State v. Gray, 10113.

• Court: Supreme Court of West Virginia
• Writing for the Court: FOX, Judge.
• Citation: 52 S.E.2d 759,132 W.Va. 472
• Parties: STATE v. GRAY et al.
• Docket Number: 10113.
• Decision Date: 08 March 1949

52 S.E.2d 759

132 W.Va. 472

STATE
v.
GRAY et al.

No. 10113.

Supreme Court of Appeals of West Virginia.

March 8, 1949

Concurring Opinion March 29, 1949.

Rehearing Denied April 25, 1949.

Appeal from Circuit Court, Webster County. [52 S.E.2d 760] [Copyrighted Material Omitted] [52 S.E.2d 761]

Syllabus by the Court.

1. Neither Article IX of the Ordinance adopted by the Wheeling Convention in 1861, nor Section 1 of Article XIII of the Constitution of this State in anywise limits the right of the State of West Virginia to impose taxes on land, and provide for their collection, so long as the methods employed therefor are not inhibited by other provisions of the Constitution of this State or by the Constitution of the United States.

2. The provisions of Chapter 95, Acts of the Legislature, 1882, as amended, incorporated as Article 3 of Chapter 37 of the Code, did not create a contractual relation between the State and the owner of property proceeded against under said Act for the purpose of selling the same for the benefit of the school fund, or in anywise limit the right of the Legislature to change the proceeding for the sale of such land under the provisions of Section 4 of Article XIII of the Constitution 4 of this State.

3. Under Section 4 of Article XIII of the Constitution of this State, the proceeding therein required to be instituted in the circuit courts, for the sale for the benefit of the school fund, must be a judicial proceeding, which may be instituted only after the title to the land proceeded against has become vested in the State.

4. Section 4 of Article XIII of the Constitution of this State does not require that former owners, and other parties interested [132 W.Va. 473] in land proceeded against thereunder, shall be made parties to such proceeding; but the legislative requirement of Chapter 160, Acts of the Legislature, 1947, that in such a proceeding such former owner or other named defendants shall be served with process, will be enforced by the courts of this State.

5. Section 2, Article 3, Chapter 117, Acts of the Legislature, 1941, which, in effect, eliminates the requirement theretofore existing, that before lands may be returned delinquent for the nonpayment of taxes, there must be a showing by affidavit of the sheriff, attached to the delinquent list, to the effect that the same could not be collected from personal property of the land owner, is valid and constitutional.

6. The entry of an order of publication, under Section 12, Chapter 160, Acts of the Legislature, 1947, without requiring an affidavit such as would be required to obtain the entry of such an order in an ordinary chancery suit, is constitutional and valid.

7. Section 12 of Chapter 160, Acts of the Legislature, 1947, empowers the circuit courts of this State to require the personal service of process, in suits instituted thereunder, on all persons within the jurisdiction of said courts, where such service of process can be had. [52 S.E.2d 762]

8. While the privileges extended by the State to former owners of land, under Chapter 160, Acts of the Legislature, 1947, except as to their right to the surplus derived from the sale of the lands formerly owned by them, and except as to the rights of persons under disability, are extended as a matter of grace, the same will be enforced by the courts of this State until the grant thereof is modified or repealed by the Legislature.

[132 W.Va. 474] Ira J. Partlow, Atty. Gen., and John C. Vance, Asst. Atty. Gen., both of Charleston, W.Va., and J. M. Hoover, of Webster Springs, for appellant.

Wolverton & Callaghan, of Richwood, and Wysong & Wysong, of Webster Springs, for appellees.

FOX, Judge.

On July 28, 1948, the State of West Virginia, by John M. Hoover, Deputy Commissioner of Forfeited and Delinquent Lands for Webster County, West Virginia, filed a bill in equity in the Circuit Court of said county, seeking the sale of twenty-four separate lots and parcels of land, alleged in the said bill to have been sold by the sheriff of said county during some of the years from 1922 to 1943, both inclusive, purchased for the State of West Virginia, and not redeemed, and which it was alleged had become irredeemable, and, therefore, subject to sale under Section 4 of Article XIII of the Constitution of this State. The proposed sale was to be made for the benefit of the school fund, Section 4 of Article XII of the said Constitution providing that the proceeds of such sale be paid into the school fund. Said suit was instituted under the provisions of Chapter 160, Acts of the Legislature, 1947.

