# Petition for Writ of Certiorari — Kalmia Realty & Insurance v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_0337%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1950 - **Citation:** 340 U.S. 851 ## Text OCTOBER TERM, 1950 No. 247 KALMIA REALTY & INSURANCE COMPANY, ET AL., Petitioners, vs. THE UNITED STAT®S OF AMERICA, Respondent PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT AND BRIEF IN SUPPORT THEREOF. Jupce Bren Stevens, Hattiesburg, Mississippr, J. R. Buowanayn, L. Barrett Jongs, Jackson, Mississippi, Water S. WELox, Garner W. GREEN, Counsel for Petitioners. We cu, Cooper & WeELcH, Laurel, Mississippi, Bucnanan & MontcoMEry, Laurel, Mississippi, Green, Green & CHENEY, 801 Standard Life Building, Jackson, Mississippi, Of Counsel. INDEX Suspsect InpEx Petition for writ of certiorari..................... Jurisdictional statement ..................... Summary statement of matters involved....... Questions whereasto certiorari is herein sought. Reasons why certiorari should be herein VER cee NE Ris pean peaprcrtrdanal cl ae paw as convene ee tee I on i any ee eae yeh Brief in Suppert Of MOTION... 6. eas, SII TIA othe oct nicw'e's pane see eae eden ee Fee SOO 5G ce aaa skereeeitiek) PE III cans cs bemnu cue Geers NE i ans oasis We been beac FO Gere Pe iee Se ee mr nr eee tr Point I. Rectification of conflict between (a) State of Washington v. United States, 87 Fed. 2d 421, CCA 9th, and (b) The deci- sion herein by the Court of Appeals for the Fifth Circuit requisite in this Court. . Point II. Oil underlying surface acquired under the Weeks Act remains subject to paramount state sovereignty and non-dis- criminatory ad valorem state tax thereon validly foreclosed vested title in peti- tioner, Hendrix, the power of Mississippi to impose ad valorem taxation supreme. . Point III. The Weeks Act, if it embraced the acquisition of severed minerals, was un- authorized by the federal constitution... Point IV. Under the original reservation Kalmia had the unquestioned right to re- move all oil, being possessed thereof as of a determinable fee..................... Point V. Property in oil is admeasured by state not federal law................... 9449 ii INDEX Page Point VI. Under the reservation of the oil, under a deed prepared by the Govern- ment, underlying Weeks land, with the policy of the National Forest Reservation Commission thereasto, the provision in the deed requiring ‘‘it be found”’ in order to effectuate further renewals, by reason of the United States not being suable and the other reasons herein set forth, made the provisions in the deea covenants com- pensable in damages nex conditions where- under forfeiture might be............... 76 Point VII. The Court of Appeals in the Fifth Circuit in holding Kalmia not en- titled to rely upon representations of Gov- ernment officials as to the extent of the provisions to be contained in the deed and excluding as incompetent evidence ten- dered, established a rule (a) contrary to the rule of this Court, Bull v. United States, 295 U. S. 261, 79 L. Ed. 1421; (b) contrary to the rule in the Second Circuit and others, Staten Island Hygeia Ice & Cold Storage Co. v. United States, 85 Fed. 2d 68; and (c) contrary to the law as an- nounced by the Supreme Court in the State of Mississippi............ ...... 76 Point VIII. Provisions in reservation de- leted by regulation of Donald M. Nel- son, supra, and by the Petroleum Admin- istrator, supra, after execution of the al- ee, Pebeeme LS eee 78 Point IX. The Weeks Act and the public policy of the National Forest Reservation Commission thereasto, petitioners repre- sentatives were actually deceived by those things to them told and having so been, thereasto were entitled to relief......... 7y Point X. The Legislature of Mississippi pro- hibited from consenting that the United INDEX lii Page States might acquire the oil and, quo ad the oil, the assumed consent of the Legis- RES wayne yen eee Die 79 Point XI. Wherever in Mississippi, there is a statutory power vested in a board of limited and special jurisdiction, it must act by its minutes and its minutes must affirmatively disclose the jurisdiction. A failure so thus to do invalidates......... 79 SPN ais Or hs Bee ee a eS 79 Appendix A. Opinion of Court of Appeals.......... 83 Conclusions of Law of the District NE oe rs a cia Pes Spaces 83 B. Weeks Act, Title 16 U.S.C.A., 36 Stat. Sabie SCE gi AN nT Ca ey fe 5 png 86 C. Mississippi consent statute, Sec. 4156 of the Mississippi Code of 1942........ 92 D. Excerpt from Hendrix v. Foote, 205 SE a eutes eek ee ee ee 93 EK. Extract from Mississippi Blue Book... Letter from W. H. Wallace to G. W. | ERR ee oet Soot oe ee 101 F. Letter to members of the Legislature.. 113 TasLe or Cases CITED Adams v. Mississippi State Bank, 75 Miss. 701, 23 So. BU a iaee Oe areas, paige wate ees EEK neg alee ae oes 66 Adams v. Y.é M.V.R.Co., 77 Miss. 194, 24 So. 200. . 66 Alabama & V. R. Co. v. Graham, 171 Miss. 695, 157 BN eras otk Ba bee a OS a eee ies s 68 Alexander v. Bauer, 94 Minn. 146, 102 N. W. 388. 36 Allen v. University System, 304 U. 8. 439, 82 L. Ed. ME Roe al tetig phere Cheese Sete we bees Sk 40 American Federation of Labor v. Watson, 327 U.S. eg ds Ss re 5 SE tee esa fe. 67 Anderson v. Sun Oil Co., — Miss. —, 42 So. 2d 238... 32 Ates v. Ates, 189 Miss. 226, 196 So. 243............. 37, 58 Atlas Life Ins. Co. v. W. I. Southern, Inc., 306 U. 8. ey Wee Ad a OE Be. cA yy ad 20 iv INDEX Page Bailey v. Federal Land Bamk, 206 Miss. 354, 40 So. 2d sia Bas SN ial Bi ie eis bc 54 Bailey v. Federal Land Bank of New Orleams, 207 ee Eee eee cae ree 22 Bank of Oxford v. Adams, 78 Miss. 532, 29 So. 402. . 66 Board of Supervisors of Holmes County v. Black Creek Drainage Dist., 99 Miss. 739, 55 So. 963... .. 68 Bolivar County v. Coleman, 71 Miss. 832, 15 So. 107. . 72 Bradburn v. McIntosh, 159 Fed. 2d935.............. 61 Brown v. Ohman, — Miss. —, 42 So. 2d 209, 43 So. 2d BO gus cee aE OS EA aes aR 58, 59, 77 Bull v. United States, 295 U. S. 247, 79 L. Ed. 1421, 14, 61, 76, 80 Butterfield Lwmnber Co. v. Guy, 92 Miss. 361, 46 So. 78 42, 64 Calahan v. Martin, 3 Cal. 2d 110, 43 P. 2d 788, 101 Rit I As th ee ew rice vaewe en aas 28 Calcote v. Texas Pacific Coal & Ou Co., 157 Fed. 2d BU Gh kee os Sek ee IEA s GEL ER este es 22 Capital Greyhound Line v. Brice, — U. 8S. —, 94 L. OE 6 on 2a os to Be Soe ee 50 Chapman v. Sheridan Wyoming Coal Co., 338 U. S. a re i os oo ha es Keene cae dee 37, 63 Collins v. Yosemite Park & Curry Co., 304 U.S. 518, fe EEE wo ocak hw Sh nas ba Rae y ca a 38, 41 Contmental Oil Co. v. Osage Oil & Refining Co., 69 a ee SS 30 Davidson v. Moore, 37 S. W. 206............. Gay 36 Delno v. Market St. Ry. Co., 124 Fed. 2d 965........ 22 Derry v. Peek, House of Lords, 14 App. Cas. 337.... 58 Edward Hines Yellow Pine Trustees v. Martin, 268 i a lc Be oo eee 23 Everson v. Board of Education, 330 U. S. 1, 91 L. Ed. RS RRNA es BLOAT PORES PER 41 Ewing v. Mytinger € Casselberry, Inc., — U.S. —, 94 Bi TI EE ae i es OR 63 Family Life Ins. Co. v. Damiel, 79 F. Supp. 62....... 41 Federal Power Com. v. East Ohio Gas Co., — U.S. —, DU es a i Ch a es CRS 53 Federal Power Com. v. Interstate Natural Gas Co., OU: 6.07, CE TAM eR 67 INDEX Vv Page Finkbine Lumber Co. v. Saucier, 150 Miss. 446, 116 i WI Aloe unas Cs ss ose ORR AD Melee EER bos 23, 32 First Savings Bank & Trust Co. v. Elgin, 29 N. M. BE OM. v's kes Pash coe eee ae ae 58 Forest Product & Mfg. Co. v. Buckley, 107 Miss. 897, Oe ee a a eee Fe eae ek 24 Fox v. Pearl River Lumber Co., 80 Miss. 1, 30 So. UR ck NC TS are 2 rere Mie ae ea eae he Bee 42 Gooch Milling & Eleva. Co. v. Comm’r of Int. Rev., Ss ee eA eae 61 Green v. Board of Supervisors of Adams County, 172 Peek: Be See ee ee ae a 72 Green v. Frazier, 253 U. S. 233, 64 L. Ed. 878........ 41 Gregg v. Birdsall, 53 Barb. 405.................... 36 Griffin v. Dogan & Martin, 48 Miss. 11.............. 54 Griffin v. Miwon, 38 Miss. 424...................... 54 Group No. 1 Oil Corp. v. Bass, 283 U.S. 279, 75 L. Ed. ME os RR Oe eae OTOL AR a CRORE 42 Gulf Refining Co. v. Stanford, 202 Miss. 602, 30 So. ee Bre a RO ek 22, 42 Gulf Refining Co. v. Stone, 197 Miss. 713, 21 So. 2d BF. eC eae ra vee EROS eee eae 28, 49, 66 Gully» “-lmut Gas & Oil Co., 174 Miss. 794, 165 So Oe: ieceticeder ie treme eter rete oe hh es 69 Gunter v. Jackson, 130 Miss. 686, 94 So. 842......... 71 Haley v. State, 108 Miss. 899, 67 So. 498............ 68 Halsted v. Jessup, 150 Ind. 87, 49 N. EB. 821......... 35 Helvering v. Powers, 293 U.S. 214, 79 L. Ed. 291... .. 40 Hendria v. Foote, 205 Miss. 1, 38 So. 2d 111... .12, 28, 42, 54 Hipp v. Babin, 19 How 278, 15S. Ct. 683............ 20 Hout v. Stratton Mills, 54.N.H.109 ................ 36 Howard v. Lumcolm, 12 Me. 122..................... 36 Illinois, People of State of, v. Campbell, 329 U. S. 362, OE ae Pe MS Ci'ecoe Pace ce ea oe cage eh 54 Indianapolis v. Chase National Bank, 314 U. 8. 63 A ME 6 rg ek aes ea eae SRE NE 20 Indianapolis Natural Gas Co. v. Spaugh, 17 Ind. App. Oe, Se i Oe a ES eae 58 Ingram-Day Lbr. Co. v. Clark, 43 Miss. 813......... 51 vi INDEX P International Oil Pipe Line Co. v. Stone, 337 U. S. 8 SR reanin perme emer . 23 International Union of U. A. A. & A. v. O’Brien, — ee ee ds ME 5) is o's ae DR KS 23 Irons v. Webb, 41 N.J.L. 204....................5. 36, 51 J.M. Griffin Co. v. Jernigan, 170 Miss. 343, 154 So. 342 53 Jackson v. Ashley, 189 Miss. 818, 199 So. 91......... 33, 55 James v. Federal Royalty Co., — Miss. —, 44 So. ee ce eg UN te ce gos, 77 Jefferson v. Walker, 199 Miss. 705, 26 So. 2d 239.... 58 Johnson v. Truitt, 122 Ga. 327, 50 8. E.136......... 36 Jones v. Mount, 30 Ind. App. 59, 63 N. EH. 798........ 58 Jones v. Portland, 245 U. S. 217, 62 L. Ed. 252...... 41 Kennington v. Palmer, 255 U.S. 100, 65 L. Ed. 528. . . 71 Kentucky Whip & Collar Co. v. I.C.R. Co., 299 U.S. Re soos ia ehh es ois a8 08 oe 50 Kidd v. Pearson, 128 U.S. 120, 32 L. Ed. 346........ 41 King County v. Seattle School Dist. No. 1, 263 U.S. Se Sh, by os oben ad bUbh eaves s 67 King v. City of Louisville, — Miss. — , 42 So. 2d 813. . 68 Knotts v. Hydrick, 12 R. Law 314.................. 36 Knox, State ex rel., v. Grenada County, 141 Miss. 701, I a in i a cy Sk aya 68 Koenig v. Calcote, 199 Miss. 435, 25 So. 2d 763....... 22, 32 Leisy v. Hardin, 135 U.S. 100, 34 L. Ed. 128........ 50 Lloyds Estate v. Mullen Tractor & Equip. Co., 192 DR: Ms A IE Ps hia a BS 5 ek two vw ss 32 Louisville & Nashville R. Co. v. F. W. Cook Brewing Ge., 925 U.S. 70, SG is, a. B55... ss ee 50 Mathews v. Mulvey, 38 Minn. 342.................. 36 Mauer v. Hamilton, 309 U. S. 598, 84 L. Ed. 969, 135 Ma I es a i wn gee ae EK baste ve 63 M’Culloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579. . 52 McAllister v. Honea, 71 Miss. 256, 14 So. 264....... 58 McIntosh v. Vail, 126 W. Va. 395, 28 S. E. 2d 607, 151 POM Rn 5G hae os nek Fad RE 28 McNeese v. Renner, 197 Miss. 203, 21 So. 2d7....... 35 Memphis & Charleston R. R. Co. v. Neighbors, 51 PP WEN a Wa Oy eee ey encase eae BE CA wes 36 INDEX vii P Memphis Natural Gas Co. v. Stone, 335 U. S. 80, 92 Ee MO ihe cyan Peeek ad eh ayn e pene seal eee 23 Merrill Eng. Co. v. Capital Nat. Bank, 192 Miss. 378, i ee ss oie ee 27, 33, 48, 55 Monaghan v. Mount, 36 Ind. App. 188, 73 N. E. 579. . 58 Mulane v. Central Hanover Bank & Trust Co.,— U.S. ining Bd, Ss MR 6 oh aT EE LOOT 27, 36, 63 Murphey v. Seward, 145 Miss. 713, 110 So. 790...... 55 Nash Mississippi Valley Motor Co. v. Childress, 156 PUG: TN A Ue WS on 2d § Seay on Pra dketee alas 77 Natchez v. Thornton, 88 Miss. 1, 41 So. 498.......... 37 National Labor Relations Board v. Mexia Textile Mills, Inc., — U.S. —, 94 L. Ed. 757... 2.20.22... 52 New Brunswick v. United States, 276 U.S. 547, 72 L. Ws I i her esac Cho nuke neta aee as 2, 25, 55 New York v. United States, 326 U. S. 572, 90 L. Ed. Be a eae b ROE OS eA Ree 40 New York, People of, v. Maclay, 288 U. S. 290, 77 L. PG ie oe ek Oa et ae ene Sy 54 Nicholson v. Board of Mississippi Levee Com., 203 Bene, Tas BO I aes PCa EA ae es 64, 70 Norris v. Fleming, 62 Idaho 381, 112 P. 2d 482....... 58 Nunnery v. Ford, 92 Miss. 263, 45 So. 722........... 58 Ohio v. Helvering, 292 U. S. 360, 78 L. Ed. 1307..... 40 Ohio Ou Co. v. Indiana, 177 U. S. 190, 44 L. Ed. 729. . 49 Oklahoma Tax Com. v. Texas Co., 336 U.S. 342, 93 L. MN WUE ii sea eh ey ev Oe ee cata 12, 26, 49 Pace v. State, 191 Miss. 780, 4 So. 2d 270........... 35 Panama Refining Co. v. Ryan, 293 U. S. 388, 79 L. RS SN eS Fac eee we RO ee Aen ES 65 Parsons & Sweeney Ou Co. v. McCormic, 68 W. Va. as Fe ee ass ee ee eee aE 58 Paterson v. Graham, 164 Pa. St. 241............... 36 Penns ¥; been, © Ma: BF. ok RS 36 Penn Mutual Life Ins. Co. v. Numnery 176 Miss. 197 SE A Gio BR ER a: 76, 77 Perry v. United States, 294 U. 8. 330, 79 L. Ed. 912. 36 Peterson v. Gibbs, 147 Cal. 1, 81 Pac. 121........... 35 Portwood v. Montgomery County, 52 Miss. 523...... 70 Vili INDEX Prall v. Burckhartt, 299 Ill. 19, 132 N. E. 280........ Propper v. Clark, 337 U.S. 472, 93 L. Ed. 1480...... Quitman County v. Self, 156 Miss. 273, 125 So. 828. . Rahrer, Re, 140 U. S. 545, 35 L. Ed. 572............ Ramage v. Wilson, 37 Ind. App. 532, 77 N. E. 368, Os ae NA hain GAT ees be Reed v. Charping, — Miss. —, 41 So. 2d 12......... Richardson v. Holman, — Fla. —, 30 So. 2d 641. .. Rist v. Toole County, —Mont. —, 159 P. 2d 340, 162 Rie MEE a ek okt Coy ee ARG LL Salter v. Bolivar County, 111 Miss. 867, 72 So. 700... Seal v. Donnelly, 60 Miss. 658..................... Seward v. Dogan, 198 Miss. 419, 21 So. 2d 292...... Shooters Island Shipyard Co. v. Standard Shipbuild- I, Sl Bs FO wigs hoe eee oe eee Simpson County v. Floyd, 192 Miss. 501, 6 So. 2d 580 Skelly Oil Co. v. Phillips Petroleum Co., — U. S. —, De a MN I or ee eer ove ha ec kee oa a ee Snell v. Ins. Co., 98 U.S. 85, 25 L. Ed. 52............ South Carolina v. United States, 199 U. S. 487, 50 L. NN nos esd CaN wie cH A ha hewn Spector Motor Service v. McLaughlin, 323 U. S. 101, Wr RI oe Necre Oa BRAS ea a Spokane County v. United States, 279 U. S. 80, 73 PE ig Soe a Sia ee Se S. R. A. v. Mimmesota, 327 U.S. 558, 90 L. Ed. 851... . Stainback v. Mo Hock Ke Lok Po, 336 U. 8S. 368, 93 State v. ( Cummings, 206 Miss. —, 40 So. 2d 587...... State v. Woodruff, — Ala. —, 46 ey WR ONe ee ini es Staten Island Hygeia Ice & Cold Storage Co. v. United States, 85 Fed. 2d 68............... 15, 60, Stern v. Parker, 200 Miss., 27, 27 So. 2d 402........ Stokely v. State, 149 Miss. 435, 115 So. 563.......... Stuckley v. Butler, Hob. 300....................... Sumter Lumber Co. v. Skipper, 183 Miss. 595, 184 26, 49 76, 80 INDEX ix Page Susquehanna Power Co. v. State Tax Commission, Soe Ue ON, Fe dk NS en eee 41 Sweatt v. Painter, — U.S. —, 94 L. Ed. 783........ 63 Texas, State of, v. State of Florida, 306 U. S. 398, 83 Bh a REE sr oie See on OES a 20 Toothman v. Courtney, 62 W. Va. 177, 58S. EB. 915... 