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purchaser; but not before such public sale. It follows that in the case before us the title remained in the tenant for life with remainder to the defendant in error, at least until sale; though forfeited, in the sense just stated, to the United States."

Such being the provisions of the Constitution of West Virginia in relation to the forfeiture of lands, the supreme court of appeals of that state had occasion in McClure v. Maitland, 24 W. Va. 561, 575-578, to determine 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


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: "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 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, 36 years after the removal of such disability, W. Va. 489, 501, the court referred to its for have 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 con vided, Such right to redeem shall in no case 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,

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.

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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 failure to list lands for taxation the title state taxes on the land books of the proper should be forfeited, and should ipso facto, county, is repugnant to the clause of the 14th without inquiry or trial, and without opporAmendment of the Constitution of the tunity to the party supposed to be in default United States declaring that no state shall even to manifest his innocence, be vested in deprive any person of his property without the commonwealth, is unconstitutional and due process of law.


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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 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 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 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 him 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, or other person appointed commissioner to make such sale, may receive bids for such lands, without any notice of sale; and if the former owner or owners, or person in whose name the land was returned delinquent and forfeited, or the heirs or grantee of such owner or person, or any person or persons holding a valid subsisting lien thereon, at

From chapter 105 of the Code of West Virginia, published in 1887, it appears that all lands forfeited to the state for the failure to have the same entered upon the land books of the proper county and charged with the taxes thereon, as provided by law-so far as the title thereof was not vested in junior grantees or claimants under the provisions 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 [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 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 pe- ifter 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, and part of a tract or lot of land mentioned in the petition, in whose name it was forfeited, and when and how forfeited, in whom the legal title was at the time of the forfeiture, and, if more than one person claimed adverse titles thereto at the date of the forfeiture, the name of each of such claimants and a reference to the deed book or books in which the title papers of any claimant thereof can be found; what portion or portions, if any, of such lands is claimed by any per son or persons under the provisions of section three of article thirteen of the Consti

or *of such former owner of such land, having[426]
a lien thereon, may file his petition in said cir-
cuit court as herein before provided, and ask-
ing to be allowed to redeem such part or
parts of any tract of land so forfeited, or the
whole thereof, as he may desire, and upon
such proof being made as would entitle the
petitioner to the excess of purchase money
herein before mentioned, such court may al
low him to redeem the whole of such tract if
he desire to redeem the whole, or such part or
parts thereof, as he may desire, less than the
whole, upon the payment into court, or to
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 re-
demption 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
in order to redeem the whole tract or the
part or parts thereof which the petitioner de
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-
erate as a release of such forfeiture so far as
the state is concerned, and of all former taxes
on said tract, or part or parts thereof so re-
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 herein before 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."

"Sec. 18. In every such suit brought under[428]
the provisions of this chapter, the court shall
have full jurisdiction, power, and authority to
hear, try, and determine all questions of title,
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 discre-
tion may at any time, regardless of the evi-
dence, 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 there-
in, which, in the opinion of the court, is prop
er to be tried by a jury. And if any such is-
sue 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
in all respects as if such issue was made up in
an action pending in such court. And every
such issue shall be proceeded in, and the trial
thereof shall be governed by the law and prac

[427] *It thus appears that when the lands in question and others embraced in the Morris patent were, as is contended, forfeited to the state for the failure of the owner during the 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 chancery; and the court may grant a new them entered upon the land books of the trial therein as in other cases tried by a proper county and charged with the taxes jury." And this provision was preserved, subthereon, it was provided by the statutes of stantially, in the act of 1893, amendatory of West Virginia: 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 full possession of and title to his lands. We should therefore look to the Constitution and statutes of the state together for the purpose of ascertaining whether the system of taxation established by the state was, in its essential features, consistent with due process of law. If, in addition to the provisions contained in the Constitution, that instru ment had itself provided for the sale of for feited lands for the benefit of the school fund, but reserved the right to the owner, before sale and within a reasonable period, to pay

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;

That the petition should be referred to a commissioner in chancery, who should report upon the same and upon such other things as the court might direct, and particularly as to the amount of taxes due and unpaid upon any lands mentioned in the petition, in whose name and when and how forfeited, and in whom the legal title was at the time of the forfeiture:

That if there were no exceptions to the report, or if there were exceptions which were overruled, the court was required to confirm

