State v. Swann
| Citation | 46 W.Va. 128 |
| Parties | State v. Swann, et al.(Brannon, Judge, dissenting). |
| Decision Date | 25 March 1899 |
| Court | West Virginia Supreme Court |
1.Due Process of Law Taxation Forfeiture Constitutional Law.
Section 6 of Art. XIII of the Constitution of this State, providing-for the forfeiture of lands for the nonentry thereof for five successive years after the year 1869, is not in violation of the fourteenth amendment of the constitution, restraining-states from depriving any person of life, liberty, or property, without due process of law. (p. 132, 137).
2.Constitutional Law Taxation Forfeiture Non-entry.
Although said section of the Constitution provides for the forfeiture of lands containing one thousand acres or more, it does not limit such forfeiture to tracts of land of one thousand acres or more in quantity; and the act of 1873, providing for the for- feiture of a less number of acres than one thousand, for nonentry upon the land books, is merely cumulative, and not inhibited by said section of the Constitution. (p. 133, 134).
3. Taxation Forfeiture Non-entry.
In such cases failure to enter and pay taxes due on land for five successive years, as required by statute, caused the forfeiture of such land to become complete and absolute, and no inquisition, judicial proceeding, or inquest or finding of any kind was necessary to consummate such forfeiture, (p. 136).
Appeal from Circuit Court, Kanawha County.
Bill by the State against Thomas Swann and others. A decree was renderedfrom which defendant Swann appeals.
Affirmed.
John S. Swann, for appellant.
Warth & Briggs and James H. Ferguson, for appellee.
This was a suit in chancery, brought in the name of the State, under the provisions of chapter 105 of the Code, as amended and re-enacted by the act of February 23, 1893, against Thomas B. Swann and others, in the circuit court of Kanawha County, having for its object the sale of a tract of land containing seven hundred acres, more or less, known as the "Valcoulon Tract," situated on Kanawha river belowr the mouth of Coal river, Jefferson district; be ing the same land which was conveyed to said T. B. Swann by J. C. Brown and wife by deed dated November 30, 1871, which land was described as containing seven hundred to eight hundred acres, and was entered on the land book and charged to said Swann for the year 1873 as seven hundred and eighty-four and one-fourth acres, gradually reduced by the sale of lots, etc., until, in 1873, it was entered on the land books at seven hundred and forty-two acres.
The bill alleges that said Swann neglected and failed to have said land charged with taxes for the years 1882, 1883, 1884, 1885, 1886, 1887, 1888, 1889, 1890 and 1891, as it was his duty to do, and that, by reason of such neglect and failure to have said land entered upon the land book for five successive years, the said tract became and was thereby forfeited to the State of West Virginia, and liable to be sold for the benefit of the school fund. The bill further alleges that Assessor C. M. Hansford in reassessing the lands in Kanawha County, in 1892, assessed the said tract as follows: Ninety-nine acres of bottom land, valued at three thousand nine hundred and sixty dollars, and five hundred and thirty-six acres of hill land, valued at two thousand six hundred and eighty dollars; that said valuation for ninetynine acres of bottom land included one thousand dollars for buildings, and the same was valued as a whole at forty dollars per acre, and the five hundred and thirty-six acres of hill land at five dollars per acre, and said lands were so entered on the land book for the year 1892, and taxes charged thereon; but that said entry and charges were illegal and improper, and that said charges have not been paid. The plaintiff' also alleges that the number of acres so charged to said Swann for the year 1892 is incorrect, or the number theretofore charged to him was incorrect, and that a survey should be made to ascertain the right number of acres chargeable to said Swann for the years from 1882 to 1891, inclusive at the valuation placed thereon by Assessor Sinnett in 1883, and that placed thereon by Assessor Hansford in 1892, for said year, and each succeeding year. The plaintiff then proceeds to enumerate the various lots of land which have been sold off said bottom, and name the parties to whom conveyed, alleging that said lots are exempted from the land therein said to be forfeited for nonentry in the name of said Swann, and that all the conveyances aforesaid taken together would not exceed twenty-six acres, and that no more than that should have been deducted from the boundary originally conveyed up to and including the year 1887, and that taxes should be computed at the rate of eighteen dollars and thirty-five cents per acre upon the said original boundary