and unappropriated lands for the benefit of | tution of this state, with the names of such the school fund (Acts of W. Va. 1872-73, p. claimants and the amount claimed by each as 449, chap. 134), and also, for the present, the far as he can ascertain the same." If there act of March 25, 1882, on the same subject were no exception to this report, or if there (Acts of W. Va. 1882, p. 253, chap. 95), be- were any which were overruled, "the court cause both of those acts are amendatory of *shall confirm the same and decree a sale of 4 the Code of West Virginia, and their pro- the lands, or any part of them, therein menvisions, so far as they directly or indirectly tioned, which are subject to sale, for the bear upon the present controversy, are pre- benefit of the school fund, upon such terms served and extended. in the Code published and conditions as to the court may seem in 1887, which contained the law of the right and proper; and in any decree of sale state in reference to forfeited lands as it was made under this chapter, the court may proat that time. vide that the commissioner of school lands, From chapter 105 of the Code of West or other person appointed commissioner to Virginia, published in 1887, it appears that make such sale, may receive bids for such all lands forfeited to the state for the failure lands, without any notice of sale; and if the to have the same entered upon the land former owner or owners, or person in whose books of the proper county and charged with name the land was returned delinquent and the taxes thereon, as provided by law-so far forfeited, or the heirs or grantee of such as the title thereof was not vested in junior owner or person, or any person or persons grantees or claimants under the provisions holding a valid subsisting lien thereon, at of the Constitution and laws of the state the time of such forfeiture, bid a sum su:were required to be sold for the benefit of the cient to satisfy such decree and the costs of 24]school fund-the auditor to certify to the the proceeding and sale, and such person or clerk of the circuit court a list of all such persons so bidding be the highest bidder, lands (which, or the greater part of which, said commissioner shall sell the land on such were in his county), within sixty days after bid, and report the same to the court for the title thereto vested in the state. Tha confirmation; but if the commissioner receive act made it the duty of the commissioner of no bid from any such person, or if he shall school lands to file his petition in the circuit receive a higher bid therefor from any other court and pray for the sale of the lands for the person not so mentioned, then and in either benefit of the school fund. He was required event the said commissioner shall sell the land to state in his petition "all the tracts, lots, at public auction to the highest bidder, after and parts and parcels of any tract or lot of first giving such notice as may be provided land so liable to sale, in the circuit court of by such decree." By the same act it was his county, praying that the same be sold for provided: "The former owner of any such the benefit of the school fund," and, accord-land shall be entitled to recover the excess of ing to the best of his information and belief, the sum for which the land may be sold over the local situation, quantity or supposed the taxes charged and chargeable thereon, or quantity, and probable value of each tract, which, if the land had not been forfeited, lot, or parcel, and part of a tract of land would have been charged or chargeable theretherein mentioned, together with all the facts on, since the formation of this state, with at his command, in relation to the title to interest at the rate of twelve per centum per the same, and to each tract, lot, part, or par- annum and the costs of the proceedings, if cel thereof, the claimant or claimants thereof, his claim be filed in the circuit court that deand their residence, if known, and, if not crees the sale, within two years thereafter, known, that fact shall be stated, and stating as provided in the next succeeding section." also how and when and in whose name every But the part of chapter 105 of the Coce such tract, lot, and parcel, and part of a which has the most direct bearing on the tract or lot, was forfeited to the state." Pro-question under consideration is § 14, which, vision was made for the reference of the pe-after providing that the owner may, upon tition to a commissioner in chancery, "with his petition to the circuit court, obtain an instructions to inquire into and report upon order for the payment to himself of the exthe matters and things therein contained, cess just mentioned, proceeds: "At any and such others as the court may think prop-time during the pendency of the proceedings er to direct, and particularly to inquire and for the sale of any such land as hereinbefore report as to the amount of taxes and interest mentioned, such former owner, or any credit due and unpaid on each tract, lot, and parcel, or *of such former owner of such land, having 42 and part of a tract or lot of land mentioned a lien thereon, may file his petition in said or in the petition, in whose name it was for- cuit court as herein before provided, and askfeited, and when and how forfeited, in whom ing to be allowed to redeem such part or the legal title was at the time of the forfei-parts of any tract of land so forfeited, or the ture, and, if more than one person claimed whole thereof, as he may desine, and upon adverse titles thereto at the date of the for- such proof being made as would entitle the feiture, the name of each of such claimants petitioner to the excess of purchase money and a reference to the deed book or books in herein before mentioned, such court may al which the title papers of any claimant there- low him to redeem the whole of such tract if of can be found; what portion or portions, he desire to redeem the whole, or such part or if any, of such lands is claimed by any per-parts thereof, as he may desire, less than the son or persons under the provisions of sec-whole, upon the payment into court, or to tion three of article thirteen of the Consti- the commissioner of school lands, all costs,

