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 a criminal than in a civil action, 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 sub- under the law in force when the act to be in stantial right which the accused had at the vestigated is charged to have taken place. time the alleged offense was committed. But Remedies must always be under the control there are no such features in the case before of the legislature, and it would create endless us. Statutes which simply enlarge the class confusion in legal procesings if every case of persons who may be competent to testify was to be conducted only in accordance with in criminal cases are not ex post facto in their the rules of practice and heard only by the application to prosecutions for crimes com- courts in existence when its facts arose. The mitted prior to their passage; for they do not legislature may abolish courts and create attach criminality to any act previously done, new ones, and it may prescribe altogether and which was innocent when done; nor different modes of procedure in its discretion aggravate any crime theretofore committed; though it cannot lawfully, we think, in so nor provide a greater punishment therefor doing, dispense with any of those substantial than was prescribed at the time of its com- protections with which the existing law surmission; nor do they alter the degree or lessen rounds the person accused of crime."" Chap. the amount or measure, of the proof which 9, *272. 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. Any statutory alteration of the legal rules of evidence which would authorize conviction upon less proof, in amount or degree, than was required when the offense was committed, might, in respect of that offense, be obnoxious to the constitutional inhibition upon ex post facto laws. But alterations which do not increase the punishment, nor change the ingredients of the offense, or the ultimate facts necessary to establish guilt, but-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."

ings is not ex post facto when applied to prosecutions for crimes committed prior to its passage. If persons excluded, upon grounds of public policy at the time of the commission of an offense, from testifying as witnesses for or against the accused, may, in virtue of a statute, become competent to testify, we cannot perceive any ground upon which to hold a statute to be ex post facto which does 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 inquired at the time of the commission of the its relation to the offense or its 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 to ficiency or effect of the evidence declared to

books may neglect to perform his duty. Thus, | failure of those who owned or claimed to own it is argued, the lands may be forfeited by large tracts of lands, patented in the last cenreason of the landowner not having been, in tury, or early in the present century, to put fact, charged on the land books with the them on the land books, so that the extent taxes due from him, although he was not re- and boundaries of such tracts could be easily sponsible for such neglect. We do not so in- ascertained by the officers charged with the terpret the state Constitution or the statutes duty of assessing and collecting taxes enacted under it. If the landowner does all Where the tract was a small one, the probathat is reasonably in his power to have his bility was that it was actually occupied by lands entered upon the land books and to someone, and its extent of boundary could cause himself to be charged with taxes there-be readily ascertained for purposes of assesson, no forfeiture can arise from the owner ment and taxation. We can well understand not having been "charged on such books" why one policy could be properly adopted as with the state tax. The state could not ac- to large tracts which the necessities of the quire any title to the lands merely through public revenue did not require to be prescribed the neglect of its agent having custody or as to small tracts. The judiciary should be(436 control of its land hooks. Any steps at very reluctant to interfere with the taxing tempted to be taken by the officers of the systems of a state, and should never do so state, based upon such neglect of its agent,unless that which the state attempts to do the taxpayer not being in default, would be is in palpable violation of the constitutional without legal sanction, and could be re- rights of the owners of property. Under this strained by any court having jurisdiction in view of our duty, we are unwilling to hold the premises. We go further, and say, that that the provision referred to is repugnant to any sale had under the statute providing for the clause of the 14th Amendment forbidding a sale, under the order of court, for the bene- a denial of the equal protection of the laws. fit of the school fund, of lands alleged to be For the reasons stated, we hold that the forfeited by reason of their not having been system established by West Virginia, under charged on the land books for five consecu- which lands liable to taxation are forfeited to tive years with the state tax due thereon, the state by reason of the owner not having would be absolutely void, if the landowner them placed, or caused to be placed, was not before the court, or had not been during five consecutive years, on the duly notified of the proceedings, but had done proper land books for taxation, and all that he could reasonably do to have his caused himself to be charged with the taxes [435]lands entered on the proper books and to thereon, and under which, on petition recause himself to be charged with the taxes quired to be filed by the representatives of due thereon. If the state was not entitled the state in the proper circuit court, such to treat them as forfeited lands, that fact lands are sold for the benefit of the school could be shown in the proceeding instituted fund, with liberty to the owner, upon due for their sale as lands of that character, and notice of the proceeding, to intervene by pethe rights of the owner fully protected. In tition and secure a redemption of his lands the present case, it does not appear that any from the forfeiture declared by paying the evidence was offered tending to show that taxes and charges due upon them, is not inthe absence from the land books of any consistent with the due process of law recharge of taxes on the lands claimed by the quired by the Constitution of the United plaintiff during five consecutive years after States or the Constitution of the state. 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 in tended to be remedied by the Constitution and laws of West Virginia was the persistent

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 re cover on the strength of his own title, and if it appear that the legal title is in another.

The fact that the guardian acted in good | cation of the funds of the estates they reprefaith is irrelevant and immaterial. Sprott v. United States, 20 Wall. 459, 463 (22:371, 372).

