A state may choose its own methods of taxation and form and
method of enforcing payment so far as federal power is concerned,
subject only to the restrictions of the federal Constitution.
Where the highest court of the state has held that provisions
that might render an act unconstitutional are inoperative, and the
elimination of those provisions does not affect the remainder of
the act, this Court is bound by such construction, and will
construe the act as though stripped of such provisions.
An
ex post facto law and a retroactive law are
different things.
Laws of a retroactive nature imposing taxes or providing
remedies for their assessment and collection and not impairing
vested rights are not forbidden by the federal Constitution.
League v. Texas, 184 U. S. 156.
Ex post facto laws prohibited by the federal
Constitution are those relating to criminal punishment, and not
retrospective laws of a different nature.
Calder v.
Bull, 3 Dall. 386;
Orr v. Gilman,
183 U. S. 278.
As the Kentucky statute involved in this case, as construed by
the highest court of that state, does not impose penalties or
punishments of a criminal nature, it is not an
ex post
facto law within the meaning of the federal Constitution.
Summary procedure in the assessment and collection of taxes, if
not arbitrary or unequal, and which allows opportunity to be heard,
does not deny the property owner due process of law simply because
it is summary.
A state statute requiring owners to register lands and pay taxes
thereon but which only forfeits them for noncompliance therewith
after judicial proceeding and opportunity to be heard does not deny
the property owner due process of law.
Page 219 U. S. 141
A time not unreasonably short for beginning actions, fixed, in
view of particular conditions, by the legislature, does not deny
due process of law,
Terry v. Anderson, 95 U. S.
628, and a state statute of limitations as to actions
between individuals cannot affect the right of the state to
determine by statute a reasonable period within which property
owners must register their land, provisions being made for notice
and opportunity to be heard.
Where the state court has held that, although a sale may be
ordered of an entire tract, there is opportunity, if less than the
whole is to be sold, to be heard, and have an ascertainment of the
parts to be sold, the property owner is not deprived of his
property without due process of law.
An offer to compromise not in accord with the terms of the
statute under which lands have been declared forfeited does not
amount to an offer to pay the taxes properly assessed
thereunder.
Whether lands are properly described in a petition for sale
thereof under a statute presents no federal question unless the
ruling sustaining it is so arbitrary and baseless as to deny due
process of law.
While the Virginia-Kentucky Compact of 1789 protects the holders
of grants under Virginia from acts by Kentucky, cutting down
substantial rights,
Green v. Biddle,
8 Wheat. 1, it does not render them immune from constitutional
enactments of Kentucky in regard to the taxation or registration of
their property.
Hawkins v.
Barney, 5 Pet. 457.
A state may classify subjects so long as all persons similarly
situated are treated alike.
Michigan Central R. Co. v.
Powers, 201 U. S. 245.
A state taxing statute applicable to certain counties is not
unconstitutional under the equal protection clause of the
Fourteenth Amendment because its operation is confined to those
counties.
Florida R. Co. v. Reynolds, 183 U.
S. 471.
The doctrine of innocent purchasers does not apply against the
power of the state to assess and collect back taxes and provide for
registration of titles in favor of one purchasing after
delinquencies; such a purchaser is not deprived of his property
without due process of law, because the state exercises its rights
in a constitutional manner.
Citizens' National Bank v.
Kentucky, 217 U. S. 443.
Where one seeks to recover under a grantor deed which does not
convey all the land within the boundary described, he must show
that the land sought to be recovered is within the boundary, and
not within the exclusions.
The provisions of the Revenue and Taxation Act of Kentucky
of
Page 219 U. S. 142
March 5, 1906, involved in this action, are not unconstitutional
as depriving landowners affected thereby of their property without
due process of law or denying them equal protection of the law, nor
do such provisions violate the provision of the Virginia-Kentucky
Compact of 1789.
127 Ky. 667, 128 Ky. 610, 111 S.W. 36 affirmed.
The facts, which involve the constitutionality of certain
provisions as to taxation and registration of land of the Revenue
and Taxation Act of Kentucky of March, 1906, are stated in the
opinion.
Page 219 U. S. 143
MR. JUSTICE DAY delivered the opinion of the Court.
These are writs of error to the Court of Appeals of the State of
Kentucky, and involve the constitutionality of an act of the
legislature of the state passed March 15, 1906, entitled, "An Act
Relating to Revenue and Taxation." Acts of 1906, pp. 88-248.