of land acquired from said Brown and wife, less the said twenty-six acres, and that the true number of acres could only be ascertained by a survey of said land. The plaintiff further alleges that by deed dated September 5, 1887, Swann and others conveyed to the Chesapeake & Ohio Railroad Company a strip of land through said bottom one hundred feet wide, embracing therein the railroad track of said company, and on September 3, 1889, said Swann and others conveyed to said Chesapeake & Ohio Railroad Company two parcels of land part of said forfeited land, to-wit, twenty and seventy-four one-hundredths and one and ninety-six one-hunderdths acres, also certain rights of way and privileges therein set out; but the plaintiff charges that all rights, privileges, and interests in any of said land mentioned, in or conveyed by any or either of said last three deeds, are subject to the forfeiture aforesaid, and are liable to sale for the benefit of the school fund, as part of said forfeited land; that said lands have been regularly reported as forfeited by the commissioner of school lands, and a record thereof made as required by law, and the same are liable for sale for the benefit of the school fund; that neither of said tracts, or any part thereof, has been redeemed from said forfeiture, nor is it or any part thereof claimed by any person under section 3 of Art. XIII. of the Constitution of the State; and prays that said lands be decreed to be sold for the benefit of the school fund, under the provisions of chapter 105 of the Code of West Virginia, as last amended and re-enacted. The defendant T. B. Swann demurred to plaintiff's bill, also tendered his answer to same, which answer was excepted to by plaintiff. The demurrer was overruled, and the exceptions sustained to said answer. The report of Master Commissioner McClintic was filed, and a survey directed, to ascertain the number of acres in said tract, the various parcels sold, and the character of the land, whether bottom or hill. Depositions were taken in the cause, and the reports of the surveyor and commissioner were returned, which latter was excepted to by said Swann. On the 18th of December, 1895, the cause was heard, the plea tendered by the defendant was rejected, the exceptions taken to the commissioner's report were overruled, and said report approved and confirmed, the court ordered and decreed that the tract set out in the bill as the Valcoulon tract in the name of T. B. Swann was and is forfeited to the State for nonentry on the land books for more than five successive years, and that said tract so forfeited contains seven hundred and seventy-six and one-half acres, exclusive of the lots heretofore sold by said Swann, and not embraced in the bill, and that deducting from said seven hundred and seventy-six and one-half acres the twentytwo and seventy-one hundredths acres sold to the Chesapeake & Ohio Railroad Company, heretofore exonerated and discharged by a former decree of said court, there were seven hundred and fifty-three and eight tenths acres liable to sale pursuant to the provisions of chapter 105 of the Code, as last amended and re-enacted, ascertained the taxes and interest due thereon, and directed that unless the former owner of said tract, or some one for him, having the right under the statute in such cases made and provided, should redeem the same within twenty days from the date of the decree, that a commissioner therein named should sell the same upon the terms and in manner therein prescribed; and from this decree said Swann obtained this appeal.
The appellant claims that the circuit court erred in rejecting his plea which avers that section 39 of chapter 31 of the Code is unwarranted and not authorized by Art. XIII. of the Constitution of West Virginia, which does not give the Legislature the power to forfeit or confiscate a tract of land of less than one thousand acres, and the tract now proceeded against is not over seven hundred or eight hundred acres, and said act is in direct conflict with Art. XIII. Sec. 10., of the Constitution, and forfeits his land without any pretense of judicial inquiry or judicial proceeding, and is obnoxious to the fourteenth amendment of the Constitution of the United States, as well as Art. I. Sec. 10, of the same. Some of the questions raised by this plea were presented to this Court in the case recently decided of State v. Sponaugle, 45 W. Va. 415, (32 S. E. 283), in which It was held that "that clause of Sec. 6, Art. XIII. of the State Constitution, forfeiting land for the failure of the owner to enter it for taxation is not in violation of that clause of the fourteenth amendment of the federal constitution restraining states from depriving any person of life, liberty, or property without due process of law;" also that ...
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