and unappropriated lands for the benefit of | tution of this state, with the names of such the school fund (Acts of W. Va. 1872-73, p. claimants and the amount claimed by each as 449, chap. 134), and also, for the present, the far as he can ascertain the same." If there act of March 25, 1882, on the same subject were no exception to this report, or if there (Acts of W. Va. 1882, p. 253, chap. 95), be- were any which were overruled, "the court cause both of those acts are amendatory of shall confirm the same and decree a sale of[425] the Code of West Virginia, and their pro- the lands, or any part of them, therein menvisions, so far as they directly or indirectly tioned, which are subject to sale, for the bear upon the present controversy, are pre-benefit of the school fund, upon such terms served and extended in the Code published in 1887, which contained the law of the state in reference to forfeited lands as it was at that time. and conditions as to the court may seem From chapter 105 of the Code of West Virginia, published in 1887, it appears that all lands forfeited to the state for the failure to have the same entered upon the land books of the proper county and charged with the taxes thereon, as provided by law-so far as the title thereof was not vested in junior grantees or claimants under the provisions of the Constitution and laws of the state-the time of such forfeiture, bid a sum suffiwere required to be sold for the benefit of the cient to satisfy such decree and the costs of [424]school fund-the auditor to certify to the the proceeding and sale, and such person or clerk of the circuit court a list of all such persons so bidding be the highest bidder, lands (which, or the greater part of which, said commissioner shall sell the land on such were in his county), within sixty days after bid, and report the same to the court for the title thereto vested in the state. Tha confirmation; but if the commissioner receive act made it the duty of the commissioner of no bid from any such person, or if he shall school lands to file his petition in the circuit receive a higher bid therefor from any other court and pray for the sale of the lands for the person not so mentioned, then and in either benefit of the school fund. He was required event the said commissioner shall sell the land to state in his petition "all the tracts, lots, at public auction to the highest bidder, after and parts and parcels of any tract or lot of first giving such notice as may be provided land so liable to sale, in the circuit court of by such decree." By the same act it was his county, praying that the same be sold for provided: "The former owner of any such the benefit of the school fund," and, accord- land shall be entitled to recover the excess of ing to the best of his information and belief, the sum for which the land may be sold over the local situation, quantity or supposed the taxes charged and chargeable thereon, or quantity, and probable value of each tract, which, if the land had not been forfeited, lot, or parcel, and part of a tract of land would have been charged or chargeable theretherein mentioned, together with all the facts on, since the formation of this state, with at his command, in relation to the title to interest at the rate of twelve per centum per the same, and to each tract, lot, part, or par- annum and the costs of the proceedings, if cel thereof, the claimant or claimants thereof, his claim be filed in the circuit court that deand their residence, if known, and, if not crees the sale, within two years thereafter, known, that fact shall be stated, and stating as provided in the next succeeding section." also how and when and in whose name every But the part of chapter 105 of the Code such tract, lot, and parcel, and part of a which has the most direct bearing on the tract or lot, was forfeited to the state." Pro-question under consideration is § 14, which, vision was made for the reference of the pe-after providing that the owner may. upon tition to a commissioner in chancery, "with his petition to the circuit court, obtain an instructions to inquire into and report upon order for the payment to himself of the exthe matters and things therein contained, cess just mentioned, proceeds: "At any and such others as the court may think prop- time during the pendency of the proceedings er to direct, and particularly to inquire and for the sale of any such land as hereinbefore report as to the amount of taxes and interest mentioned, such former owner, or any creditdue and unpaid on each tract, lot, and parcel, or *of such former owner of such land, having[426] and part of a tract or lot of land mentioned a lien thereon, may file his petition in said cirin the petition, in whose name it was for-cuit court as hereinbefore provided, and askfeited, and when and how forfeited, in whom ing to be allowed to redeem such part or the legal title was at the time of the forfei- | parts of any tract of land so forfeited, or the ture, and, if more than one person claimed whole thereof, as he may desire, and upon adverse titles thereto at the date of the for- such proof being made as would entitle the feiture, the name of each of such claimants petitioner to the excess of purchase money and a reference to the deed book or books in herein before mentioned, such court