Article III is brought in question in these cases. It is set forth
in full in the opinion of the Court of Appeals of Kentucky in case
No. 47. 127 Ky. 667. Its salient features are:
Section 1 of the article makes it the duty of every owner or
claimant of land to pay the taxes which have been assessed, and
which should have been assessed, against him, and those under whom
he claims, as the owner or claimant
Page 219 U. S. 143
thereof, as of the fifteenth day of September, 1901, 1902, 1903,
the first day of September, 1904, and the first day of September,
1905, and provides that, if the owner or claimant, or those under
whom he claims, have failed to list the land, or any part thereof,
for taxation, as of said dates, or any of them, it shall be his
duty to have the same assessed and listed for taxation as is
provided in the act, as of each of said dates for which the
assessment has been omitted, and to pay the taxes, interest, and
penalties thereon. It is provided that the fact that the land has
been listed for taxation or the taxes paid thereon by another
claimant shall not relieve against the duty imposed by the act, and
if any any such owner or claimant, or those under whom he claims,
has failed to list the land for assessment and taxation, as of any
three of said dates, or his failed to pay the taxes charged, or
which should have been charged against him, or those under whom he
claims, as the owner or claimant thereof upon said dates, for any
three of the years for which said assessments were or should have
been made, said owner and claimant and those under whom he claims
are declared delinquent, and such failures, or either of them,
shall be cause for forfeiture and transfer to the commonwealth of
his said claim and title thereto, in a proceeding to be instituted
for that purpose, as required in the act. But it is provided that
the cause for forfeiture shall be extinguished if the owner or
claimant, his heirs, representatives, or assigns, shall, within the
time and in the manner provided in the article, cause the land to
be assessed for taxation, and, on or before March 1, 1907, pay the
taxes charged and which should have been charged against him, or
against those under whom he claims, as the owner or claimant
thereof, for each and all of said five years for which he or those
under whom he claims are delinquent, together with the interest and
penalties provided by law in the case of the redemption of land
sold for the nonpayment of taxes.
Page 219 U. S. 144
Section 2 provides for the ascertainment of the amount of taxes
unpaid and the assessment required by the preceding section by a
proceeding in the county court where the land lies, upon the
application of the owner or claimant, by a petition filed in the
court on or before January 1, 1907, in which the land sought to be
charged shall be described, so as to be identified, and the years
for which it was listed and the years for which the taxes were not
paid shall be stated, in which petition shall also be stated the
grant under which petitioner claims, if he derives title from a
grant, and the instrument through or the manner in which the title
devolved upon him. A hearing is provided upon a day to be fixed by
the applicant, not less than ten nor more than twenty days after
the filing of the petition, after notice to the county attorney,
who is required to attend and represent the state and county.
The county court is required to decide upon the application in a
summary manner upon such evidence as may be offered, having regard
to the value of adjacent property; to ascertain the amount of
unpaid taxes which the applicant and those under whom he claims
should have paid for any and all of said years, whether assessments
were originally made as of said dates or not. The court is required
to find the proportion of the taxes due the county and state at the
rates fixed by law for such years, and to make a record of its
findings, and certify the same to the auditor of the state and
county clerk. Should the court find that the land has been assessed
against such owner or claimant, or those under whom he claims, as
of any of said dates, it shall accept such assessment as a basis
upon which to ascertain the amount of unpaid taxes for the year
such assessment shall have been made.
Provision is made for an appeal to the circuit court of the
county; also for the payment of the taxes as ascertained, and for
compensation to the officers whose services are required.
Page 219 U. S. 145
Section 3 provides the method of procedure against the owner or
claimant by the commonwealth's attorney, in case such owner or
claimant fails to have the land assessed, or fails to pay the taxes
charged or which should have been charged against him, or those
under whom he claims, and it is made the duty of the commonwealth's
attorney to institute in the circuit court of the county in which
the land or any part thereof lies, a proceeding in equity in the
name of the Commonwealth of Kentucky, as plaintiff, against the
said tract of land and the owners or claimants of said land, as
defendants, naming them if their names are known to him, and if
their names are unknown to him, designating them as the unknown
owners and claimants thereof, which proceeding is for the purpose
of declaring the title or claim of said defendants forfeited to the
commonwealth, and for selling the same. It is provided that this
suit shall be proceeded with to final judgment in all respects as
other equity causes, so far as applicable.
Provision is made for posting the notice and a copy of the
petition at the door of the courthouse.
The petition is required to allege the facts constituting the
cause of forfeiture under the provisions of the article, and there
shall be filed with the petition a copy of the grant or instrument
upon which the title or claim sought to be forfeited is based, and
no other title, claim, or possession, or continuity thereof,
whether owned or claimed by the defendant or by others, is to be
forfeited or in any manner affected by the proceeding. If judgment
is in favor of forfeiture, it is provided that the judgment shall
operate as a transfer to and vesting in the commonwealth of the
title and claim of each and all the defendants, and those under
whom they claim, without execution of deed or other instrument. If
the court finds the title is not subject to forfeiture under the
provisions of the article, it shall so adjudge, and dismiss the
petition of the plaintiff.
It is provided that judgments under the article shall be
Page 219 U. S. 146
conclusive as against all defendants, including infants,
lunatics, and married women, and shall not be subject to certain
provisions of the Code of Practice.
An appeal is provided to the Court of Appeals within thirty days
after judgment.