That at any time during the pendency of the proceedings instituted for the sale of forfeited lands for the benefit of the school fund, the owner, or any creditor of the owner having a lien thereon, might file his petition in the circuit court of the county for the redemption of his lands upon the payment into court, or to the commissioner of school lands, of all costs, taxes, and interest due thereon, and obtain a decree or order declaring the lands redeemed so far as the title thereto was in the state immediately before the date of such order.

taxes, and interest due thereon, as provided | the same and decree a sale of the lands for in this chapter, if he desire to redeem the the benefit of the school fund; and, whole of such tract; or if he desire to redeem less than the whole of such tract, upon the payment as aforesaid, of so much of the costs, taxes, and interest due on such tract as will be a due proportion thereof for the quantity so redeemed. But if the petition be for a redemption of a less quantity than the whole of such tract, it shall be accompanied with a plat and a certificate of survey of the part or parts thereof sought to be redeemed. Whenever it shall satisfactorily appear that the petitioner is entitled to redeem such tract, or any part or parts thereof, the court shall make an order showing the sum paid These provisions were substantially prein order to redeem the whole tract or the served in chapter 105 as amended and re-enpart or parts thereof which the petitioner de-acted in 1891 and 1893. Code of West Va. sires to redeem, and declaring the tract, or part or parts thereof, redeemed from such forfeiture, so far as the title thereto was in the state immediately before the date of such order; which order, when so made, shall op- "Sec. 18. In every such suit brought under[428] erate as a release of such forfeiture so far as the provisions of this chapter, the court shall the state is concerned, and of all former taxes have full jurisdiction, power, and authority to on said tract, or part or parts thereof so re-hear, try, and determine all questions of title, deemed, and no sale thereof shall be made. If the redemption be of a part or parts of a tract, the plat or plats and certificate of the survey thereof hereinbefore mentioned, to gether with a copy of the order allowing the redemption, shall be recorded in a deed book, in the office of the clerk of the county court. Provided, That such payment and redemption shall in no way affect or impair the title to any portion of such land transferred to and vested in any person, as provided in section three of article thirteen of the Constitution of this state."

1891, p. 731; Acts of West Va. 1893, p. 57. But in the Code of 1891 will be found this additional and important provision (Acts 1891, chap. 94):

possession, and boundary which may arise therein, as well as any and all conflicting claims whatever to the real estate in question arising therein. And the court in its discretion may at any time, regardless of the evidence, if any, already taken therein, direct an issue to be made up and tried at its bar as to any question, matter, or thing arising therein, which, in the opinion of the court, is proper to be tried by a jury. And if any such issue be as to the question of title, possession, or boundary of the land in question, or any part of it, it shall be tried and determined 427] It thus appears that when the lands in in all respects as if such issue was made up in question and others embraced in the Morris an action pending in such court. And every patent were, as is contended, forfeited to the such issue shall be proceeded in, and the trial state for the failure of the owner during the thereof shall be governed by the law and prac five consecutive years after they were re-tice applicable to the trial of an issue out of deemed by Randall, trustee, in 1883, to have them entered upon the land books of the proper county and charged with the taxes thereon, it was provided by the statutes of West Virginia:

