taxes, and interest due thereon, as provided the same and decree a sale of the lands for in this chapter, if he desile to redeem the the benefit of the school fund; anu, whole of such tract; or ii he desire to redeeni That at any time during the pendency of less than the whole of such tract, upon the the proceedings instituted for the sale of for. payment as aforesaid, of so much of the costs, feited lands for the benefit of the school fund, taxes, and interest due on such traot as will the owner, or any creditor of the owner hav. be a due proportion thereof for the quantity ing a lien thereon, might file his petition in 80 redeemed. Put if the petition be for a re the circuit court of the county for the re demption of a less quantity than the whole demption of his lands upon the payment in. of such tract, it shall be accompanied with a to court, or to the cominissioner of school plat and a certificate of survey of the part lands, of all costs, taxes, and interest due or parts thereof sought to be redeemed. thereon, and obtain a decree or order declar. Whenever it shall satisfactorily appear that ing the lands redeemed so far as the title the petitioner is entitled to redeem such thereto was in the state immediately before tract, or any part or parts thereof, the court the date of such order. shall make an order showing the sum paid These provisions were substantially prein order to redeem the whole tract or the served in chapter 105 as amended and re-enpart or parts thereof which the petitioner de acted in 1891 and 1893. Code of West Van sires to redeem, and declaring the tract, or 1891, p. 731; Aots of West Va. 1893, p. 57. part or parts thereof, redeemed from such But in the Code of 1891 will be found this ad. forfeiture, so far as the title thereto was in ditional and important provision (Acts 1891, the state immediately before the date of such chap. 94): order; which order, when so made, shall op- *"Sec. 18. In every such suit brought under[4281 erate as a release of such forfeiture so far as the provisions of this chapter, the court shall the state is concerned, and of all former taxes have full jurisdiction, power, and authority to on said tract, or part or parts thereof so rehear, try, and determine all questions of title, deemed, and no sale thereof shall be made. I possession, and boundary which may arise If the redemption be of a part or parts of a therein, as well as any and all conflicting tract, the plat or plats and certificate of the claims whatever to the real estate in question murvey thereof hereinbefore mentioned, to arising therein. And the court in its discregether with a copy of the order allowing the tion may at any time, regardless of the eviredemption, shall be recorded in a deed book, dence, if any, already taken therein, direct an in the office of the clerk of the county court. issue to be made up and tried at its bar as to Provided, That such payment and redemption any question, matter, or thing arising there shall in no way affect or impair the title to in, which, in the opinion of the court, is propany portion of such land transferred to and er to be tried by a jury. And if any such is. vested in any person, as provided in section sue be as to the question of title, possession, three of article thirteen of the Constitution or boundary of the land in question, or any of this state.”

part of it, it shall be tried and determined (427) *It thus appears that when the lands in in all respects as if such issue was made upin

question and others embraced in the Morris an action pending in such court. And every patent were, as is contended, forfeited to the such issue shall be proceeded in, and the trial state for the failure of the owner during the thereof shall be governed by the law and pracfive 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. That all lands thus forfeited to the state If, as contended, the state, without an inshould be sold for the benefit of the schoolquisition or proceeding of some kinu declar. fund;

ing a forfeiture of lands for failure during a That the sale should be sought by petition named period to list them for taxation, and filed by the commissioner of school lands in by force alone of its Constitution or statutes, the proper circuit court, to which proceeding could not take the absolute title to such lands, all claimants should be made parties, and be still it was in its power by legislation to probrought in by personal service of summons vide, as it did, a mode in which the attempted upon all found in the county, or by publica- forfeiture or liability to forfeiture could be tion as to those who could not be found; reinoved and the owner enabled to retain the

That the petition should be referred to a full possession of and title to his lands. We commissioner in chancery, who should report should therefore look to the Constitution and upon the same and upon such other things as statutes of the state together for the purthe court might direct, and particularly as pose of ascertaining whether the system of to the amount of taxes due and unpaid upon taxation establisheu by the state was, in its any lands mentioned in the petition, in whose essential features, consistent with due proname and when and how forfeited, and in cess of law. If, in addition to the provisions whom the legal title was at the time of the contained in the Constitution, that instru. forfeiture:

ment had itself provided for the sale of forThat if there were no exceptions to the re- feited lands for the benefit of the school fund, port, or if there were exceptions which were but reserved the right to the owner, before overruled, the court was required to confirm sale and within a reasonable period, to pay