In § 4, provision is made for the purchase back of the
forfeited title, and, upon the proper pleadings and hearings, the
court is authorized to ascertain and adjudge the amount of unpaid
taxes charged and that ought to have been charged against the
defendant and those under whom he claims as the owner or claimant
of said land for the fifty years immediately preceding the filing
of such counterclaim, and if the court finds and adjudges that said
defendant is the owner of the title so forfeited to and vested in
the commonwealth, it shall enter judgment against such defendant
for a sum equal to the amount of the unpaid taxes charged and that
ought to have been charged against said defendant and those under
whom he claims as the owner or claimant of the land for said fifty
years, together with interest at the rate of 15 percentum per annum
from the time the said unpaid taxes for said several years were due
and the costs of the proceedings, including a reasonable fee to the
commonwealth's attorney. No person is to be entitled to purchase
back from the commonwealth the title so forfeited except such
defendant as may, but for such forfeiture, establish in such
proceeding a title thereto in himself upon which he could maintain
an action of ejectment. Upon payment of the amount of the judgment,
the court is required to enter a judgment retransferring to such
defendant the title and claim so forfeited to and vested in the
commonwealth.
Provision is made for the sale of the said title and claim in
the event that the judgment is not paid.
The fifth section provides that any owner or claimant who
institutes a proceeding allowed by § 2 of the article who does
not, within the time there limited, pay the
Page 219 U. S. 147
amount ascertained as charged or chargeable against him and
those under whom he claims, as the owner or claimant of the land,
shall not be allowed to purchase back, under the proceedings
authorized by § 4 of the article.
Section 6 of the article provides that all title and claim
proceeded against under the article, and forfeited to and vested in
the commonwealth, and not purchased back by the owner or claimant
thereof, as authorized in § 4, whether such forfeiture be for
past delinquencies or for future delinquencies, as authorized under
§ 10, is transferred to and vested in any person for so much
thereof as such person, or those under whom he claims, has had the
actual adverse possession for five years next preceding the
judgment of forfeiture, under claim or color of title, derived from
any source whatsoever, and who, or those under whom he claims,
shall have paid taxes thereon for the five years in which such
possession may have been or may be held, and in those in privity
with such person, his heirs, representatives, or assigns, as to the
mineral or other interests or rights in or appurtenant to such
land.
Section 7 provides that all title and claim to land transferred
to and vested in the commonwealth, under the provisions of this
article, and not purchased back by the owner or claimant, as
provided by § 4, and not vested in the occupant, as provided
in § 6, shall be sold to the highest and best bidder for cash
in hand, which sale shall be made pursuant to a judgment of the
circuit court in said action, and shall be at public auction at the
door front of the courthouse upon the first day of some regular
term of the circuit or county court, after notice of sale shall
have been advertised in the manner required by law in the case of
the sales of land under execution. The commissioner shall report
the sale to the court for its confirmation, and, when confirmed,
the court shall order the commissioner to make a deed to the
purchaser, which deed shall operate to transfer to the purchaser
such title and claim to the land
Page 219 U. S. 148
so forfeited to and vested in the commonwealth as remains in it
after the operation of § 6 of the article.
The money realized from the sale is to be distributed for the
payment of costs including the commissioner's and attorneys' fee;
second, to the county and state the proportion to which each may be
entitled, together with interest and penalty, as in this article
provided; third, the remainder to be paid over to the former owner
or claimant or his personal representative or assigns.
Section 8 provides that no action to enforce a forfeiture, as
authorized and provided in the article, shall be instituted after
the expiration of five years from the accrual of the right
thereto.
Section 9 provides that no owner or claimant of any land in the
commonwealth shall be allowed to prevent the operation of the
article by the payment, after January 1, 1906, of any amount less
than the whole of the unpaid taxes, interest, and penalties
provided by law, that were charged and that should have been
charged against said owner or claimant of said land and those under
whom he claims, as of each and all of said five dates first
mentioned in § 1 of the article, and where such payment is
made after the passage of the act, it is provided that the amount
to be paid shall be ascertained and payment made as in the article
provided.
Section 10 provides that, when, for any five successive years
after the first day of August, 1906, any owner or claimant of or to
any land in the commonwealth shall fail to list the same for
taxation and cause himself to be charged with the taxes properly
chargeable thereon, or fail to pay the same, as provided by law,
then such failure shall be cause for the forfeiture of his title
and claim thereto, and the transfer of the same to the Commonwealth
of Kentucky, and it is made the duty of the commonwealth's attorney
to institute an action in the circuit court of the county wherein
the land or any part thereof lies, for the
Page 219 U. S. 149
purpose of declaring the forfeiture, and for the sale of such
parts thereof as, under the provisions of the article, are liable
to sale, such actions and proceedings to conform to the provisions
of Article III as far as the same may be applicable.
Case No. 22 originated in a petition filed by the Commonwealth
of Kentucky through the commonwealth's attorney, against the
Kentucky Union Company, for the forfeiture, for failure to list and
pay taxes upon some 40,000 acres of land in Leslie County,
Kentucky, granted by letters patent of the Commonwealth of
Kentucky, June 12, 1872, the proceedings resulting in a judgment of
forfeiture, which was affirmed in the Court of Appeals of Kentucky,
128 Ky. 610.
Case No. 47 was a petition brought by the Eastern Kentucky Coal
Lands Corporation under Article III, for the assessment and
taxation of the tracts of land in controversy, consisting of large
bodies of land which the Eastern Kentucky Coal Lands Corporation
claimed to be the owners of under patents issued under Virginia
warrants, principally antedating the year 1789, and while the
petition was dismissed upon the ground that the same did not
conform to the requirements of the law, the Court of Appeals of
Kentucky found that the constitutionality of the act was
necessarily involved, and, in an elaborate opinion by the Chief
Justice, sustained the validity of the law. 127 Ky. 667.
