which might be discharged by the payment of the debt. And it seems unreasonable to give to the act, considered as a revenue measure, a construction which would defeat the right of the owner to pay the amount assessed and relieve his lands from the lien. The first clause of the act, therefore, is not to be considered as working an actual transfer of the 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 process of law,' upon the principles established by that case? Literally speaking, it is not any process at all, but operates by force of law and without any process or proceeding whatever, except the ascertainment by the commissioners of the sum chargeable on the land. But that is probably immaterial. The forfeiture of land to the Crown does not apland 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 England 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 for. find 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 the land. 12 Hen. Stat. at Large, 186. Looking at the spirit which animated all this legislation, we cannot doubt as to what would have been thought, at that day, of a statute declaring an immediate and absolute forfeiture of the whole land as a penalty for the nonpayment of the tax within sixty days after the assessment of it, without notice to the owner, by advertisement or otherwise, of the assessment, and without any, even the least, effort to collect it." to the case in hand, it seems quite clear that the first clause of the fourth section was not intended by Congress to have the effect attributed to it, independently of the second clause. It does not direct the possession and appropriation of the lard. It was designed rather, as we think, to declare the ground of the forfeiture of title, namely, nonpayment of taxes, while the second cause was intended to work the actual investment of the title through a public act of the government in the United States, or in the purchaser at the tax sale. The case of Martin v. Snowden was brought The sale was the public act, which is the here and is reported under the title of Ben-equivalent of office found. What preceded nett v. Hunter, 9 Wall. 326,335-337 [19:672, the sale was merely preliminary, and, inde675, 676] (1869). This court did not deem it pendently of the sale, worked no devestiture necessary in that case to decide whether the United States could constitutionally take to itself the absolute title to lands merely be cause of the nonpayment of taxes thereon within a prescribed time, and without some 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 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. By article 13 of the Constitution of West Virginia of 1872 it was provided: 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 within this state were in a most wretched and 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 count 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 v. Serpell, 10 Gratt. 405; Levasser v. Washtime of the forfeiture thereof, who shall then burn, 11 Gratt. 572; Usher v. Pride, 15 Gratt. be an infant, married woman, or insane per- 190, and Smith v. Tharp, 17 W. Va. 221. son, may, until the expiration of three So in Holly River Coal Co. v. Howell, 38 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 therein for the year 1863, and every year thereafter with interest at the rate of ten per centum per annum; and pay all taxes and interest thereon for all such years, and thereby redeem the land or interest therein: Provided, Such right to redeem shall in no case extend beyond twenty years from the time such land was forfeited." The duty imposed upon owners of land by the first clause of this section was also prescribed by the statutes of the state. became complete and absolute by operation of law-in the case of delinquent lands on the 1st day of October, 1834, and in case of omitted lands on 1st November, 1836, and no inquisition or judicial proceeding or inquest or finding of any kind was required to con summate such forfeiture." Now, the plaintiff contends that the provision in the Constitution of West Virginia which forfeits and vests absolutely in the state without inquisition of record, or some public transaction equivalent to office found, the tle to lands which for five successive of the act of 1825 as provided that for a mere failure to list lands for taxation the title should be forfeited, and should ipso facto, without inquiry or trial, and without opportunity 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 for 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 genspeaking 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 con question 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 We come then to inquire whether, looking taxation, to ascertain the sum payable by at the Constitution and the statutes of West each taxpayer, and to seize and sell his prop- Virginia together, a remedy was not pro-[423] erty in satisfaction of such sum, is not open vided which, if pursued, furnished to the to douct. It is equally clear the legislature plaintiff and those under whom he asserts may impose upon the taxpayer the duty of title all the opportunity that "due process of listing his property for taxation, and may law" required in order to vindicate any prescribe, for the neglect of the duty so im- rights that he or they had in respect of the posed, penalties reaching even to the forfei-lands in question. ture of the estate not listed. But when such laws are enacted, the forfeitures prescribed must be regarded as penalties, and they can not 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 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, 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[425] 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 in 1887, which contained the law of the state in reference to forfeited lands as it was at that time. and conditions as to the court may seem right and proper; and in any decree of sale made under this chapter, the court may provide 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 suffiwere required to be sold for the benefit of the cient to satisfy such decree and the costs of [424]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 Code 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 pefter 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 creditdue and unpaid on each tract, lot, and parcel, or *of such former owner of such land, having[426] and part of a tract or lot of land mentioned a lien thereon, may file his petition in said cirin 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 desire, 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, 1 was vent military stores, which had been placed | caused by the attack. It was one of a conin the city hall, from falling into the hands tinuous chain of events brought into being of the rebels, caused them to be destroyed by by the usurped military power,-events so burning the city hall; and the fire, spreading linked together as to form one continuous from building to building, through three in- whole." 