A writ of error based on constitutional question will not lie
unless the controversy is a substantial one and the question open
to discussion. If the identical question has been determined in a
suit involving a state statute, it is foreclosed although it may
subsequently arise in connection with the provision of the
constitution of the state under which the statute was enacted, and
the writ of error will be dismissed. There is no greater objection
under the Constitution of the United States to the forfeiture of
land for five years' neglect to pay taxes than there is to a
similar forfeiture by the statute of limitations for neglect to
assert title against one by whom the former owner has been
disseized.
The questions involved in this case having been determined in
King v. Mullin, 171 U. S. 404,
King v. West Virginia, 216 U. S. 92, the
writ of error is dismissed.
The facts are stated in the opinion.
Page 217 U. S. 456
PER CURIAM.
This is a writ of error to the Circuit Court of the United
States for the Southern District of West Virginia, brought directly
to this Court, and as such falls within the rule that the
controversy must be substantial and the question open to
discussion. Tested by that rule, we think the writ of error must be
dismissed on the authority of
King v. Mullins,
171 U. S. 404;
King v. West Virginia, 216 U. S. 92.
And see King v. Panther Lumber Co., 171 U.
S. 437;
Swann v. West Virginia, 188 U.S. 739.
It is contended that the question of the forfeiture of plaintiffs'
title under the Constitution of West Virginia was not ruled in
those cases, because they also involved the statute of the state
referred to, while this case presents the validity of the
forfeiture provision of the state constitution alone. But it was
pointed out in
King v. West Virginia, 216
U. S. 100, that the right to redeem, given by the
statute, was not coextensive with the forfeiture under the state
constitution, and yet the Constitution was upheld, as it was in
King v. Mullins, 171 U. S. 404. It
follows, therefore, that the state constitution must be upheld in
the present case. The only hearing that could be necessary would be
whether the facts constitute a forfeiture, and that question, when
it arises between a former owner and a claimant under the state,
can be tried in a case between those parties, as it was here. There
is no greater objection under the Constitution of the United States
to the forfeiture of land for five years' neglect to pay taxes than
there is to a similar forfeiture by the statute of limitations for
neglect to assert title against one by whom the former owner has
been disseized. We think that the question suggested is so plainly
covered by the preceding cases that the writ of error must be
dismissed.
It is so ordered.