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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, Jands, and gouds 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 Much of the argument on behalf of the other part of the Constitution. The power plaintiff proceeds upon the erroneous theory has not been exhausted by the receipt of the that all the principles involved in due process money by the collector. Its purpose is to of law as applied to proceedings strictly judi- raise money and use it in payment of the cial in their nature apply equally to proceed- debts of the government; and, whoever may ings for the collection of public revenue by have possession of the public money, until it taxation. On the contrary, it is well settled is actually disbursed, the power to use those that very summary remedies may be used in known and appropriate means to secure its the collection of taxes that could not be ap- due application continues. As we have alplied in cases of a judicial character. This ready shown, the means provided by the act subject was fully considered in Den, Mur- of 1820 do not differ in principle from those ray’s Lessee, v. Hoboken Land & Improve employed in England from remote antiquity 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 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 yieldeui 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 A1cClure v. Maitland, above cited, gations, opportunity to answer, and a trial touching the rights of the owner of lands for according 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 commis. son, 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. title to the land and all the right and interDec. 274; Vanzandt v. TVaddel, 2 Yerg. 260; est of the former owner having thus, by his Bank of the State v. Cooper, 2 Yery. 509 [24 default and the operation of the law, become Am. Dec. 517); Jones's Heirs v. Perry, 10 absolutely vested in the state and become irYerg. 59, 30 Am. Dec. 430; Greene v. Briggs, redeemable, she, having thus acquired a per. 1 Curt. C. C. 311), yet this is not univer- fect title to, and unqualified dominion over, sally true. There may be and we have seen the land, had the undoubted right to hold or that there are cases, under the law of Eng. dispose of it for any p.oper pur se, in any land after Magna Charta, and as it was manner and upon any terms and conditions brought to this country and acted on here, 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 can. for 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, substan. force, 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. Proceed.

judicial 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 proceeding such, and did in its acts up to
such is the fact neither has any authority to 1882, yet by its act in 1882 it changed the
act. Twiggs v. Chevallie, 4 W. Va. 463. proceeding from one ex parte to one inter
And all the right, title, and interest of the partes, and clothed the proceeding with all
former owner having been completely devest- the habiliments of a £uit; and still it did not
ed, he has not a particle of interest in the proceed against the land, taking the act of
land—no more than if he had never owned forfeiture as a concession, and simply at once
it; there is therefore no possible reason for sell the land, but it subjected its right and
making him a party or proceeding against title under the supposed forfeiture to ques.
him in personam or otherwise. The proceed: tion and investigation under the law through
ing is of necessity, then, neither in rem nor a suit, called in all interested adversely to
in personam; and as all judicial proceedings its claim, and gave them leave to contest its
properly so styled must belong to either the right, and made its claim the subjeot of liti.
one or the other of these classes, it follows gation."
that this is not and cannot be in any technical It thus appears that under the statutes of
sense a judicial proceeding.”

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 a party to a judicial proceeding, of which he
left by the statutes of West Virginia with was entitled to notice, and in which the court
out any right or opportunity, by any form had authority to relieve him, upon terms that
of judicial proceeding, to get it back or to were reasonable, from the forfeiture of his
prevent its sale, and, therefore, it is argued, lands.
he is absolutely devested of his lands solely *It is said that the landowner will be wi (434)
by reason of his failure to place them on the out remedy if the commissioner of the schu
proper land books.

fund should fail to institute the proceeding An answer to this view is, that what was in which the statute permitted such owner said in McClure v. Maitland, on this point, to intervene by petition and obtain a re had reference to proceedings under the act of demption of his lands from the forfeituro November 18, 1873 (Acts 1872–73, p. 449, claimed by the state. It cannot be assumed chap. 134), which were not judicial in their that the commissioner will neglect 'to disnature but administrative. But, as declared charge a duty expressly imposed upon him in Hays, Com'r, v. Camden's Heirs, 38 W. Va. by law, nor that the courts are without power 109, 110, the act of 1873 was so amended by to compel him to act, where his action bethe act of March 25, 1882 (Acts W. Va. 1882, comes necessary for the protection of the p. 253, chap. 95), as to make the proceeding rights of the landowner. 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 their ginia despite any effort of the landowner to lands from forfeiture, a judicial proceeding. prevent it; that although the owner may This view was reaffirmed in Wiant v. Hays, direct his lands to be entered on the proper

Com'r, 38 W. Va. 681, 684, in which Judge land books, and that he be charged with the (433)Brannon, delivering the unanimous judgment I taxes due thereon, the custodian of such 171 U. S. U. S., BOOK 42



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 cau 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

al 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 re

cause 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 Having discussed all the points suggested 1883 was due to any neglect of the officers of by the assignments of error which we deem the state, or that the plaintiff, or those under it necessary to examine, we conclude this whom he asserts title, entered or attempted opinion by saying that as neither the plain. to enter the lands upon the land books, or tiff nor those under whom he claims title that he or they caused or attempted to cause availed themselves of the remedy provided by the lands to be charged with taxes thereon. the statutes of West Virginia for removing But there was evidence tending to show that the forfeiture arising from the fact that, dur. the requirements of the Constitution were ing the years 1884, 1885, 1886, 1887, and 1888, not met during any of the years from 1883 the lands in question were not charged on to the bringing of this action. So far as the the proper land books with the state taxes record discloses, it is a case of sheer neglect thereon for that period or any part thereof, upon the part of the landowner to perform the forfeiture of such lands to the state was the duty required of him by the Constitution not displaced or discharged, and the circuit and statutes of the state.