That all lands thus forfeited to the state should be sold for the benefit of the school fund;

That the sale should be sought by petition filed by the commissioner of school lands in the proper circuit court, to which proceeding all claimants should be made parties, and be brought in by personal service of summons upon all found in the county, or by publication as to those who could not be found;

chancery; and the court may grant a new trial therein as in other cases tried by a jury." And this provision was preserved, substantially, in the act of 1893, amendatory of chapter 105 of the Code of West Virginia.

If, as contended, the state, without an inquisition or proceeding of some kinu declaring a forfeiture of lands for failure during a named period to list them for taxation, and by force alone of its Constitution or statutes, could not take the absolute title to such lands, still it was in its power by legislation to provide, as it did, a mode in which the attempted forfeiture or liability to forfeiture could be

removed and the owner enabled to retain the That the petition should be referred to a full possession of and title to his lands. We commissioner in chancery, who should report should therefore look to the Constitution and upon the same and upon such other things as statutes of the state together for the purthe court might direct, and particularly as pose of ascertaining whether the system of to the amount of taxes due and unpaid upon taxation established by the state was, in its any lands mentioned in the petition, in whose essential features, consistent with due proname and when and how forfeited, and in cess of law. If, in addition to the provisions whom the legal title was at the time of the contained in the Constitution, that instruforfeiture: ment had itself provided for the sale of forThat if there were no exceptions to the re-feited lands for the benefit of the school fund, port, or if there were exceptions which were but reserved the right to the owner, before overruled, the court was required to confirm sale and within a reasonable period, to pay

the accused finds apparent support in the general language used in some opinions.

Mr. Justice Chase, in his classification of ex post facto laws in Calder v. Bull, 3 Dall. 386, 390 [1:648,650] includes "every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the of fender."

ex post facto legislation, because, in the use of a modern phrase, it is called a law of procedure? We think it cannot." In conclusion it was said: "Tested by these criteria, the provision of the Constitution of Missouri which denies to plaintiff in error the benefit which the previous law gave him of acquittal of the charge of murder in the first degree on conviction of murder in the second degree, is, as to his case, an ex post facto law within the meaning of the Constitution of the United States."

In Kring v. Missouri, 107 U. S. 221, 228, 232, 235 [27:506.509,510,511], the question arose as to the validity of a statute of Missouri under which the accused was found guilty of the crime of murder in the first de-in that case proceeded on the ground that the gree and sentenced to be hung. That case was tried several times, and was three times in the supreme court of the state. At the trial immediately preceding the last one Kring was allowed to plead guilty of murder in the second degree. The plea was accepted, and he was sentenced to imprisonment in the penitentiary for the term of twenty-five years. Having understood that, upon this plea, he was to be sentenced to imprisonment for only ten years, he prosecuted an appeal, which resulted in a reversal of the judgment. At the last trial the court set aside the plea of guilty of murder in the second degree-the accused having refused to withdraw it-and, against his objection, ordered a plea of not guilty to be entered in his behalf. Under the latter plea he was tried, convicted, and sentenced to be hanged. By the law of Missouri at the time of the commission of Kring's of fense, his conviction and sentence under the plea of guilty of murder in the second degree was an absolute acquittal of the charge of This general subject was considered in murder in the first degree. But that law Hopt v. Utah, 110 U. S. 574, 588. 589 [28: having been changed before the final trial oc- 262, 268]. Hopt was indicted, tried, and concurred, Kring contended that the last stat-victed of murder in the territory of Utah, [383]ute, *if applied to his case, would be within the prohibition of ex post facto laws. And that view was sustained by this court, four of its members dissenting.

