian. It provided for immediate and absolute extinguishment. Had the state required the giving of notice and an opportunity — eo for a mineral interest owner to have protected his right, the in- terests of the State would have been equally served and the Con- stitutional mandate satisfied. 4. Just Compensation. The Act has the effect of ex- tinguishing a vested property right but in doing so it is taking private property from one person and giving it to the surface owner all without any compensation. This violates the just com- pensation provision of Section 1 of the Fourteenth Amendment. See Wheelock v. Heath, supra (appendix j); Chicago & Nor- thwestern Transportation Co. v. Paderson, supra (appendix f); and, Contos v. Herbst, supra (appendix g). See also Fuentes v. Shevin, supra. — oo CONCLUSION This case presents an important constitutional issue. It is clean cut, as there are no collateral facts to be weighed, the sole question being the constitutionality of the Act on its face. Four other state courts dealing with similar acts have held them in- valid on Federal Constitutional grounds. The citizens of Indiana are entitled to the same protection of the same Federal Constitu- tion. For these reasons, this Court should note probable jurisdic- tion of this appeal. Respectfully submitted, John L. Carroll Attorney for Appellants JOHN L. CARROLL Johnson, Carroll and Griffith, P.C. 2230 West Franklin Street P. O. Box 6016, Station B Evansville, Indiana 47712 Telephone: (812) 425-4466 * 7 ‘ty oh vy aa . ait, nt Atta: op Ago a 4 ‘ Ys ae 4! Oris APPENDIX Appendix A Opinion of the Supreme Court of Indiana........ A-1 Appendix B Opinion of the trial court ............00 cece eee A-14 Appendix C Judgment appealed from .............0eeeeeees A-20 Appendix D Denial of petition for rehearing................. A-27 Appendix E PO NE 8.0 b's 6 oncccnecdedyseciccacens A-28 Appendix F The Indiana Dormant Mineral Interests Act, (1.C. pe tf errr errr tere A-32 Appendix G Chicago & North Western Transportation Co. v. Paderson, (1977) 80 Wis 2d 566, 259 NW 2d DOE Cisivicveaseectveceusseseuseerseeate A-35 Appendix H Contos v. Herbst, (Minn 1979) 278 NW 2d 732.... A-44 Appendix I Wilson v. Bishop, (1980, Ill.) NE2d_.... + A-72 Appendix J Wheelock v. Heath, (1978) 201 Neb 835, 272 NW np yee APPENDIX A (Opinion of the Supreme Court of Indiana) Short v. Texaco, Inc. Cite as, Ind., 406 N.E.2d 625 Louise F. SHORT, Appellant, v. TEXACO, INC., Robert Braselton, Electra Fields, Charles Braselton, Chester Braselton, Robert E. Braselton, Clif- ford N. Braselton, Osborne T. Braselton, Jr., David E. Burkhart, John P. Braselton, Rosa G. Burkhart, D. W. Mayhew d/b/a Mayhew Oil and Gas Development, De- Beers Diamond Investment, Ltd., Appellaees, State of Indiana, Intervenor. Ulysses G. WALDEN, Jr. and Carolyn Sallee Walden, Appellants, v. Eden H. POND, Edna H. Bobe and Consolidation Coal Company, Appellees, Louise F. Short, Intervenor. Nos. 179823 and 12788303. Supreme Court of Indiana. June 23, 1980. DeBRULER, Justice. The trial court declared Ind.Code §§ 32-5-11-1 through 32-5-11-8, the Mineral Lapse Act, unconstitutional. The Act puts an end to interests in coal, oil, gas or other minerals which have not been used for twenty years. The ‘‘use’’ of a mineral in- ~~ terest which continues it in force includes actual production, payment of rents, royalties or taxes, or the filing of a claim in the dormant mineral interest record in the recorder’s office. It granted owners of mineral interests a two year period of grace after its effective date in which to file the claim and preserve the interest. This is an appeal from two judgments below, con- solidated here, that termination of an interest under the Act is contrary to due process, equal protection, and the guarantee of just compensation for property taken by the State. The Act reflects the legislative belief that the existence of a mineral interest about which there has been no display of activity or interest by the owners thereof for a period of twenty years or more is mischievous and contrary to the economic interests and welfare of the public. The existence of such stale and abandoned interests creates uncertainties in titles and constitutes an impedi- ment to the development of the mineral interests that may be pre- sent and to the development of the surface rights as well. The Act removes this impediment by returning the severed mineral estate to the surface rights owner. There is a decided public in- terest to be served when this occurs. The extinguishment of such an interest makes the entire productive potential of the property again available for human use. The trial court concluded that the legislative purpose of the Act is to facilitate the exploitation of energy sources and ac- cepted such purpose as legitimate. While all its conclusions are not entirely clear, it went on to void the entire statute because it determined among other things that due process of law required the divestiture of the vested mineral interest to be preceded by due process notice and an opportunity to be heard. [1] Interests or estates in oil, gas, coal and other minerals ly- ing beneath the surface of the land are interests in real estate for our purposes here, and as such are entitled beyond question to the firmest protection of the Constitution from irrational state action. They are vested property interests separate and distinct — from the surface ownership. The State has no power to deprive an owner of such an interest without due process of law. They are entitled to the same protection as are fee simple titles. They are themselves of great utility and benefit to the society as a means of facilitating the development of natural resources. {2} Courts of this state and nation have always given due regard to constitutional constraints upon their authority to void statutes. In doing so in Noe/ v. Ewing, (1857) 9 Ind. 37, we said: **It is due from the judiciary to sustain and reconcile their enactments, if possible. We will not lightly conclude that the law-making power has either ignorantly or wilfully violated the constitution. To justify the Courts in declaring an act voide, it must clearly subversive of that instrument. (Citations omitted.) They who claim that the legislature has, in this par- ticular, transcended its constitutional power, should be prepared to make a strong and clear case. All doubts must fall in favor of the validity of the law.’’ 9 Ind. at 43. We reaffirm again now in this case our adherence to this vital principle. In Chicago and North Western Transportation Co. v. Pedersen, (1977) 80 Wis.2d 566, 259 N.W.2d 316, the Supreme Court of Wisconsin voided a similar act which directed that mineral rights revert to the surface fee ownership if they were not registered or taxes had not been paid on them. That statute was deemed contrary to procedural due process in that the mineral interest owner was not given notice or an opportunity to be heard prior to the reversion of his interest to the surface rights owner. That court relied upon Mullane v. Central Hanover Bank & Trust Co., (1950) 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865, and Bell v. Burson, (1971) 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90. The court below took the same tack in voiding the Indiana Act. —_ In Mullane, supra, primarily relied upon by the trial court, the United States Supreme Court said: ‘*Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case. eee ee An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the cir- cumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’’ (Emphasis added.) 339 U.S. at 313, 314, 70 S.Ct. at 656, 657. In Mullane the bank petitioned a court for settlement of an ac- count of a trust fund, and the sufficiency of publication notice to beneficiaries was the issue. Notice was due to the beneficiaries because a tribunal was about to adjudicate upon their property. The Mineral Lapse Act in contrast is self- executing and does not contemplate an adjudication before a tribunal before a lapse occurs. When the statutory conditions exist the lapse occurs. Mullane does not support the trial court conclusion that notice and hearing are due to a mineral interest owner prior to the occurrence of an extinguishment. Bell v. Burson, supra, relied upon by the trial court does not support the conclusion either. There a Georgia law provided that the drivers license of an individual motorist involved in an accident is to be automatically suspended without notice or hearing if security was not posted to cover the damages claimed by aggreived parties in the accident reports. In the course of —< holding this system violative of procedural due process the court specifically noted: “If the statute barred the issuance of licenses to all motorists who did not carry liability insurance or who did not post security, the statute would not, under our cases, violate the Fourteenth Amendment. (Citations omitted.) It does not follow, however, that the amendment also per- mits the Georgia statutory scheme where not all motorists, but rather only motorists involved in accidents, are re- quired to post security under penalty of loss of the licenses.’’ 402 U.S. at 539, 91 S.Ct. at 1589. Thus, even in Bell, a case involving a different complex of social concerns, there is this language supportive of the Act under con- sideration. It would support as consistent with procedural due process a legislative enactment which declared no more than that all licenses issued by the state would cease to be valid on a date certain in the future unless proof of financial responsibility were filed. Cf. Frost & Frost Trucking Co. v. Railroad Commis- sion, (1926) 271 U.S. 583, 46 S.Ct. 605, 70 L.Ed. 1101. Such a hypothetical statute would be very similar in operation to the Act being questioned in this case. [3] The Act under question does not provide for any ad- judicatory process by a court or administrative agency. The absence of such a provision is not, we think, invalidating. The Act simply spells out the conditions which when existing man- date the extinguishment of an interest. If a court should be called upon to determine whether such conditions arose in a particular case so as to have effected the loss of an interest, the owner of such interest would be entitled to notice and an opportunity to be heard. Prior to any extinguishment the owner of an interest will have had notice by reason of the enactment itself of the con- ditious which would give rise to an extinguishment and at a minimum a two year opportunity to prevent those conditions from occurring by filing a statement of claim. Anderson Na- — es tional Bank v. Luckett, (1944) 321 U.S. 233, 64 S.Ct. 599, 88 L.Ed. 692. That procedure is both simple and inexpensive. Based upon the foregoing analysis we do find the case of Chicago & North Western Transportation Co. v. Pedersen, supra, per- suasive. The reasoning of the trial court and the cases relied upon by it do not warrant the conclusion that the Act is unconstitutional because it fails to afford notice and hearing to mineral interest owners required by procedural due process. [4,5] The trial court also concluded that the extinguishment of mineral interests under the Act constituted a taking of prop- erty without due process of law. Judge Young for the Fourth District Court of Appeals summarized the due process analysis applicable here in Foreman v. State ex rel. Department of Natural Resources, (1979) Ind. App., 387 N.E.2d 455: “The government has the inherent power or ‘police power’ to enact laws, within constitutional limits, to pro- mote order, safety, health, morals, and the general welfare of society. . . . Property rights are not absolute and may be restricted by legislation which constitutes a proper exercise of the State’s police power. . . . Legislation is a proper ex- ercise of the police power when the collective benefit to the general public outweighs the restraint imposed. . . The methods or means used to protect the public order, health, morals, safety or welfare must have some reasonable rela- tion to the purpose or end sought.’’ 