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1410]*or notice of such forfeiture or of such out- | commonwealth, and have the same standing title. charged with all taxes and damages in The plaintiff's objection having been over-arrear, or properly chargeable thereon, and ruled, and a verdict having been rendered by shall also actually pay and satisfy all such direction of the court for the defendants, taxes and damages which would not have judgment was entered that the plaintiff take been relinquished and exonerated by the nothing by his action.

The controlling question in this case relates to the validity under the Constitution of the United States of certain provisions in the Constitution and statutes of West Virginia for the forfeiture of lands by reason of the failure of the owners during a given pericd to have them placed upon the proper land books for taxation.

second section of the act concerning delinquent and forfeited lands, passed March 10, 1832, had they been returned for their delinquency prior to the passage of that act; and upon their failure to do so, all such lands or parcels thereof not now in the actual possession of such owner or proprietor by himself, or his tenant in possession, shall become forfeited to the commonwealth, after the 1st day of July, 1836, except only as hereinafter excepted.

The Constitution of West Virginia provides that all private rights and interests in lands in that state derived from or under the laws "3. That all right, title, and interest which of Virginia, and from or under the Constitu- may hereafter be vested in the commontion and laws of West Virginia prior to the wealth by virtue of the provisions of the sectime such Constitution went into operation, tion of this act next preceding herein, shall should "remain valid and secure, and shall be be transferred and absolutely vested in determined by the laws in force in Virginia any and every person or persons other prior to the formation of this state, and by than those for whose default the same the Constitution and laws in force in this have been forfeited, their heirs or devistate prior to the time this Constitution goes into effect." Art. 13, § 1.

sees, who are now in actual possession of said lands or any part or parcel of them, for so much thereof as such person or persons have just title or claim to, legal or equitable, bona fide claimed, held or derived from or under any grant of the commonwealth bearing who shall have discharged all taxes duly as-[418] By the 1st section of an act of the general sessed and charged against him, her or them assembly of Virginia, passed February 27, upon such lands, and all taxes that ought to 1835, further time was given until July 1, have been assessed and charged thereon 1836, for the redemption of all lands and lots from the time when he, she or they acquired theretofore returned as delinquent for the his, her, or their title thereto, whether legal nonpayment of taxes, west of the Alleghany or equitable; Provided, That nothing in mountains, and which had become vested on this section contained shall be so construed the previous 1st day of October in the presi- as to impair the right or title of any person dent and directors of the literary fund; sav- or persons who have obtained grants from ing the title of any bona fide occupant claim- the commonwealth for the same land and ing under a junior grant. whose rights were have regularly paid the taxes thereon, but in protected and secured under prior legisla-all such cases the parties shall be left to the tion.

In view of this provision it is proper to look at the legislation of Virginia and the decisions of its highest court touching the forfeiture of lands for noncompliance by the owners with the requirements of the law re-date previous to the 1st day of April, 1831, lating to taxation.

That act further provided:

strength of their original titles." Laws Va
1834-35, pp. 11-13.

Other acts were passed in Virginia relating to delinquent and forfeited lands and extending the time for redemption, all of them proceeding upon the ground that the state had the power to forfeit lands for failure to have them charged with taxes as well as for failure to pay the taxes so charged.

"And whereas it is known to the general assembly that many large tracts of lands lying west of the Alleghany mountains which were granted by the commonwealth before the [411 first day of April, 1831, never were, or have not been for many years past, entered on the books of the commissioners of the revenue where they respectively lie; by reason where- The first case in which the supreme court of no forfeiture for the nonpayment of taxes of appeals of Virginia had occasion to pass has occurred, or can accrue, under the exist- upon the validity of the above statute of ing laws, the commonwealth is defrauded of 1835, so far as it forfeited lands which the her just demands, and the settlement and im-owner failed to have put on the proper land provement of the country is delayed and em-books and pay taxes upon, was Staats v. barrassed; for remedy whereof,

