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 protect us 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 & Improvement 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. It 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 deer proper, without consulting the former owner of the state court, observed that what was or anyone else. For after the forfeiture had said in McClure v. Maitland, as to the landbecome complete, as it had in the case before owner not being entitled of right to be made us, the former owner had no more claim to or a party to the proceeding instituted for the lien upon the land than one who never had sale of forfeited lands for the benefit of the pretended to own it. In the exercise of this school funds, had reference to the then existperfect dominion over her own property the ing act which was changed by the act of 1882. state saw proper to transfer and vest her title Answering the suggestion that the proceedto so much of said land owned by her, in ings under the new law were not judicial, the any person, other than those who occasioned court said: "Now, why, with parties plaintiff the default, as such person may have been and defendant, process, pleading, hearing bein the actual possession of, or have just title tween the parties, decree, etc., it is not, if not to, claiming the same, and was not in default technically a chancery suit, yet a suit, I canfor the taxes thereon chargeable to him. . . . not see; a suit under a special statute, it is The laws, as we have shown, by their own true, but none the less a suit. So, substanforce, transferred to and vested the title to tially, it was regarded in Hays v. Camden's the land absolutely in the state without any Heirs, 38 W. Va. 109, 18 S. E. 461. Proceedjudicial inquiry or inquest of any kind. ings at rules take place as in ordinary and [432]There could therefore be no necessity or rea- common-law suits. In some places it is called sen for proceeding in rem against the land. a 'suit.' But I know that it is said by those That had already become the absolute prop- holding the other view that the question is erty of the state, and she had a perfect right not to be tested by the circumstances, such to sell it without further inquiry. All the as I have alluded to, the presence of pleading, laws providing for the sale of these lands pre-process, hearing, etc., but it must be tested supposed the title to have vested in the state by the nature of the proceeding; that is, that prior to the commencement of the proceed- it is only an administrative process by the ings. In fact the whole authority of the com- state, through an officer and court, to realize missioner and the jurisdiction of the court money on its own property. But to this I are based upon the assumption that the un-reply that though the state might make the conditional title is in the state; for unless such is the fact neither has any authority to act. Twiggs v. Chevallie, 4 W. Va. 463. And all the right, title, and interest of the former owner having been completely devested, he has not a particle of interest in the land-no more than if he had never owned it; there is therefore no possible reason for making him a party or proceeding against him in personam or otherwise. The proceeding is of necessity, then, neither in rem nor in personam; and as all judicial proceedings properly so styled must belong to either the one or the other of these classes, it follows that this is not and cannot be in any technical sense a judicial proceeding." proceeding such, and did in its acts up to 1882, yet by its act in 1882 it changed the proceeding from one ex parte to one inter partes, and clothed the proceeding with all the habiliments of a suit; and still it did not proceed against the land, taking the act of forfeiture as a concession, and simply at once sell the land, but it subjected its right and title under the supposed forfeiture to question and investigation under the law through a suit, called in all interested adversely to its claim, and gave them leave to contest its right, and made its claim the subject of litigation." It thus appears that under the statutes of West Virginia in force after 1882 the owner It is said that this shows that the taxpay-of the forfeited lands had the right to become er, after his land is forfeited to the state, is left by the statutes of West Virginia without any right or opportunity, by any form of judicial proceeding, to get it back or to prevent its sale, and, therefore, it is argued, he is absolutely devested of his lands solely by reason of his failure to place them on the proper land books. a party to a judicial proceeding, of which he was entitled to notice, and in which the court had authority to relieve him, upon terms that were reasonable, from the forfeiture of his lands. *It is said that the landowner will be wi [434] out remedy if the commissioner of the scho fund should fail to institute the proceeding in which the statute permitted such owner to intervene by petition and obtain a redemption of his lands from the forfeiture claimed by the state. It cannot be assumed that the commissioner will neglect to discharge a duty expressly imposed upon him by law, nor that the courts are without power to compel him to act, where his action becomes necessary for the protection of the rights of the landowner. An answer to this view is, that what was said in McClure v. Maitland, on this point, had reference to proceedings under the act of November 18, 1873 (Acts 1872-73, p. 449, chap. 134), which were not judicial in their nature but administrative. But, as declared in Hays, Com'r, v. Camden's Heirs, 38 W. Va. 109, 110, the act of 1873 was so amended by the act of March 25, 1882 (Acts W. Va. 1882, p. 253, chap. 95), as to make the proceeding in the circuit court for the sale of forfeited It is further said that a forfeiture may lands, in which the owners or claimants could arise under the Constitution of West Virintervene and effect a redemption of theirginia despite any effort of the landowner to lands from forfeiture, a judicial proceeding. This view was reaffirmed in Wiant v. Hays, Com'r, 38 W. Va. 681, 684, in which Judge (433]Brannon,*delivering the unanimous judgment 171 U. S. U. S., Book 43. 