387 N.E.2d at 460. Study of this Act reveals that its outstanding feature is its declaration that mineral interest are terminable. Whatever may be the exact legal dimensions of such interests, they are not greater than fee simple titles. Under the statute of limitations and the law of adverse possession a fee simple title to land is ter- minable. The Mineral Lapse Act can be viewed as vesting legal title in the owner of the surface rights which is free of the oti on mineral servitude when the conditions required by it exist. A statute of limitations vests legal title in an adverse possessor as against the true legal owner when the conditions required by it exist. Brown v. Anderson, (1883) 90 Ind. 93. Statutes of limita- tion are statutes of repose founded upon a rule of necessity and convenience and the well-being of society. Chase Securities Corp. v. Donaldson, (1945) 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628. This Act is also based upon the same rule. Cf. Love v. Lynchburg National Bank and Trust Co., (1965) 205 Va. 860, 140 S.E.2d 650. We do not disregard the distinctions between the two types of statutes. The element of possession is different. No cause of action has arisen in the owner of the mineral in- terest which is required to be prosecuted. Given these dif- ferences and aforementioned similarities, we believe that this Act is, according to its principal intent and effect, and for the purpose of constitutional analysis, analogous to acts of limita- tion which vests title to real and personal property. [6] Acts of limitation are not per se unconstitutional as im- pairing the obligation of contracts or as denying a person prop- erty without due process of law. This is so even though they ex- tinguish the right of the party having a true title and vest a perfect title in the adverse holder. Hawkins v. Barney’s Lessee, (1831) 5 Pet. 457, 8 L.Ed. 190, is an early case upholding the validity of a seven year limitation upon actions to recover posse- sion of land in Kentucky. In the course of that opinion it is said: ‘It is argued, that limitation laws although belonging to the lex fori, and applying immediately to the remedy, yet indirectly they effect a complete divesture and even transfer of right. This is unquestionably true, and yet in no wise fatal to the validity of this law. The right to ap- propriate a derelict is one of universal law, well known to the civil law, the common law, and all law; it existed in a state of nature, and is only modified by society, according to the discretion of each community.’’ —_ oo The transfer of right upheld by the court was deemed the in- direct product of the limitation law. The transfer or right ef- fected by the Indiana Act under consideration is its direct pro- duct. That minor difference would not support a contrary evaluation of our Act. [7,8] In Terry v. Anderson, (1877) 95 U.S. 628, 24 L.Ed. 365, Chief Justice Waite stated the general rule regarding the manner in which statutes of limitation are received by courts: ‘This court has often decided that statutes of limitation affecting existing rights are not unconstitutional, if a reasonable time is given for the comencement of an action before the bar takes effect... . In all such cases, the question is one of reasonableness, and we have, therefore, only to consider whether the time allowed in this statute is, under all the circumstances, reasonable. Of that the legislature is primarily the judge; and we cannot overrule the decision of that department of government, unless a palpable error has been committed.’’ 95 U.S. at 632-633. Indiana is in accord with the rule stated and the reasoning behind it. Guthrie v. Wilson, (1959) 240 Ind. 188, 162 N.E.2d 79; Sansberry v. Hughes, (1910) 174 Ind. 638, 92 N.E. 783. In Terry the court held that the period of nine months and seven- teen days given to sue upon a cause of action was not un- constitutional. In Turner v. People of State of New York, (1897) 168 U.S. 90, 18 S.Ct. 38, 42 L.Ed. 392, a statute declar- ing that past sales and conveyances by a comptroller for non- payment of taxes would be conclusively presumed regular six months after the effective day of the statute was upheld as pro- viding a reasonable period for bringing an action. Pursuant to Ind.Code § 32-5-11-4, owners of mineral interests are granted a minimum of two years in which to act to preserve their interests. Such a period of grace would constitute a reasonable time as contemplated by these cases. —* po In Wilson v. Iseminger, (1902) 185 U.S. 55, 22 S.Ct. 573, 46 L.Ed. 804, the United States Supreme Court upheld a statute which barred actions to recover ground rents and extinguished totally the right to recover further such rents, after twenty-one years had expired during which no declaration or acknowledg- ment of the existence of the right or claim had been made. The statute provided that the bar and extinguishment would not be effective until three years after the passage of the act. The court held that the act gave a reasonable time to the owners of the ground rents for preserving their rights. This case strongly sup- ports the validity of our Act, because it upheld a statute having an extinguishment feature similar to the Indiana Act under con- sideration. [9] The purposes of this Act as stated above at the beginning of this opinion are to remedy uncertainties in titles and to facilitate the exploitation of energy sources and other valuable mineral resources. The dependence of local economies upon the mineral recovery industry and the entire State upon limited fossil fuel resources illustrates the public nature of these pur- poses. The objectives are valid and similar to those served by acts of limitation and the law of adverse possession. In limiting its incursion upon mineral rights to those which have been unused in the statutory sense for as long as twenty years, and in gran- ting a two year period of grace after the enactment of the statute to preserve interests, the Legislature adopted means which are rationally related to such objectives, and which themselves pro- vide a reasonable time and a simple and inexpensive method, taking into consideration the nature of the case, for preserving such interests. We find that this Act is within the police power of the states and does not unconstitutionally impair the obliga- tion of contracts. {10} The trial court’s judgment is arguably based upon the conclusion that the statute effectuates a taking of property without just compensation contrary to the mandate of Art. I, § = Arid = 21, of the Indiana Constitution. We agree with appellant that extinguishment of mineral interest under this statutory scheme does not involve an exercise by the State of its power of eminent domain. The State through this statute is not actually taking the mineral interest for its own use and benefit. Consequently, Art. I, § 21, does not provide an applicable standard for review of this statute. Buckler v. Hilt, (1936) 209 Ind. 541, 200 N.E. 219; Foreman v. State ex rel. Department of National Resources, supra. Appellees point to Evansville & Crawfordsville R. R. Co. v. Dick, (1857) 9 Ind. 433, in which this Court stated: **{T])he legislature have no power to authorize, in any case, either a direct or consequential injury to private property, without compensation to the owner.’’ 9 Ind. at 436. This statement in context gave support to the court’s ruling that the power of eminent domain cannot serve as a source of immunity from suits for damages for injury to private property. The Mineral Lapse Act does not involve the injury to private property through conduct or activities of governmental agents or others having and exercising the power of eminent domain. It declares instead that a lapse of a mineral interest will occur in the event of specified conditions and circumstances. We are satisfied that substantive due process provides the proper stan- dard for constitutional review of it. [11] Appellant next contends that the trial court erred in con- cluding that the Act is violative of the guarantees of Art. I, § 23, of the Indiana Constitution and the Fourteenth Amendment of equal protection of the law by reason of the special treatment afforded certain owners of mineral interests described in Ind.Code § 32-5-11-5. That provision states: ‘*Failure to file a statement of claim within the time pro- vided in section 4 shall not cause a mineral interest to be extinguished if the owner of such mineral interest: — A-ll — (1) was at the time of the expiration of the period provided in section four, the owner of ten or more mineral interests, as above defined, in the county in which such mineral in- terest is located, and; (2) made diligent effort to preserve all of such interests as were not being used, and did within a period of ten years prior to the expiration of the period provided in section 4 preserve other mineral interests, in said county, by the fil- ing of statements of claim as herein required, and; (3) failed to preserve such interest through inadvertence, and; (4) filed the statement of claim herein required, within sixty days after publication of notice as provided in section seven herein, if such notice is published, and if no such notice is published, within sixty days after receiving actual knowledge that such mineral interest had lapsed.”’ By declaring the mineral interest terminable under the condi- tions set forth in the other sections of the Act, the Legislature sought to create an environment in which mineral interests will be promptly exploited or abandoned. If achieved, this objective would create economic benefits for the people and industries within local communities where actual development activities result and would create other land development where abandon- ment results. The criteria in Ind.Code § 32-5-11-5, can be ra- tionally conceived as establishing a border line beyond which strict application of the Act’s extinguishment standards would become destructive of these goals. Minerals exist within the earth in strata and informations which do not necessarily coin- cide with the manner in which man as chosen to divide the sur- face area. Consequently it is commonly necessary to assemble several mineral interests in order to render the extraction of minerals safe and profitable. The Legislature could reasonably have concluded that those meeting the criteria set forth above include those most likely to assemble such interests and actually — A-12 — produce minerals. The separate classification of interests so held within these essential clusters is rationally related to the legitimate objectives of the enactment and is consequently not contrary to the requirements of state and federal equal protec- tion. [12] The Act seeks to remedy a situation though to retard economic activity vital to the welfare of local communities and the general public as well. The classification erected does not in- volve a suspect classification or an impingement upon the exer- cise of a fundamental right, and consequently the traditional fair and substantial relation test is applicable to it. Johnson et al. v. St. Vincent Hospital, Inc. et al., Inc., 404 N.E.2d 585 (1980); Steup, et al. v. Indiana Housing Authority, Ind., 402 N.E.2d 1215 (1980). In this area of economic and social con- cern, legislative choices are entitled to a large degree of deference from the court. They are not required to be made with mathematical precision or along entirely logical lines. William- son v, ee Optical of Oklahoma, (1955) 348 U.S. 483, 487, 75 S.Ct. 461, 464, 99 L.Ed. 563; Indiana Aeronautics Com’n v. Ambassadair Inc., (1977) 267 Ind. 137, 368 N.E.2d 1340. **In short, the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy deter- minations made in areas that neither affect fundamental rights nor proceed along suspect lines, see, e.g. Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 42, 423, [72 S.Ct. 405, 407, 96 L.Ed. 469] (1952); in the local economic sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment.’’ City of New Orleans v. Dukes, (1976) 427 U.S. 297, 303-304, 96 S.Ct. 2513, 2517, 49 L.Ed.2d 511. There has been no demonstration made which convinces us that the classification of Ind.Code § 32-5-11-5 is invidiously discriminatory or wholly arbitrary. — A-13 — The judgments of the trial court here appealed from declaring the statute unconstitutional are reversed and the cases remanded to the trial court for enforcement of the Act. GIVAN, C. J., and HUNTER, PRENTICE and PIVARNIK, JJ., concur. — A-14 — APPENDIX B (Opinion of Trial Court) STATE OF INDIANA SS: COUNTY OF GIBSON IN THE GIBSON CIRCUIT COURT Cause No. C-77-248 Louise F. Short vs. Texaco, Inc. Robert Braselton Electra Fields Charles Braselton Robert E. Brazelton Clifford M. Braselton Osborne T. Brazelton, Jr. David Burkhart D.W. Mayhew, d/b/a Mayhew Oil And Gas Developments DeBeers Diamond Investment, LTD. JUDGMENT ENTRY (Filed September 18, 1978) Comes now the plaintiff, by counsel, and come now the defendants, by counsel, and this matter having been submitted to the Court on the Stipulation of Facts and the Pre-trial Order of the Court dated July 28, 1978, and the parties having exten- sively briefed the legal issues involved, same now comes on for judgment by the Court, without the intervention of a jury. And now the Court finds: — A-15 — 1. The Court has jurisdiction of the parties and subject mat- ter. 2. The Attorney General of the State of Indiana has been du- ly notified of the claimed unconstitutionality of Indiana Code 1971, Section 32-5-11-1, ef seg, and has appeared and filed brief herein. 3. The Stipulation of Facts, filed herein, is hereby adopted by the Court as the Court’s Finding of Fact. 4. Indiana Code 1971, Section 32-5-11-1, et seg, being the so- called Indiana Mineral Lapse Statute, is unconstitutionally defective and is violative of the following Sections of the In- diana Constitution: a. Article I, Section 21, providing: **No man’s property shall be taken by law without just compensation’’. b. Article I, Section 23, providing: ‘*The General Assembly shall not grant to any citizens or class of citizens privileges and immunities which, upon the same terms, shall not equally belong to all citizens.’’ c. Article I, Section 24, providing: **No ex post facto law, or law impairing the obliga- tion of contracts, shall ever be passed.”” 5. Indiana Code 1971, Section 32-5-11-1, ef seq, being the so- called Indiana Mineral Lapse Statute, is unconstitutionally defective and is in violation of the following provisions of the Constitution of the United States of America: a. As to the Fifth Amendment to the Constitution of the United States of America reading: — A-16 — **No person shall be . . . deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just com- pensation.”’ b. Section 1 of the Fourteenth Amendment to the Con- stitution of the United States of America providing: **No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction equal protection of the law.’’ 6. The constitutional defects of the state in question go to the very heart of the statute and therefore the entire statute is un- constitutional, void and of no effect. A The Court adopts, by reference, its reasoning as to un- constitutionality the memorandum opinion entered July 24, 1978 in Pond et al v. Walden, et al, being Cause Number C-78-1 in this Court. The Court having stated its Findings of Facts now states its Conclusions of Law: A. Indiana Code 1971, Section 32-5-11-1, et seg, being the so-called Indiana Mineral Lapse Statute, is unconstitutional in its entirety and is therefore void and of no effect. B. The plaintiff, Louise F. Short, is the owner of the follow- ing described real estate, situated in Gibson County, Indiana, to-wit: The east half of the southwest quarter of Section 29, Township 2 South, Range 11 west, containing 80 acres, more or less. — A-17 — ALSO, a part of the west half of the southwest quarter of Section 29, Township 2 south, Range 11 west, and more particularly described as follows: Beginning at the northeast corner of said half quarter sec- tion and running thence south 104 rods; thence west of the west line of said half quarter section; thence north to the northwest corner thereof; thence east to the place of begin- ning, and containing 52 acres, more or less, and containing in all 132 acres, more or less. (herein called the ‘‘Real Estate’’), subject to the following: C. An undivided one-half (2) interest in and to all of the ‘oil, gas and other minerals, except coal, that may be produced from’’ the Real Estate, ‘‘together with the right of ingress and egress at all times for the purpose of mining, drilling, exploring, operating and developing said lands for oil, gas and other minerals and storing, handling, transporting and marketing the same therefrom with the right to remove from said land all of Grantee’s property and improvements.’’ Said interest being subject to all of the terms and conditions of a ‘‘Mineral Deed’’ recorded April 23, 1942 in Deed Record Book 115, at page 197, in the Office of the Recorder of Gibson County, Indiana, which Mineral Deed interest is now vested in the defendant, Texaco, Inc. D. An undivided one-sixth (1/6th) interest in and to all of the oil, gas and other minerals, except coal, that may be produced from the Real Estate, said interest being subject to all of the terms and conditions of a Mineral Deed dated July 7, 1944 and recorded in Deed Record 120, at page 17, in the Office of the Recorder of Gibson County, Indiana, which interest is now vested in the defendants, O. T. Brazelton, Jr., and Robert E. Brazelton. E. An undivided one-thirty-second (1/32nd) interest in and to all of the oil, gas and other minerals, except coal, that may be — A-18 — produced from the Real Estate, said interest being subject to all of the terms and conditions of a Mineral Deed dated July ___., 1944 and recorded in Deed Record 120, at page 46, in the Office of the Recorder of Gibson County, Indiana, which interest is now vested in the defendants, Robert E. Brazelton, Charles Brazelton, Chester Brazelton, Clifford Brazelton, O. T. Brazelton, Jr., John P. Brazelton and Rosa G. Burkhart. F. An undivided two-sixteenth (2/16th) interest in and to all of the oil, gas and other minerals, except coal, that may be pro- duced from the Real Estate, said interest being subject to all of the terms and conditions of a Mineral Deed dated July ___., 1944 and recorded in Deed Record 120, at page 46, in the Office of the Recorder of Gibson County, Indiana, which interest is now vested in the defendants, Robert E. Brazelton. G. The defendant, D.W. Mayhew, d/b/a Mayhew Oil and Gas Development, is the Lessee of an oil and gas lease from the defendants, Texaco, Inc., John P. Brazelton and Jane E. Brazelton, Charles Brazelton, ef ux, and Clifford Brazelton, ef ux, Robert E. Brazelton, et ux, Clifford Brazelton and Ellen Brazelton and O.T. Brazelton, a/k/a O. T. Brazelton, Jr., which oil and gas leases are recorded as follows: (a) In Drawer 2, Card 9155 (b) In Drawer 2, Card 9370 (c) In Drawer 2, Card 9071 (d) In Drawer 2, Card 9072 (e) In Drawer 2, Card 9073 (f) In Drawer 2, Card 9074 in the office of the recorder of Gibson County, Indiana, which oil and gas leases are valid and subsisting as relates to the Real Estate. — A-19 — H. The plaintiff should pay the costs of this action. IT IS, THEREFORE, CONSIDERED, ORDERED, AD- JUDGED AND DECREED that judgment herein be entered in accordance with the aforementioned Findings of Facts and Conclusions of Law and that plaintiff take nothing by her com- plaint, that defendants are entitled to relief as set forth herein and that the plaintiff pay the costs of this action. /s/ Walter Palmer, Judge, Gibson Circuit Court JOHNSON, CARROLL AND GRIFFITH, P. C. 2230 W. Franklin Street P.O. Box 6016, Station B Evansville, Indiana 47712 Telephone: (812) 425-4466 (#5) —< Po APPENDIX C (Judgment Appealed From) STATE OF INDIANA SS: COUNTY OF GIBSON IN THE GIBSON CIRCUIT COURT 1978 TERM Cause No. C-78-17 Order Entry, July 25, 1978 Eden H. Pond, Edna H. Bobe, Consolidation Coal Co. v. Ulysses G. Walden Jr., Carolyn Sallee Walden MEMORANDUM OPINION AND JUDGMENT ON AGREED CASE (Filed July 24, 1978) This case comes before this Court upon the Submission of an Agreed Case by the parties herein, pursuant to Indiana Code 1971, Sections 34-1-29-1 ef seg., with the necessary facts and Record, as defined in that statute. It is believed reiteration of the facts or of the Record are unnecessary except for reference. The Trial Court wishes to express its gratitude to counsel for Plaintiffs, Defendants, Attorney General of the State of In- diana and Intervenor for their scholarly Briefs in this com- plicated legal issue. — A-21 — The essential decision necessary in this case is to determine whether or not the so-called Indiana Mineral Lapse Statute, be- ing 1.C. 1971, 32-5-11-1 et seg. is constitutionally acceptable. If as contended by plaintiff it is unconstitutional, then plaintiff will prevail by judgment. If constitutional, there must necessarily be judgment for the defendants. This Court feels that a short statement of matters of concern by way of Memorandum may be helpful to those affected by this Decision, as well as those reviewing the action of this Court. It cannot be rationally doubted that the State of Indiana reserves the right inherent in this organized society to act in the public welfare, even to the extent of impairment of private con- tract. Home Building and Loan v. Blaisdell, (1934) 290 U.S. 398. As a general proposition of Constitutional Law, however, this Court believes the U.S. Supreme Court normally will ab- stain upon issues relating to the contract laws of the individual States. However, there are discussions in cited cases as to the principles, Blaisdell, supra. It should be noted in the Agreed Facts of this case that we are not discussing an issue