Board, 10 Gratt. 400, 402, decided in 1853. "2. Be it enacted, That each and every That court said: "It further seems to the owner or proprietor of any such tract or court that, as by the act of March 23, 1836, parcel of land shall, on or before the first day Sess. Acts, p. 7, time was allowed from the of July, 1836, enter or cause to be entered on 1st day of November, 1836, for all persons to the books of the commissioners of the revenue cause their omitted lands to be entered with for the county wherein any such tract or the commissioner of the revenue, and to pay parcel of land may lie, all such lands the taxes thereon, in the manner prescribed in now owned от claimed by him, her the second section of the act of February 27, or them, through title derived mediately 1835, the forfeiture became absolute from or immediately under grants from the and after the 1st of November, 1836. That

In Levasser v. Washburn, 11 Gratt. 572, 580, 581 (1854), it was said: "According to the decisions of this court in the cases just referred to, and also in the cases of Wild v. Serpell, 10 Gratt. 405, and Smith v. Chapman, 10 Gratt. 445, the circuit court also erred in its opinion as to the time at which the forfeiture under the Girond grant occurred or became complete. It appears to have proceeded on the notion that some inquest of office, or decree, or other proceeding should have been had in order to declare and perfect the forfeiture. Nothing of the kind was necessary. The act of the 27th of February, 1835 (Sess. Acts, p. 11), declaring that lands which had been omitted from the

the provision of the act of March 30, 1837, I was, in my opinion, & wise and expedient as giving time for redemption until the 15th of the constitutional power of the legislature January, 1838, did not release the forfeitures to enact them was clear and unquestionwhich had accrued, except in such cases able." This case was cited in Armstrong v. where the owner or proprietor availed him- Morrill, 14 Wall. 120, 134 [20:765, 769], self of the privilege of redeeming. And it which was an action of ejectment brought further seems to the court that such forfeit- prior to the adoption of the 14th Amendment ure became absolute and complete by the of the Constitution of the United States, and failure to enter and pay the taxes thereon in in which therefore the rights of the parties the manner prescribed by the act of 27th of must have been determined without referFebruary, 1835. And no inquisition or judi-ence to the prohibition in that Amendment cial proceedings or inquest, or finding of any against the deprivation of property without kind, was required to consummate such for- due process of law. feiture." 413] *The same principle was announced in Wild's Lessee v. Serpell, 10 Gratt. 405, 408 (1853). The court said: "That the provisions of our statutes passed from time to time, making it the duty of the owners of lands to pay all taxes properly chargeable thereon, and, where they have been omitted from the books of the commissioners of the revenue, to cause them to be entered thereon in the proper counties, and to be charged with all arrearages of taxes and damages, and to pay all such arrearages as shall be found not to be released by law, and, in case of failure so to do, forfeiting to the commonwealth all right and title whatever of the parties in default (under the modifications and restric-books of the commissioners of the revenue tions provided by the acts), are within the constitutional competency of the legislature, has been sufficiently affirmed in decisions which have been made during the present term of this court in cases arising under these several statutes. Staat's Lessee v. Board, 10 Gratt. 400; Smith's Lessee v. Chapman, 10 Gratt. 445; Hale v. Branscum, infra. The same cases also sufficiently establish that in order to consummate and perfect a forfeit ure in such a case, no judgment or decree or other matter of record nor any inquest of office, is necessary, but that the statutes themselves, of their own force and by their own energy, work out their own purpose, and operate effectually to devest the title out of the defaulting owner, and perfectly to vest it in the commonwealth, without the machinery of any proceeding of record, or any- In this connection it may be well to refer thing in the nature of an inquest of office. to Martin v. Snowden, 18 Gratt. 100, 135, 136, And as the title is thus in a proper case de- 139, 140 (1868), in which the supreme court vested out of the owner and vested in the of appeals of Virginia had occasion to detercommonwealth by the operation of the stat-mine, *as between the parties before it, the[415] utes, so where the forfeiture inures to the effect of the provisions in the acts of Congress benefit of a third person, claiming under the of August 5, 1861 (12 Stat. at L. 292, chap. commonwealth by virtue of another and dis-45) and June 7, 1862 (12 Stat. at L. 422, chap. tinct right, the transfer of the title to such 98), relating to the direct taxation of lands. person is, in like manner, perfect and com- By the latter act it was provided that "the plete without any new grant from the com- title of, in and to each and every piece or monwealth, or any proceeding to manifest parcel of land upon which said tax has not the transfer by matter of record or other been paid as above provided, shall thereupon wise. Upon these subjects I have nothing become forfeited to the United States," and therefore to say upon this occasion, except that "upon the sale hereinafter provided that considering the peculiar condition for, shall vest in the United States or in the of things in that part of the state purchasers at such sale, in fee simple, free lying west of the Alleghany mountains, and discharged from all prior liens, encumand the serious check to population brances, right, title, and claim whatsoever." and the improvement of the country § 4. One of the questions presented in that [414]*and the development of its resources case was, whether the first of the clauses just growing out of it, a resort to the stringent quoted worked, proprio vigore, a transfer to measures of legislation that were adopted the United States of the title to the land de