A careful examination of the opinion in
Kring v. Missouri shows that the judgment

change in the law of Missouri as to the effect
of a conviction of murder in the second de-
gree-the accused being charged with murder
in the first degree-was not simply a change
in procedure, but such an alteration of the
previous law as took from the accused, after
conviction of murder in the second degree,
that protection against punishment for mur-
der in the first degree which was given him[384]
at the time of the commission of the offense.
The right to such protection was deemed
substantial one-indeed, it constituted a com-
plete defense against the charge of murder in
the first degree that could not be taken
from the accused by subsequent legislation.
This is clear from the statement in Kring's
Case that the question before the court was
whether the statute of Missouri deprived "the
defendant of any right of defense which
the law gave him when the act was com-
mitted so that as to that offense it is en
post facto."

the punishment therefor being death. At
the time of the commission of the offense it
was the law of Utah that no person con-
victed of a felony could be a witness in a
criminal case. After the date of the alleged
offense, and prior to the trial of the case, an
act was passed removing the disqualification
as witnesses of persons who have been con-
victed of felonies. And the point was made
that the statute, in its application to Hopt's
case, was ex post facto.

In the opinion of the court in Kring's Case reference was made to the opinion of Mr. Justice Chase in Calder v. Bull, and also to the charge of the court to the jury in United States v. Hall, 2 Wash. C. C. 366, 373. In the latter case Mr. Justice Washington said: "An ex post facto law is one which, in its operation, makes that criminal This court said: "The provision of the or penal which was not so at the time the Constitution which prohibits the states from action was performed; or which increases passing ex post facto laws was examined in the punishment; or, in short, which, in re- Kring v. Missouri, 107 U. S. 221 [27:506]. lation to the offense or its consequences, al-The whole subject was there fully and careters the situation of a party to his disadvantage." He added: "If the enforcing law applies to this case, there can be no doubt that, so far as it takes away or impairs the defense which the law had provided the defendant at the time when the condition of this bond became forfeited, it is ex post facto and inoperative." Considering the suggestion that the Missouri statute under which Kring was convicted only regulated procedure, Mr. Justice Miller, speaking for this court, said: "Can any substantial right which the law gave the defendant at the time to which his guilt relates be taken away from him by

fully considered. The court, in view of the
adjudged cases, as well as upon principle,
held that a provision of the Constitution of
Missouri denying to the prisoner, charged
with murder in the first degree, the benefit
of the law as it was at the commission of the
offense-under which a conviction of mur-
der in the second degree was an acquittal of
murder in the first degree, even though such
judgment of conviction was subsequently re-
versed-was in conflict with the Constitution
of the United States. That decision proceeded
upon the ground that the state Constitution
deprived the accused of a substantial right

a criminal than in a civil action,

under the law in force when the act to be in vestigated is charged to have taken place. Remedies must always be under the control of the legislature, and it would create endless confusion in legal procesings if every case was to be conducted only in accordance with the rules of practice and heard only by the courts in existence when its facts arose. The legislature may abolish courts and create new ones, and it may prescribe altogether different modes of procedure in its discretion though it cannot lawfully, we think, in so doing, dispense with any of those substantial protections with which the existing law surrounds the person accused of crime."" Chap. 9, *272.