15 prevent it; that although the owner may 225 books may neglect to perform his duty. Thus, | failure of those who owned or claimed to own it is argued, the lands may be forfeited by large tracts of lands, patented in the last cenreason of the landowner not having been, in tury, or early in the present century, to put fact, charged on the land books with the them on the land books, so that the extent taxes due from him, although he was not re- and boundaries of such tracts could be easily sponsible for such neglect. We do not so in- ascertained by the officers charged with the terpret the state Constitution or the statutes duty of assessing and collecting taxes. enacted under it. If the landowner does all Where the tract was a small one, the probathat is reasonably in his power to have his bility was that it was actually occupied by lands entered upon the land books and to someone, and its extent of boundary could cause himself to be charged with taxes there-be readily ascertained for purposes of assesson, no forfeiture can arise from the owner ment and taxation. We can well understand not having been "charged on such books" why one policy could be properly adopted as with the state tax. The state could not ac- to large tracts which the necessities of the quire any title to the lands merely through public revenue did not require to be prescribed the neglect of its agent having custody or as to small tracts. The judiciary should be[436] control of its land hooks. Any steps at- very reluctant to interfere with the taxing tempted to be taken by the officers of the systems of a state, and should never do so state, based upon such neglect of its agent, unless that which the state attempts to do, the taxpayer not being in default, would be is in palpable violation of the constitutional without legal sanction, and could be re- rights of the owners of property. Under this strained by any court having jurisdiction in view of our duty, we are unwilling to hold the premises. We go further, and say, that that the provision referred to is repugnant to any sale had under the statute providing for the clause of the 14th Amendment forbidding a sale, under the order of court, for the bene-a denial of the equal protection of the laws. fit of the school fund, of lands alleged to be For the reasons stated, we hold that the forfeited by reason of their not having been system established by West Virginia, under charged on the land books for five consecu- which lands liable to taxation are forfeited to tive years with the state tax due thereon, the state by reason of the owner not having would be absolutely void, if the landowner them placed, or caused to be placed, was not before the court, or had not been during five consecutive years, on the duly notified of the proceedings, but had done proper land books for taxation, and all that he could reasonably do to have his caused himself to be charged with the taxes [435]lands entered on the proper books and to thereon, and under which, on petition recause himself to be charged with the taxes quired to be filed by the representatives of due thereon. If the state was not entitled the state in the proper circuit court, such to treat them as forfeited lands, that fact lands are sold for the benefit of the school could be shown in the proceeding instituted fund, with liberty to the owner, upon due for their sale as lands of that character, and notice of the proceeding, to intervene by pethe rights of the owner fully protected. In tition and secure a redemption of his lands the present case, it does not appear that any from the forfeiture declared by paying the evidence was offered tending to show that taxes and charges due upon them, is not inthe absence from the land books of any consistent with the due process of law recharge of taxes on the lands claimed by the quired by the Constitution of the United plaintiff during five consecutive years after States or the Constitution of the state. their redemption by Randall, trustee, in 1883 was due to any neglect of the officers of the state, or that the plaintiff, or those under whom he asserts title, entered or attempted to enter the lands upon the land books, or that he or they caused or attempted to cause the lands to be charged with taxes thereon. But there was evidence tending to show that the requirements of the Constitution were not met during any of the years from 1883 to the bringing of this action. So far as the record discloses, it is a case of sheer neglect upon the part of the landowner to perform the duty required of him by the Constitution and statutes of the state. Another point made by the plaintiff in error is that the provision of the Constitution of Virginia exempting tracts of less than 1,000 acres from forfeiture is a discrimination against the owners of tracts containing one thousand acres or more, which amounts to a denial to citizens or landowners of the latter class of the equal protection of the laws. We do not concur in this view. The evil intended to be remedied by the Constitution and laws of West Virginia was the persistent Having discussed all the points suggested by the assignments of error which we deem it necessary to examine, we conclude this opinion by saying that as neither the plaintiff nor those under whom he claims title availed themselves of the remedy provided by the statutes of West Virginia for removing the forfeiture arising from the fact that, during the years 1884, 1885, 1886, 1887, and 1888, the lands in question were not charged on the proper land books with the state taxes thereon for that period or any part thereof, the forfeiture of such lands to the state was not displaced or discharged, and the circuit court