28 United States v. Allegheny County, 322 U. 8. 174, 88 a ik csi Gekekee cucebawes oe eas 26, 33 United States v. Beebee, 17 Fed. 36................ 61 United States v. Burnison, 339 U. S. 87, 94 L. Ed. 433 32, 41 United States v. California, 332 U. S. 19, 91 L. Ed. BR Re eae etry FYB RT ne alee gO 52 United States v. Fox, 94 U.S. 315, 24 L. Ed. 192..... 33, 41 United States v. Gerlach Live Stock Co., — U. 8. —, DE i Oe WC rock er et en 50, 80 United States v. Kansas City Life Ins. Co., — U. 8. nt The A ES oc ats 6s eee ee Rn 34 United States v. Louisiana, — U. S. —, 94 L. Ed. 800 52 United States v. Nebo Ou Co., 90 F. Supp. 73, 9, 13, 27, 28, 34, 40, 48, 60 United States v. State National Bank of Boston, 96 ie Sie Se a A oon ewes eaten Shoes 61, 80 United States v. State of Texas, 314 U. S. 480, 86 Ba. Se IE 6 oak ee bs ak ee. NOES 54 United States v. Texas, — U.S. —, 94 L. Ed. 805.... 46, 52 United States v. Waddill, Holland & Flinn, 323 U. S. ee ee as i Ses a LS oats a ot oe 54 Vicksburg Bank v. Worrell, 67 Miss. 47, 7 So. 219. ... 66 Washington, State of, v. United States, 87 Fed. 2d 421, 12, 20, 80 Watson v. Massachusetts Mut. Life Ins. Co., 140 i aE A nec ie a than Ge mato, 77 West v. Oklahoma Tax Comm., 334 U. S. 723, 92 Ri els oe cs SL ae aa en a ae 26, 27, 52 White v. Union Producing Co., 140 Fed. 2d 176...... 77 Whitworth v. Mississippi State Highway Com., 203 ee OG EES ss occ ipo eek 64, 70 Willmette Park District v. Campbell, 338 U. S. 411, Sis EE 6255 ee RRS OR ee in 40 Wilson v. Cook, 327 U. S. 474, 90 L. Ed. 793, 12, 38, 43, 48, 80 x INDE« Page Wisconsin Elec. Power Co. v. United States, 336 U. 8. we Pe OS Re aT eet pee ee 36 Wisconsin Lumber Co. v. State, 97 Miss. 571, 54 Re I i RA a 24 Statutes Crrep Constitution of the United States: Art. 1, Sec. 8, subsection 17................... 38 Mississippi Constitution, Section 112............ i Oe ae i ee ee ee United States Code, Title 28, section 1254, 62 Stat. 928- section 1331, 62 Stat. 930; section 1332, 62 Stutute 930; section 1345, 62 Stat. 933; section Seu es Mc cata VG yan oie tcwks tks 1 pe oe a ee yee ene ree 51 16 U.S. C. A. 486, c. 105, sec. 2 as amended Feb. 28, Fs. Os ey GP is ss ie 0S base Eka 49, 51 16 U.S. C. A. 500, 36 Stat. 963, as amended 58 Stat. BO eee ee a EST LLCS Cab CER Li wced 67 16 U.S. C .A. 501, as amended 58 Stat. 737.......... 68 16 U.S. C. A. 516, 36 Stat. 962, amended 43 Stat. 1215 10 16 U. 8. C. A. 518, c. 186, sec. 9, 36 Stat. 962, as amended c. 145, 37 Stat. 855..................... 42 Weeks Act (March 1, 1911, Ch. 186, 36 Stat. 961-963, as amended, 37 Stat. 855, 38 Stat. 441, 43 Stat. 654, 43 Stat. 1215, and 49 Stat. 1225, Title 16, U. S. C. A., Sees. 480, 500, 513-519, 521, 552 and 563.... 25 BG. RMR OE TS bo env a Na RHO 23, 34 36 Am. Jur. Sec. 23, 35, pp. 297, 306................ 49 78 23 34 Broom’s Legal Maxims, pp. 27, 28................. Eg PE oa ie HFA 4 hee a has wae OES BE hs Wei Sov WO Siig WO A ics oss a boy SR ees _ INDEX xi Page OT; tes Be ai ie ess A US) 78 BGS) Fy te OO, Bs i ek eee ieee GR 49 Minor’s Law of Tax Titles, page 2................ 53 Minor on Real Property, Vol. 1, sec. 780, p. 1012.... 23 1 Summers Oil and Gas, 2d Ed., Sees. 11, 61, and 62 49 2 Summers Oil and Gas, Ch. 10, Sec. 301, p. 159...... 30, 74 4 Thompson on Real Property, sec. 2044, p.571...... 37 _ SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1950 No. 247 KALMIA REALTY & INSURANCE COMPANY, ET AL., Petitioners, vs. THE UNITED STATES OF AMERICA, Respondent PETITION FOR WRIT OF CERTIORARI To the Honorable Chief Justice and Assoctate Justices of the Supreme Court of the United States: Jurisdictional Statement The jurisdiction of this Honorable Court is invoked under New Title 28, United States Code, Judiciary and Judicial Procedure, Section 1254, 62 Stat. 928; Section 1331, 62 Stat. 930; Section 1332, 62 Stat. 930; Section 1345, - 62 Stat. 933; Section 2101, 63 Stat. 104; together with Rule 38, 5(b) of this Court. Summary Statement of Matters Involved Petitioners are defendants in United States v. Kalmia Realty & Insurance Company, et al., wherein the District 2 Court granted the relief of complete cancellation and con- firmation, May 11, 1949, Tr. 391, 407, 419, 421, and the Court of Appeals for the Fifth Circuit affirmed in Cause No. 12,965, May 15, 1950, Tr. 445. Opinion, with Conclu- sions of Law, thereby affirmed, in the District Court, Appen- dix ‘‘A’’, 181 Fed. 2d 598. A The Parties: 1. United States of America, sole complainant and ap- pellee in the Court of Appeals and respondent here. 2. Defendants, appellants and petitioners are: (a) Kalmia Realty & Insurance Company, et al. (here- inafter called ‘‘Kalmia’’), the common source of the con- ventional title and reservor of the minerals; and (b) Tom Hendrix, holder of an independent state tax title, assumed to be invalidated solely in virtue of New Brunswick v. United States, 276 U. S. 547, 72 L. ed. 693. B The Facts: 1. Kalmia initially owned, prior to the depression, some 20,000 acres of land in Jones and Wayne Counties, Missis- sippi, wherefor the price had been $3.00 per acre. The depression having come, Kalmia sold to the United States under unitoru: deeds, wherein pertinent provisions are, Tr. 18, 26: ‘‘This Deed made this the 29th day of December, 1933, by and between Kalmia Realty and Insurance Company, a corporation, * * * party of the first part, and the United States of America, * * * party of the second part. ‘‘Witnesseth, that for and in consideration of the sum of One Dollar and Thirty-five Cents ($1.35) per -— 3 acre, cash in hand paid * * * the said party of the first part doth * * * sell and convey unto the said United States * * * the following described real estate and its appurtenances, lying and being in the County of Wayne, and the State of Mississippi; * * * * * * * ‘*Said lands herein described containing in the aggre- gate 19,587.54 acres, * * ‘Reserving, however, to the Kalmia Realty and In- surance Company, its successors and assigns, for a period of Ten (10) years from December 24, 1933, with extension as hereinafter provided, all oil, gas and other valuable minerals deposited in, on or under said tracts of land, with full right to it, its lessees, successors and assigns at any and all times during said period to enter upon said lands and to mine, to bore for and to remove oil, gas and other minerals of every description found therein or thereon. ‘‘Provided; That if at the termination of the said ten year period of reservation it is found that such oil, gas, and other valuable minerals, mineral rights, and interests are being operated at any time during the preceding five years, to commercial advantage, then and in that event, the said right to mine and remove said oil, gas, and other valuable minerals, shall extend for a further period of five years, and further: That the right to mine and remove oil, gas, and other val- uable minerals shall extend in periods of five (5) years whenever operation during the preceding five years has been for an average of 120 days per year through- out the period. ‘*Provided; Further, that the right or rights to mine and reserve oil, gas and other valuable minerals - when extended shall be limited to an area of twenty- five acres of land around each well or mine producing, and each well or mine being drilled or developed at time of first extension, to-wit: December 24, 1943. ‘*Provided: That at the termination of the ten year period, if not extended, or at the termination of any extended period, in case the operation has been car- 4 ried on for the number of days and under conditions stated, the right to mine and remove oil, gas, and other valuable minerals shall terminate and a complete fee in the land become vested in the United States, and further, ‘‘Provided: That the boring of wells and the mining and removal of oil, gas and other valuable minerals reserved to the vendor, its successors and assigns, shall be done strictly in accordance with the rules and regulations prescribed by the Secretary of Agriculture, which are as follows: ‘*1. Every person claiming the right to prospect for minerals, oil or gas or the products thereof, or to mine, drill, develop or operate in or upon lands ac- quired by the United States under the provisions of the Act of March 1, 1911 (36 Stat. 961), with a reserva- tion to the grantor of mineral rights, including oil and gas, must, on demand, exhibit to the Forest Off- cer in charge, satisfactory written evidence of right or authority from, through, or under the said grantor. ‘*2. In prospecting for, and in mining and remov- ing minerals, oils, and gas, and in manufacturing the products thereof, only so much of the surface shall be occupied, used or disturbed as is necessary for the purpose. ‘*3. In underground operations all reasonable a. usual precautions shall be made for the support of the surface, and to that end tunnels, shafts, or other work- ings shall be subject to inspection and examination by the Forest Officers, Mining Experts, or Inspectors of the United States. ‘*4. Payment at the usual rates charged in the lo- cality for sales of National Forest timber, and timber products of the same kind or species, shall be made to the United States for all timber, undergrowth or young growth, cut, destroyed, or damaged in pros- pecting, mining, drilling, or removing minerals, oil or gas, or in manufacturing products therefrom, and in the location and construction of buildings or works of — any kind for use in connection therewith. All slash resulting from such cutting or destruction shall be disposed of as directed by the Forest Officer when inflammable in his judgment. No timber, undergrowth, or reproduction shall be unnecessarily cut, destroyed, or damaged. 5 **5. All buildings, camps, equipment, and other structures shall be removed from the Forest within six months after the completion or abandonment of the operation, otherwise such buildings, camps, equipment, and other structures shall become the property of the United States. ‘**6. All destructible refuse caused by the operations hereunder, which interferes with the administration of the Forest or endangers forest growth, shall within six months after the completion of said operation be disposed of. ‘*7, While operations are in progress, the operators, contractors, subcontractors, employees of contractors and subcontractors at work on the National Forest shall use due diligence in the prevention and suppression of all fires, and shall be available for service in the extinguishment and suppression of all fires within the particular locality. ‘‘The Said Kalmia Realty and Insurance Company for itself, its successors and assigns, doth covenant to and with the said United States of America, its suc- cessors and assigns (1) that it is seized and possessed of a good and valid fee simple title to the above de- scribed lands, (2) that it has the right to convey the same, (3) that the said United States of America shall . have quiet and peaceful enjoyment of the same, (4) that the same is free and unincumbered except as herein- above shown, (5) that it will execute such other and further assurances of title as may be necessary, and (6) that it will forever warrant and defend the title thereto against the lawful claims of all persons whom- soever.’’ 6 Compare Findings of Fact and Conclusions of Law, Tr. 391: ‘9. This case was filed June 12, 1946 by the Govern- ment of the United States against Kalmia Realty and Insurance Company, a corporation, and another, and in the complaint prayed that a decree be entered quieting the title in the United States to the land that is in- volved in this controversy, and to declare that the United States is the owner in fee simple and adjudging that the defendants have no right, title or interest therein, and to enjoin them permanently from assert- ing any claim or title thereto.’’ (This is inaccurate. Minerals alone, oil, were involved.) ‘<3. The controversy hinges to a large extent on the deed that was executed on December 29, 1933, by Kal- mia Realty & Insurance Company, by which it con- veyed to the Government of the United States large quantities of land located in Wayne and Jones Coun- ties, Mississippi, * * *. ‘*5. The defense of the complaint, in the main, is based upon two grounds; (1) That fraud was perpe- trated upon the representative of the grantor at the time and by the execution of the deed in question, such fraud alleged to have been perpetrated by the representative of the Secretary of Agriculture with authority to make such representations; and (2) that the operations upon said lands as provided for in the deed, were carried on within the 5-year period before the expiration of the ten years, to a commercial advantage and, there- fore, that the grantor, Kalmia Realty & Insurance Company, was entitled to continue the operations as therein provided. ‘*8. The Court finds as a fact that Kalmia Realty & Insurance Company retained for a period of ten years all the gas, oil and valuable minerals deposited in, upon or under said tracts of land, with full right in itself, 7 its lessees or assigns at any and all times during said period to enter upon said lands and to mine, bore for and remove the oil, gas and other minerals of every description found therein or thereunder; * * *.’’ (and other provisions as set forth above in the deed form). **9, The Court finds that during the 10-year period and at the end of the 10-year period there was found no oil, gas or other valuable mineral or mineral rights had been operated within the past five years or that was in operation at the termination of the 5-year period. **10. The Court finds that Kalmia Realty & Insur- ance Company did sell leases on said property and receive an amount of about $15,000 or $16,000 from said leases during the 5-year period preceding such termination, and its lessees entered upon said land and took cores and drilled holes to a depth of from 200 to 1,000 feet in various spots, and also there was drilled a well to a depth of over 2,000 feet, but no oil was found therein in commercial quantities. Geologi- cal tests showed that some of the grains of sand had oil on them, but it was never developed to commercial advantage and was abandoned as a dry well.’’ 2. By uncontradicted testimony, that done during the last five year period may be thus epitomized, Testimony of Urban B. Hughes, Tr. 417: ‘As the result of work carried on by the writer (Hughes), much valuable information was uncovered which added greatly to the prospects of finding oil in the area. In summary these were: **1. A core drill survey which showed a favorable structure. ‘*2. A magnetic survey which indicated a geophysical prospect. ‘*3. The drilling of the Hill and Hill well which furnished an oil show. 8 ‘“4. An indirect contact by Sinclair-Wyoming which Company did core drilling and seismic work, both show- ing structure. ‘<5. Sub-surface mapping of the area which also shows the area to be favorable.’’ On December 24, 1943, the Government ousted Kalmia and its lessees whose leases had not expired, and it forthwith made disposition to the major oil companies especially of the tract thus explored, and therefrom the United States, doing precisely that which Kalmia had done, received an estimated three quarters of a million dollars bonus for mineral leases plus the stipulated royalty. The District Judge held, as to that thus done, Tr. 397: ‘*2. The Court concluded as a matter of law that the language contained in the reservation of the oil rights and under the conditions therein provided means that there must have been oil or minerals mined and produced within five years prior to the termination of the 10-year period or at the time of the termina- tion and that the leasing of the lands for exploration by the lessees was not a compliance with the provisions of the deed; and that, construing the deed in its en- tirety, giving effect to the language used, and in its ordinary and accepted terms, it was the intention of the parties to these documents that there must be a production of oils or minerals, or a well being drilled at the time in order to secure the benefits of the ex- tended provisions.”’ Which, with deference, is fundamentally fallacious. Fur- thermore, the District Judge specificaily excluded com- petent evidence tendered through witnesses to show mis- representations by the government’s representatives and substantially held (a) That such fraud could not be made available as against the Government; and 9 (b) ‘*9. The Court concludes as a matter of law that, even if proved, the misrepresentation which the Gov- ernment’s agent, Mr. Conarro, is charged with making, would not serve as a basis for voiding any part of the deeds to the United States because it dealt with a matter of law with which Kalmia was charged with notice and Mr. Conarro was not authorized to make any representations as to matters of law.’’ Tr. 423. Compare United States v. Nebo Oil Co., 90 F. Supp. 73, 90: ‘‘The general policy followed by the (National For- est Reservation) Commission was established at a meet- ing held on February 24, 1931. The pertinent portions of the minutes of that meeting read as follows: ‘« ‘Secretary Wilbur stated that as he understood the general attitude taken by the Solicitor, and from the practicable standpoint, the acquisition of these out- standing mineral reservations is not a necessary fea- ture of the acquisition of forest lands. ‘* “Mr. Marshall said the Forest Service felt that the expense of setting up the machinery to condemn min- eral rights would probably exceed any practicable benefits of that policy. He said that the Forest Service has had very little interference due to reservations. ‘«*Secretary Wilbur asked if the Forest Service thought it would be impracticable to pursue such a policy. ‘«*Mr. Kneipp stated that the original Weeks Law authorized and contemplated purchases subject to min- eral reservations and the amendment of March 4, 1913, authorized purchases subject to mineral rights out- standing in third parties. The existing policy of pur- chasing lands subject to mineral reservations therefore is in full accord with legislative policy. Every effort is made to secure title free from reservations but that cannot always be done. Up to date the exercise of such rights has not unduly interfered with the use of the acquired lands for forest purposes and such inter- ference as might occur is generally more than offset by cooperative benefits and savings in purchase price. ee PD AMER) CML ELENA ONE NS BOF 10 Unless lands are acceptable subject to mineral rights it would be very difficult to consolidate the Government holdings. ‘* “Senator Keyes askea what the question before the Commission was and Secretary Hurley said he raised the question as to the policy of acquiring forest lands without the complete title in fee and the solicitor has now made a report in which he shows that the policy of buying lands with mineral reservations outstanding, has the sanction of law and has been heretofore con- sidered the best policy. The question is now whether we are going to adopt the suggestion of the solicitor. ‘¢¢Senator Harris expressed the opinion that the Commission should have the power to act on individual cases. In nine-tenths of the cases the land could be acquired without the mineral rights reserved. Where the mineral rights amount to a great deal, he did not think it is intended by law that the Commission should put the Government into the timber or mineral busi- ness, which would be using funds which should be put into the purchase of lands. ‘**A motion to continue the prevailing policy of buying lands subject to mineral reservations was moved by Secretary Wilbur, seconded by Senator Keyes and carried.’ ‘‘The question of acquiring lands subject to out- standing mineral reservations was again considered by the Commission at the meeting held on March 3, 1938, and the conclusions reached in 1931 were again restated.’’ Under Mississippi practice judicial notice of these records will be taken. 3. These lands were acquired under the Weeks Act, as amended, whose pertinent provisions hereasto are as shown in Appendix ‘‘B’’, but note especially, 36 Stat. 962, amended 43 Stat. 1215, Title 16 U.S.C.A., Sec. 516: ‘‘The Secretary of Agriculture is authorized to pur- chase, in the name of the United States, such lands as 11 have been approved for purchase by the National Forest Reservation Commission at the price or prices fixed by said commission. No deed or other instru- ment of conveyance shall be accepted or approved by the Secretary of Agriculture under this section until the Legislature of the State in which the land lies shall have consented to the acquisition of such land by the United States for the purpose of preserving the navigability of navigable streams. * * *.’’ 4. Mississippi’s consent statute, Section 4156, Missis- sippi Code of 1942, appears as Appendix ‘‘C’’, 5. The Legislature of Mississippi, being subject to the provisions of the Constitution of Mississippi, herein set forth in Pornt II, subdivision VI, was wholly without power to surrender, if it so did, Mississippi’s sovereign power of taxation, quo ad minerals so located as (a) In no way to interfere with navigation; and (b) In no way to interfere with reforestation; it being said in the Nebo case, supra, at page 99: ‘‘The Commission and the Department of Agricul- ture have repeatedly recognized that the ownership of the mineral rights by third persons will not interfere with the purposes for which the land was being acquired and have stated that the ownership of oil and gas rights by third persons are a positive benefit because they provide excellent fire control. * * *.’’ 6. Assertion of the state sovereignty of taxation in rem against the minerals. These minerals were sold Septem- ber 21, 1942, and thereasto the court held, Tr. 408: ‘¢* * * Had the surface and minerals been owned by private individuals under the same conveyance that is here in controversy, then, of course, the tax title as between private parties would have been good for the reason that under the law of Mississippi under a ee eee ee 12 recent decision of the Supreme Court of Mississippi’’ (Hendria v. Foote, 205 Miss. 1, 38 So. 2d 111, See Ap- pendix ‘‘D’’) ‘‘it was definitely held that the sale of minerals which had been assessed for taxes was valid and the validity of the assessment rolls of the county for the year wherein the taxes were assessed has been held valid as between private individuals, but under the law of the United States the interest of the United States in lands is not subject to taxation, as was held in the New Brunswick case, 276 U.S, * * *.”’ And, assuming to follow this decision, the District Court cancelled petitioners’ title to the minerals. Thus sharply bringing to this Court for decision the defining of the boundary between the state’s power of taxation, quo ad non-essential minerals, under the Weeks Act. 7. Petitioners contend that non-essential minerals under- lying land acquired by the United States under the Weeks Act, especially the oil, remains subject to the paramount state sovereignty of taxation, and that this Court has im- pliedly, if not expressly, so determined. Compare Wilson v. Cook, 327 U.S. 474, 90 L. ed. 793; Oklahoma Tax. Com. v. Texas Company, 336 U.S. 342, 93 L. ed. 721. 8. The Court of Appeals and the District Court wrong- fully failed to apply to the tax title the law as established impliedly, if not expressly, in this Court. Questions Whereasto Certiorari Is Herein Sought These questions are of such importance as demand cer- tiorari, involving substantially (a) the Government; (b) oil; (c) State consent; and (d) State territorial taxing Power. I. Rectification of conflict between (a) State of Wash- ington v. United States, CCA 9th, 87 Fed. 2d 421, and 13 (b) the decision herein by the Court of Appeals for the Fifth Cireuit requisite in this Court. II. Oil underlying surface acquired under the Weeks Act remains subject to paramount state sovereignty and non-discriminatory ad valorem state tax thereon validly foreclosed vested title in petitioner, Hendrix, the power of Mississippi to impose ad valorem taxation supreme. (a) Uniform coordination in this Court requisite under administrative policy of the National Forest Reservation Commission which, with deference, contravenes expressly the decisions below that leasing in standard form with actual prospecting done constitutes a commercial ad- vantage. Compare United States v. Nebo Oil Co., 90 F. Supp. 73; but if therein as to the estate we err, then (b) The maximum property vested in the government being a possibility of reverter with no vested estate in the minerals state sovereignty sufficient to divest such pos- sibility. Under the original reservation Kalmia had the unquestioned right to remove all oil, being possessed thereof as of a determinable fee, the tax sale thereof valid. See Point I, subdivision II. (c) Assuming for the sake of argument that the United States had obtained a vested estate in the oil under the Weeks Act, still such an estate as to oil was held not in a Governmental capacity but in a private capacity and being so held was subject to divestiture through foreclosure of paramount state ad valorem tax lien. See Point I, sub- division ITI. (d) Under the Weeks Act the United States has con- sented, if this be essential, to ad valorem taxation of oil reservations. See Point II, subdivision IV. 14 (e) Mississippi’s sale of minerals, including oil, to pay for defaulted ad valorem non-discriminatory tax, valid. See Point II, subdivision V. (f) The legislature of Mississippi prohibited from con- senting that the United States might acquire the oil and, quo ad the oil, the assumed consent of the Legislature a nullity. See Point II, subdivision VI. (g) Wherever in Mississippi, there is a statutory power vested in a board of limited and special jurisdiction, it - must act by its minutes and its minutes must affirmatively disclose the jurisdiction. A failure so thus to do invali- dates. See Point I], subdivision VII. Ill. The Weeks Act, if it embraced the acquisition of severed minerals, was unauthorized by the Federal Con- stitution. See Point III. IV. Property in oil is admeasured by state, not federal, law. See Point V. V. Under the reservation of the oil, under a deed pre- pared by the government, underlying Weeks land, with the policy of the National Forest Reservation Commission thereasto, the provision in the deed requiring ‘‘it be found’’ in order to effectuate further renewals, by reason of the United States not being suable and the other reasons hereinabove set forth, made the provisions in the deed covenants compensable in damages not conditions where- under forfeiture might be. See Point VI. VI. The Court of Appeals in the Fifth Circuit in holding Kalmia not entitled to rely upon representations of govern- ment officials as to the extent of the provisions to be con- tained in the deed and excluding as incompetent evidence tendered, established a rule (a) contrary to the rule in this Court, Bull v. United States, 295 U.S. 261, 79 L. ed. 1421; 15 (b) contrary to the rule in the Second Circuit and others, Staten Island Hygeia Ice & Cold Storage Co. v. United States, 85 Fed. 2d 68; and (c) contrary to the law as announced by the Supreme Court in the State of Missis- sippi. See Point VII. VII. Provisions in reservation deleted by regulation of Donald M. Nelson and by the petroleum administrator after execution of the alleged reservation. See Point VIII. VIII. The Weeks act and the public policy of the Na- tional Forest Reservation Commission thereasto, peti- tioners’ representatives were actually deceived by those things to them told and having so been, thereasto were entitled to relief. See Point IX. IX. The Legislature of Mississippi prohibited from con- senting that the United States might acquire the oil and, quo ad the oil, the assumed consent of the Legislature a nullity. See Point X. X. Wherever in Mississippi, there is a statutory power vested in a board of limited and special jurisdiction, it must act by its minutes and its minutes must affirmatively dis- close the jurisdiction. A failure so thus to do invalidates. See Point XI. Reasons Why Certiorari Should Be Herein Granted As immediately heretofore shown: (a) The Court of Appeals in this cause decided an im- portant question of Federal procedure directly in con- flict with the rule as established in the Ninth Circuit and elsewhere applied and a reconciliation hereasto is essential. (b) The Court of Appeals herein decided a very im- portant Federal question as hereinabove shown in conflict 16 with (1) the opinions of this Court; (2) the opinions on the precise point in other Circuits; and (3) in conflict with the established law in the State of Mississippi. (c) The admeasurement of Mississippi’s power to tax oil under mineral reservations where surface has been acquired by the Government is, as above shown, a vital issue solely solvable herein and of the utmost national im- portance for appropriate preservation of the dual system of government. (d) The Court of Appeals of the Fifth Circuit in affirm- ing the District Judge held petitioners not entitled to asserted fraud as against the Government, with deference, in palpable conflict with (1) the decisions here; (2) de- cisions in other Circuits; and (3) decisions in the State Supreme Court. (e) And for other causes apparent to this Court and not more specifically assigned than is hereinabove done. Petitioners attach to this petition a certified copy of the transcript of the record of the United States Court of Appeals, and upon presentation of the petition have furnished ten copies of the record as printed in the United States Court of Appeals, Fifth Circuit, with proceedings and opinions in that court. Wherefore, petitioners pray for a writ of certiorari from this Honorable Court directed to the United States Court of Appeals for the Fifth Circuit, commanding that court to certify and send to this court for its review and determi- nation, on a day named therein, a full and complete tran- script of the record and all of the proceedings in the case of Kalmia Realty & Insurance Company v. United States, No. 12,965, on the docket of the court, and that the judg- _— 17 ment of said court may be reversed, and appropriate rectification here had. Jupce Bren Stevens, Hattiesburg, Mississippi; J. R. Bucwanan, L. Barrett Jonss, Jackson, Mississippi; Watter 8. WELcH, Garner W. GREEN, Wetcu, Cooper & WELCH, Laurel, Mississippi; BucHanan & MonTGoMERY, Laurel, Mississippi; GrEEN, Green & CHENEY, 801 Standard Life Building, Jackson, Mississippi, Of Counsel. ie te aa SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1950 No. 247 KALMIA REALTY & INSURANCE COMPANY, ET AL., Petitioners, vs. UNITED STATES OF AMERICA, Respondent BRIEF FOR PETITIONERS Opinions Below There is no opinion by the District Judge but findings of fact and conclusions of law are printed Tr. 391, 407 and 421. The opinion of the Court of Appeals filed May 15, 1950, is reported Kalmia Realty & Insurance Co. v. United States of America, 181 Fed. 2d 598, is in the record at page 444 -— is made Appendix ‘‘ A’? to this brief. Basis for Jurisdiction The statement showing the grounds upon which jurisdic- tion of this Court is invoked is set forth at page 1 of the foregoing petition and is by reference adopted as a part of this brief. pai’ PPT LAM pes GPRNO NN RRNA RESPOND wre 20 Statutes Involved Those herein set forth. Statement The material facts have been set forth in the summary statement at pages 1-12 et seq., of the preceding petition and such statement is by reference adopted as part of this brief. ARGUMENT Port I Rectification of Conflict Between (a) State of Washington v. United States, 87 Fed. 2d 421, CCA 9th, and (b) the Decision Herein by the Court of Appeals for the Fifth Circuit Requisite in This Court. 