Case No. 48 was a proceeding by the commonwealth's attorney in
behalf of the state against the Eastern Kentucky Coal Lands
Corporation and others for the forfeiture of the lands described,
for the failure to list the lands and pay taxes as required by
Article III of the Act of March 15, 1906, which resulted in the
affirmance of the judgment rendered in the lower court, forfeiting
the title of the Eastern Kentucky Coal Lands Corporation to lands
held in Pike County, Kentucky, under the old Virginia
Page 219 U. S. 150
titles, and aggregating over 300,000 acres, and while the case
is not officially reported, the opinion of the Kentucky Court of
Appeals is found in 33 Ky. 857.
The conditions which led to the passage of Article III of the
Act of March, 1906, are elaborately set forth in the opinion of the
Chief Justice in 127 Ky.,
supra. They are also more
briefly stated in a report of the commission appointed by the
Legislature of Kentucky to investigate and revise the taxing laws
of the state, upon whose recommendation the act in question was
passed.
It would too greatly lengthen this opinion to quote the history
of the legislation so fully set forth in the opinion of the Court
of Appeals. It appears that the tracts in question were formerly a
part of the State of Virginia, and, prior to 1792, when Kentucky
was admitted into the Union, the State of Virginia had granted
large tracts of land in that part of the territory which is now
eastern Kentucky. These grants, often conflicting and overlapping,
were made for small sums and for large tracts, the grants ranging
from 5,000 acres to 500,000 acres. Similar grants were made in what
is now the southwestern portion of the State of West Virginia. The
regions covered were at the time unsettled, and the lands of little
present value. They were not taken possession of by the original
patentees or those claiming under them, nor were the taxes paid
thereon, nor, up to the passage of the Act of 1906, had taxes in
any considerable amount been paid upon such lands.
A number of acts were passed by the Legislature of Kentucky
seeking to reach these lands for taxation. Some of them were held
unconstitutional, and up to the passage of this act, no effectual
means has been found of subjecting these lands to the payment of
public taxes. Some of the same lands were afterwards granted by the
State of Kentucky, and very considerable portions of them have been
occupied under grants from that state, and have been
continuously
Page 219 U. S. 151
occupied and cultivated by those claiming under such grants.
With these lands thus covered by conflicting grants from the
State of Virginia and the later grants under the authority of the
State of Kentucky, and in view of the failure of former legislation
to require the same to be taxed, and the fact that the old grants
were outstanding and affording no revenue to the state, and
encumbering the titles of the occupants of the land and those under
whom they claimed, it was sought by the Act of 1906 to subject
these lands to taxation, and to forfeit these old titles which had
not been effectually subjected to the taxing laws of the state, and
to make the forfeited titles inure to the benefit of the occupying
claimants, who had paid the taxes thereon in the manner provided by
the law. Similar legislation, as we shall have occasion to see, was
adopted in the State of West Virginia.
In elaborate arguments at the bar, and in briefs covering many
pages, a most severe arraignment is made of the drastic character
of this legislation and its alleged unfairness to the claimants of
old titles under grants from the State of Virginia.
This Court is concerned only with the constitutionality of the
law in view of applicable provisions of the federal Constitution.
The state is left to choose its own methods of taxation and its
form and manner of enforcing the payment of the public revenues,
subject, so far as the federal power is concerned, to the
restricting regulations of the Constitution of the United
States.
Passing questions which are purely of a state character, and
which were ruled upon against the contentions of the plaintiffs in
error by the Court of Appeals of Kentucky, we come to a
consideration of the questions of a nature involving consideration
of the Constitution of the United States.
It is first contended that the law in question imposes
Page 219 U. S. 152
penalties of a character which could not theretofore have been
imposed upon the owner of the land, as a condition of saving the
title from forfeiture under the provisions of Article III. The
Court of Appeals of Kentucky having intimated that the part of the
law requiring the payment of penalty and interest was separable
from the other features thereof, upon the rehearing, in 128 Ky.
610-624, held in answer to the contention that the taxes, interest,
and penalties provided by the act visited upon the delinquent
greater penalties than he was subject to prior to the passage of
the act, that the article, insofar as it required the payment of
interest and penalties for the years covered by the act, is
inoperative, and the delinquents for those years would be required
to pay only taxes, without interest or penalty, and that the
elimination of the interest and penalizes for those years did not
affect the other provisions of the article with respect to those
years or years subsequent thereto.
We must therefore take the act as the Court of Appeals of
Kentucky has construed it, stripped of the requirement to pay
interest and penalties as a condition of saving the lands from
forfeiture.
It is nevertheless contended -- and this is the first objection
of a federal nature -- that the law is
ex post facto. It
is to be noted in this connection that the law does not undertake
to forfeit the lands only because of things done or undone prior to
its passage, but because of the failure of the claimant to comply
with the provisions of the law, and he is given until the first of
January, 1907, in which to file a petition for the ascertainment of
the taxes assessable and due upon his title, and until March 1,
1907, to pay the back taxes. But an
ex post facto law and
a retroactive law are entirely different things.