of murky titles, or long-lost owners of in- terests. There is no ‘‘cloud’’ on the title to this real estate, ex- cept to the extent that the Statute challenged poses such a cloud. This Statute creates a challenge to vested property rights, by the statutory terms of non-use or failure to register. At Common Law, there could be no termination in mineral rights as a separate estate from the fee. The question then becomes, first: can the Indiana Legislature create such a challenge, and second: has the Legislature in this Statute done so in a Constitutionally acceptable manner. This Court does not question that the Legislature had a valid purpose in passage of this Statute, i.e., exploitation of the State’s energy sources, but the method chosen is believed to be unconstitutional. = A-22 = As stated, very scholarly arguments are advanced for the proposition that the Statute is Constitutional. All of these arguments fail to answer the basic inequitable result in this case, that a judgment for the surface rights owners would give them a demonstrably valuable asset in derogation of their contractual purchase, with no notice to the mineral rights owners, and no compensation to the valid owners for their loss. Suppose the State of Indiana had been the takers of these rights from the mineral owners for distribution to some one who would exploit them, arguably for the common good. Would not Constitutionally there be a requirement of notice to the mineral owners, a right of hearing, some form of compensation, as, for example, the tax sale of real estate? It seems clearly the law in this Country that before property rights can be taken from persons, these persons have some rights as to notice and hearing. The subject matter would govern what procedural requirements are involved, but Con- stitutionally it would seem the hearing would revolve around the facts essential to determination of the controversy. Bell v. Burn- son (1971), 402 U.S. 535; Mullane v. Central Hanover Bank and Trust Co. (1950) 339 U.S. 306; Goldberg v. Kelley (1970), 397 U.S. 254. Another unresolved question is, what harm would result had the statute required notice been given the mineral owners prior to the drastic severage and delivery of ownership from the mineral owner to the surface owner, at least such notice as is contemplated in Mullane, supra? It would perhaps induce litiga- tion, but one queries whether that is not already the case with the statutory framework existing. The notice provision in I.C. 1971, 32-5-11-6 would seem just as precipitating a rule as would be notice prior to the legislature taking. Expediency is not always justice, whether the end sought is laudable or not. = Ad — For the reasons stated herein, this Court finds, Indiana Code, 1971 32-5-11-1, et seq. being Acts 1971, P.L. 423 is unconstitu- tional, void and of no effect. This Memorandum of Opinion constitutes the Findings of Fact and The Conclusions of Law of This Court. IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by this Court that there be judgment for the Plain- tiffs herein and against the Defendants, that Plaintiffs shall recover their costs expended, that Plaintiffs, Eden H. Pond and Edna H. Bobe, are declared to be the equal owners as tenants in common of the mineral rights in the real estate in question pur- suant to the Agreed Facts, and Consolidation Coal Company is the nolder of a valid and subsisting lease covering said interests. Judgment accordingly. /s/ WALTER H. PALMER, JUDGE GIBSON CIRCUIT COURT = A-34 = STATE OF INDIANA SS: COUNTY OF GIBSON IN THE GIBSON CIRCUIT COURT 1980 Term Cause No. C-77-248 In Re Louise F. Short Vv. Texaco, Inc., et al, ORDER (October ___., 1980) Comes now the plaintiff by counsel and come also the defen- dants by counsel, and the Court now takes judicial notice of the opinion of the Supreme Court of Indiana issued in this cause on June 23, 1980, which opinion is in the words and figures follow- ing, to-wit: (H.1.) and also takes judicial notice of the denial of Appellees’ petition for rehearing issued in this cause on September 24, 1980. And now the Court, having reconsidered the stipulated facts and issues in this cause in accordance with the foregoing, does now vacate the judgment heretofore entered and in lieu thereof enters the following conclusions of law and judgment: Conclusions of Law 1. The statements of claim of mineral interest filed on June 9 and June 17, 1977, by certain of the defendants did not preserve =< the interest of said defendants, or any of them, from extinction or lapse under Public Law 423, Acts of the Indiana General Assembly of 1971. 2. Plaintiff’s failure to give notice to John P. Braselton and Gwendolyn Burkhart of the lapse of their interests did not preserve the interests of said defendants, or any of them, from extinction or lapse under Public Law 423, Acts of the Indiana General Assembly of 1971. 3. The issuance of the oil and gas leases described in paragraph 18 of the Stipulation of Facts did not preserve the in- terests of the defendants, or any of them, from extinction or lapse under Public Law 423, Acts of the Indiana General Assembly of 1971. 4. As applicable to the facts of this case, Public Law 423, Acts of the Indiana General Assembly of 1971, is constitutionally valid and enforceable under the Constitutions of both the State of Indiana and the United States of America, and, in accor- dance with the provisions of said Act, plaintiff is entitled to the relief prayed for in plaintiff’s Complaint for Declaratory Judg- ment. IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court that the mineral intersts described and referred to in numbered paragraphs 2, 3, 4, 5, 6, 7 and 10, of the Stipulation of Facts heretofore filed herein, be and the same are hereby declared to be permanently and absolutely lapsed and extinguished. IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the plaintiff, LOUISE F. SHORT, has succeeded to said interests as the present owner of the interest out of which said mineral interests were carved. IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the oil and gas leases described in ee numbered paragraph 11 of the Stipulation of Facts in favor of D. W. Mayhew d/b/a Mayhew Oil and Gas Development are invalid and ineffective by reason of prior extinguishment of the Lessors’ mineral interests. IT IS FURTHER ORDERED by the Court that the defen- dants shall pay the costs of this action. /s/ WALTER PALMER Judge, Gibson Circuit Court — A-27 — APPENDIX D (Denial of Petition for Rehearing) (Received September 26, 1980) STATE OF INDIANA Clerk of the Supreme Court and Court of Appeals Majorie H. O‘Laughlin, Clerk 217 State House No. 179823 and 12788303 Louise F. Short v. Texaco, Inc., et al State of Indiana, et al v. Eden H. Pohd, et al You are hereby notified that the Supreme Court has on this day denied Appellee’s Petition for Rehearing. Givan, C.J. Please acknowledge receipt of this notice in order that our records may show that you have been notified of this action. WITNESS my name and the seal of said Court, this 24th day of September, 1°20 /s/ Marjorie H. O’Laughlin Clerk Supreme Court and Court of Appeals Hall, Partenheimer & Leucking, Princeton Mark W. Rietman, Evansville Charles R. Nixon, Princeton Johnson, Carroll & Griffith, Evansville Fine, Hatfield, Sparrenberger & Fine, Evansville — A-28 — APPENDIX E (Notice of Appeal) IN THE SUPREME COURT OF INDIANA No. 179 S 23 Louise F. Short, Appellant, Vv. Texaco, Inc., Robert Braselton, Electra Fields, Charles Braselton, Chester Braselton, Robert E. Brazelton, Clifford N. Braselton, Osborne T. Braselton, Jr., David E. Burkhart, John P. Braselton, Rosa G. Burkhart, D.W. Mayhew, d/b/a Mayhew Oil and Gas Development, DeBeers Dia- mond Investment, Ltd., Appellees, State of Indiana, Intervenor. Appeal from the Gibson Circuit Court The Honorable Walter H. Palmer, Regular Judge NOTICE OF APPEAL TO THE SUPREME COURT OF THE UNITED STATES (Filed November 17, 1980) Notice is hereby given that Texaco, Inc., Robert Braselton, Electra Fields, Charles Braselton, Chester Braselton, Robert E. Brazelton, Clifford N. Braselton, Osborne T. Braselton, Jr., David E. Burkhart, John P. Braselton, Rosa G. Burkhart, D. W. Mayhew d/b/a Mayhew Oil and Gas Development, DeBeers — A-29 — Diamond Investment, Ltd., Appellees, hereby appeal to the Supreme Court of the United States from the final judgment of the Supreme Court of Indiana reversing the judgment of the trial court, entered in this action on September 24, 1980. This appeal is taken pursuant to Title 28, United States Code, Section 1257, subparagraph two (2). Dated this 17th day of November, 1980. /s/ John L. Carroll (a Member of the Bar of the United States Supreme Court) For Appellees, Texaco, Inc., Robert Braselton, Electra Fields, Charles Braselton, Chester Braselton, Robert E. Braselton, Clifford N. Braselton, Osborne T. Braselton, Jr., David E. Burkhart, John P. Braselton, Rosa G. Burkhart, D. W. Mayhew d/b/a Mayhew Oil and Gas Develop- ment, DeBeers Diamond Invest- ment, Ltd. JOHN L. CARROLL Johnson, Carroll and Griffith, P. C. 2230 W. Franklin Street P.O. Box 6016, Station B Evansville, Indiana 47712 (#35) Certificate of Service JOHN L. CARROLL, being first duly sworn, upon his oath, says: 1. That he is the Attorney of record for the Appellants in the above entitled cause. — A-30 — 2. That on or before the 3rd day of December, 1980, he served upon the opposing counsel in the above entitled cause, the following: Notice of Appeal to the Supreme Court of the United States by depositing the same in the United States Mail, certified mail, return receipt requested, postage paid, at Evansville, Indiana, properly addressed to: Verner P. Partenheimer, Jr. Attorney at Law 219 North Hart Street P.O. Box 313 Princeton, Indiana 47670 James M. Buthod Attorney at Law Suite 409, Citizens Building 115 Southeast Third Street Evansville, Indiana 47708 Charles R. Nixon Attorney at Law 223 West State Street Princeton, Indiana 47670 Theodore Sendak Attorney General State of Indiana State House Indianapolis, Indiana 46204 /s/ John L. Carroll SUBSCRIBED AND SWORN TO before me, a Notary Public in and for said County and State, this 3rd day of December, 1980. — A-3l = Anne V. Finck, Notary Public County of Residence: Vanderburgh My Commission Expires: August 1, 1981 JOHNSON, CARROLL & GRIFFITH, P.C. 2230 West Franklin Street P.O. Box 6016 Evansville, Indiana 47712 Telephone: (812) 425-4466 (#36) — A-32 — APPENDIX F (The Indiana Dormant Mineral Interests Act) I.C, 32-5-11-1 et seq. 32-5-11-1 [46-1808]. Lapse of mineral interest—Prevention.—Any interest in coal, oil and gas, and other minerals, shall, if unused for a period of 20 years, be ex- tinguished, unless a statement of claim is filed in accordance with section five [32-5-11-5] hereof, and the ownership shall revert to the then owner of the interest out of which it was carv- ed. (IC 32-5-11-1, as added by Acts 1971, P.L. 423, § 1.] 32-5-11-2 [46-1809]. Mineral interest—Definition.—A mineral interest shall be taken to mean the interest which is created by an instrument transferring, either by grant, assign- ment, or reservation, or otherwise an interest, of any kind, in coal, oil and gas, and other minerals. [IC 32-5-11-2, as added by Acts 1971, P.L. 423, § 1.] 32-5-11-3 [46-1810]. Use of mineral interests—Definition.