1. The District Court specifically found jurisdiction (Tr. 391) affirmed by the Court of Appeals (Tr. 445). 2. Where either equity jurisdiction is lacking (Hipp v. Babin, 19 How. 278, 15 S. Ct. 633), or Federal diversity jurisdiction, does not appear (Indianapolis v. Chase National Bank, 314 U.S. 63, 86 L. ed. 47), sua sponte the court will act (State of Texas v. State of Florida, 306 U.S. 398, 83 L. ed. 817; Atlas Life Ins. Co. v. W. I. Southern, Inc., 306 U. 8. 563, 83 L. ed. 987). 3. The conflict between the Ninth Circuit and the Fifth Circuit : (a) In 87 Fed. 2d at page 423, it is said: ‘‘Suit by the United States against the Columbia River Packers Association and others, in which the States of Washington and Oregon filed motions for leave to intervene. From a decree for plaintiff (U. 8. v. Columbia River Packers Ass’n, 11 F’. Supp. 675), the 21 defendants appeal, and from orders denying their re- spective motions for leave to intervene, the States of Washington and Oregon separately appeal.’’ Therein there was a lease by the State, and the United States sought cancellation without the State, lessor, being thereto a party, whereof the Ninth Circuit thus held: ‘If we accept this statement that the decree decided the title to the property, it is apparent that in the in- stant case, appellant State of Washington, is an in- dispensable party. To test the soundness of this rule, it is well to consider what happens when a term for years is granted. When an estate for years is granted, the grantor divests himself of the right of possession for the term specified. At the end of that term this right of possession passes or reverts to the grantor by operation of law—a process which is called ‘rever- men en, * * * * « * * “‘The right of possession having been granted by the grantor, the latter, of course, does not again acquire that right until the term, for which he has granted it, terminates. Such right of possession, upon termination of the term, then reverts to the grantor. While this right of possession is in the lessee, a decree, in a suit brought against the lessee by a third party adjudicating that such lessee has no title or right of possession, be- cause his grantor had none to convey to him, directly adjudicates against that right, by adjudicating that such right of possession was in neither the lessor nor the lessee. The lessor is affected (not in the sense that he is concluded by the decree as res adjudicata), because the thing, which he claims he owned at the time of the grant to the lessee, and which he claims will revert to him is declared by the decree to be non-existent. Such a decree then does have an effect on the lessor’s rights, for at the termination of the term, under the decree the right of possession could not revert to the lessor.’’ PR SAS 22 Compare Delno v. Market St. Ry. Co., 124 Fed. 2d 965, 968, C. C. A. 9th, where that wherefor we herein contend was _ accurately epitomized. (b) This rule, though approved widely, was herein denied application when the United States, after making commer- cial leases for oil to the major oil companies, alone brought suit against the defendants, Kalmia and Hendrix to con- firm the entire mineral estate, just as it had done in the Washington case, supra. As at the date of the institution of this suit, the property rights (if the United States was the owner of the oil, which we deny) are thus defined by Mississippi’s court in Koenig v. Calcote, 199 Miss. 435, 25 So. 2d 763, 766: ‘«* * * when the Calcotes executed the oil and gas leases in favor of the Sun Oil Company they had left in them, first, a reversionary fee interest in the oil, gas and other minerals, if and when the oil and gas lease should ‘for any reason’ become canceled or forfeited, second the right to receive the rentals and royalties during the life of the lease * * *.’’ But, as further therein defined, the lessees (these major oil companies) claim a determinable fee in the minerals whereasto alone this controversy is, and the mineral estate thus claimed to be vested might be at the pleasure of the lessee worked to exhaustion, as said in the Koenig case at page 765: ‘««* * * Said conclusions also fail to take into account the fact that the estate held by the Sun Oil Company at the time of the execution of the deed was a determinable fee, Lloyd’s Estate et al. v. Mullen Tractor & Equip. Co., 192 Miss. 62, 4 So. 2d 282, * * *.” See, also, Gulf Refining Co. v. Stanford, 202 Miss. 602, 30 So. 2d 516; Bailey v. Federal Land Bank of New Orleans, 207 Miss. 764, 43 So. 2d 375; Calcote v. Texas Pacific Coal & Oil Co., 157 Fed. 2d 216, C. C. A. 5th. This interpretation — | a of estates in land by the state supreme court is conclusive here. Compare Edward Hines Yellow Pine Trustees v. Martin, 268 U. S. 458, 69 L. ed. 1050; Memphis Natural Gas Co. v. Stone, 335 U.S. 80, 92 L. ed. 1832; International Union of U. A. A. € A. v. O’Brien, — U.S. —, 94 L. ed. 559, 660; International Oil Pipe Line Co. v. Stone, 337 U. S. 662, 93 L. ed. 1613. 4. So, when the United States instituted this action to recover the minerals whereasto this controversy is, it af- firmatively appears: (a) That before the institution of this suit the United States had conveyed a determinable fee through the leases to these several oil companies and had given the right of unconditional user and thereafter could possess only a pos- sibility of reverter, whereunder it might not sue to recover that it had conveyed to another, but of course might protect its delay rental and royalty. Compare Finkbine Lumber Co. v. Saucier, 150 Miss. 446, 116 So. 736, 737; Smith v. Sal- men Brick & Lbr. Co., 151 Miss. 329, 118 So. 179; Minor on Real Property, Vol. 1, Sec. 780, p. 1012. Compare, also, Prall v. Burckhartt, 299 Ill. 19, 132 N. E. 280, and Annotation 18 A. L. R. 1008, subsection II; Richard- son v. Holman, — Fla. —, 30 So. 2d 641. See, also, 31 C.J. 8S., ‘‘Kstates’’, Sec. 105, p. 125, referring to and approving 21 C. J. 1017. Therefore, while this possibility of reverter of the minerals thus conveyed after a determinable fee is presently alienable under Mississippi statutes as an ‘‘interest’’, its fundamental nature of not being an estate—of being wholly contingent, of being destructible by legislation—continu- ously remains. Compare 33 Am. Jur., p. 683. So that, quo ad the oil, the United States, after these leases, had not that which is here in controversy—there is no controversy other or further—only a possibility of reverter with royalty reser- 23 > 24 vation, and having such a right is subject to those disabilities of suing thereon inherently incident. These major oil com- panies who possess under this deed this mineral fee are surely indispensable parties. (b) Conversely, these major oil companies owning this determinable fee have that which in the above quoted cases under a rule of property—( Wisconsin Lumber Co. v. State, 97 Miss. 571, 54 So. 247; Forest Product & Mfg. Co. v. Buck- ley, 107 Miss. 897, 66 So. 279)—constitutes the entire title to the minerals, except, of course, possible royalty when, if and after production is struck. These major oil companies, quo ad the oil, claimed to have the exclusive right to enter, produce and remove, accounting after production to the United States only as to a royalty. On an arbitrary basis, therefore, we may assume and so do that the interest claimed to be in the major oil companies is at least 7/8ths with right of possession, and in the United States 1/8th without the right of possession, and so having, are not presently in any way before the Court. Petitioners do not controvert Federal jurisdiction so far as the rights of the United States, as plaintiff properly suing, are concerned, but when the fee is vested with the exclusive right of possession under these leases in these major oil companies, there is no jurisdiction shown in the District Court by reason of diversity or a Federal question not therein appearing, for as to this mineral fee these major oil companies may not sue in the Federal court as a matter of right unless there be diversity or other basis for Federal jurisdiction (Skelly Oil Co. v. Philips Petrolewm Co., — U. S. —, 94 L. ed. 845), and when the District Court con- firmed in the United States the entire mineral fee, it com- mitted a palpable error, when it knew that as to a determi- nable fee in the oil with an exclusive right to develop these major oil companies claimed to be the owners thereof. With deference, the District Judge and the Court of Appeals atl a flagrantly departed from the proper rule established in the Ninth Cireuit. The extent of the major oil companies’ claimed ownership appears in the exhibits transmitted with the record. 25 Point II Oil Underlying Surface Acquired under the Weeks Act Re- mains Subject to Paramount State Sovereignty and Non- Discriminatory Ad Valorem State Tax Thereon Validly Foreclosed Vested Title in Petitioner, Hendrix, the Power of Mississippi to Impose Ad Valorem Taxation Supreme. (a) The Weeks Act (March 1, 1911, Ch. 186, 36 Stat. 961-963, as amended, 37 Stat. 855, 38 Stat. 441, 43 Stat. 654, 43 Stat. 1215, and 49 Stat. 1225, Title 16 U. S. C. A., Sees. 480, 500, 513-519, 521, 552 and 563, hereinafter called ‘‘Weeks Act’’). Herein, we make no challenge as to the constitutionality of this act insofar as and to the extent that it covers (a) timber, (b) surface, and (c) all factors essential to regulate navigation, but if the act be construed as to the sovereign taxing power of the State to cover a reservation in the underlying oil in no way within the pur- pose of the Act, then thereasto as against the State’s sovereign taxing power this Act is void. (b) But properly construed and as held by this Court, the Weeks Act as to oil leaves state sovereignty unimpaired. The District Judge invalidated Hendrix’s title to the oil solely under New Brunswick v. United States, 276 U. 8S. 547, 72 L. ed. 693, wherem the United States under the war power had acquired, presumptively with the consent of New Jersey, certain lots whereon dwellings were erected to effectuate the war effort. Thereafter, on dissolution these lots were sold substantially with a deed to the pur- chaser with the reservation of a paramount lien to the United States to secure the unpaid balance, and as to (a) land, and (b) the war power, this Court held that, quo ad —y, 26 the unpaid purchase money, there might not be a foreclos- ure of the tax lien unless and except the same fully pro- tected the Government. Substantially reaffirmed in S. R. A. v. Minnesota, 327 U. S. 558, 90 L. ed. 851. See, also, West v. Oklahoma Tax Com., 334 U.S. 723, 92 L. ed. 1680; United States v. Allegheny County, 322 U. S. 174, 88 L. ed. 1209. But, with deference, these cases are neither controlling nor persuasive because this Court recognizes the increasing social demands upon the states and that their sole recourse for the protection and welfare of the citizens is the taxing power. Compare Oklahoma Tax Commission v. The Texas Company, 336 U. S. 342, 93 L. ed. 721, whereasto it was declared, p. 736: scc# * * Tn the light of the expanding needs of State and Nation, the inquiry has been pressed whether this conclusion has adequate basis. . . .’ 303 U. S. at 384.”’ The demarcation between national sovereignty and state sovereignty, quo ad taxation of oil, presents a question on the constitutional level, and as to the conflict between these sovereignties this Court there declared in the Oklahoma case, page 732: ‘‘Our present problem lies on the constitutional level. It requires reconsideration of former decisions spe- cifically in point, together with later ones deviating in rationale. It is of substantial importance both for the states’ powers of taxation and for the subjects on which they may impinge. Moreover, even though the immediate questions are closely related to federal pol- icies concerning Indian Lands, they are equally tan- gent to considerations affecting other types of situa- tions raising questions of immunity.’’ This Court further therein declared (p. 732) : “‘Tt is true that this Court’s more recent pronounce- ments have beaten a fairly large retreat from its for- 77 27 merly prevailing ideas concerning the breadth of so called intergovernmental immunities from taxation, a retreat which has run in both directions—to restrict the scope of immunity of private persons seeking to clothe themselves with governmental character from both federal and state taxation. The history of the immunity, by and large both aspects, represents a ris- ing or expanding curve tapering off into a falling or contracting one.’’ This Court said in West v. Oklahoma Tax Commission, 334 U. S. 723, 92 L. ed. 1680: ‘*Since 1819, when M’Culloch v. Maryland, 4 Wheat (U. 8S.) 316, 4 L. ed. 579, was decided, it has been estab- lished that the property of the United States is im- mune from any form of state taxation, unless Con- gress expressly consents to the imposition of such lia- Me es, As was said by Mr. Justice Black in Mulane v. Central Hanover Bank &@ Trust Co., — U. S. —, 94 L. ed. 578, 582: ‘‘The legal recognition and rise in economic im- portance of incorporeal or intangible forms of prop- erty have upset the ancient simplicity of - Reaaates law and the clarity of its distinctions, * * The status of oil as property is almost a complete anom- aly under the common law and whether this Court will hold (a) that its status must be determined under the Fed- eral law (United States v. Nebo Oil Co., 90 F. Supp. 73) or (b) under the law of Mississippi (Merrill Eng. Co. v. Capi- tal Nat. Bank, 192 Miss. 378, 5 So. 2d 666; Stokely v. State, 149 Miss. 435, 115 So. 563), is as yet not definitely settled as to the Weeks Act though thereunder the United States has acquired in Mississippi 1,003,215 acres, Tr. 96, and has exercised power under this statute in forty-one of the states, and yet the status of this most important war ma- terial, oil, has not been adjudicated. Compare Rist v. Toole 28 County, — Mont. —, 159 P. 2d, 340, 162 A. L. R. 402; Cala- han v. Martin, 3 Cal. 2d 110, 43 P. 2d 788, 101 A. L. R. 872; McIntosh v. Vail, 126 W. Va. 395, 28 S. E. 2d 607, 151 A. L. R. 804; Toothman v. Courtney, 62 W. Va. 177, 58 S. EH. 915; and Gulf Refining Co. v. Stone, 197 Miss. 713, 21 So. 2d 19. But see Hendrix v. Foote, 205 Miss. 1, 38 So. 2d 111, Ap- pendix ‘‘D’’, I. Uniform Coordination in This Court Requisite under Ad- ministrative Policy of the National Fores* Reserva- tion Commission Which, With Deference, Contra- venes Expressly the Decisions Below That Leasing in Standard Form With Actual Prospecting Done Constitutes a Commercial Advantage. As epitomized in United States v. Nebo Oil Co., 90 F. Supp. 73, it was as to the policy of the United States under the Weeks Act properly judicially held: (a) Congress did not appropriate a single cent for min- eral acquisition. (b) As to the authority of the Secretary, that court said (p. 86): ‘¢ «The first question which therefore arises is as to whether large investments in mineral values would be in accord with the purpose and intent of the Weeks Law (16 U.S. C. A. Sees. 480, 500, 513 et seq., 521, 552, 563) and Clarke-McNary Law (16 U. S. C. A. Sees. 471, 505, 515, 564 et seq.) which primarily were designed to promote the protection of navigable streams and the production of timber supplies. With practically limited appropriations available for purchase work and with the acquisition requirements largely in excess of the available appropriations, every dollar expended in payment for mineral values would be one dollar less available for the purchase of lands to carry out the primary purposes of the Acts and appropriations, One 29 logically nray inquire whether in the event Federal acquisition of mineral deposits is deemed desirable, the cost of their acquisition should not be borne by other appropriations’.’’ (c) The retention of the minerals by the original owner is not contrary to the spirit of the Act, but in general (90 F. Supp. 86): ‘** ‘So far as can be foreseen, the net effect accruing from the exercise of the retained mineral rights will generally be beneficial rather than detrimental to good forest management. Oil and gas development in the Allegheny Purchase Area seldom involves the with- drawal from timber production of more than one per cent of the surface, much of this is carefully cleared and patrolled pipe-line rights-of-way. The fire pre- ventive measures of the oil men contribute more to timber production than would the use of the small sur- face areas they occupy. * * *’.’’ (d) Herein the cash consideration was only $1.35 per acre against the average figure in Mississippi of $3.53 per acre for 1,003,215 acres wherein was included 18,000 acres of timber at $42.81 per acre, Tr. 96. (e) In many instances reservations of the minerals in fee were allowed without question when insisted upon, and that here requisite is the fitting of the statute into the pic- ture perfected by the interpretation of the National Forest Reservation Commission. Under the Weeks Act, as imple- mented by the National Forest Reservation Commission, the inferior courts have not correctly as to Kalmia vouch- safed that whereto as a citizen it was in good faith entitled to at the hands of a government at war. We animadvert, with deference, the responses made by the government to the interrogatories propounded, clearly concealing the uni- form policy of the government of vouchsafing mineral reser- 30 vation to the land owner when such land owner insisted upon it. Tr. 80-97. (f) The evidence in this record is uncontradicted, with deference, that Kalmia and those claiming under it thus did assert the right to retention of the minerals but under overwhelming pecuniary pressure were compelled to ac- cede to the demands of the local Forestry representatives who were unwilling to give that whereto Kalmia was law- fully entitled—mineral reservation in fee—and it thus be- comes absolutely imperative that this Court fit this reser- vation into the terms of the statute as interpreted by, not the local representative, but by the National Forest Reser- vation Commission itself, and thus interpreting, with def- erence, commercial advantage unquestionably occurred with an extension certainly for a period of five years. Compare 2 Summers Oil and Gas, Ch. 10, Sec. 301, p. 159; Conti- nental Oil Co. v. Osage Oil & Refining Co., C. C. A. 10th, 69 Fed. 2d 19, 23, wherein it is said: ‘Where the lessor refuses to give possession to the lessee or wrongfully obtains an injunction against the lessee restraining operations on the land, it has been held that the definite term will be treated as extended for the length of time that the lessee is thus kept out of possession or restrained from operations by the wrongful act of the lessor. Stahl v. Van Vleck, 53 Ohio St. 136, 41 N. E. 35; Standard Oil Co. of La. v. Webb, 149 La. 245, 88 So. 808. ‘““The conduct of the lessor may create an estoppel which will preclude him from asserting a termination of the lease because of non-production at the expira- tion of the definite term. Ohio Fuel Oil Co. v. Green- leaf, 84 W. Va. 67, 99 S. E. 274; Hodges v. Miller (Tex. Civ. Anp.), 244 8S. W. 634.”’ See, also, Smith v. Salmen Brick & Lhbr. Co., 151 Miss. 329, 118 So. 179; therein having been of counsel the record shows — 31 a denial of the land owner of the right to remove the timber with skidders wherefor there was such right and the court upon the right being denied by the land owner extended the term. Herein, the United States being at war, it would have been substantially treason to have defied the Govern- ment at the time it took possession. The lower courts held notwithstanding the interpretation by the National Forest Reservation Commission (which interpretations were not submitted to the Court of Appeals by reason of the manner in which the interrogatories were answered) and had this interpretation by the Commission been submitted to the courts, it well may have been that they would not have taken the view that ‘‘commercial advantage’’ required actual production, especially as these lands were under lease by Kalmia with the right in the lessee to enter and drill, the deed specifically providing that if drilling were being had at the expiration date extension, per se, occurred. In view of the administrative determination by the Na- tional Forest Reservation Commission, the construction by the Court of Appeals of the reservation amounted to a crucifixion. It took from Kalmia that wherefor the Gov- ernment had not paid and whereasto full title with plenary removal rights was specifically reserved to be retained by Kalmia without interference by the Government and when Kalmia was doing and had done precisely that subsequently done by the United States, the receipt of $15,311.70 was unquestionably a commercial advantage extending the time. II. Under the Original Reservation Kalmia Had the Un- questioned Right to Remove All Oil, Being Possessed Thereof as of a Determinable Fee, the Tax Sale Thereof Valid. For the oil, the United States had paid naught and as owner Kalmia might have executed a perpetual oil lease 32 reserving a fixed rental payment. Compare Lloyd’s Estate v. Mullen Tractor & Equip. Co., 192 Miss. 62, 4 So. 2d, 282, approved in Koenig v. Calcote, 199 Miss. 435, 25 So. 2d 763; Anderson v. Sun Oil Co., — Miss. —, 42 So. 2d 238. Under this reservation with this right of absolute removal with- out impinging upon the right of the United States, thereasto Kalmia possessed the mineral fee and the United States possessed a possibility of acquisition after Kalmia had exercised its paramount property rights. As was said in Finkbine Lumber Co. v. Saucier, 150 Miss. 446, 116 So. 736, 737: ‘Under the deed by which the appellees conveyed the timber to Field, they had a possibility of reaequir- ing the timber by its reverting to them in event it should not be cut and removed from the land within the time limited in the deed therefor. Ladiner v. In- gram Day Lumber Co., 135 Miss. 632, 100 So. 369. It is true that this possibility, known as ‘possibility of reverter’ (Crorow Hardwood Co. v. Burks (Miss.), 115 So. 585; Memphis & Charles R. R. Co. v. Neighbors, 51 Miss. 412; Vicksburg & Meridian Railroad Co. v. Ragsdale, 54 Miss. at page 216) was a bare possibility, and not one coupled with an interest (Challis’s Real Property (3d Ed.) note on page 76), and therefore inalienable at common law. * * *.’’ Approved in Sumter Lumber Co. v. Skipper. 182 Miss. 595, 184 So. 302. Where there is complete ownership of the oil in Kalmia with plenary power to remove and only a possibility of reverter in the United States, the state’s taxing power, quo ad Weeks Act mineral reservations, is supreme. Com- pare United States v. Burnison, 338 U. S. 87, 94 L. ed. 433, 436, wherein it is said: ‘‘The Fox Case is only one of a long line of cases which have consistently held that part of the residue 33 of sovereignty retained by the states, a residue insured by the Tenth Amendment, is the power to determine the manner of testamentary transfer of a domiciliary’s property and the power to determine who may be made beneficiaries. It would be anomalous to hold that, because of an amorphus doctrine of national sov- ereignty, federal constitutional law reached into a California statute and made impotent that state’s re- strictions on the designation of beneficiaries.’’ (Km- phasis ours.) See, also, United States v. Fox, 94 U.S. 315, 24 L. ed. 192. By Section 112 of Mississippi Constitution, fundamentally altering the Constitution of 1869, it was explicitly provided: ‘‘Taxation shall be uniform and equal throughout the state. Property shall be taxed in proportion to its value. * * * Property shall be assessed for taxes under general laws, and by uniform rules, according to its true value. * * * But all such property shall be assessed at its true value, and no county shall be denied the right to levy county and special taxes upon such assessment as in other cases of property situated and assessed in the county.’’ And in Mississippi the proceeding is in rem. Compare Mississippi Code of 1942, Section 9744. A tax sale pursuant thereto divests contingent interests. Compare Merrill Eng. Co. v. Capital Nat. Bank, 192 Miss. 378, 5 So. 2d 666, approving Jackson v. Ashley, 189 Miss. 818, 199 So. 91. Thus when the United States only possessed this possi- bility of a reverter with the entire beneficial interest vested. in an individual, it was competent for Mississippi to sell for a default in payment of its taxes that thus individually owned. Compare United States v. County of Allegheny, 322 U. S. 174, 187, 88 L. ed. 1209, 1219, wherein it is said: _ es * We have held that where private interests in property were so preponderant that all the Govern- 34 ment held was a naked title and a nominal interest, the whole value was taxable to the equitable owner. North- ern P. R. Co. v. Myers, 172 U. S. 589, 43 L. ed. 564, 19 S. Ct. 276; New Brunswick v. United States, 276 U. S. 547, 72 L. ed. 693, 48 S. Ct. 371. * * °7. Compare United States v. Kansas City Life Ins. Co., — U. S. —, 94 L. ed. 896, 905, in the dissenting opinion, Mr. Justice Minton said: ‘cee * 6* not all economic interests are ‘‘prop- erty rights’’; only those economic advantages are ‘‘rights’’ which have the law back of them, and only when they are so recognized may courts compel others to forbear from interfering with them or to compen- sate for their invasion.’ United States v. Willow River Power Co., 324 U. S. 499, 502, 89 L. ed. 1101, 1107, 65 S. Ct. 761.”’ See, also, 33 Am. Jur., p. 683, wherein it is said: ‘««* * * Tt seems that a mere possibility of reverter may be defeated by statute, because such possibility of reverter, being a mere expectation of property in the future, is not a vested right, and may be changed, modified, or abolished by legislative action.’’ Compare 31 C.J.S., ‘‘ Estates’’, Sec. 105, p. 125. This deed must be construed in the light of the purpose of the Act whereasto it was said in United States v. Nebo Oil Company, 90 F. Supp. 73, 99: ‘«* * * Commission has taken the position that it is not authorized to purchase minerals with funds ap- propriated for the purchase of lands for forest pur- poses. ‘The Commission and the Department of Agriculture have repeatedly recognized that the ownership of the mineral rights by third persons will not interfere with the purposes for which the land was being acquired and have stated that the ownership of oil and gas rights by third persons are a positive benefit because they pro- vide excellent fire control. * * *.”’ _ 35 So, when Kalmia owning absolutely the oil defaulted in the payment of the tax imposition made by Mississippi hereasto and Hendrix purchased all the oil under a perfect title by a proceeding in rem, the fact that the United States owned the surface and timber and Hendrix under the state sale owned the oil with a right to remove it without impair- ing the United States’ rights in the surface (compare McNeese v. Renner, 197 Miss. 203, 21 So. 2d 7; Pace v. State, 191 Miss. 780, 4 So. 2d 270), there was as between the sovereignties presented a not unusual condition and one in which the United States was not authorized to forfeit the foreclosure title vested by the State of Mississippi for a mere failure to remove within the time required the oil therefrom. Compare Peterson v. Gibbs, 147 Cal. 1, 81 Pac. 121, wherein it is said: ‘Here there is absolutely nothing in the terms of the agreement which can be construed as making the re- moval of the timber a condition precedent to the pass- ing of the title, or in case delay in such removal, beyond the period of ten years from the date of the instrument, or a failure to pay the rental reserved or one-half of the taxes, to operate as a divesting of the title con- veyed. The terms of the instrument literally signify as absolute conveyance of timber, and there is nothing in the provisions relied upon by the plaintiff to impair the plain words of the present grant.”’ In Halstead v. Jessup, 150 Ind. 87, 49 N. E. 821, it is said: The law does not favor forfeitures and will not en-_ force them in the absence of clearly stated conditions of forfeitures. Here, as we have stated, there is no stated condition of forfeiture. If by delay in taking the timber, after the period named, damage would accrue to the owner of the land, it would not be ques- tioned that such damage could be recovered, but it would be manifestly unjust that mere delay should forfeit both appellant’s money and his timber, and that 36 the appellee should become the owner of the timber upon the strength of an implied forfeiture.’’ Compare Alexander v. Bauer, 94 Minn. 146, 102 N. W. 388; Irons v. Webb, 41 N. J. L. 204; Mathews v. Mulvey, 38 Minn. 342; Stuckley v. Butler, Hob. 300; Gregg v. Birdsall, 53 Barb. 405; Paterson v. Graham, 164 Pa. St. 241; Knotts v. Hydrick, 12 R. Law. 314; Johnson v. Truitt, 122 Ga. 327, 50 S. E. 136; Peace v. Gibson, 6 Me. 83; Howard v. Lancoln, 12 Me. 122; Davidson v. Moore, 37 S. W. 206; Hott v. Strat- ton Mills, 54 N. H. 109. In this aspect, the purchaser was entitled to a judicial hearing as to whether or not the receipt of $15,311.70 and the method of working constituted a ‘‘commercial advan- tage’’, compare Wisconsin Elec. Power Co. v. United States, 336 U. S. 176, 93 L. ed. 591, and before the United States might take from Hendrix that precedently in him vested it was requisite that hereasto he be vouchsafed a judicial hear- ing. Compare Mulane v. Central Hanover Bank & Trust Co., — U.S. —, 94 L. ed. 578, 583, wherein it is 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 adjudica- tion be preceded by: notice and opportunity for hearing appropriate to the nature of the case.’’ And yet herein the United States was not subject to suit. Compare Perry v. United States, 294 U. S. 330, 79 L. ed. 912. Yet Hendrix was entitled under the Fifth Amendment to this protection and being so thus entitled the deed could only be made law conforming by construing the provisions hereasto, if essential, as covenants and not conditions, and this, Mississippi’s law required. Compare Memphis ¢ Charleston R. R. Co. v. Neighbors, 51 Miss. 412, 418: ‘*A court of equity declines to lend its aid to enforce a forfeiture. Judge Story lays down the doctrine 37 broadly, ‘that it will never enforce either a penalty or a forfeiture’; and adds, ‘therefore it will never aid in the divestiture of an estate for a breach of a covenant on a condition subsequent, although it will often inter- fere to prevent the divestiture of an estate for a breach of covenant or condition. 2 Eq. Jur., Sec. 1319. In the case of Livingston v. Tompkins, 4 Johns. Ch, 430, Chan- cellor Kent declared it was ‘contrary to the uniform course of the court and its established principles to aid in divesting an estate for breach of condition sub- sequent.’ ’’ Compare Natchez v. Thornton, 88 Miss. 1, 41 So. 498; 4 Thompson on Real Property, Sec. 2044, p. 571. Additionally, the District Judge and the Court of Appeals held the provision herein as to the location of the well and twenty-five acres thereabout void, and under Ates v. Ates, 189 Miss. 226, 196 So. 243, where the exception is void, the estate is not divested. So that when, under these circum- stances, the entire estate in the minerals being individually vested on September 21, 1942 in Kalmia and the paramount lien of the state in rem being thereasto exercised, an uncon- ditional fee in that vested in Kalmia passed to Hendrix and thereasto the United States should have been content with that provision made by the Secretary and integrated into this deed providing, Tr. 24: ‘2. In prospecting for, and in mining and removing minerals, oils, and gas, and in manufacturing the prod- ucts thereof, only so much of the surface shall be occupied, used or disturbed as is necessary for the purpose.’’ And any provision integrated into this deed in conflict therewith might well here be regarded as void. Compare Chapman v. Sheridan-Wyoming Coal Co., 338 U. S. 810, 94 L. Ed. 307, 312: ‘«The only claim of law violation is that the Secretary is proposing to violate his own regulation, promul- 38 gated pursuant to the Act and hence having the force of law. That it binds him as well as others while it is in effect is not doubted.’’ The effect of the provisions by Donald M. Nelson, Director of Priorities, and of the Petroleum Administrator will be later more fully developed by integrating these as well as the interpretation made in Wilson v. Cook, 327 U. 8. 474, 90 L. Ed. 793, and the express terms of Sec. 486, Title 16 U.S. C. A., ‘‘National Forests’’. We do assert that the title of Hendrix was absolute. In fairness to the District Judge he did on the bench express serious doubt as to the correctness of his decision hereasto and we, with deference, submit that when this sale was made the fee vested in Hendrix under the state’s sovereign taxing power. Ill. Assuming for the Sake of Argument that the United States Had Obtained a Vested Estate in the Oil under the Weeks Act, Still Such an Estate as to Oil Was Held Not in a Governmental Capacity But in a Pri- vate Capacity and Being So Held Was Subject to Divestiture Through Foreclosure of Paramount State Ad Valorem Tax Lien. The United States claimed solely under the Weeks Act, Tr. 81. Compare Wilson v. Cook, 327 U. 8. 474, 90 L. Ed. 793. The United States as a nation might make acquisitions of land for other than the purposes prescribed in Art. 1, Sec. 8, subsection 17, of the Constitution, Collins v. Yosemite Park & Curry Co., 304 U. S. 518, 82 L. Ed. 1502, but subject to the rights prescribed in the consent given by the State, and assuming said consent of Mississippi to have been validly given (for consent statute, see Appendix ‘‘C’’), which we question, the United States, quo ad the oil, was engaged in a private—non-governmental—business enter- 39 prise with profit as an incentive. That being done varied naught from that which might have been done by a private oil company under its dominium but subject to the imperium of the sovereign State, and so when the United States was thus engaged in that which was strictly a non-governmental but competitive commercial enterprise thereasto Mississippi sovereignty rendered the Government’s property amendable to its tax laws. Compare South Carolina v. United States, 199 U. S. 437, 50 L. Ed. 261, 264, wherein it is said: ‘‘The important question in this case is whether per- sons who are selling liquor are relieved from liability for the internal revenue tax by the fact that they have no interest in the profits of the business, and are simply the agents of a state which, in the exercise of its sov- ereign power, has taken charge of the business of selling intoxicating liquors. ‘*We pass, therefore, to the vital question in the case, and it is one of far-reaching significance. We have in this republic a dual system of government,—national and state,—-each operating within the same territory and upon the same persons, and yet working without collision, because their functions are different. There are certain matters over which the national government has absolute control, and no action of the state can inter- fere therewith, and there are others in which the state is supreme, and in respect to them the national govern- ment is powerless. To preserve the even balance be- tween these two governments, and hold each in its sepa- rate sphere, is the peculiar duty of all courts; pre- eminently of this,—a duty oftentimes of great delicacy and difficulty. ‘*Now, if it be well established, as these authorities say, that there is a clear distinction as respects respon- sibility for negligence between the powers granted to a 40 corporation for governmental purposes and those in aid of private business, a like distinction, may be recog- nized when we are asked to limit the full power of im- posing excises granted to the national government by an implied inability to impede or embarrass a state in the discharge of its functions. It is reasonable to hold that, while the former may do nothing by taxation in any form to prevent the full discharge by the latter of its governmental functions, yet, whenever a state en- gages in a business which is of a private nature, that business is not withdrawn from the taxing power of the nation.’’ (Emphasis ours) Compare Willmette Park District v. Campbell, 338 U.S. 411, 94 L. Ed. 177; New York v. United States, 326 U. S. 572, 90 L. Ed. 326; Allen v. University System, 304 U.S. 489, 82 L. Ed. 1448; Helvering v. Powers, 293 U.S. 214, 79 L. Ed. 291; and Ohio v. Helvering, 292 U.S. 360, 78 L. Ed. 1307. The increasing social needs of the state may only be met from taxes as hereinabove shown. The taxation of oil in Mississippi is a principal source of revenue. See Appendix ‘‘K’’, And that tlius at issue is when ex gratia the govern- ment took from Kalmia (if it so did) this oil without com- pensation, and without disclosing to Kalmia that it could not pay therefor (United States v. Nebo Oil Company, 90 F. Supp. 73) and wrongfully failed to disclose the settled policy of the National Forest Reservation Commission that min- eral retention was conservative of navigation and reforesta- tion (compare the want of frankness in the answers to interrogatories propounded to the United States Tr. 80 wherein the fundamental policy of the government was, we submit, wrongfully concealed) and as a governmental secret refused to disclose the realizations from leases, Tr. 353, which we are at liberty to presume equalled at least three- quarters of a million dollars secured from the recited consid- erations, the presumption is based on retaining all of the surface and all of the timber and disposing of naught requi- 41 site to conserve the constitutional functions of the United States as to navigation and timber. We submit that the same declaration made by Mr. Justice Brewer as to the liquor business in Carolina is applicable to the oil business under the Weeks Act land in Mississippi. For in acquiring the surface and the timber had the government been frank and honest with Kalmia as we submit it was obligated to do when dealing with its subjects, Kalmia just as the Walkers, just as the thousands of other citizens, would have retained this oil and Mississippi’s sovereignty hereasto remained paramount because that done, quo ad oil, was purely a busi- ness venture whereasto the United States, with deference, was without power. Compare United States v. Burnison, 339 U. S. 87, 94 L. Ed. 434; United States v. Fox, 94 U. S. 315, 24 L. Ed. 192. The states might thus engage. Compare Jones v. Portland, 245 U. 8S. 217, 62 L. Ed. 252; Green v. Frazier, 253 U. S. 233, 64 L. Ed. 878; Everson v. Board of Education, 330 U.S. 1, 91 L. Ed. 711; Family Life Ins. Co. v. Daniel, 79 F. Supp. 62. The United States could have, quo ad that thus done, asserted its taxing power to the extent that the action was not governmental, but in such business the United States may not engage not having hereasto the delegated power. Compare Kidd v. Pearson, 128 U. 8S. 120, 32 L. Ed. 346, but compare Collins v. Yosemite Park & Curry Co., 304 U. 8. 518, 82 L. Ed. 1502. See, also, Susque- hanna Power Company v. State Tax Commission, 283 U. S. 291, 75 L. Ed. 1042, 1045, wherein it is said: ‘‘ Assuming, for present purposes, that the license of the Power Commission is a federal instrumentality, immune from taxation or other direct interference by the state, it does not follow that the property appellant uses in its power project is clothed with that immunity. The exemption of an instrumentality of one government from taxation by the other must be given such a prac- tical construction as will not unduly impair the taxing 42 power of the one or the appropriate exercise of its func- tions by the other. * * *.’’ The state did not seek to tax the surface requisite for Fed- eral fundamental purposes so far as this record is concerned. There is under Mississippi law a lateral segregation between timber, surface and minerals, each quo ad the taxing power, possessing a distinct severability. Compare Fox v. Pearl River Lumber Co., 80 Miss. 1, 30 So. 583; Butterfield Lumber Co. v. Guy, 92 Miss. 361, 46 So. 78; Stern v. Parker, 200 Miss. 27, 27 So. 2d 402; Hendria v. Foote, 205 Miss. 1, 38 So. 2d 111; and State v. Cummings, 206 Miss., 40 So. 2d 587. The Weeks Act specifically recognized non-interference with surface enjoyment as the criterion obtained by the statute. Compare Section 518, Title 16 U.S. C. A., c. 186, Sec. 9, 36 Stat. 962, as amended c. 145, 37 Stat. 855, wherein it is said: ‘*Such acquisition by the United States shall in no case be defeated because of located or defined rights of way, easements, and reservations, which, from their nature will, in the opinion of the National Forest Res- ervation Commission and the Secretary of Agriculture, in no manner interfere with the use of the lands so encumbered, for the purposes of sections 480, 500, 513-519, and 521 of this title. * * *%.’’ Thus when conformity hereasto is, then the national pur- pose has been delimited. Compare Group No. 1 Oil Corp. v. Bass, 283 U. 8. 279, 75 L. ed. 1032. And as said in Gulf Refining Co. v. Stanford, 202 Miss. 602, 30 So. 2d 516, 173 A. L. R. 1099, leasing is the common form for develop- ment and therein the Government has vested as to this oil a defeasible fee in its lessees. And that whereto alone the Government will receive is a potential profit from its royalty whereasto, with deference, quo ad Mississippi’s sovereignty and her taxing needs, the United States stands just exactly _ 43 where South Carolina stood when it engaged in the liquor business as to the taxing power of the United States. IV. Under the Weeks Act the United States Has Consented, If This Be Essential, to Ad Valorem Taxation of Oil Reservations. Wilson v. Cook, 327 U.S. 474, 90 L. ed. 793, is persuasive and its principles intimated, at least impliedly, should be extended to compel recognition of Mississippi’s sovereignty as to the underlying oil wherefor the United States did not pay and whereasto in good conscience if it had treated all of its citizens alike as we submit it should, it would have left Kalmia with this oil and not have taken it for $1.35 per acre in the midst of a depression when Kalmia was beset by large tax payments to Mississippi which it could not meet, untruthfully, through its agent, leading Kalmia to believe that it was a condition exacted by the United States that there be only a ten year mineral reservation. It may have been that Conarro, who is assumed to have known of the policy of the National Forest Reservation Commission, did not intend to mislead but no one has dared to controvert that he did mislead and the District Court specifically ex- cluded a positive declaration made by the Government’s examining attorney to that effect. There is a similarity between timber, which must remain in place, and oil and gas which are fugacious with power of transition. The United States established in Arkansas, with a consent from Arkansas remarkedly like the consent assumed to be given by Mississippi, a national forest and having thus done as to the timber therefrom removed, the State assumed to impose a tax. Therein it was said, p. 797: ‘‘An Arkansas statute, Act 118 of 1923, * * * im- poses ‘a privilege or license tax . . . upon each person . . . engaged in the business of severing from the soil . . . for commercial pur- 44 poses natural resources, including . . . timber.’ By Sec. 13,372, as a condition of the license, there is imposed on the severer an obligation to pay the tax and consent that the tax ‘shall . . . remain a lien on each unit of production until paid into the State Treas- ury.’ Section 13,375 fixes the tax at 7 cents per thou- sand feet of the timber severed. Section 13,376 pro- vides that the state ‘shall have a lien upon any and all natural resources severed from the soil’.’’ (which we contend, with deference would apply to oil, a natural resource). ‘‘In Section 13,382 it is provided that ‘the payment of said privilege taxes shall be required of the severer . . . actually engaged in the operation of severing natural resources, whether as owner, lessee, concessionaire or contractor. . . . The reporting taxpayer shall collect or withhold out of the proceeds of the sale of the products severed the proportionate parts of the total tax due by the respective owners of such natural resources at the time of severance.’ ’’ In this case, the land was acquired by consent under the Weeks Act and the United States pursuant to its public policy as to navigation and timber and as to this timber so by it owned and grown made a disposition to the person who thus severed and this business thus done was that whereasto the tax was, the imposition being, however, in rem if unpaid against the timber of the United States. The Court further said in the Wilson case, p. 802: ‘*A further question is whether the lands in the forest reserve, which were purchased for that purpose by the United States, are within the territorial taxing juris- diction of the state. The answer turns on the inter- pretation of the statute of the United States authorizing the acquisition of lands, Secs. 7 and 12 of the Act of March 1, 1911, ¢. 186, 36 Stat. 961, 16 USCA Sees. 480, 516, 5 FCA Title 16, Secs. 480, 516, and of the state statute of Arkansas authorizing the sale. Pope’s Digest, Sec. 5646. The meaning of both statutes, as applied in this case, is a federal question, since upon 45 their construction depend rights, powers and duties of the United States. Silas Mason Co. v. Tax Commis- sion, 302 US 186, 197, 82 L ed 187, 196, 58 S Ct 233, and cases cited. ‘‘The statute of Arkansas consenting to the purchase of forest lands by the United States, provided that the state should ‘retain a concurrent jurisdiction with the United States in and over lands so acquired . . .’, to issue and execute ‘civil process in all cases, and such criminal process as may issue under the authority of the state. . . .’ It made no express grant or res- ervation of legislative power over the areas purchased. Hence the statute cannot be taken as having yielded or intended to surrender to the Federal Government the state legislative jurisdiction over the area in ques- tion, so far as exercise of that jurisdiction is consistent with federal functions. Any doubt as to the effect of such a grant by the state in conferring exclusive legis- lative jurisdiction over the territory which is acquired by the Federal Government is removed by the provi- sions of the federal statute. ‘‘Section 12 (Sec. 480, Title 16 U.S.C.A.) of the fed- eral statute, authorizing the purchase, provided: ‘That the jurisdiction, both civil and criminal, over persons upon the lands acquired under this Act shall not be affected or changed by their permanent reservation F as national forest lands, except so far as the punishment of offenses against the United States is concerned, the intent and meaning of this section being that the state wherein such land is situated, shall not, by reason of such reservation and administration, lose its jurisdiction nor the inhabitants thereof their rights and privileges as citizens or be absolved from their duties as citizens of the State.’ “By this enactment Congress in effect has declined to accept exclusive legislative jurisdiction over forest reserve lands, and expressly provided that the state shall not lose its jurisdiction in this respect nor the inhabitants ‘be absolved from their duties as citizens of the State’. Compare Silas Mason Co. v. Tax Com- 46 mission, 302 US 186, 82 L ed, 187, 58 S Ct 233, supra; Atkinson v. State Tax Commission, 303 US 20, 82 L ed 621, 58 S Ct 419; Collins v. Yosemite Park & C. Co. 304 US 518, 528, 82 L ed 1502, 1509, 58 S Ct 1009; James Stewart & Co. v. Sadrakula, 309 US 94, 99, 84 L ed 596, 600, 60 S Ct 431, 127 ALR 821. ‘‘Our conclusion, based on the construction of the interrelated state and federal statutes, is that the state has territorial jurisdiction to lay the tax upon activities carried on within the forest reserve purchased by the United States. ‘*What we have said of the argument that the tax assessed on plaintiffs is an unconstitutional burden on the Government, is applicable to the tax assessed for severance of timber from forest resere lands which, from the beginning, have been a part of the public domain. That tax is likewise valid if the state has legislative jurisdiction over such lands within its boundaries. ‘‘Upon admission of Arkansas to statehood in 1836 upon an equal footing with the original states, (Act of June 15, 1836, ¢ 100, 5 Stat 50) the legislative authority of the state extended over the federally owned lands within the state, to the same extent as over similar property held by private owners, save that the state could enact no law which would conflict with the powers reserved to the United States by the Con- stitution. Ft. Leavenworth R. Co. v. Lowe, 114 US 525, 539, 29 L ed 264, 265, 5 S Ct 995; Utah Power & L. Co. v. United States, 243 US 389, 404, 61 L ed 791, 816, 37 S Ct 387. (Compare United States v. Texas, — U.S. —, 94 L. ed. 805) Such authority did not pass to the United States by virtue of the provisions of Ariicle 1, Sec. 8, cl 17, of the Constitution, which authorize it ‘to exercise exclusive Legislation . . . over all Places purchased by the Consent of the Legislature of the State in which the Same shall be.’ ‘‘Since the United States did not purchase the lands with the consent of the state, it did not acquire exclusive jurisdiction wnder the constitutional provision, and 47 there has been no cession of jurisdiction by the state. Surplus Trading Co. v. Cook, 281 U. S. 647, 651, 74 L. ed. 1091, 1094, 50 S. Ct. 455; Silas Mason Co. v. Tax Commission, supra (302 U. S. 210, 82 L. ed. 203, 58 S. Ct. 233). Although Arkansas has, by Sec. 5647, Pope’s Digest, conferred on Congress power to pass laws, civil and criminal, for the administration and con- trol of lands acquired by the United States in Arkansas, it has ceded exclusive legislative jurisdiction neither over lands reserved by the Umted States from the public domain, nor over lands acquired im the state. Ft. Leavenworth R. Co. v. Lowe, supra (114 U. S. 530, 531, 29 L. ed. 266, 5S. Ct. 995). It follows that the state has retained its legislative jurisdiction, which it ac- quired by statehood, over public lands within the state which have been included within the forest reserve. ‘‘We conclude that the state has legislative jurisdic- tion over the federal forest reserve lands located within it, whether they were originally a part of the public domain of the United States, or were acquired by the United States by purchase, and that the tax assessed against plaintiffs is not subject to any constitutional infirmity, or to any want of tawing jurisdiction of the state to lay it with respect to transactions on the federal forest reserve located within the state.’’ (Km- phasis ours.) And in the dissenting opinion Mr. Justice Rutledge said, p. 804: ‘In No. 328 the Court sustains the application of the Arkansas severance tax to the appellants. In my judg- ment the cause should be remanded to the state court for it to determine the applicability of the lien and col- lection provisions to the United States, or their sever-- ability, and in the light of that determination to ascer- tain the constitutional validity of the tax as applied to appellants. Those issues are inescapable on the record in this case. For until they are determined any decision here can affect only a tax of uncertain incidence, unless the Court in sustaining it means to rule, as I think the — 48 Arkansas court ruled, that the tax is valid whether or not the statute’s lien and collection provisions apply to the United States as owner of the land and the severed tumber.’’ (Emphasis ours.) Section 112 of the Constitution was paramount to the power of the Legislature and the purpose of the Weeks Act as to surface and timber (United States v. Nebo Oil Co., 90 F’. Supp. 73), and the specific recognition of state sover- eignty as to oil reserves must be kept constantly in view. Authorities infra. As was pointed out in Merrill Eng. Co. v. Capital Nat. Bank, 192 Miss. 378, 5 So. 2d 666, the oil can be withdrawn from the earth, is intended thus to be and when withdrawn the cavern left in no way affects the sur- face. Of course, the timber may reproduce; under certain conditions the oil may re-enter under its power of self- locomotion but the Weeks Act was centered upon the con- servation of timber as that requisite under the commerce power whereas as to oil there never has been such a power in the United States because not within the original purpose of the Constitution, certainly not within the original pur- pose of this Act. Compare Wilson v. Cook, 327 U. S. 474, 90 L. ed. 793; United States v. Nebo Oil Co., 90 F. Supp. 73. This Court was careful to make a determination that, quo ad the timber operator, and, we submit, in the light of the dissenting opinion of Mr. Justice Rutledge as to the tax lien upon the timber of the United States and the collection of the tax therethrough, the timber belonged to the United States and was being purchased from the United States, the party who severed was nevertheless as to the timber subject to state jurisdiction. This opinion was so thus interpreted in United States v. Nebo Oil Company, 90 F. Supp. 73, wherein the United States as owner under the Weeks Act sought to obtain for itself certain mineral rights and there- asto in an able opinion was defeated in its contentions and _— 49 thereto for that, with deference, properly said, reference is hereby made. This Court has approved the Wilson case, supra, in Okla- homa Tax Com. v. Texas Company, 336 U. 8. 342, 93 L. ed. 721; 8S. R. A. v. Mimmesota, 327 U. 8. 558, 90 L. ed. 851. Herein, if the Nebo case, supra, be followed, the status of the underlying oil is a federal question whereasto the decision here is conclusive. The character of oil and gas as property is in large measure sui generis. Compare Rist v. Toole County, — Mont. —, 159 P. 2d 340, 162 A. L. R. 402, and authorities supra. Compare, also, 36 Am. Jur., ‘‘Mines and Minerals’’, Sec. 23, 35, p. 297, 306; 58 C. J. S., ‘Mines and Minerals’’, Sec. 134, p. 213; 1 Swmmers Oil and Gas, 2nd Ed., Sees. 11, 61 and 62; Ohio Oil Co. v. Indiana, 177 U. S. 190, 44 L. ed. 729; and Gulf Refining Co. v. Stone, 197 Miss. 713, 21 So. 2d 19. So that, if there be any way in which this Court can sustain the validity of Mississippi’s statutes by properly interpreting the character of property in oil and gas, we submit that this should be so done, espe- cially is this so because by Sec. 486, Title 16 U. S. C. A., c. 105, Sec. 2, as amended Feb. 28, 1925, ¢. 375, 43 Stat. 1090: «“* * * All property, rights, easements, and bene- fits authorized by this section to be retained by or 12- served to owners of lands conveyed to the United States shall be subject to the tax laws of the States where such lands are located.’’ Strictly speaking, this declaration might be limited to ex- changes authorized under Section 485, but, quo ad the taxing power, the reservation of the oil is precisely the same whether it arose under an exchange or under another form of conveyance. In short, the form of conveyance is, with deference, immaterial, the substance of the conveyance con- trolling, and when Congress specifically provided that these reservations should be in accordance with the law of the 50 state, this is valid. Compare United States v. Gerlach Live Stock Co., — U. 8. —, 94 L. ed. 876, 878: ‘‘On Wait oi Certiorari to the United States Court of Claims to review awards of compensation for depri- vation of water rights along the San Joaquin River in California, caused by the construction of the Friant Dam and its dependent irrigation system. ‘We cannot disagree with claimants’ contention that in undertaking these Friant projects and implementing the work as carried forward by the Reclamation Bureau, Congress proceeded on the basis of full recog- nition of water rights having valid existence under state law. By its command that the provisions of the reclamation law should govern the construction, opera- tions, and maintenance of the several construction projects, Congress directed the Secretary of the In- terior to proceed in conformity with state laws, giving full recognition to every right vested under these laws. Cf. Nebraska v. Wyoming, 295 U. S. 40, 43, 79 L. ed. 1289, 1291, 55 S. Ct. 568; California Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S. 142, 164, 79 L. ed. 1356, 1364, 55 S. Ct. 725; Nebraska v. Wyoming, 325 U. S. 589, 614, 89 L. ed. 1815, 1829, 1830, 65 S. Ct. 1332; Silas Mason Co. v. Tax Com. 302 U. S. 186, 82 L. ed. 187, 58 S. Ct. 233. * * *.’? (Emphasis ours.) Compare Capital Greyhound Line v. Brice, — U. 8S. —, 94 L. ed. 733; Leisy v. Hardin, 135 U. S. 100, 34 L. ed. 128; Re Rahrer (Wilkerson v. Rahrer), 140 U. S. 545, 35 L. ed. 572; Louisville € Nashville R. Co. v. F. W. Cook Brewing Co., 223 U.S. 70, 56 L. ed. 355; Kentucky Whip € Collar Co. v. I. C. R. Co., 299 U. 8. 