Laws of a retroactive nature, imposing taxes or providing
remedies for their assessment and collection, and not impairing
vested rights, are not forbidden by the federal
Page 219 U. S. 153
Constitution.
League v. Texas, 184 U.
S. 156. This Court had occasion in a very early case to
consider the meaning of an
ex post facto law as the term
is used in the federal Constitution, prohibiting the states from
passing any law of that character.
Calder v.
Bull, 3 Dall. 386,
3 U. S. 390. In
that case, it held that such laws, within the meaning of the
federal Constitution, had reference to criminal punishments, and
did not include retrospective laws of a different character. That
case has been cited and followed in later cases in this Court.
See Kring v. Missouri, 107 U. S. 221;
Orr v. Gilman, 183 U. S. 278,
183 U. S.
285.
In the latter case, a former decision of this Court, in
Carpenter v.
Pennsylvania, 17 How. 456,
58 U. S. 463,
opinion by Mr. Justice Campbell, was quoted with approval. It was
therein said:
"The debates in the federal convention upon the Constitution
show that the terms '
ex post facto laws' were understood
in a restricted sense, relating to criminal cases only, and that
the description of Blackstone of such laws was referred to for
their meaning. 3 Madison's Papers, 1399, 1450, 1579."
"This signification was adopted in this Court shortly after its
organization, in opinions carefully prepared, and has been
repeatedly announced since that time.
Calder v.
Bull, 3 Dall. 386;
Fletcher v.
Peck, 6 Cranch 87;
Watson v.
Mercer, 8 Pet. 88;
Charles River Bridge v.
Warren, 11 Pet. 420."
The Kentucky statute, as construed by the Court of Appeals of
Kentucky, imposes no penalty or punishment of a criminal nature,
and is not an
ex post facto law within the meaning of the
federal Constitution.
It is next contended that the Kentucky statute under
consideration denies to the plaintiffs in error due process, of
law, in violation of the Fourteenth Amendment to the
Constitution.
This Court has had frequent occasion to comment upon the effect
of this Amendment in respect to laws of the
Page 219 U. S. 154
states for the levy and collection of taxes. A summary procedure
has been sustained where the person taxed has been allowed
opportunity to be heard in opposition to the enforcement of taxes
and penalties against him. In
McMillen v. Anderson,
95 U. S. 37,
95 U. S. 41, this
Court said:
"The mode of assessing taxes in the states by the federal
government, and by all governments, is necessarily summary, that it
may be speedy and effectual. By summary is not meant arbitrary, or
unequal, or illegal. It must, under our Constitution, be lawfully
done."
See, in this connection,
Leigh v. Green,
193 U. S. 79;
Ballard v. Hunter, 204 U. S. 241, and
cases therein cited.
Summary proceedings adapted to the circumstances, and permitting
the taxpayer to appear and be heard at some stage of the
proceedings, have been held to satisfy the requirements of due
process of law.
Security Trust & Safety Vault Co. v.
Lexington, 203 U. S. 323.
The State of West Virginia, by its Constitution, in 1872,
inaugurated a system of forfeiture of lands for nonpayment of taxes
in some respects analogous to the one under consideration now. The
West Virginia system was before this Court in
King v.
Mullins, 171 U. S. 404. In
that case, due process of law in connection with the taxing system
of the state was given full consideration, and the Constitution of
West Virginia, when read in connection with the statutes of the
state, was held to afford due process of law. The Constitution of
the state of 1872, by Article 13, § 6, made it the duty of
every owner of land to have it entered on the land books of the
county in which it or a part of it is situated, and to cause
himself to be charged with the taxes thereon and pay the same, and
when, for any five successive years after the year 1869, the owner
of any tract of land containing one thousand acres or more should
not have been charged on such books with the state tax on said
land, then, by operation of the constitution, the land was
forfeited, and the title vested in the
Page 219 U. S. 155
state. The statute of the state provided for proceedings by the
commissioner of the school fund to subject forfeited lands to sale,
in which proceeding the owner was permitted to intervene by
petition and obtain a redemption of his land from the forfeiture
claimed by the state, and, after a full discussion of the subject
and the bearings of the Fourteenth Amendment of the Constitution
upon the statute, MR. JUSTICE HARLAN, who delivered the opinion of
the Court, said:
"For the reasons stated, we hold that the system established by
West Virginia, under which lands liable to taxation are forfeited
to the state by reason of the owner not having them placed or
caused to be placed, during five consecutive years, on the proper
land books for taxation, and caused himself to be charged with the
taxes thereon, and under which, on petition required to be filed by
the representative of the estate in the proper circuit court, such
lands are sold for the benefit of the school fund, with liberty to
the owner, upon due notice of the proceeding, to intervene by
petition and secure a redemption of his lands from the forfeiture
declared by paying the taxes and charges due upon them, is not
inconsistent with the due process of law required by the
Constitution of the United States or the Constitution of the
state."
In the present case, the statute does not undertake to forfeit
the lands for the failure to register them and pay the taxes upon
them for the years stated, without a judicial proceeding by which
the owner of the title may have the taxes assessed, and, upon
payment thereof, the forfeiture avoided, and the forfeiture is
declared only after a judicial proceeding instituted by the
commonwealth's attorney, in which there is opportunity for a
hearing and after which the forfeiture may be declared.