These provisions were substantially preserved in chapter 105 as amended and re-enacted in 1891 and 1893. Code of West Va 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):

the taxes and charges due thereon, and there in which process, in its nature final, issues by relieve his land from forfeiture, we do not against the body, lands, and goods of certain suppose that such a system would be held to public debtors without any such trial; and (429]* be inconsistent with due process of law. If this brings us to the question whether those this be true it would seem to follow necessar-provisions of the Constitution which relate ily that if the statutes of the state, in connec- to the judicial power are incompatible with tion with the Constitution, gave the taxpay- these proceedings." Again: "The power to er reasonable opportunity to protects lands collect and disburse revenue, and to make all against a forfeiture arising from his failure laws which shall be necessary and proper for to place them upon the land books, there is carrying that power into effect, includes all no ground for him to complain that his prop- known and appropriate means of effectually erty has been taken without due process of collecting and disbursing that revenue, unless law. some such means should be forbidden in some other part of the Constitution. The power has not been exhausted by the receipt of the money by the collector. Its purpose is to raise money and use it in payment of the debts of the government; and, whoever may have possession of the public money, until it is actually disbursed, the power to use those known and appropriate means to secure its due application continues. As we have already shown, the means provided by the act of 1820 do not differ in principle from those employed in England from remote antiquity


Much of the argument on behalf of the plaintiff proceeds upon the erroneous theory that all the principles involved in due process of law as applied to proceedings strictly judicial in their nature apply equally to proceedings for the collection of public revenue by taxation. On the contrary, it is well settled that very summary remedies may be used in the collection of taxes that could not be applied in cases of a judicial character. This subject was fully considered in Den, Murray's Lessee, v. Hoboken Land & Improve ment Co. 18 How. 272,280,281,282 [15: 372, and in many of the states, so far as we 376, 377], which arose under the act of Con- know, without objection-for this purpose, gress of May 15, 1820, providing for the better at the time the Constitution was formed. organization of the Treasury Department. may be added, that probably there are few The account of a collector of customs having governments which do or can permit their been audited by the first auditor and certified claims for public taxes, either on the citizen by the first comptroller of the Treasury, a or the officer employed for their collection or distress warrant for the balance found to be disbursement, to become subjects of judicial due was issued by the solicitor of the Treas- controversy, according to the course of the ury, in accordance with the act of Congress, law of the land. Imperative necessity has and levied upon the lands of the collector. forced a distinction between such claims and The question presented was whether such a all others, which has sometimes been carried proceeding was consistent with due process out by summary methods of proceeding and of law-the objection to it being that it was sometimes by systems of fines and penalties [431] judicial in its nature and that it operated to but always in some way observed and yielded deprive the debtor of his property without a to." In Bell's Gap R'd Co. v. Pennsylvania, hearing or trial by jury and without due 134 U. S. 232, 239 [33: 892, 896], it was said process of law. This court said, among other that "the process of taxation does not rethings: "Tested by the common and stat- quire the same kind of notice as is required in ute law of England prior to the emigration a suit at law, or even in proceedings for takof our ancestors and by the laws of many of ing private property under the power of emithe states at the time of the adoption of this nent domain. It involves no violation of due Amendment, the proceedings authorized by process of law when it is executed according the act of 1820 cannot be denied to be due to customary forms and established usages, process of law when applied to the ascertain- or in subordination to the principles which ment and recovery of balances due to the underlie them." This must be so, else the government from a collector of customs, un-existence of government might be put in peril less there exists in the Constitution some by the delays attendant upon formal judicial other provision which restrains Congress proceedings for the collection of taxes. from authorizing such proceedings. For, In this connection reference may be made (430]though 'due process of law' generally* implies to what was said by the supreme court of and includes actor, reus, judex, regular alle- appeals in McClure v. Maitland, above cited, gations, opportunity to answer, and a trial touching the rights of the owner of lands foraccording to some settled course of judicial feited to the state, and for the sale of which proceedings (2 Inst. 47, 50; Hoke v. Hender- proceedings were instituted by the commisson, 15 N. C. (4 Dev. L.) 15 [25 Am. Dec.sioner of school lands. That court said: "The 677]; Taylor v. Porter, 4 Hill, 146, 40 Am. Dec. 274; Vanzandt v. Waddel, 2 Yerg. 260; Bank of the State v. Cooper, 2 Yerg. 599 [24 Am. Dec. 517]; Jones's Heirs v. Perry, 10 Yerg. 59, 30 Am. Dec. 430; Greene v. Briggs, 1 Curt. C. C. 311), yet this is not universally true. There may be and we have seen that there are cases, under the law of England after Magna Charta, and as it was brought to this country and acted on here,

title to the land and all the right and interest of the former owner having thus, by his default and the operation of the law, become absolutely vested in the state and become irredeemable, she, having thus acquired a perfect title to, and unqualified dominion over, the land, had the undoubted right to hold or dispose of it for any proper purpose, in any manner and upon any terms and conditions she might in her sovereign capacity deem

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