95 U. S. 133 [24: 400]. termediate buildings, to that containing the In general accord with the opinions above goods insured, destroyed them. This court quoted are two cases in this court upon the held that the loss was within the exception meaning and effect of the term "dangers of in the policy, because the rebel military navigation," or "perils of the sea," in a bill power was the predominating and operating of lading. The Mohawk, 8 Wall. 153 [19: cause of the fire; and in the opinion of the 406]; The Portsmouth, 9 Wall. 682 [19: court, delivered by Mr. Justice Strong, and 754]. strongly supported by authority, the true In The Mohawk, a steamboat carrying rule and its application to that case were wheat under a bill of lading containing an stated as follows: exception of "dangers of navigation" "The question is not what cause was near-grounded on the flats, and, in the effort to get est in time or place to the catastrophe. her off, became disabled by the bursting of That is not the meaning of the maxim, her boiler, and afterwards sank. It was arCausa proxima non remota spectatur. The gued, among other things, on the one side, proximate cause is the efficient cause, the that the explosion was not a danger incident one that necessarily sets the other causes in to navigation; and, on the other, that the operation. The causes that are merely in- sinking of the vessel was the immediate cause cidental or instruments of a superior or con- of the damage to the wheat. The question at trolling agency are not the proximate causes issue was whether the vessel was entitled to and the responsible ones, though they may be freight pro rata itineris. This court, speaknearer in time to the result. It is only when ing by Mr. Justice Nelson, said that "the exthe causes are independent of each other that plosion of the boiler was not a peril within the nearest is, of course, to be charged with the exception of the bill of lading," and the disaster." 95 U. S. 130 [24:399]. "The therefore the case fell within that class in conclusion is inevitable, that the fire which which the ship is disabled or prevented from caused the destruction of the plaintiff's prop- forwarding the goods to the port of destinaerty happened or took place, not merely in tion by a peril or accident not within the ex-[459] consequence of, but by means of, the rebel ception in the bill of lading. 8 Wall. 162 invasion and military or usurped power. The [19: 409]. Although this statement fire occurred while the attack was in prog- perhaps not absolutely necessary to the deciress, and when it was about being success- sion, it was upon a point argued by counsel, ful. The attack, as a cause, never ceased to and shows clearly that the court was of operate until the loss was complete. It was opinion that the explosion, and not the sinkthe causa causans which set in operation ing, was the proximate cause of the loss. every agency that contributed to the destruc- In The Portsmouth, it was decided that a tion. It created the military necessity for jettison made to lighten a steamboat which the destruction of the military stores in the had been run aground by her captain's negcity hall, and made it the duty of the com- ligence was not within an exception of "the manding officer of the Federal forces to de- dangers of lake navigation," in a bill of ladstroy them. His act, therefore, in setting fire ing; and Mr. Justice Strong, in delivering to the city hall, was directly in the line of the judgment, said: "A loss by a jettiforce set in motion by the usurping power." son occasioned by a peril of the 95 U. S. 132 [24:399]. "The court below reis, in ordinary cases, a loss by perils garded the action of the United States mili- of the sea. But it is well settled that, tary authorities as a sufficient cause inter- if a jettison of a cargo, or a part of it, [458]vening between the rebel attack and the de- is rendered necessary by any fault or breach struction of the plaintiff's property, and of contract of the master or owners of the therefore held it to be the responsible prox-vessel, the jettison must be attributed to that With this we cannot concur. fault, or breach of contract, rather than to The proximate cause, as we have seen, is the the sea peril, though that may also be presdominant cause, not the one which is inci- ent, and enter into the case. This is a prindental to that cause, its mere instrument, ciple alike applicable to exceptions in bills though the latter may be nearest in place of lading and in policies of insurance. and time to the loss. In Milwaukee & St. Though the peril of the sea may be nearer Paul Railway Co. v. Kellogg, 94 U. S. 469 in time to the disaster, the efficient cause, [24: 256], we said, in considering what is the without which the peril would not have been proximate and what the remote cause of an incurred, is regarded as the proximate cause injury: "The inquiry must always be whether of the loss. And there is, perhaps, greater there was any intermediate cause discon- reason for applying the rule to exceptions in nected from the primary fault, and self-op- contracts of common carriers than to those erating, which produced the injury.' In the in policies of insurance, for, in general, negpresent case, the burning of the city hall and ligence of the insured does not relieve an unthe spread of the fire afterwards was not a derwriter, while a common carrier may not, new and independent cause of loss. On the even by stipulation, relieve himself from the contrary, it was an incident, a necessary in- consequences of his own fault." 9 Wall. 684, cident and consequence, of the hostile rebel 685 [19: 755, 756]. attack on the town,-a military necessity imate cause. sea Generally speaking, the words "perils of |