The guardian is bound to account for the money in gold. He has failed to show that the gold which he collected in 1857, 1858, and 1859, was changed into Confederate


King v. Hughes, 52 Ga. 600; Johnson v.
McCullough, 59 Ga. 212.

Mr. P. W. Meldrim, for defendant in er


The guardian had the right to invest Con-
federate money in his hands under the direc-
tion of the judge of the superior court
ing jurisdiction.

sent, by reason of such investments;" and that all administrators, executors, guardians, and trustees, claiming the benefit of the provisions of that act, should, before their final settlement, make oath before the ordinary of the county in which they had theretofore made their returns, "showing what funds of the estates they represent they have so invested, and shall also swear that the notes, bonds, or certificates, so held by them, are the same kind of currency which they received for the estates they so represent." Ga. Laws 1865-66, p. 85.

On the 2d day of July, 1866, the guardian hav-made a return to the proper court of his acts[391] for the years 1864 and 1865, showing the amount in his hands, and also made oath before the ordinary of Jefferson county, Georgia, "that in 1863, in pursuance of an order, judgment, or decree of the superior court of said county as guardian of M. J. Baldy, minor, he did bona fide invest twelve hundred dollars of the funds of said minor in the eight per cent bonds of the Confederate states, and that the bonds so held by him are the said minor's estate." same kind of currency which he received for

Ga. cts 1861, p. 32; Ga. Acts 1863-64, p. 29; Ordinances of the Conventions of Georgia, 1865-1868; Campbell v. Miller, 38 Ga. 304, 95 Am. Dec. 389; Miller v. Gould, 38 Ga. 465; Westbrook v. Davis, 48 Ga. 473; Saxon v. Sheppard, 54 Ga. 286; McWhorter v. Tarpley, 54 Ga. 291; Nelms v. Summers, 54 Ga. 605; Venable v. Cody, 68 Ga. 171; McCook v. Harp, 81 Ga. 236.

Mr. Justice Harlan delivered the opinion of the court:

William H. Baldy, a citizen of Georgia, died in that state prior to the civil war, leaving several children, one of whom was Marianne J. Baldy, who became of full age on the 21st day of February, 1875.

In 1876 Hunter received from the ordinary of Jefferson county letters of dismissal as guardian of the several children of William H. Baldy. He died nine years thereafter, in 1885, and this suit was brought in 1893 against his executor in the name of Marianne J. Baldy by her next friend, she having be

come of unsound mind as far back at least as

1875, and being at the time this suit was brought in a lunatic asylum.

In 1857 Dr. E. H. W. Hunter was appointed [390]her guardian, *and after duly qualifying as such took possession of the estate of his ward. By an act of the legislature of Georgia, passed on the 16th day of December, 1861, At the trial below the plaintiff asked the guardians, trustees, executors, and adminis- court to instruct the jury that "an investtrators were authorized to invest any funds ment by a guardian of money of his ward held by them in the bonds issued by the Con- during the Confederate war, and while both federate states or in lands and negroes-an guardian and ward were residing within the order to that effect being first obtained from Confederate territory, in bonds of the Cona judge of the superior court, who was em- federate states, was unlawful, and the guardpowered to consider and pass such applica-ian is responsible to the ward for the sum so tions, either in term time or vacation. Ga. invested;" and that no act of the legislature Laws 1861, p. 32.

On the 25th day of April, 1863, the superior court of Jefferson county, Georgia, passed an order granting leave to the guardian of Miss Baldy to invest certain funds then in his hands in Confederate bonds. This order was granted upon the petition of the guardian, who expressed the opinion that such funds should be so invested. On the same day the investment was made.

The legislature of Georgia, by an act approved March 12, 1866, entitled "An Act for the Relief of Administrators, Executors, Guardians, and Trustees, and for Other Purposes," declared that all administrators, executors, guardians, and trustees, who, in pursuance of an order, judgment, or decree of any court having jurisdiction, or of any law of that state, bona fide invested the funds of the estate they represented in the bonds, notes, or certificates of the state of Georgia or of the Confederate states, "be and they are hereby relieved from all the penalties of mismanagement, misappropriation, or misappli171 U. S. U. S., Book 43.


of the state "passed during the late war, authorizing the guardian to invest the funds of his ward in Confederate bonds, and no order of any court of the state granted in pursuance of said act of the legislature, would authorize such investment." Both of these instructions were refused.

It is not contended that the case involves any question as to the statute of limitations. It was agreed at the trial that the only matter in issue was as to the liability of Hunter's estate by reason of his having invested the ward's money in 1863 in bonds of the Confederate states. This appears from the charge to the jury in which the trial court, after observing that its duty was to follow the decisions of the supreme court of Georgia, said: "In the present case I am authorized to say that it is agreed between counsel that the investment was made bona fide, and the only question is whether it was lawful or un-[392] lawful for the guardian to make this investment; and, further, that as I may decide the legal question, I shall instruct a verdict for


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