The case of
King v. Mullins, supra, was followed and
approved in this Court in
King v. West Virginia,
216 U. S. 92, and
in
Fay v. Crozer, 217 U. S. 455.
Page 219 U. S. 156
It is, however, insisted that, although a hearing before
forfeiture is provided, the proceedings are so arbitrary and
oppressive as to deprive the owner of due process of law,
notwithstanding there is opportunity to appear and contest the
forfeiture.
As bearing upon this alleged lack of due process in this
statute, it is contended that it cuts down the period of limitation
in which actions may be brought by the holder of the title to
recover against adverse claimants, and this because of the short
time given in which to take proceedings against such claimants. The
argument is that as § 6 of Article III transfers the forfeited
title to occupying claimants in actual adverse possession for five
years next preceding the judgment of forfeiture, and as the statute
of limitations for the recovery of real property in Kentucky is
fifteen years, there were still ten years in which to have sued an
occupying claimant of five years' standing, but because of the
action required to prevent forfeiture under Article III, which it
is contended under the Kentucky Constitution did not take effect
until ninety days after the adjournment of the session at which it
was passed, there was visited upon the owner the necessity of
terminating the adverse possession by an action brought within six
and one-half months. But we do not perceive in this indirect effect
upon the statute of limitations any deprivation of due process of
law. The state statute limiting actions between individuals cannot
operate to affect the right of the state to require the
registration of the lands withheld from taxation, or prevent acts
for the summary registration or forfeiture of such lands, wherein,
as in the case at bar, an opportunity, not unreasonable in
character, is given for compliance with the laws after the same go
into effect, and the forfeiture is had upon a proceeding in which
the owner of the title is summoned and heard.
A time not unreasonably short for the beginning of actions may
be fixed by the legislature, having in view particular
Page 219 U. S. 157
conditions, without violating the due process clause.
Terry
v. Anderson, 95 U. S. 628.
Much is said of the purpose of this law not being that of
legitimate taxation, but intended to and in its operation having
the practical effect of transferring the title of the owners to
others. This argument is based upon the provision of the statute
which makes the title, when forfeited to the state, inure to the
benefit of occupants in possession who have paid the taxes as
provided in the act. This feature of the law, in substance, is in
the West Virginia Constitution, and was referred to in the opinion
in
King v. Mullins, supra.
It is not a valid objection to a law of this character that the
title forfeited to the state as the result of proper proceedings
and due notice to the owner of the title, who is in default for the
payment of taxes, may be transferred to others occupying and paying
taxes upon the lands, and not in default. That the similar feature
of the West Virginia Constitution did not invalidate the law where
opportunity was given for a hearing was held in
King v. West
Virginia, supra, to have been concluded by
King v.
Mullins, supra, and the same doctrine was applied in
Fay
v. Crozer, supra. This view may have the effect of subjecting
the owner of the title which is forfeited to proceedings which
divest his title, notwithstanding another claimant may have paid
taxes upon a separate title in the same land; but this
consideration does not affect the validity of the law. The state
may, so far as the federal Constitution is concerned, tax each
claimant of title upon the same premises, and may, by a proper
procedure, divest the owner of one in default.
Much comment is made upon the statement in the opinion of the
learned Chief Justice of Kentucky, who spoke for the court in No.
47, as to the purpose of the state to incidentally "outlaw" the
titles claimed under the old Virginia grants for the benefit of
occupying claimants, but as
Page 219 U. S. 158
was held in
King v. Mullins and the subsequent cases in
this Court following that case, this effect of a valid law of the
state having also for its object the subjection of the lands to
taxation does not invalidate the law.
Nor do we find valid objection to the constitutionality of the
law in the contention that the lands not transferred may be sold
without adequate description.
This contention seems to have been made in case No. 22 by
objections to the petition for failing to disclose that parts, if
any, of the land, were held by occupants who had paid taxes for
five years preceding, and by objection to the judgment as erroneous
because it did not segregate the parts to which the forfeited title
would inure.
No mention appears to have been made of the federal Constitution
in this connection until petition for a rehearing, when it was
objected that the statute, in providing for the sale of the
forfeited title, furnished no means of identification or
description of the land to be sold, nor for such an ascertainment
of the holdings of occupying claimants as would enable a purchaser
to know what was being offered for sale, and it was urged that a
judicial sale in pursuance of such a proceeding would be no less
than a sacrifice of the defendant's property, and that such an
order would violate the due process of law secured by the
Constitution.
In the opinion upon the petition for a rehearing, the Court of
Appeals announced that it found nothing in the statute which
deprived the owner of due process of law within the meaning of the
Fourteenth Amendment. The court having thus considered the federal
question, the objection is open here.