334, 81 L. ed. 270, 276, wherein it is said: ‘*By the Wilson Act of August 8, 1890, intoxicating liquors transported into any State were subjected upon arrival to the operation of state laws to the same extent — 51 as though they had been produced within the State, although still in the original packages. * * *.’’ Furthermore, when there is the ownership of the underly- ing oil, Congress specifically provided as to damages thus, 43 Stat. 1090, Title 16 U. S. C. A., Sec. 486: ‘«* * * where mineral reservations are made in lands conveyed by the United States it shall be so stipu- lated in the patents, and that any person who acquires the right to mine and remove the reserved deposits may enter and occupy so much of the surface as may be required for all purposes incident to the mining and removal of the minerals therefrom, and may mine and remove such minerals upon payment to the owner of the surface for damages caused to the land and improve- ments thereon. * * *,.’’ Note further, 30 Stat. 36, Title 16 U. S. C. A., Sec. 481, which provides: ‘¢ All waters within the boundaries of national forests may be used for domestic, mining, milling, or irrigation purposes, under the laws of the State wherein such national forests are situated, or under the laws of the United States and the rules and regulations established thereunder.’’ On land whereasto the right of entry and removal has determined, the general rule is that thereby there is not a forfeiture of the timber but that removal may be had, com- pensating the surface owner for all damages done. Com- pare Irons v. Webb, 41 N. J. L. 204, and other authorities supra. See, also, Ingram-Day Lbr. Co. v. Clark, 43 Miss. 813. So that under the Weeks Act as thus interpreted by this Court, the jurisdiction of Mississippi under its sovereign power as to taxation has not, we submit, in any way deter- mined, and it was not the intention of Congress that it should 52 be divested but that, quo ad oil, this sovereignty should per- sist. As to reservation of oil, at least, we have the express as well as the implied obligation. Compare West v. Okla- homa Tax Com., 334 U. S. 723, 92 L. ed. 1680, 1682, wherein it is said: ‘*TIn this setting, refinements of title are immaterial. Whether legal title to the properties is in the United States or in the decedent and his heirs is of no conse- quence to taxability of the transfer.’’ And that herein at issue is the taxability of oil under lands wherein thereasto a reservation has been made and in a broader sense, but not necessarily herein involved, under lands wherein there is not a reservation but an absolute ownership and we, with deference, submit that as to the consent of the United States to the territorial sovereignty of the forty-one states wherein there are these national forests their laws as to oil in reservations are to be oper- ative. Oil was the great issue in Umited States v. California, 332 U. S. 19, 91 L. ed. 1889; United States v. Louisiana, — U.S. —, 94 L. ed. 800; United States v. Texas, — U. S. —, 94 L. ed. 805; and state taxation of federal rights therein have been in issue since M’Culloch v. Maryland, 4 Wheat (U. S.) 316, 4 L. ed. 579, and, with deference, this Court has not drawn such a line as that this vital issue between federal and state sovereignty can be with absolute certainty determined unless this Court will herein do the needful. Compare National Labor Relations Board v. Mewia Textile Mills, Inc., — U. 8. —, 94 L. ed. 757, comments of Mr. Justice Frankfurter; and as to this issue which is upon the constitutional level we, with deference, submit the Court of Appeals has not vouchsafed such a decision as will dis- charge this Court from its paramount obligation to make hereasto an outstanding precedent. The same necessity as has compelled certiorari in the Wilson case, supra, and 53 those that follow it, is inherently operative here and im- peratively demands solution as to fundamental factors solely here solvable nationally. Remember, the United States had only a possibility of reverter when this tax sale was of the oil and under sovereign state power, Mississippi possessed, with the nation’s consent and, also, because it had failed to make a cession, the right to compel property within its boundaries to pay for its creation—its protection. In the New Brunswick case, supra, the acquisition was under an exclusive power and had to do with that wherein the United States had an absolute right paramount to state sovereignty, the government under Mississippi law, if applicable, being trustee of the property for the pur- chaser and the purchaser being trustee of the purchase price for the government. Compare J. M. Griffin Co. v. Jernigan, 170 Miss. 3438, 154 So. 342. With this absolute right in the government, both jus in re and jus ad rem, the state could not divest but here Mississippi possessing never forewent and in addition to the extent of reservations in oil, the United States con- sented specifically that State laws as to taxation should admeasure and remain.and, with deference, we ask that here that be done as declared proper by Mr. Justice Jack- son in Federal Power Com. v. East Ohio Gas Co., — U.S. —, 94 L. ed. 213, 220. V. Mississippi’s Sale of Minerals, Including Oil, to Pay for Defaulted Ad Valorem Non-Discriminatory Tax, Valid. Compare Minor’s Law of Tax Titles, page 2, wherein it is said: ‘‘The forfeiture or sale of land for unpaid taxes was unknown to the common law of England, and does not seem to have been recognized, generally at least, in this country during the Colonial period. Virginia was o4 probably the first to adopt the plan, such a statute being passed by her legislature in 1790. ‘*At first the policy in Virginia was to forfeit the delinquent land absolutely to the Commonwealth, upon the failure to pay the taxes, and such is still the policy of some of the states. Of the right of the state gov- ernments to declare lands forfeited to the state upon the failure to pay taxes assessed thereon, there has never been any serious question. Every owner holds his estate upon the implied condition that he will furnish a list of his taxable property when required by law, and premptly pay his share of the common burdens assessed against the entire community; and if he omits to comply with the condition, the paramount au- thority of the state, which is entitled to enter for the breach of this condition, comes in and declares the estate forfeited for breach of the condition. ‘*But the principle which gives the state—the parens patriae—the right to impose such an implied condition upon the tenure of property, denies it to the federal government on the one hand and to county or city gov- ernments on the other. * * *.’’ Compare Griffin v. Dogan & Martin, 48 Miss. 11, but note Griffin v. Mixon, 38 Miss. 424. See, also, State v. Woodroof, — Ala. —, 46 So. 2d 553, 558, wherein the Alabama court held a specific lien upon the specific property paramount to the general lien imposed by the United States under Sec. 3466, (31 U. 8S. C. A., Sec. 191), distinguishing Spokane County v. United States, 279 U. S. 80, 73 L. ed. 621; People of State of New York v. Maclay, 288 U. S. 290, 77 L. ed. 754; United States v. State of Texas, 314 U. S. 480, 86 L. ed. 356; United States v. Waddill, Holland ¢& Flinn, 323 U. S. 353, 89 L. ed. 294; and People of State of Illinois v. Campbell, 329 U. S. 362, 91 L. ed. 348. Compare Hendria v. Foote, 205 Miss. 1, 38 So. 2d 111; Bailey v. Federal Land Bank, 206 Miss. 354, 40 So. 24 173; State v. Cummings, 206 Miss. 630, 40 So. 2d 587. 55 (a) The sale was made September 21, 1942, and under Section 9935, Mississippi Code of 1942, among other things, it is provided: ‘¢* * * All such lists shall vest in the State or in the individual purchaser thereof, a perfect title to the land sold for taxes, but without the right of possession for the period of and subject to the right of redemption; * * *.? (Emphasis ours.) The law is the same in Mississippi as it was in New Jersey. Compare New Brunswick v. United States, 276 U.S. 547, 72 L. ed. 693; Jackson v. Ashley, 189 Miss. 818, 199 So. 91; Merrill Eng. Co. v. Capital Nat. Bank, 192 Miss. 378, 5 So. 2d 666. (b) By Section 9936, Mississippi Code of 1942, it was also provided: ‘“* * * The said lists shall vest in the state or the individual purchaser thereof a perfect title to the land sold for taxes, but without right of possession and subject to the right of redemption; * * *.’’ Then after the expiration of the redemption period of two years, the clerk delivered a deed in accordance with Section 9958, Mississippi Code of 1942, whose provisions are: ‘«* * * such conveyance shall vest in the purchaser a perfect title with the immediate right of possession to the land sold for taxes; * * *.’’ Compare Seward v. Dogan, 198 Miss. 419, 21 So. 2d 292; Murphey v. Seward, 145 Miss. 713, 110 So. 790. Minerals are sold precisely as land. Mississippi Code of 1942, See. 9770. Judge Mize specifically found that this tax sale to Hen- drix was valid, but was invalidated as to the oil in virtue of the sovereignty of the United States, relying therefor exclusively upon New Brunswick v. United States, 276 56 U. S. 547, 72 L. ed. 693, holding that the title to the oil vested in the United States under the reservation as at December 24, 1943, because Kalmia had not during the preceding five-year period been found to have employed to commercial advantage, Tr. 410. So that if Kalmia had operated to commercial advantage during this five-year period there would have been under this deed an extension to December 24, 1948, and thereafter possibly in perpetuity the United States having the substantial equivalent of a possibility of acquisition—the converse of a possibility of reverter since no title whatsoever at the date of the deed vested in the Government and none could so vest at the pleasure of Kalmia. That Kalmia thus did operate to com- mercial advantage, we have, with deference, demonstrated supra and there is following the finding of Judge Mize to be considered this further important factor. As at December 24, 1943, the terms of the deed require, Tr. 409: «* * * provided that if at the termination of the said 10-year period of reservation it is found that such oil, gas and other valuable mineral rights and interests are being operated or have been operated at any time during the preceding five years to commercial advantage, * * *.’’ There is hereunder initially an absolute reservation of all minerals. That at this date, the declaration of the deed is that if ‘‘it is found’’ there shall then be an extension in perpetuity, but the Government in drafting this deed did not say who was to find or how the finding was to be evidenced, but left in suspension the matter by simply providing if ‘‘it is found’’. Now, this deed is remarkable in that it assumes to provide at its conclusion for the vestiture of the minerals in the United States thus, Tr. 409: ‘¢ «That at the termination of the 10-year period, if not extended, or at the termination of the extended pe- oo“ 57 riod in case the operation has been carried on for a number of causes under (carried on for the number of days and under, Tr. 25) conditions stated, the right to mine and remove oil, gas and other valuable miner- als shall terminate and complete fee in the land become vested in the United States’.’’ (c) The Court of Appeals properly conceded under the New Brunswick case, supra, that all property belonging to Kalmia remained subordinate to state taxing sovereignty, but contended that upon December 24, 1943, per se, the title was divested from Kalmia and vested in the United States. Assuming this reasoning to be accurate as to that whereto the property was subject yet herein note 1. That reserved was ‘‘all minerals’’—oil—with the absolute right at pleasure to remove, presumptively through leases to those accustomed to operating oil properties. 2. The provision in this deed was, Tr. 23: ‘*Provided; Further, that the right or rights to mine and reserve oil, gas and other valuable minerals when extended shall be limited to an area of twenty-five acres of land around each well or mine producing, and each well or mine being drilled or developed at time of first extension, to-wit: December 24, 1943.’ The court held that this provision as to the twenty-five acres was void for uncertainty. Compare Tr. 397: ‘<3. The Court concludes, as a matter of law, that the provision as follows: ‘Provided further, that the right or rights to mine and reserve oil and gas and other valuable minerals, when extended, shall be limited to twenty-five acres of land around each well or mine pro- ducing and each well or mine being drilled or developed at the time of the first extension, to-wit: December 24, 1943’ is void in so undertaking to limit or describe such area of acreage because of the vagueness of the de- poription, *° °°." 58 Compare Jones v. Mount, 30 Ind. App. 59, 63 N. E. 798; Norris v. Fleming, 62 Idaho 381, 112 P. 2d 482; Parsons & Sweeney Oil Co. v. McCormic, 68 W. Va. 604, 70 S. E. 371; First Savings Bank & Trust Co. of Albuquerque v. Elgin, 29 N. M. 592, 225 P. 582; Indianapolis Natural Gas Co. v. Spaugh, 17 Ind. App. 683, 46 N. E. 691; Ramage v. Wilson, 37 Ind. App. 532, 77 N. E. 368, 88 N. E. 863; Monaghan v. Mount, 36 Ind. App. 188, 73 N. E. 579; Nunnery v. Ford, 92 Miss. 263, 45 So. 722; McAllister v. Honea, 71 Miss. 256, 14 So. 264; Jefferson v. Walker, 199 Miss. 705, 26 So. 2d 239. And under Mississippi law if this be void, it would leave the reservation in effect. Compare Ates v. Ates, 189 Miss. 226, 196 So. 243. (d) Whether or not the court below should have accorded to this provision any effect was with all a judicial question whereasto judicial recourse was requisite. (e) Herein, persons of unquestioned veracity, Tr. 267, et seq., swore that, quo ad this deed, there was a material misrepresentation of fact whereby invalidation occurred. Compare Brown v. Ohman, — Miss. —, 42 So. 2d 209, 43 So. 2d 727; Derry v. Peek, House of Lords, 14 App. Cas. 337. It is true that the representative, Conarro, was by the Dis- trict Court held to have contradicted this testimony which, with deference, he did not, but as stated in the Govern- ment’s answers to interrogatories, this fraud was not 2 rele- vant issue, Tr. 90: ‘c* * * Plaintiff further shows thai the allegations of misrepresentation, made by defendant, deal with a matter of law upon which defendant would not have been entitled to rely even if such a representation had been made * * *,’’ And furthermore petitioners offered to prove by competent evidence that Montgomery, the government’s examining at- 59 torney, specifically made this statement as to the inability to limit otherwise than was done by this deed. To this proof the United States objected and its objection was sustained, Tr. 385: “‘Q. At the time that it was signed, plea [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_IA40386417_0337%3A1. Public record. Not legal advice.