court properly directed the jury to find a verAnother point made by the plaintiff in error dict for the defendants. The plaintiff was enis that the provision of the Constitution of titled to recover only on the strength of his Virginia exempting tracts of less than 1,000 own title. Whether the defendants had a acres from forfeiture is a discrimination good title or not the plaintiff had no such inagainst the owners of tracts containing one terest in or claim to the lands as enabled him thousand acres or more, which amounts to a to maintain his action of ejectment. We condenial to citizens or landowners of the latter cur in what the supreme court of appeals of class of the equal protection of the laws. Virginia said in a case recently decided : “In[ 437) We do not concur in this view. The evil in an action of ejectment the plaintift must retended to be remedied by the Constitution cover on the strength of his own title, and it and laws of West Virginia was the persistent it appear that the legal titlo is in another,

171 U. S

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whether that other be the defendant, the com- Mr. Justice Harlan delivered the opinion monwealth, or some third person, it is suffi- of the court: dient to defeat the plaintiff. If it appears that This was a suit in equity by the appellant, the title has been forfeited to the coinmon- a citizen of New York, against the appellee, wealth for the nonpayment of taxes, or other a corporation of West Virginia, and one Kroll cuse, and there is no ovidence that it has a citizen of the latter state. Its object was been redeemed by the owner, or resold, or ra- to obtain a decree enjoining the defendant granted by the commonwealth, the presump- from cutting and removing timber from a cer. tion is that the title is still outstanding in the tain tract of land in West Virginia, of which commonwealth." Reusons V. Larsson, 91 Va. the plaintiff, King, claimed to be the owner. 226.

The defendant corporation denied the plainThe judgment of the Circuit Court of the tiff's ownership of the land, and asserted title United States is affirmed.

in itself.

*The land in dispute is a partof a tract pur-[438) porting to contain 500,000 acres, and which

was patented in 1793 by the commonwealth HENRY C. KING, Appt.,

of Virginia to Robert Morris, assignee of Wil.

son Cary Nicholas. It is the same patent PANTHER LUMBER COMPANY and Jer. which is referred to in the opinion in King v. ome P. Kroll.

Mullins, just decided, 171 U. S. 404 [ante,

214]. (See 8. C. Reporter's ed. 437–438.)

It appeared from the pleadings and exhibits

in the cause that the lands in controversy Porfeiture of lands in West Virginia, King were not entered upon the proper land books

d. Mullins, 171 U. 8. 404 (ante, 214), foi. for taxation or charged with taxes for any lowed.

year from 1883 to 1895, inclusive.

The final order in the cause was in these 1 The omission to enter certain lands for words: “It having been held by this court

taxation upon the proper land books, as and in the case of H. C. King v. M. B. Mullins et for the period required by the Constitution of als., recently tried in this court, the honoraWest Virginia, operated to forfeit and devest ble circuit judge presiding, that such omisthe title and vest the same in said state.

sion of said land from the land books operated 2. King v. Mullins, 171 U. 8. 404 (ante, 214), to forfeit and devest the title to said tract of followed.

land and vest the same absolutely in the state (No. 240.]

of West Virginia, under the provisions of the

Constitution of said state, before the purArgued April 28, 1898. Decided May 31, chase of the same by complainant, and that 1898.

therefore complainant has no title to said

land, the court is of the opinion to dissolve APPEAL from a judgment of the Circuit said injunction, reserving the right to render Court of the United States for the District and file herein an opinion in writing upon said of West Virginia dissolving the injunction motion. It is therefore ordered, adjudged, and and dismissing a suit in equity brought by decreed that the said injunotion be, and the Henry C. King against the Panther Lumber same is hereby, dissolved, and that the said Company et al., to enjoin defendants from bills be dismissed, and that the defendants recutting and removing timber from a certain cover of the complainants their costs.” tract of land in West Virginia. Affirmed. The controlling questions in this case are

The facts are stated in the opinion. the same as those decided in the case of King
Mr. Maynard F. Stiles for appellant. v. Mullins. For the reasons therein given,
No counsel for appellees.

the judgment of the Circuit Court is affirmed. NOTE.-48 to pre-einption rights, see note to A8 to errors in surveys and descriptions in United States v. Fitzgerald, 10:785.

patents for lands; how construed,-see note to That patents for land may be set aside for Watts v. Lindsey, 5 : 423. fraud, see note to Miller v. Kerr, 5 : 381 171 U. &


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