—A Mineral interest shall be deemed to be used when there are any minerals produced thereunder or when operations are being conducted thereon for injection, withdrawal, storage or disposal of water, gas or other fluid substances, or when rentals or royalties are being paid by the owner thereof for the purpose of delaying or enjoying the use or exercise of such rights or when any such use is being carried out on any tract with which such mineral interest may be unitized or pooled for production purposes, or when, in the case of coal or other solid minerals, there is production from a common vein or seam by the owners of such mineral interests, or when taxes are paid on such mineral interest by the owner thereof. Any use pursuant to or authorized by the instrument creating such mineral interest shall be effective to continue in force all right granted by such instru- ment. [IC 1971, 32-5-11-3, as added by Acts 1971, P.L. 423, § 1, p. 1970.) — A-33 — 32-5-11-4 [46-1811]. Statement of claim—Filing—Re- quirements.—The statement of claim provided in section one {32-5-11-1] above shall be filed by the owner of the mineral in- terest prior to the end of the twenty [20] year period set forth in section two [one] [32-5-11-1] or within two [2] years after the ef- fective date [September 2, 1971] of this act, whichever is later, and shall contain the name and address of the owner of such in- terest, and description of the land, on or under which such mineral interest is located. Such statement of claim shall be filed in the office of the recorder of deeds in the county in which such land is located. Upon the filing of the statement of claim within the time provided, it shall be deemed that such mineral interest was being used on the date the statement of claim was filed. [IC 1971, 32-5-11-4, as added by Acts 1971, P. L. 423, § 1, p. 1970; 1972, P. L. 11, § 15, p. 336.] 32-5-11-5 [46-1812]. Extinguishment of mineral interest—Ex- ceptions.—Failure to file a statement of claim within the time provided in section 4 [32-5-11-4] shall not cause a mineral in- terest to be extinguished if the owner of such mineral interest: (1) was at the time of the expiration of the period provided in section four [32-5-11-4], the owner of ten [10] or more mineral interests, as above defined, in the county in which such mineral interest is located, and; (2) made diligent effort to preserve all of such interests as were not being used, and did within a period of ten [10] years prior to the expiration of the period provided in section 4 [32-5-11-4] preserve other mineral intersets, in said county, by the filing of statements of claim as herein required, and; (3) failed to preserve such interest through inadvertence, and; (4) filed the statement of claim herein required, within sixty [60] days after publication of notice as provided in section seven [32-5-11-7] herein, if such notice is published, and if no such notice is publied, within sixty [60] days after receiving actual knowledge that such mineral interest had lapsed. [IC 1971, 32-5-11-5, as added by Acts 1971, P. L. 423, § 1, p. 1970.] a 32-5-11-6 [46-1813]. Successor in interest—Notice re- quirements—Prima facie evidence.—Any person who will suc- ceed to the ownership of any mineral interest, upon the lapse thereof, may give notice of the lapse of such mineral interest by publishing the same in a newspaper of general circulation in the county in which such mineral interest is located, and, if the ad- dress of such mineral interest owner is shown of record or can be determined upon reasonable inquiry, by mailing within ten [10] days after such publication a copy of such notice to the owner of such mineral interest. The notice shall state the name of the owner of such mineral interest, as shown of record, a description of the land, and the name of the person giving such notice. If a copy of such notice, together with an affidavit of service thereof, shall be promptly filed in the office of the recorder of deeds in the county wherein such land is located, the record thereof shall be prima facie evidence, in any legal pro- ceedings, that such notice was given. [IC 1971, 32-5-11-6, as ad- ded by Acts 1971, P. L. 423, § 1, p. 1970.] 32-5-11-7 [46-1814]. Statement of claim—Filing—Recorder’s duty.—Upon the filing of the statement of claim, provided for in section 4 [32-5-11-4] of this chapter or the proof of service of notice as provided in section seven [six] [32-5-11-6] of this chapter in the recorder’s office for the county where such in- terest is located, the recorder shall record the same in a book to be kept for that purpose, which shall be known as the ‘‘Dor- mant Mineral Interest Record’’ and shall indicate by marginal notation on the instrument creating the original mineral interest the filing of the statement of claim or affidavit of publication and service of notice. [IC 1971, 32-5-11-7, as added by Acts 1971, P. L. 423, § 1, p. 1970.] 32-5-11-8 [46-1815]. Waiver of chapter’s provisions—Time limit.—The provisions of this chapter [32-5-11-1—32-5-11-8] may not be waived at any time prior to the expiration of the twenty [20] year period provided in section 1 [32-5-11-1]. [IC 1971, 32-5-11-8, as added by Acts 1971, P. L. 423, § 1, p. 1970.] — A-35 — APPENDIX G (C. & N.W. vs. Pedersen) 80 Wis.2d 566 Chicago And North Western Transportation Company and Chicago, Milwaukee, St. Paul and Pacific Railroad Company, Respondents, Vv. Earl H. Pedersen, Register of Deeds in and for Bayfield County, Wisconsin, and Victor A. Miller, Attorney General of Wisconsin, and all other officers similarly situated in and of this state and those acting under said officers, Appellants. No. 75-702. Supreme Court of Wisconsin. Argued Oct. 4, 1977. Decided Nov. 14, 1977. DAY, Justice. This is an appeal from a declaratory judgment in which the trial court held secs. 700.30 and 893.075, Stats. (Ch. 260, L.1973) unconstitutional and enjoined all Wisconsin county registers of deeds from carrying out the provisions of the act. We affirm the judgment of the trial court. Sec. 700.30, Stats., at issue here, reads as follows: **700.30 Mineral Rights. (1) Any person, other than the sur- face fee owner, who claims title to mineral rights in land arising from an instrument other than a lease from the surface fee owner of 10 years’ duration or less which by its terms is in full force and effect, shall record his claim with the register of deeds of the county in which the land is situated. The claim shall — describe the reserved rights and the land in which the rights are claimed. The register of deeds shall record the claim in a register of mineral rights and the claimant shall pay the recording fee under s. 59.57. In addition, the claimant shall thereafter pay an annual registration fee of 15 cents per acre or fraction thereof with a minimum fee of $2 for each single description registered on the lands wherein such mineral rights are claimed. Failure to register any claim of mineral rights shall result in reversion of such rights to the surface fee owner. Failure to pay the registra- tion fee within 3 years of the annual due date shall cause all rights to revert to the surface fee owner. **(2) Any claim of mineral rights separate from surface fee ownership arising from an instrument other than a lease from the surface fee owner of 10 years’ duration or less which by its terms is in full force and effect, and recorded prior to December 31, 1974, shall be void and all rights under such claim shall revert to the surface fee owner unless such claim is recorded prior to December 31, 1977, as provided in this section. Claims of mineral rights separate from surface fee ownership arising from instruments recorded after December 31, 1974, must be recorded as provided in this section within 3 years of the date of recording the instrument creating or reserving such rights; failure to record such claims shall void such claims, which shall then revert to the surface fee owner. **(3) Mineral rights, other than mineral rights claimed by the surface fee owner of record, may not be claimed unless based on a recorded instrument which shall be specifically referred to in the registration of such rights required by this section. **(4) Of the annual registration fee, one-third shall go to the county in which the land is located, one-third to the municipali- ty in which the land is located and the remaining one-third to the geological and natural history survey to be used for iden- tification and evaluation of mineral resources of the state. The register of deeds shall collect such payments and maintain = A-$7 = records sufficient to identify delinquencies in payments and he shall turn the payments over to the county treasurer who shall forward the payments to those entitled to them under this subsection no later than February 28 of the year following the due date. **(5) Municipalities and counties shall register all lands owned by them on which they claim mineral rights but shall not be re- quired to pay a fee. Lessees of mineral rights on lands owned by counties or municipalities shall be required to pay the fee under sub. (1). **(6) If the fee under this section is not paid on or before the due date of December 31 of each year, it will be subject to the interest rate under s. 71.13(1) accruing from the preceding December 1.’’ Sec. 893.075, Stats. reads as follows: **893.075 Adverse Possession Of Mineral Rights Defined. Adverse possession of the land as defined in this chapter shall be deemed to include adverse possession of all mineral rights not registered under s. 700.30. **Section 2. Effective Date. The first registration fee under this act shall be paid for the year 1974 and shall be paid not later than December 31, 1974. On enactment hereof, the attorney general shall promptly commence an action seeking a declaratory judgment regarding the constitutionality of this act.’’ Sec. 700.30, Stats. requires persons, other than surface fee owners and lessees holding leases of less than ten years, who claim title to mineral rights in land, to record their claims and pay a recording fee. Non-exempt claimants are also required to pay an annual registration fee of fifteen cents for each acre of mineral rights claimed. Failure to record claims of mineral rights or pay the annual registration fee results in reversion of the mineral rights to the surface fee owner. — A-38 — The plaintiff-respondent railroad companies (hereinafter plaintiffs) claim in excess of 250,000 acres of severed mineral rights in Wisconsin, including claims in Bayfield county. The plaintiffs started a declaratory judgment action to have the statutes declared unconstitutional and to have their enforce- ment enjoined. Following a hearing, the trial court issued a memorandum opinion holding the statutes were unconstitutional as violating the due process and equal protection clauses of the United States Constitution, and the uniformity of taxation clause of the Wisconsin Constitution. Judgment was entered January 12, 1976 declaring Ch. 260 of the Laws of 1973 unconstitutional in its entirety and permanent- ly enjoining the defendant-respondent registers of deeds (hereinafter defendants) from carrying out its provisions. We hold that sec. 700.30, Stats., is unconstitutional because its enforcement provisions deny procedural and substantive due process.' The enforcement provisions in the statute are not severable from the statute as a whole so the entire statute fails.” Sec. 700.30, Stats. provides that owners of severed mineral rights may lose those rights to the surface owners under a number of circumstances more fully described below. ' The plaintiffs claim a denial of due process under both the state and federal constitutions. ‘*...Art. I, Sec. 1 of the Wisconsin Con- stitution is . . . substantially equivalent to the due-process and equal protection clauses of the Fourteenth Amendment to the United States Constitution.”’ State ex rel. Sonneborn v. Sylvester, 26 Wis.2d 43, 49, 132 N.W.2d 249, 252 (1965). State ex rel. Cresci v. H & SS Dept., 62 Wis.2d 400, 414, 215 N.W.2d 361 (1974). *The plaintiffs also argue that the statute denies equal protection and offends Art. VIII, Sec. I of the Wisconsin Constitution. The latter section requires that property taxes be uniform. We do not reach these issues. — A-39 — [1] Mineral rights are an interest in land which may be created or transferred as any other estate in land. Gillett and another v. Treganza, 6 Wis. 343, 348 (1858); Ganter and others v. Atkin- son and others, 35 Wis. 48, 51 (1874). Where the mineral right is severed from the surface fee ‘* . . it has been held to be property, distinct from the land itself vendible, inheritable and taxable.’’ Elder v. Wood, 208 U.S. 226, 232, 28 S.Ct. 263, 264, 52 L.Ed. 464 (1908). [2] Before a person may be deprived of property, that person has a right to a hearing. The requirements of the hearing will vary from case to case depending on the nature of the right or property threatened, but the hearing must allow for considera- tion of facts essential to the decision. Bell v. Burson, 402 U.S. 535, 540-542, 91 S.Ct. 1586, 29 L.Ed. 90 (1971). In this case, the plaintiffs’ mineral rights will revert to the sur- face owner if they are not registered or taxes are not paid on them. At the least, the plaintiffs must have a hearing where they can question the determination of the register of deeds that the registration has not been done or that the taxes have not been paid. [3,4] Implicit in the right to a hearing is adequate notice of the hearing. Personal service is always sufficient notice. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Where a person’s location is known or easily ascertainable personal service is also required. Shroeder v. City of New York, 371 U.S. 208, 212, 213, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962). But for, ‘‘. . . persons missing or unknown, employment of an indirect and even a probably futile means of notification is all that the situation permits . . .”’ For such per- sons publication is adequate notice. Mullane, supra, at 339 U.S. 306, 317, 70 S.Ct. at 658. — A-40 — In an in rem proceeding for the collection of property taxes the standards for the required notice are less stringent. In Devitt v. Milwaukee, 261 Wis. 276, 52 N.W.2d 872 (1952), the City of Milwaukee adopted an ordinance in conformity with sec. 75.521, Stats. which allowed for the enforcement of property taxes by an in rem action where tax certificates remained unpaid for over three years. The procedure set out in the act required that a petition of foreclosure be filed with the circuit court and that the petition would have the same effect as a lis pendens. A copy of the petition would be sent by registered mail to the last known addresses of owners and mortgagees and notice of the petition would appear in the city newspaper with the largest cir- culation once a week for three weeks. In deciding that the pro- cedure complied with due process, this court stated that, **The process of taxation does not require the same kind of notice as is required in a suit at law, or even in pro- ceedings for taking private property under the power of eminent domain.’’ Devitt, supra, at 261 Wis. 276, 52 N.W.2d at 873, quoting from Bell’s Gap R. Co. v. Penn- sylvania, 134 U.S. 232, 239, 10 S.Ct. 533, 33 L.Ed. 892 (1890). The payment of the fees under sec. 700.30, Stats. is a tax. The fees raise revenues beyond what is necessary to the administra- tion of the registration scheme. Sec. 700.30(4), Stats. provides that one-third of the fees will go the state geological and natural history survey.’ In contrast to the notice procedure approved in Devitt, supra, nothing in sec. 700.30, Stats. provides for any procedural due process. Therefore, the law unconstitutionally allows for the deprivation of property without due process.‘ *All the parties to this appeal agree that the registration fees are a tax. ‘The attorney general contends that the act itself is notice. There is no authority for that argument which is a novel approach to the pro- blem of notice. The attorney general also contends that there is nothing that needs to be decided at a hearing. As was pointed out above, a severed mineral rights owner may want to at least raise the factual issues of whether the registration was done or the tax paid. — A-4l — The attorney general contends that if the statue lacks pro- cedural due process, this court should formulate due process safeguards and read them into the terms of the statute. Pro- cedural due process requirements have been read into other statutes.’ Because a number of alternative methods are possible, it is more fitting for the legislature to make the choice than for this court to do so. Substantive Due Process The plaintiffs contend that the forfeiture provisions of the statute deny them substantive due process by an unreasonable use of the police power because their mineral rights revert to the surface owners if the rights are not registered or taxes are not paid on them. The test for a proper exercise of the police power is whether, ‘*. . , the means chosen have a reasonable . . . relation- ship to the purpose or object of the enactment, if it has, and the object is a proper one, the exercise of the police power is valid.’’ State v. Jackman, 60 Wis.2d 700, 705, 211 N.W.2d 480, 484 (1973). [5] This statute not only provides for a forfeiture of unregistered mineral rights, it also provides that the forfeited rights revert to the surface owner. This procedure violates the rule that the legislature cannot take private property from one person for the private use of another. Chicago & N. W. R. Co. v. Morehouse, 112 Wis. 1, 87 N.W. 849 (1901). ‘In State ex rel. Kavach v. Schubert, 64 Wis.2d 612, 219 N.W.2d 341 (1974), this court held that due process required that a defendant who had been found guilty and mentally defective at the time of the crime, be given a third phase in his trial to determine if he was still mentally defective. In Steele v. Gray, 64 Wis.2d 422, 223 N.W.2d 614 (1974), due process required a hearing prior to administrative revoca- tion of a prison inmate’s good time. In State ex rel. Johnson v. Cady, 50 Wis.2d 540, 185 N.W. 306 (1971), due process required a hearing before revocation of parole. — A-42 — The attorney general admits that there is a private use here, but argues that this private use is so intimately connected with the public necessity of clearing up uncertainty over mineral right ownership that there is a quasi-public use so as to justify the legislative taking of property for that purpose. Chicago & N. W. R. Co., supra, and 16a C.J.S. Constitutional Law § 647a, pp. 940-941. The attorney general’s argument is unpersuasive. First, it’s questionable whether the purpose of clearing up mineral title uncertainty is so important that the reversion of mineral rights to the surface owner becomes a quasi-public use. Second, in Chicago & N. W., supra, the private parties were given compen- sation for the proverty taken for the quasi-public use. Sec. 700.30, Stats. provi'es for no such compensation. [6] Sec. 700.30, Stats. provides that severed mineral rights owners or long term lessees of mineral rights must register their mineral rights and pay a yearly registration fee on the mineral rights within three years or else the rights revert to the surface fee owner. This reversion would occur without a hearing or notice of that hearing having been given to the severed rights owner, and without compensation having been paid to them. These enforcement procedures ar entirely lacking in substantive and procedural due process. The attorney general contends that the statute is severable because the enforcement provisions may be separated from the rest of the statute. [7] The intent of the legislature and the viability of the severed portion of the statute when standing alone are the factors to consider when deciding whether a statute should be severed. Material provisions of a statute may be eliminated, ‘*. .. if the part upheld constitutes, independently of the invalid portion, a complete law in some reasonable aspect, unless it appears from the act itself that the legislature in- tended it to be effective only as an entirety and would not — A-43 — have enacted the valid part alone.’’ Madison v. Nickel, 66 Wis.2d 71, 79, 223 N.W.2d 865, 870 (1974). City of Milwaukee County v. Boos, 8 Wis.2d 215, 224, 99 N.W.2d 139 (1959). Sec. 700.30, Stats. cannot stand without the objectionable en- forcement provisions. Without the enforcement provisions, severed mineral rights owners would be required to register their rights and pay fees on them, but absolutely nothing would hap- pen if they did not. The attorney general suggests that the payment of fees could be enforced the same as other taxes on real or personal proper- ty, but that was not the legislature’s intent. The legislature in- tended that the mineral rights would revert to the surface owner, which violates substantive due process as pointed out above. Without its enforcement procedures, sec.700.30, Stats. is not a viable law and would not have the same effect as the one intended by the legislature. Judgment affirmed. ow Ditton APPENDIX H (Contos v. Herbst) Allison CONTOS, et a/., Appellants, v. Robert L. HERBST, Individually, and as Commissioner of the Minnesota Department of Natural Resources, ef al., Respondents, Andrew Korda, Individually, and as Auditor for St. Louis County, Respondent, Minnesota Chippewa Tribe, Respondent. No. 47346. Supreme Court of Minnesota. Jan. 26, 1979. Rehearing Denied March 13, 1979. Heard, considered, and decided by the court en banc. KELLY, Justice. In 1969 the legislature enacted Minn.St. 93.52, which re- quired every owner of a fee simple interest in minerals which in- terest is owned separately from the fee title to the surface of the property [hereinafter referred to as severed mineral interests] to file for record a verified statement describing that interest with the register of deeds or the register of titles in the county where the interest is located. Minn.St. 93.52, subd. 2. The purpose of this requirement, as stated by the legislature, was: *** * * [T]o identify and clarify the obscure and divided condition of severed mineral interests in this state. Because > — A-45 — the ownership condition of many severed mineral interests is becoming more obscure and further fractionalized with the passage of time, the development of mineral interests in this state is often impaired. Therefore, it is in the public interest and serves a public purpose to identify and clarify these interests.’’ Minn.St. 9352, subd. 1. Notice of the registration requirement was provided by publica- tion of the legislation in legal newspapers within each county of the state and in two publications related to mining activities hav- ing nationwide circulation. Minn.St.1971, § 93.58. In 1973 the legislature enacted additional legislation concern- ing severed mineral interests which is the basis for this action. L.1973, c. 650, art. XX hereafter referred to as mineral registra- tion act. First, the legislature provided that anyone who failed to file the verified statement within the statutory period would forfeit that interest to the state. The only remedy for persons claiming an ownership interest at the time of forfeiture was the recovery of the fair market value of the mineral interest at the time of the forfeiture or at the time of trial, whichever is lesser. Minn.St. 93.55. The legislature found the additional legislation necessary ‘“‘to provide adequate identification of [severed mineral interests] and to prevent the continued escape from tax- ation of obscure and fractionalized severed mineral interests.’’ Minn.St. 272.039. Secondly, the legislature subjected severed mineral interests not otherwise taxed to a tax of $.25 per acre per year or $2.00 per interest per year, whichever is greater. Minn.St. 272.04, subd. 1; 273.13, subd. 2a. In describing the basis for implementing the tax the legislature enacted the following: ‘*The legislature finds, for the reasons stated below, that a class of real property has been created which, although not exempt from taxation, is not assessed for tax purposes and does not therefore, contribute anything toward the cost of supporting the governments which protect and — A-44 — preserve the continued existence of the property. These reasons are as follows: (1) In the case of Washburn v. Gregory, 1914, 125 Minn. 491, 147 N.W. 706, the Min- nesota Supreme Court determined that where mineral in- terests are owned separately from the surface interests in real estate, the mineral interest is a separate interest in land separately taxable, and do « not forfeit if the overlying sur- face interest forfeits for nonpayment of taxes due on the surface interest; (2) Since this 1914 decision, mineral in- terests owned separately from the surface have been valued and assessed for tax purposes, as a practical matter, only if the value of the minerals has been determined through drilling and drill core analysis, and (3) The absence of any taxation of mineral interests owned separately from the surface, except where drilling analysis is available, has en- couraged the separation of ownership of surface and mineral estates and resulted in the creation of hundreds of thousands of acres of untaxed mineral estate lands which thus are immune from tax forfeiture. The legislature also finds that the province of Ontario in Canada, which has land ownership patterns and mineral characteristics similar to that of Minnesota, has imposed a tax of $.50 an acre on minerals owned separately from the surface since 1968, and $.10 an acre before that. The legislature further finds that the identification of separately owned mineral in- terests by taxing authorities requires title searches which are extremely burdensome and, where no public tract index is available, prohibitively expensive. This result is caused in part by the decision in Wichelman v. Messner, 1957, 250 Minn. 88, 83 N.W.2d 800, where the so called ‘40 year law’ was held inapplicable to mineral interests owned separately from surface interests. On the basis of the above findings, and for the purpose of requiring mineral interests owned separately from surface interests to contribute to the cost of government at a time when other interests in real property — A-47 — are heavily burdened with real property taxes, the legislature concludes that the taxation of severed mineral interests as provided in section 272.13, subdivision 2a is necessary and in the public interest, and provides fair taxa- tion of a class of real property which has escaped taxation for many years * * *.’’ Minn.St, 272.039. Plaintiffs, owners of severed mineral interests situated primarily in northern Minnesota, brought this action seeking a devlaration that the registration, forfeiture and tax provisions of the mineral registration act are unconstitutional and an in- junction prohibiting their enforcement. The district court, sitting without a jury, entered findings of fact which agreed with the legislative findings quoted previously. In addition the district court incorporated in its findings a description of the history and magnitude of the severed interest phenomenon contained in an amicus brief prepared by attorney W. K. Montague for the case of Kangas-Jacobsen Dairy, Inc. v. Lloyd-Smith, 2A1 Minn. 317, 62 N.W.2d 915 (1954): **They [severed mineral interests] are of wide extent: the entire length of the Mesabi Range from Gunflint Lake * * down to Grand Rapids, to a width of probably twenty miles from the iron formation, is blanketed with mineral reservations, on each side of the east end of the Mesabi Range through Lake and Cook counties down to Lake Superior, a distance of fifty to sixty miles, nearly every forty has a mineral reservation. Large areas in Carlton and Crow Wing Counties are similarly covered. While we are not familiar with details of mineral reservations in other Nor- thern Minnesota counties, we understand they are not un- common, Every city and village on the Mesabi Range from Aurora through Eveleth, Virginia, Chisholm, Hibbing, down to Coleraine, is located on lands subject to mineral reservations. Every home, store, factory and farm in that area is subject thereto.”’ —_—S The district court’s findings of fact concerning the taxation of severed mineral interests also incorporated a description con- tained in the amicus brief of attorney Montague: ‘In a substantial number of cases the reservations [severed mineral interests] were created as a result of the tax laws, and do not represent arm’s length negotiations between parties. They represent deliberate attempts to ar- range a transaction under which the grantor could retain for generations his speculative interest in the minerals without carrying charges, and, if merchantable ore should ever be discovered, could re-acquire the surface without cost.”’ The district court specifically found that 140,000 to 145,000 acres of the 721,640 acres of severed mineral interests owned by plaintiff United States Steel were created through a series of transactions between United States Stee! and its subsidiaries whose purpose was to avoid ad valorem property taxes on prop- erty valuable primarily for its mineral potential. The district court further found that plaintiffs paid ad valorem property taxes on approximately 3,212 of their 1,262,664 acres of severed mineral interests.' Reference to additional findings of fact follows where appropriate. Based on its findings of fact the district court concluded that the registration, taxation, and forfeiture provisions were con- stitutional but that the procedures attending the forfeiture pro- visions were unconstitutional. By virtue of the latter conclusion the district court further concluded that defendants be enjoined from claiming or asserting an ownership in plaintiffs’ mineral interests by reason of the forfeiture procedures. Judgment was entered accordingly. Plaintiffs appeal from that part of the judgment upholding the registration, taxation and forfeiture ' Of the 3,212 acres the majority were taxed at $1.00 per acre pur- suant to the tax on unmined taconite. Minn.St. 298.26. — A-49 — provisions; defendants appeal from that part of the judgment invalidating the procedures attending forfeiture and granting in- junctive relief, We affirm the judgment of the district court in all respects. The issues presented are the following: (1) Whether the classification of severed mineral interests for purposes of taxa- tion violates the uniformity clause of the Minnesota Constitu- tion; (2) whether the uniformity clause of the Minnesota Con- stitution requires that taxation of property be related in some way to its value; (3) whether the forfeiture provisions violate the due process clauses of the state and Federal constitutions; (4) whether the procedures attending the forfeiture provisions com- port with the due process clauses of the state and Federal con- stitutions; and (5) whether the language governing the registra- tion requirements is unconstitutionally vague. {i-3] 1. The uniformity clause of the Minnesota Constitution reads in part: ‘*Taxes shall be uniform upon the same class of subjects and shall be levied and collected for public purposes * * *’’ Minn.Const, art, 10, § 1. In applying that provision we have stated that the legislature has a wide discretion in classifying property for purposes of taxa- tion.’ Where the classification has a reasonable basis in fact, the judgment of the legislature will not be disturbed, See Johnson v, Donovan, 290 Minn, 421, 188 N.W.2d 864 (1971); State v. Min- * The uniformity clause of our state constitution is no more restric- tive upon the legislature’s power to tax or classify than is the Equal Protection Clause of the Fourteenth Amendment, E/well v. County of Hennepin, 301 Minn, 63, 221 N.W.2d 538 (1974), The United States Supreme Court has stated that where taxation is concerned and no specific Federal right, other than equal protection, is involved, the states have considerable discretion. Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973). ye ve nesota Farmers’ Mut. Ins. Co., 145 Minn. 231, 176 N.W. 756 (1920). Every presumption being invoked in favor of the con- stitutionality of an act of the legislature, plaintiffs have the burden of proof to show beyond a reasonable doubt that the act conflicts with the uniformity clause of the state constitution. See Elwell v. County of Hennepin, 301 Minn. 63, 221 N.W.2d 538 (1974). Plaintiffs contend that they have met their burden in that the record shows that there is no difference between severed and unsevered mineral interests which can constitutionally justify the tax imposed on the former’ without similar treatment of the latter. Specifically plaintiffs argue that, to the extent severed mineral interests have gone untaxed, so too have unsevered mineral interests escaped taxation. In addition plaintiffs argue that the practical problems attending the taxation of severed mineral interests; i.e., the difficulty in valuating and assessing severed mineral interests, apply with equal force to unsevered > The pertinent provisions of Minn.St. 273.13, subd. 2a, which sub- jects severed mineral interests to taxation, read in part: ‘‘Class 1b. ‘Mineral interest’, for the purpose of this subdivision, means an in- terest in any minerals, including but not limited to gas, coal, oil, or other similar interest in real estate, which is owned separately and apart from the fee title to the surface of such real property. Mineral interests which are filed for record in the offices of either the county recorder or registrar of titles pursuant to sections 93.52 to 93.58, con- stitute class 1b, and shall be taxed as provided in this subdivision unless specifically excluded by this subdivision. A tax of $.25 per acre or portion of an acre of mineral interest is hereby imposed and is due and payable annually. If an interest filed pursuant to sections 93.52 to 93.58 is a fractional undivided interest in an area, the tax due on the interest per acre or portion of an acre is equal to the product obtained by multiplying the fractional interest times $.25, computed to the nearest cent. However, the minimum annual tax on any mineral in- terest is $2. No such tax on mineral interests is due and payable on the following: (a) Mineral interests valued and taxed under other laws relating to the taxation of minerals, gas, coal, oil, or other similar in- terests; (b) Mineral interests which are exempt from taxation pursuant to constitutional or related statutory provisions * * *.’’ — A-51 — mineral interests. We disagree with plaintiffs’ view of the record. Upon the evidence the district court entered the following finding of fact: ‘‘Where taxable ~2al property includes the rights to both surface and mineral interests (estates), the assessed valua- tion, and hence the property tax levied, reflects the value, if any, assigned by market forces to the totality of these rights. Plaintiffs have failed to demonstrate that such ‘unsevered’ mineral rights have, like severed mineral in- terests, escaped ad valorem property taxation.’’ This finding is supported by the testimony of Peter N. Hand- berg, the St. Louis County Assesor. He testified that in deter- mining the ‘‘market value”’ of a parcel of land for tax purposes he looks to ‘‘sales of comparable properties wherever they are available,’’ and that for rural lands (which account for the bulk of severed mineral interests) ‘‘sales are the only basis’’ for deter- mining market value. These comparisons are made on the assumption that the entire ‘‘bundle of rights’’ that comprise the fee simple interest in the parcel, including mineral rights, are merged in one owner. [4,5] The value determined by this method might very well be affected by the value of the mineral rights. Mr. Handberg so testified in response to a question put to him by one of plain- tiffs’ attorneys: ““Q. Now, as a practical matter, in St. Louis County, with the exception of the Mesabi or Biwabik Iron forma- tion * *, would you agree that the practice is and has been as long as you have known it, not to include the value of the minerals in arriving at an assessment where there is no objective evidence or reliable data to indicate whether or not there are minerals located therein? — A-52 — THE WITNESS [Mr. Handberg]: I don’t think that’s a correct statement. I think that the value we put on the pro- perty based on sales of similar property to include a mineral value. For example, if the property is sold in an area where the mining companies are interested or many properties are sold, it drives up the sales prices of the prop- erty, and so we use the sale prices as a basis of our valua- tion.”’ The fact that assessors may not value mineral interests as a separate item is not significant. As Mr. Handberg’s testimony clearly shows the value of a piece of property is a composite of a number of factors, one of which includes the value of the mineral interests if unsevered. Cf. Independent School Dist No. 99 v. Commr. of Taxation, 297 Minn. 378, 211 N.W.2d 886 (1973). In determining market value of property for ad valorem tax purposes, assessing authorities should consider and give due weight to every element and factor affecting market value. Therefore the district court’s finding that unsevered mineral in- terests are valued and taxed under the normal ad valorem pro- perty tax system is adequately supported by the evidence. Since none of the parties disputes the district court’s findings that severed mineral interests have escaped taxation, we cannot say that the separate classification of severed mineral interests is without a reasonable basis in fact. Johnson v. Donovan, supra. Concerning the separate taxation of severed mineral interests the district court made two critical findings. First, the district court found that most severed mineral interests cannot be assessed for ad valorem property tax purposes for two reasons: **(1) The value of the mineral in the ground can only be determined by prohibitively expensive exploration such as drilling and drill core analysis; and (2) Data currently available to assessors on sales and ex- changes of the property rights in mineral estates (i. e., — A-53 — severed mineral interests) is very limited. Therefore, in most cases such available data is insufficient to permit the derivation of market values for individual severed mineral interests from the sales prices or values of comparable in- terests.’’ Second, the district court found that every mineral interest in Minnesota has some value as a property interest regardless of its location, although the value of mineral interests may vary from one part of the state to another. The first finding is not con- tested. Plaintiffs vigorously contest the second finding. They rely on the expert testimony of Donald Lindgren, a geologist, who testified that the value of plaintiff’s mineral interests vary wide- ly in value, some having no economic value at the present time. The record also contains, however, testimony of other expert witnesses who detailed the abundance and distribution of minerals within the state, the history of mineral development, and the potential for future development. Even Mr. Lindgren testified to the potential for future development. On this record we cannot say that the district court’s finding is clearly er- roneous. In sum the evidence supports the legislature’s findings that a class of valuable property interests were escaping taxation because of the practicable difficulties in identifying, valuing, and assessing those interests within more traditional tax schemes. In light of this evidence we cannot say that the prac- tical considerations which prompted the legislature to classify separately severed mineral interests and to impose a tax of $.25 per acre per year or $2.00 per year, whichever is greater, were unreasonable. That practical considerations can serve as the basis for the classification and taxation of proerty was established long ago in Mutual Benefit Ins. Co. v. County of Martin, 104 Minn. 179, a 116 N.W. 572 (1908).* There this court upheld the taxation of mortgages separately from other personalty with the following language: **There were good and sufficient reasons why a special method should be devised for the taxation of this kind of property. It is a notorious fact that the owners of securities in the form of bonds and notes have not been in the habit of paying their proportionate share of the taxes. This has been due in a measure to the ease with which the existence of such property can be concealed from the tax officials. But when the owner of a note takes a mortgage on real estate as security and places it upon the public records, he exposes his ownership * * * and enables the assessor to reach him. * * The owner is thus tempted to seek some devious method for escaping taxation, in order that he may be on an equality with the owner of an unsecured note or bond, which rests undiscovered in a safety deposit vault. *** Experience has shown that it is very difficult, if not impossible, to fairly and successfully tax this kind of prop- erty under the system ordinarily applied to personal property. This practical difficulty alone furnishes a basis for a classification, and justifies the legislature in devising a special mei. od for the taxation of the subjects of that class. * * * By requiring a registration tax, every mortgage security pays a moderate tax, and this, in the judgment of the legislature, is preferable to the certain uncertainties of the old system.’’ (Emphasis added.) 104 Minn. 182, 116 N.W. 574. Cf. Johnson v. Donovan, supra. * The United States Supreme Court has also recognized practical considerations as sufficient bases for state tax classifications. See Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973); Madden v. Kentucky, 309 U.S. 83, 60 S.Ct. 406, 84 L.Ed. 590 (1940). — A-55 — We think the reasoning in the Mutual Benefit case applies with equal force here. Here the taxation of severed mineral in- terests in the same manner as other realty proved to be imprac- ticable and also, because of this impracticability, had encourag- ed the separate ownership of surface and mineral estates. A class of property having some value was not paying its propor- tionate share of taxes. The remedy chosen by the legislature was to tax mineral interests on a uniform basis, which is but one part of the general system of mineral taxation. The tax is imposed only on those mineral interests not ‘‘valued and taxed under other laws relating to the taxation of minerals, gas, coal, oil or other similar interests.’’ Minn.St. 273.13, subd. 2a. For exam- ple: the state tells us that where the value of the minerals themselves is determined, a tax is levied on the basis of such value. Unmined iron ore, except certain low recovery ore, is designated as Class la real property, presently assessed at 50 percent of its market value, and taxed at the prevailing mill rate. Minn.St. 273.13, subd. 2. Low recovery iron ores also fall within class la but are valued at from 30 percent to 48% percent of market value. Minn.St. 273.15. Unmined taconites and iron sulphides are to be assessed and taxed on the basis of value with the one important difference that the tax may not exceed $10.00 per acre. Minn.St. 298.26. Finally, all other severed mineral in- terests, to the extent they can be valued, are susceptible to ad valorem taxation pursuant to Minn.St. 272.04 in the same man- ner as Other interests in land. In effect the legislature has directed that severed mineral interests be taxed in relation to value or production where possible but that under no cir- cumstances can such an interest be taxed at less than $2.00 per interest. We cannot say that the legislature has exceeded its discretion. The cases upon which plaintiffs rely do not compel a contrary conclusion. In State ex rel. Owen v. Donald, 161 Wis. 188, 153 N.W. 238 (1915), the plurality opinion declared unconstitu- tional a statute which imposed a tax on severed mineral in- — A-56 — terests. The concurring opinion of Justice Timlin, however, in- dicates that the reason the statute was invalid was because its tax forfeiture provisions treated owners of severed mineral interests differently from owners of other property interests. Likewise, in Northwestern Improv. Co. v. Morton County, 78 N.D. 29, 47 N.W.2d 543 (1951), the statute taxing severed mineral interests was unconstitutional because it imposed a tax on severed mineral interests created by reservations in deeds but did not tax severed mineral interests created by a direct conveyance of the mineral interest. The court cited an earlier decision upon which plaintiffs heavily rely, Northwestern Improv. Co. v. State, 57 N.D. 1, 220 N.W. 436 (1928), only for the proposition that a classification cannot be based solely on the manner mineral rights are severed from the surface interest. The North Dakota Supreme Court did not give the decision the broad interpreta- tion the plaintiffs urge this court to adopt. [6]. 2. Plaintiffs also argue that the Minnesota Constitution requires that real property taxes be related to value. Plaintiffs hav [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1918%3A1. Public record. Not legal advice.