should be forfeited unless the owners should cause the same to be entered and charged with taxes, and should pay the same, except such as might be released by law, was intended by its own force and energy to render the forfeiture absolute and complete, without the necessity of any inquisition, judicial proceeding, or finding of any kind, in order to consummate it. It was perfectly within the competency of the legislature to declare such forfeiture and devest the title by the mere operation of the act itself; and the whole legislation upon the subject of delinquent and forfeited lands plainly manifests the intention to exercise its power in this form." See also Usher's Heirs v. Pride, 15 Gratt. 190, and Smith v. Tharp, 17 W. Va. 221.

clared to be forfeited. The court held that proceeding equivalent to office found. Speakthe acts of Congress did not and were not in- ing by Chief Justice Chase, it said: "We are tended to create such a forfeiture of the land first to consider whether the first clause of to the United States as that it ceased ipso this section, proprio vigore, worked a transfacto to be the property of the former owner fer to the United States of the land declared and became the absolute property of the Unit- to be forfeited. The counsel for the plaintiff ed States; that Congress was without consti- in error have insisted earnestly that such was tutional power to impose the penalty of for its effect. But it must be remembered that feiture of lands for the nonpayment of taxes; the primary object of the act was, undoubtthat Congress had all the powers for enforcedly, revenue, to be raised by collection of ing the collection of its taxes that were in taxes assessed upon lands. It is true that a use by the Crown of England, or were in use different purpose appears to have dictated by the states at the time of the adoption of the provisions relating to redemption after the Constitution, but forfeiture of the land as-sale, and to the disposition of the lands pursessed with the tax was not then in use, chased by the government; a policy which either in England or the states, as a mode of had reference to the suppression of rebellion collecting the tax. Referring to Den, Mur- rather than to revenue. But this purpose[417]