which the law gave him when the offense was add: "Of course, a statute is not of that committed, and therefore, in its application to class unless it materially impairs the right of that offense and its consequences, altered the the accused to have the question of his guilt situation of the party to his disadvantage. determined according to the law as it was [385]By the law as established when the offense when the offense was committed. And, therewas committed, Kring could not have been fore, it is well settled that the accused is not punished with death after his conviction of entitled of right to be tried in the exact mode, murder in the second degree, whereas, by the in all respects, that may be prescribed for the abrogation of that law by the constitutional trial of criminal cases at the time of the comprovision subsequently adopted, he could mission of the offense charged against him. thereafter be tried and convicted of murder Cooley in his Treatise on Constitutional in the first degree, and subjected to the pun- Limitations, after referring to some of the ishment of death. Thus the judgment of con- adjudged cases relating to ex post facto laws, viction of murder in the second degree was says: 'But, so far as mere modes of proceddeprived of all force as evidence to establish ure are concerned, a party has no more right, his absolute immunity thereafter from pun-in ishment for murder in the first degree. to insist that his case shall be disposed of This was held to be the deprivation of a substantial right which the accused had at the time the alleged offense was committed. But there are no such features in the case before us. Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage; for they do not attach criminality to any act previously done, and which was innocent when done; nor aggravate any crime theretofore committed; nor provide a greater punishment therefor than was prescribed at the time of its commission; nor do they alter the degree or lessen the amount or measure, of the proof which was made necessary to conviction when the Applying the principles announced in crime was committed." The court added: former cases-without attaching undue "The crime for which the present defendant weight to general expressions in them that go was indicted, the punishment prescribed beyond the questions necessary to be detherefor, and the quantity or the degree of termined-we adjudge that the statute of proof necessary to establish his guilt, all re- Missouri relating to the comparison of writ [387] mained unaffected by the subsequent statute. ings is not ex post facto when applied to Any statutory alteration of the legal rules of prosecutions for crimes committed prior to its evidence which would authorize conviction passage. If persons excluded, upon grounds upon less proof, in amount or degree, than of public policy at the time of the commission was required when the offense was com- of an offense, from testifying as witnesses for or mitted, might, in respect of that offense, be against the accused, may, in virtue of a obnoxious to the constitutional inhibition up-statute, become competent to testify, we canon ex post facto laws. But alterations not perceive any ground upon which to hold which do not increase the punishment, nor a statute to be ex post facto which does change the ingredients of the offense, or the ultimate facts necessary to establish guilt, tut-leaving untouched the nature of the crime and the amount or degree of proof essential to conviction-only remove existing restrictions upon the competency of certain classes of persons as witnesses, relate to modes of procedure only, in which no one can be said to have a vested right, and which the [386] state, upon grounds of public policy, may regulate at its pleasure. Such regulations of the mode in which the facts constituting guilt may be placed before the jury, can be made applicable to prosecutions or trials thereafter had, without reference to the date of the commission of the offense charged."

nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offense was committed. The Missouri statute, when applied to this case, did not enlarge the punishment to which the accused was liable when his crime was committed, nor make any act involved in his offense criminal that was not criminal at the time he committed the murder of which he was found guilty. It did not change the quality or degree of his offense. Nor can the new rule introduced by it be characterized as unreasonable certainly not so unreasonable as materially to affect the At the present term, in Thompson v. Utah, substantial rights of one put on trial for 170 U. S. 343 [42: 1061], this court observed, crime. The statute did not require "less generally, that a statute is ex post facto proof, in amount or degree," than was rewhich, by its necessary operation and in quired at the time of the commission of the Its relation to the offense con-crime charged upon him. It left unimpaired sequences, alters the situation of the accused the right of the jury to determine the suf to his disadvantage. But it took care toficiency or effect of the evidence declared to