The bill avers the election and qualifications of Edgar B. Sims, as Auditor of the State of West Virginia, and his status as ex officio Commissioner of Forfeited and Delinquent Lands for said State; and the appointment [132 W.Va. 475] and qualifications of John M. Hoover, as Deputy Commissioner of Forfeited and Delinquent Lands for Webster County, of said State. The bill then alleges:

'Third: That on the 15th day of June, 1946, the said Auditor of said state certified to the Circuit Court of Webster County, West Virginia, as required by law, a list of all lands in said Webster County which were forfeited, delinquent, waste and unappropriated or escheated, and forwarded a copy of such certification to his said Deputy, John M. Hoover, which was duly received.

'Fourth: That within ten days after receipt of said certified list by said Deputy from the said Auditor, the said Deputy Commissioner prepared and caused to be published and posted, as required by law, a notice to redeem.

'Fifth: That said certified list is exhibited herewith and is hereby made a part of this Bill.

'Sixth: That the following described tracts or lots of land, so certified, have become irredeemable, have not been redeemed or released, the title thereto remains in the State, and each is subject to sale for the benefit of the School Fund; that the certification number, and, as to delinquent and forfeited land, the year sold or forfeited, the name of the former owner in which sold or forfeited, the location and description of each tract or lot of land herein, proceeded against, whether such tract or lot of land is forfeited, delinquent, escheated or waste and unappropriated, and the total amount due with respect to each tract or lot of land proceeded against herein, are respectively, as follows: that is to say:'

The bill then proceeds to separately list the several tracts and parcels of land proceeded [52 S.E.2d 763] against, under the head of the certificates mentioned in paragraph 6 of the bill. These certificates are numbered 319, 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 336, 337, 339, 340, 254, 255, 256, 257, 258, 259, 260, 264 and 265.

[132 W.Va. 476] Plaintiff asked that the suit be dismissed as to tracts numbered 258 and 331, for reasons set out in its bill. It appears from the said bill that tract number 336 was sold by the sheriff in the year 1942, presumably for the taxes of the year 1941; that tract numbers 339 and 340 were sold in 1943, presumably for the taxes of the year 1942; and it is then alleged therein that no taxes had been extended or paid on the other tracts so listed and certified.

The prayer of the bill reads as follows:

'Plaintiff, therefore, prays that the persons named in the caption hereof be made parties defendant to this suit; that process issue against the several defendants hereinbefore named; that an order of publication may be awarded and completed as to all unknown parties and claimants who have or claim an interest in the lands proceeded against herein, and that all the right, title and interest of such of them as fail to appear herein and defend their interests be forever foreclosed and held for naught; that a suitable person be appointed guardian ad litem for any infant defendants proceeded against herein, whether known or unknown, and for all unknown persons, firms and corporations, if any; that the rights of the defendants, respectively, in and to any tract or lot of land proceeded against herein may be adjudicated and determined; that it be found and adjudged by the Court that the title to each said tract or lot of land included in and proceeded against in this suit is now unqualifiedly vested in the said State, and that each such tract or lot of land is subject to sale for the benefit of the School Fund, that, should an appropriate occasion arise under Code 11A-4-20, as to any tract or lot of land proceeded against herein, then a decree of reference as to it may be made to one of the Commissioners in Chancery of this Court for such report as the Court may direct; that the Court may permit the dismissal of this suit as to any tract or lot of land herein proceeded against pursuant to the provisions of Code 11A-4-19; that [132 W.Va. 477] a decree be entered herein authorizing and directing that each of the tracts or lots of land herein proceeded against be sold for the benefit of the School Fund, as provided by law; and that the plaintiff may have such other, further and general relief in the premises as shall seem meet and proper.'

On July 27, 1948, an order of publication was entered in said suit, in the office of the Clerk of the Circuit Court of Webster County, which contains the following statement of the purposes of the suit:

'The object of the above-entitled suit is to obtain a decree of the Circuit Court of Webster County, ordering the sale, for the benefit of the School Fund, of all lands included in the suit, and for general relief. The following is a list of all such lands, setting forth as to each item its local description, the former owner in whose name the land was forfeited, or was returned delinquent and sold:'

The lots and parcels of land proceeded against were then listed under their certification number, aforesaid, and in conformity with the above quoted statement of the object of...