ray's Lessee, v. Hoboken Land and Improve-did not affect the operation of the act before ment Co. 18 How. 272 [15: 372], the state sale, for until sale actually made there could court further said: "Can a forfeiture of the be, properly, no redemption. The assessment land charged with taxes, such as is contend-of the tax merely created a lien on the land, ed for in these cases, be regarded as 'due pro- which might be discharged by the payment cess of law,' upon the principles established of the debt. And it seems unreasonable to by that case? Literally speaking, it is not give to the act, considered as a revenue measany process at all, but operates by force of ure, a construction which would defeat the law and without any process or proceeding right of the owner to pay the amount assessed whatever, except the ascertainment by the and relieve his lands from the lien. The first commissioners of the sum chargeable on the clause of the act, therefore, is not to be conland. But that is probably immaterial. The sidered as working an actual transfer of the forfeiture of land to the Crown does not ap-land to the United States, if a more liberal pear to have been a means recognized and construction can be given to it consistently employed in Englanu at any period of its his- with its terms. Now, the general principles tory for enforcing the payment of taxes or of the law of forfeiture seem to be inconsistother debts to the Crown. If it had been, we ent with such a transfer. Without pausing [416]should have found such forfeitures treated to inquire whether, in any case, the title of of in the English law books; but we nowhere a citizen to his land can be devested by forfind them mentioned." Again: "These ref- feiture anu vested absolutely in the United erences will show what were the ordinary States, without any inquisition of record or methods of enforcing the payment of taxes some public transaction equivalent to office in use in Virginia about the time of the adop-found, it is certainly proper to assume that tion of the Constitution. And it may be an act of sovereignty so highly penal is not worth mentioning, that before the adoption to be inferred from language capable of any of the Constitution of the United States the milder construction. Fairfax's Devisee v. legislature of Virginia had re-enacted the Hunter's Lessee, 7 Cranch, 625 [3: 460]. In provision of Magna Charta, that no freeman the case of lands forfeited by alienage the shall be taken or imprisoned, or be deprived king could not acquire an interest in the of his freehold or liberties or free customs, lands except by inquest of office. 3 Bl. Com. or be outlawed or exiled, or any otherwise 258. And so of other instances where the destroyed, nor shall the commonwealth pass title of the sovereign was derived from forupon him nor condemn him, but by the law- feiture." Again: "Applying these principles ful judgment of his peers, or by the law of to the case in hand, it seems quite clear that the land. 12 Hen. Stat. at Large, 186. the first clause of the fourth section was not Looking at the spirit which animated all this intended by Congress to have the effect atlegislation, we cannot doubt as to what tributed to it, independently of the second would have been thought, at that day, of a clause. It does not direct the possession and statute declaring an immediate and absolute appropriation of the lard. It was designed forfeiture of the whole land as a penalty for rather, as we think, to declare the ground of the nonpayment of the tax within sixty days the forfeiture of title, namely, nonpayment of after the assessment of it, without notice to taxes, while the second ciause was intended to the owner, by advertisement or otherwise, work the actual investment of the title through of the assessment, and without any, even the a public act of the government in the United least, effort to collect it." States, or in the purchaser at the tax sale. The sale was the public act, which is the equivalent of office found. What preceded the sale was merely preliminary, and, independently of the sale, worked no devestiture of title. The title, indeed, was forfeited by nonpayment of the tax; in other words, it became subject to be vested in the United[418] States, and, upon public sale, became actually vested in the United States or in any other

The case of Martin v. Snowden was brought here and is reported under the title of Bennett v. Hunter, 9 Wall. 326, 335-337 [19:672, 675, 676] (1869). This court did not deem it necessary in that case to decide whether the United States could constitutionally take to itself the absolute title to lands merely because of the nonpayment of taxes thereon within a prescribed time, and without some

purchaser; but not before such public sale. Such being the provisions of the ConstituIt follows that in the case before us the title tion of West Virginia in relation to the forremained in the tenant for life with remain- feiture of lands, the supreme court of appeals der to the defendant in error, at least until of that state had occasion in McClure v. sale; though forfeited, in the sense just stat-Maitland, 24 W. Va. 561, 575-578, to detered, to the United States."

We come now to an examination of the West Virginia Constitution and statutory provisions relating to the forfeiture to the state of lands subject to taxation.