or its

books may neglect to perform his duty. Thus, | it is argued, the lands may be forfeited by reason of the landowner not having been, in fact, charged on the land books with the taxes due from him, although he was not responsible for such neglect. We do not so interpret the state Constitution or the statutes enacted under it. If the landowner does all that is reasonably in his power to have his lands entered upon the land books and to cause himself to be charged with taxes thereon, no forfeiture can arise from the owner not having been "charged on such books" with the state tax. The state could not acquire any title to the lands merely through the neglect of its agent having custody or control of its land books. Any steps attempted to be taken by the officers of the state, based upon such neglect of its agent, the taxpayer not being in default, would be without legal sanction, and could be restrained by any court having jurisdiction in the premises. We go further, and say, that any sale had under the statute providing for a sale, under the order of court, for the benefit of the school fund, of lands alleged to be forfeited by reason of their not having been charged on the land books for five consecutive years with the state tax due thereon, would be absolutely void, if the landowner was not before the court, or had not been duly notified of the proceedings, but had done all that he could reasonably do to have his [435 Jlands entered on the proper books and to cause himself to be charged with the taxes due thereon. If the state was not entitled to treat them as forfeited lands, that fact could be shown in the proceeding instituted for their sale as lands of that character, and the rights of the owner fully protected. In the present case, it does not appear that any evidence was offered tending to show that the absence from the land books of any charge of taxes on the lands claimed by the plaintiff during five consecutive years after their redemption by Randall, trustee, in 1883 was due to any neglect of the officers of the state, or that the plaintiff, or those under whom he asserts title, entered or attempted to enter the lands upon the land books, or that he or they caused or attempted to cause the lands to be charged with taxes thereon. But there was evidence tending to show that the requirements of the Constitution were not met during any of the years from 1883 to the bringing of this action. So far as the record discloses, it is a case of sheer neglect upon the part of the landowner to perform the duty required of him by the Constitution and statutes of the state.

Another point made by the plaintiff in error is that the provision of the Constitution of Virginia exempting tracts of less than 1,000 acres from forfeiture is a discrimination against the owners of tracts containing one thousand acres or more, which amounts to a denial to citizens or landowners of the latter class of the equal protection of the laws. We do not concur in this view. The evil intended to be remedied by the Constitution and laws of West Virginia was the persistent

failure of those who owned or claimed to own
large tracts of lands, patented in the last cen-
tury, or early in the present century, to put
them on the land books, so that the extent
and boundaries of such tracts could be easily
ascertained by the officers charged with the
duty of assessing and collecting taxes.
Where the tract was a small one, the proba-
bility was that it was actually occupied by
someone, and its extent of boundary could
be readily ascertained for purposes of assess-
ment and taxation. We can well understand
why one policy could be properly adopted as
to large tracts which the necessities of the
public revenue did not require to be prescribed
as to small tracts. The judiciary should be 43
very reluctant to interfere with the taxing
systems of a state, and should never do so
unless that which the state attempts to do
is in palpable violation of the constitutional
rights of the owners of property. Under this
view of our duty, we are unwilling to hold
that the provision referred to is repugnant to
the clause of the 14th Amendment forbidding
a denial of the equal protection of the laws.

For the reasons stated, we hold that the
system established by West Virginia, under
which lands liable to taxation are forfeited to
the state by reason of the owner not having
them placed, or caused to be placed,
during five
consecutive years, on the
proper land books for taxation, and
caused himself to be charged with the taxes
thereon, and under which, on petition re-
quired to be filed by the representatives of
the state in the proper circuit court, such
lands are sold for the benefit of the school
fund, with liberty to the owner, upon due
notice of the proceeding, to intervene by pe-
tition and secure a redemption of his lands
from the forfeiture declared by paying the
taxes and charges due upon them, is not in-
consistent with the due process of law re
quired by the Constitution of the United
States or the Constitution of the state.

Having discussed all the points suggested by the assignments of error which we deem it necessary to examine, we conclude this opinion by saying that as neither the plaintiff nor those under whom he claims title availed themselves of the remedy provided by the statutes of West Virginia for removing the forfeiture arising from the fact that, dur ing the years 1884, 1885, 1886, 1887, and 1888, the lands in question were not charged on the proper land books with the state taxes thereon for that period or any part thereof, the forfeiture of such lands to the state was not displaced or discharged, and the circuit court properly directed the jury to find a verdict for the defendants. The plaintiff was entitled to recover only on the strength of his own title. Whether the defendants had a good title or not the plaintiff had no such interest in or claim to the lands as enabled him to maintain his action of ejectment. We concur in what the supreme court of appeals of Virginia said in a case recently decided: "In 437) an action of ejectment the plaintift must recover on the strength of his own title, and if it appear that the legal title is in another.

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