properly directed the jury to find a verdict for the defendants. The plaintiff was entitled to recover only on the strength of his own title. Whether the defendants had a good title or not the plaintiff had no such interest in or claim to the lands as enabled him to maintain his action of ejectment. We concur in what the aupreme court of appeals of Virginia said in a case recently decided: "In[ 437] an action of ejectment the plaintift must recover on the strength of his own title, and if it appear that the legal title is in another, Liverpool Sailing Shipowners' Mut. Indemnity Association, L. R. 19 Q. B. Div. 242; Canada Shipping Co. v. British Shipowners' Mut. Protection Association, L. R. 23 Q. B. Div. 342; The Ferro [1893] P. 38; The Glenochil [1896] P. 10. In the case, cited by the appellant, of Dobell v. The Steamship Rossmore Co. [1895] 2 Q. B. 408, 414, the ship was unseaworthy at the time of sailing, by reason of the cargo having been so stowed against an open port that the port could not be closed without removing a considerable part of the cargo; and Lord Esher, M. R., upon that ground, distinguished that case from the decision of the circuit court of appeals in the present case. Judgment affirmed. ning of her voyage. The Carib Prince, 170 | closing the iron covers of the ports, it was U. S. 655 [42: 1181]. a fault or error in the navigation or in the But the contention that the Silvia was un-management of the ship. This view accords seaworthy when she sailed from Matanzas with the result of the English decisions upon is unsupported by the facts. The test of sea- the meaning of these words. Good v. Lonworthiness is whether the vessel is reasona- don Steamship Owners' Mut. Protecting Asbly fit to carry the cargo which she has un-sociation, L. R. 6 C. P. 563; The Warkworth, 465]dertaken to transport. The portholes of the L. R. 9 Prob. Div. 20, 145; Carmichael v. compartment in question were furnished both with the usual glass covers and with the usual iron shutters or deadlights; and there is nothing in the case to justify an inference that there was any defect in the construction of either. When she began her voyage, the weather being fair, the glass covers only were shut, and the iron ones were left open for the purpose of lighting the compartment. Although the hatches were battened down, they could have been taken off in two minutes, and no cargo was stowed against the ports so as to prevent or embarrass access to them in case a change of weather should make it necessary or proper to close the iron shutters. Had the cargo been so stowed as to require much time and labor to shift or remove it in order to get at the ports, the fact that the iron shutters were left open at the beginning of the voyage might have rendered the ship unseaworthy. But as no cargo was so stowed, and the ports were in a place where these shutters would usually be left open for the admission of light, and could be speedily got at and closed if occasion should require, there is no ground for holding that the ship was unseaworthy at the time of sailing. Steel v. State Line Steamship Co. L. R. 3 App. Cas. 72, 82, 90, 91; Hedley v. Pinkney & Sons Steamship Co. [1892] 1 Q. B. 58, 65, and [1894] A. C. 222, 227, 228; Gilroy v. Price [1893] A. C. 56, 64. The third section of the Harter act provides that "if the owner of any vessel transporting merchandise or property to or from any port in the United States of America shall exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped, and supplied, neither the vessel, her owner or owners, agent or charterers, shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel." 27 Stat. at L. 445. บ. JAMES A. BRIGGS, Executor of Charles M. Briggs, Deceased, Plff. in Err., AMANDA M. WALKER, and Ohio Valley Banking & Trust Company, Administrator of the Estate of A. L. Shotwell, Deceased. (See S. C. Reporter's ed. 466-474.) Federal question-act of Congress for the relief of an estate. 1. 2. A Federal question is presented by the de. termination of a state court as to whether the right given by act of Congress to the "legal representatives" of a person is for the benefit of his next of kin, to the exclusion of his creditors, or not. An act of Congress for the relief of the estate of a person, and referring to the court of claims a claim of his "legal representatives," makes the recovery on such claim assets of his estate and subject to his debts and liabilities. [No. 260.] 17, 1898. This provision, in its terms and intent, includes foreign vessels carrying goods to or Submitted April 25, 1898. Decided October from a port of the United States. The Scotland, 105 U. S. 24, 30 [26: 1001-1003]; The Carib Prince, above cited. N ERROR to the Court of Appeals of the I State of Kentucky to review a judgment of Not only had the owners of the Silvia exercised due diligence to make her seaworthy, that court amrming a judgment of the Cirbut, as has been seen, she was actually sea- cuit Court of Jefferson County in said state worthy when she began her voyage. in a suit brought against James A. Briggs, [466] *This case does not require a comprehen- executor, to which Amanda M. Walker and sive definition of the words "navigation" and others were parties in favor of defendants "management" of a vessel, within the mean- Walker and Shotwell for certain sums of ing of the act of Congress. They might not money, and adjudging that moneys in the include stowage of cargo not affecting the hands of Briggs as executor be applied to fitness of the ship to carry her cargo. But the payment of these sums, and of a further they do include, at the least, the control, dur- sum due from Moorehead to Briggs. On ing the voyage, of everything with which the motion to dismiss the writ of error or to vessel is equipped for the purpose of protect-affirm the judgment. Judgment affirmed. ing her and her cargo against the inroad of See same case below, 19 Ky. L. Rep. 1490, the seas; and if there was any neglect in not 43 S. W. 479. |