mine their scope and effect. In that case it was said: "In the year 1831, as we have endeavored to show in a former part of this opinion, the land titles in that portion of the commonwealth of Virginia now embraced By article 13 of the Constitution of West within this state were in a most wretched and Virginia of 1872 it was provided: embarrassed condition. Many owners of "4. All lands in this state, waste and un-large tracts, covering in some cases almost appropriated, or heretofore or hereafter for entire counties, would neither pay their taxes any cause forfeited or treated as forfeited or nor settle and improve their lands, thus escheated to the state of Virginia or this paralyzing the energy and contravening the state, or purchased by either and become ir-prosperity of the people and the advancement redeemable, not redeemed, released, trans- and population of the state to an almost inferred, or otherwise disposed of, the title conceivable extent. In this emergency and to whereto shall remain in this state till such remedy this calamitous evil, the general sale as is hereinafter mentioned be made, assembly of Virginia inaugurated the system shall, by proceedings in the circuit court of of delinquent and forfeiture laws that form the county in which the lands or a part there- the basis of the provisions of our present Conof are situated, be sold to the highest bidder.stitution on that subject. The whole history "5. The former owner of any such land of that system shows a most earnest and deshall be entitled to receive the excess of the termined effort on the part of the legislature, sum for which the land may be sold over the the judiciary, and the people, speaking taxes charged and chargeable thereon, or through our present Constitution, to destroy which, if the land had not been forfeited, and annihilate the titles of such delinquent would have been charged or chargeable there- owners, who should, after every reasonable[420] on, since the formation of this state, with in- opportunity had been given them to comply terest at the rate of twelve per centum per with the laws, continue in default, and to annum, and the costs of the proceedings, if protect actual settlers and those not in dehis claim be filed in the circuit court that fault. The purpose of the statutes passed to decrees the sale, within two years thereafter. enforce this system was not merely to create "6. It shall be the duty of every owner of a lien for the taxes on these delinquent and land to have it entered on the land books of unoccupied lands, but to effect by their own the county in which it, or part of it, is force and vigor an absolute forfeiture of them situated, and to cause himself to be charged and effectually vest the title thereto in the with the taxes thereon, and pay the same. state without the machinery of any proceedWhen for any five successive years after the ing of record or anything in the nature of year 1869 the owner of any tract of land con- an inquest of office. Such was intended to be taining one thousand acres or more shall not and such was in fact the effect of these stathave been charged on such books with state utes. The constitutional competency of the tax on said land, then by operation hereof the legislature to pass these laws and thus conland shall be forfeited and the title thereto summate the forfeiture and perfectly devest vest in the state. But if, for any one or more all the right, title, and interest of the former [419]of such five years the owner shall have been owner by the mere energy and operation of charged with state tax on any part of the the statutes themselves, has been repeatedly land, such part thereof shall not be forfeited affirmed by the court of appeals of Virginia" for such cause. And any owner of land so-citing Staats v. Board, 10 Gratt. 400; Wild forfeited, or of any interest therein at the time of the forfeiture thereof, who shall then be an infant, married woman, or insane person, may, until the expiration of three So in Holly River Coal Co. v. Howell, 36 years after the removal of such disability, W. Va. 489, 501, the court referred to its forhave the land, or such interest charged on mer decisions, above cited, and after observsuch books, with all state and other taxes ing that they had been adhered to with only that shall be, and but for the forfeiture a seeming exception, said: "The forfeitures would be, chargeable on the land or interest became complete and absolute by operation therein for the year 1863, and every year of law-in the case of delinquent lands on the thereafter with interest at the rate of ten per 1st day of October, 1834, and in case of omitcentum per annum; and pay all taxes and ted lands on 1st November, 1836, and no ininterest thereon for all such years, and there-quisition or judicial proceeding or inquest by redeem the land or interest therein: Pro- or finding of any kind was required to convided, Such right to redeem shall in no case summate such forfeiture." extend beyond twenty years from the time Now, the plaintiff contends that the prosuch land was forfeited." The duty imposed vision in the Constitution of West Virginia upon owners of land by the first clause of which forfeits and vests absolutely in the this section was also prescribed by the state without inquisition of record, or some statutes of the state. public transaction equivalent to office found,

v. Serpell, 10 Gratt. 405; Levasser v. Washburn, 11 Gratt. 572; Usher v. Pride, 15 Gratt. 190, and Smith v. Tharp, 17 W. Va. 221.

the title to lands which for five successive of the act of 1825 as provided that for a mere
years after 1869 have not been charged with
state taxes on the land books of the proper
county, is repugnant to the clause of the 14th
Amendment of the Constitution of the
United States declaring that no state shall
deprive any person of his property without
due process of law.

failure to list lands for taxation the title should be forfeited, and should ipso facto, without inquiry or trial, and without oppor tunity to the party supposed to be in default even to manifest his innocence, be vested in the commonwealth, is unconstitutional and

void."