In the original opinion concerning this objection, the court
said:
"So far as disclosed by the record, there is no part of the
tract held by occupants. But the court judicially knows, and it was
admitted in argument, that practically, if not
Page 219 U. S. 159
quite, all the land described in the petition is adversely held
by occupants under claim or color title. The record shows only that
the appellant is the owner or claimant of the title to the tract of
land, which is specifically described by metes and bounds, courses
and distances, and that appellant has failed to comply with the
provisions of the article with respect to the listing of it for
taxes and the payment of taxes thereon. The petition contains all
the allegations necessary to show that the appellant was
delinquent, and its title subject to forfeiture, and the demurrer
thereto was therefore properly overruled. Nor is the judgment
erroneous on that ground. Certainly the title to the tract of land
described in the petition, and which is adjudged to be subject to
forfeiture and sale, can be sold by the same description, the
purchaser taking that which, under the article, passes at the sale.
The doctrine of
caveat emptor applies in this as in other
proceedings. And the purchaser, and not the occupant, as argued by
counsel for appellant, would be required to show, in actions to
recover under his purchase, that the land claimed by him was not of
the excluded class. The rule is universal that, where one seeks to
recover under a grant or deed which does not convey all the land
within the boundary described, he must show that the land sought to
be recovered is within boundary, and without the exclusions.
Hall v. Martin, 89 Ky. 9."
"The act provides that the deed shall transfer to the purchaser
the title and claim 'so forfeited and transferred to, and vested
in, the commonwealth, as remains in it after the operation of
section six of this article, and shall so recite.'"
"The article, taken as a whole, clearly shows that such was the
legislative intent. It is not necessary for the petition to
describe more than the tract of land the title to which is sought
to be forfeited."
"After the judgment of forfeiture becomes final, the
Page 219 U. S. 160
main purpose to be conserved is the interest of the
commonwealth, and circumstances might arise or be shown to exist
that would authorize different modes of executing it. We have no
hesitancy in holding that it is not necessary for the judgment to
ascertain and describe the parts of the tract held by occupants.
If, at the hearing, it should be made manifest that the title as to
certain parts only of the tract would pass to the purchaser under a
sale, the statute would be complied with by a sale of the title
covering those parts alone. In any event, it is the duty of the
court to prescribe what parts thereof shall be sold, if less than
the whole is to be sold. Therefore, the judgment appealed from,
insofar as it authorizes the commissioner to sell the tract as a
whole or in parcels, to suit the purchaser, is erroneous."
As we construe this part of the opinion, it means that it was
not necessary in the petition for forfeiture to point out and
describe the parts of the tract held by occupants. But, from what
is said in the latter part of the paragraph just quoted, we think
that it is apparent that the defendant might show what parts of the
land were subject to sale, if less than the whole was to be sold.
That is, while, in the absence of a showing in this matter, a sale
in gross would be ordered, it was nevertheless open for the
defendant to show that only a part of the tract, in view of other
provisions of the statute, would be subject to sale. With the
opportunity to be thus heard, and have a definite ascertainment of
the parts to be sold, we think the statute, as construed by the
Court of Appeals of Kentucky, does not deprive the defendant of due
process of law in this respect.
It is alleged that there was an offer to pay the taxes properly
assessable against these lands, notwithstanding which they were
declared forfeited; but an inspection of the record shows that such
offer was in effect an offer of compromise, not justified by the
statute, and not in accord with its terms.
Page 219 U. S. 161
The denial of the prayer of the petition involved in case No.
47, because the same did not contain a description of the land
sufficient to identify it, which was the basis of the decision of
the Kentucky Court of Appeals, presents no federal question.
Whether that petition contained an adequate description was a
question for the state to determine in the construction of its own
statute. There is nothing to show that the ruling made upon that
subject was so arbitrary and baseless as to amount to a deprivation
of due process of law.
It is next contended that the statute denies the equal
protection of the laws within the meaning of the Fourteenth
Amendment because it does not apply equally upon all the lands in
the state. The fact that, in its application, it can only meet
conditions such as are embraced within the law in a part of the
counties of the state does not render it obnoxious to the
Fourteenth Amendment.
Florida R. Co. v. Reynolds,
183 U. S. 471.
This Court has frequently held that the state may classify the
subjects of taxation so long as all persons similarly situated are
treated alike.
Michigan Central R. Co. v. Powers,
201 U. S. 245.
This law applies with equal force to all who are in a condition to
come within its terms.
The fact that the plaintiff in error did not acquire the land
until after the delinquencies had occurred cannot prevent the
operation of the law against it. In such cases, the doctrine of
innocent purchasers does not apply.
Citizens' Natl. Bank v.
Kentucky, 217 U. S. 443.
Another ground of objection under the federal Constitution is
insisted upon in the alleged violation of the Virginia compact of
1789, embodied in the Constitution of Kentucky, and held by this
Court to be a binding contract between the states. By the seventh
section of that compact, it is provided:
"SEC. 7. Third, that all private rights and interests of lands
within the said district [Kentucky], derived from the
Page 219 U. S. 162
laws of Virginia prior to such separation shall remain valid and
secure under the laws of the proposed state, and shall be
determined by the laws now existing in this state."
Section 8 provides that a neglect of cultivation or improvement
of any land within either the proposed state or the Commonwealth of
Virginia belonging to nonresident citizens of the other shall not
subject such nonresidents to forfeiture or other penalty within the
term of six years after the admission of the said state (Kentucky)
into the federal Union.