In support of this contention numerous au- The question of constitutional law thus [421]thorities have been cited by the plaintiff, presented is one of unusual gravity. On the those most directly in point being Griffin v. one hand, it must not be forgotten that the Mixon, 38 Miss. 424 (1860), and Marshall v. clause of the national Constitution which McDaniel, 12 Bush, 378, 382-385 (1876). In this court is now asked to interpret is a part the first of those cases, the high court of er- of the supreme law of the land, and that it rors and appeals of Mississippi, speaking by must be given full force and effect throughJudge Harris, held a statute of that state out the entire Union. The due process of declaring the forfeiture of lands on the failure law enjoined by the 14th Amendment must simply of the owner to pay the taxes due mean the same thing in all the states. On thereon, without notice or hearing in any the other hand, a decision of this court deform, to be in violation of the constitutional claring that that Amendment forbids a state, provisions prohibiting the taking of private by force alone of its Constitution or statutes, property for public use without just compen- and without inquisition or inquiry in any sation being first made therefor, or the depri- form, to take to itself the absolute title to vation of property without due process of lands of the citizen because of his failure to law. In the other case, the court of appeals put them on record ter taxation, or to pay of Kentucky held to be unconstitutional a the taxes thereon, might greatly disturb the provision in a statute of that state declaring land titles of two states under a system that in all cases where any lands shall here- which has long been upheld and enforced by after be forfeited for failing to list for taxa- their respective legislatures and courts. Untion, or stricken off to the state, the title of der these circumstances, our duty is not to such lands shall vest in this commonwealth go beyond what is necessary to the decision by virtue of this act without any inquest of of the particular case before us. If the office found, unless said lands shall have been rights of the parties in this case can be fully redeemed according to law." That court, determined without passing upon the gen speaking by Chief Justice Lindsay, said: "In eral question whether the clause of the West pursuing this inquiry we need not call in Virginia Constitution in question, alone conquestion the power of the legislature to pro-sidered, is consistent with the national Convide for the levy and collection of taxes in the stitution, that question may properly be left most summary manner. The right of the for examination until it arises in some case commonwealth, through its executive and in which it must be decided. ministerial officers, to assess property for taxation, to ascertain the sum payable by each taxpayer, and to seize and sell his property in satisfaction of such sum, is not open to douct. It is equally clear the legislature may impose upon the taxpayer the duty of listing his property for taxation, and may prescribe, for the neglect of the duty so imposed, penalties reaching even to the forfeiture of the estate not listed. But when such laws are enacted, the forfeitures prescribed must be regarded as penalties, and they cannot be inflicted until inquiry has first been made and the commission of the offense ascertained by due course of law. To enjoin what shall be done or what left undone, and to secure obedience to the injunction by appropriate penalties, belongs exclusively to legislation. To ascertain a violation of such injunction and inflict the penalty belongs to the judicial function. 1422 Gaines v. Buford, 1 Dana, 481. By the Magna Charta it is declared that no citizen shall be disseised of his freehold or be condemned but by the lawful judgment of his peers or by the law of the land. The substance of this declaration is contained in our Bill of Rights. Its meaning and intention is that no man shall be deprived of his property without be ing first heard in his own defense. We conclude without hesitation that so much

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We come then to inquire whether, looking at the Constitution and the statutes of West Virginia together, a remedy was not pro-[423] vided which, if pursued, furnished to the plaintiff and those under whom he asserts title all the opportunity that "due process of law" required in order to vindicate any rights that he or they had in respect of the lands in question.

We have seen that the lands embraced by the patent of Robert Morris were not put upon the land books of the proper counties during the years 1883 to 1894, both inclusive. They were redeemed in 1883 from forfeiture by Randall, trustee, in whom, as we take it, the title was at that time vested. Let it be assumed that they were again forfeited to the state upon the expiration of the five consecutive years after 1883 during which they were not placed on the land books for taxation; in other words, that for that reason they were forfeited to the state after the year 1888. What, at the time of such forfeiture, were the rights of the owner? Did the statutes of the state give him any remedy whereby he could be relieved from such forfeiture? Was he denied all opportunity to hold the lands upon terms just and reasonable both to nim and the state?

We pass by the act of November 18, 1873, providing for the sale of escheated, forfeited,

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