Section 9 provides that no grant of land or land warrant to be
issued by the proposed state shall interfere with any warrant
theretofore issued from the land office of Virginia, which shall be
located on land within the said district, now liable thereto, on or
before the first day of September, 1791.
This compact has been the subject of frequent consideration in
the courts of Kentucky, and more than once in this Court.
In the case of
Green v. Biddle,
8 Wheat. 1, the effect of this compact upon certain laws of the
State of Kentucky was considered and determined. The case was twice
argued, on the first hearing the opinion being given by Mr. Justice
Story, and upon rehearing the opinion was given by Mr. Justice
Washington. In that case, it was held that the seventh article of
the compact meant to secure all private rights and interests
derived from the laws of Virginia as they were under the
then-existing laws of the state, and that laws of the State of
Kentucky which undertook to prevent the owner of the land from a
recovery thereof, without certain payments to the tenant in
possession, impaired the obligation of the contract, and were
therefore null and void.
Under the Kentucky statutes, the owner could not recover his
property without paying for improvements made by the occupying
claimant, and making allowances in connection
Page 219 U. S. 163
therewith, which it was held had the effect of depriving the
true owner of the property vested in him under the laws of Virginia
at the time the compact became operative in 1789. "He [the owner]
is no more bound," said Mr. Justice Story,
"by the laws of Virginia to pay for improvements which he has
not authorized, which he may not want, or which he may deem
useless, than he is to pay a sum to a stranger for the liberty of
possessing and using his own property, according to the rights and
interests secured to him by those laws. It is no answer that the
acts of Kentucky now in question are regulations of the remedy, and
not of the right to lands. If those acts so changed the nature and
extent of existing remedies as materially to impair the rights and
interests of the owner, they are just as much a violation of the
compact as if they directly overturned his rights and
interests."
These conclusions were adhered to upon a rehearing, and
reaffirmed in the opinion of Mr. Justice Washington.
The Virginia compact came again before this Court in the case of
Hawkins v.
Barney, 5 Pet. 457. In that case, the validity of a
law of Kentucky which undertook to limit the right of bringing
suits for the recovery of lands to seven years, instead of twenty,
as was the case under the laws of Virginia at the time the compact
was made, was sustained. The case of
Green v. Biddle was
reviewed, and it was said that,
"looking through the course of legislation in Virginia, there
was found no principle or precedent to support such laws; the court
was induced to pass upon them as laws calculated in effect to
annihilate the rights secured by the compact, while they avoided an
avowed collision with its literal meaning. But in all their
reasoning on the subject, they will be found to acknowledge that
whatever course of legislation could be sanctioned by the
principles and practice of Virginia would be regarded as an
unaffected compliance with the compact. "
Page 219 U. S. 164
And Mr. Justice Johnson, who spoke for the Court in that case,
said:
"It can scarcely be supposed that Kentucky would have consented
to accept a limited and crippled sovereignty; nor is it doing
justice to Virginia to believe that she would have wished to reduce
Kentucky to a state of vassalage. Yet it would be difficult, if the
literal and rigid construction necessary to exclude her from
passing this law were to be adopted -- it would be difficult, I
say, to assign her a position higher than that of a dependent on
Virginia. Let the language of the compact be literally applied, and
we have the anomaly presented of a sovereign state governed by the
laws of another sovereign; of one-half the territory of a sovereign
state hopelessly and forever subjected to the laws of another
state. Or a motley multiform administration of laws, under which A
would be subject to one class of laws, because holding under a
Virginia grant, while B, his next-door neighbor, claiming from
Kentucky, would hardly be conscious of living under the same
government."
And the learned judge referred to the language of the eighth
article of the compact, recognizing the power of Kentucky to pass
similar laws to those which existed in Virginia after the period of
six years, referring to the laws of Virginia, where one who had
received a grant of land had failed at first in three and
afterwards in five years, to seat and improve it, and was held to
have abandoned it as lapsed and forfeited land, and anyone might
take out a grant for it.
We think the effect of these decisions is to declare that, while
the Virginia compact prevents the cutting down of the titles
secured under the State of Virginia prior to its date, so as to
take away substantial rights incident to the title, as was the case
in
Green v. Biddle, supra, it did not mean to prevent the
state, upon notice and hearing, from requiring the registration of
land titles for taxation, or, in
Page 219 U. S. 165
default thereof, from forfeiting such titles to the state. These
laws do not have the effect of taking away legitimate rights
secured by the old grants, but enable the new sovereign to enforce
against such lands, as well as others, the taxing laws of the
state. It was, of course, recognized that the land would pass under
the dominion of a new state, which would require revenues for its
support, and while the title obtained from the State of Virginia
was protected, it was not intended that it should be immune from
constitutionally laws having the effect to subject such lands to
the taxing power of the new sovereignty, and to require their
owners, by all proper methods, to contribute their share to the
public burdens of the state.
As we have said, many considerations are urged against the
policy and justice of this statute, and other objections are made
which depend solely upon the laws of the state and their
interpretation by the courts of the state. We are unable to find
that rights secured by the federal Constitution were denied by the
judgments of the Court of Appeals of Kentucky.
The judgments in each and all of the cases are therefore
Affirmed.