may alwhich the title papers of any claimant there- low him to redeem the whole of such tract if of can be found; what portion or portions, he desire to redeem the whole, or such part or if any, of such lands is claimed by any per- parts thereof, as he may desire, less than the son or persons under the provisions of sec-whole, upon the payment into court, or to tion three of article thirteen of the Consti- the commissioner of school lands, all costs, That at any time during the pendency of the proceedings instituted for the sale of forfeited lands for the benefit of the school fund, the owner, or any creditor of the owner having a lien thereon, might file his petition in the circuit court of the county for the redemption of his lands upon the payment into court, or to the commissioner of school lands, of all costs, taxes, and interest due thereon, and obtain a decree or order declar ing the lands redeemed so far as the title thereto was in the state immediately before the date of such order. These provisions were substantially preserved in chapter 105 as amended and re-enacted in 1891 and 1893. Code of West Va. 1891, p. 731; Acts of West Va. 1893, p. 57. But in the Code of 1891 will be found this additional and important provision (Acts 1891, chap. 94): taxes, and interest due thereon, as provided the same and decree a sale of the lands for "Sec. 18. In every such suit brought under[428] the provisions of this chapter, the court shall have full jurisdiction, power, and authority to hear, try, and determine all questions of title, possession, and boundary which may arise therein, as well as any and all conflicting claims whatever to the real estate in question arising therein. And the court in its discretion may at any time, regardless of the evidence, if any, already taken therein, direct an issue to be made up and tried at its bar as to any question, matter, or thing arising therein, which, in the opinion of the court, is proper to be tried by a jury. And if any such issue be as to the question of title, possession, or boundary of the land in question, or any 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 up in 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 prac five consecutive years after they were re-tice applicable to the trial of an issue out of deemed by Randall, trustee, in 1883, to have them entered upon the land books of the proper county and charged with the taxes thereon, it was provided by the statutes of West Virginia: That all lands thus forfeited to the state should be sold for the benefit of the school fund: That the sale should be sought by petition filed by the commissioner of school lands in the proper circuit court, to which proceeding all claimants should be made parties, and be brought in by personal service of summons upon all found in the county, or by publication as to those who could not be found; That the petition should be referred to a commissioner in chancery, who should report upon the same and upon such other things as the court might direct, and particularly as to the amount of taxes due and unpaid upon any lands mentioned in the petition, in whose name and when and how forfeited, and in whom the legal title was at the time of the forfeiture: That if there were no exceptions to the report, or if there were exceptions which were overruled, the court was required to confirm chancery; and the court may grant a new If, as contended, the state, without an inquisition or proceeding of some kinų declaring a forfeiture of lands for failure during a named period to list them for taxation, and by force alone of its Constitution or statutes, could not take the absolute title to such lands, still it was in its power by legislation to provide, as it did, a mode in which the attempted forfeiture or liability to forfeiture could be removed and the owner enabled to retain the full possession of and title to his lands. We should therefore look to the Constitution and statutes of the state together for the purpose of ascertaining whether the system of taxation established by the state was, in its essential features, consistent with due process of law. If, in addition to the provisions contained in the Constitution, that instru ment had itself provided for the sale of for. feited lands for the benefit of the school fund, but reserved the right to the owner, before sale and within a reasonable period, to pay the taxes and charges due thereon, and there by relieve his land from forfeiture, we do not suppose that such a system would be held to (429] be inconsistent with due process of law. If this be true it would seem to follow necessarily that if the statutes of the state, in connection with the Constitution, gave the taxpayer reasonable opportunity to protects lands against a forfeiture arising from his failure to place them upon the land books, there is no ground for him to complain that his property has been taken without due process of law. in which process, in its nature final, issues against the body, lands, and goods of certain public debtors without any such trial; and this brings us to the question whether those provisions of the Constitution which relate to the judicial power are incompatible with these proceedings." Again: "The power to collect and disburse revenue, and to make all laws which shall be necessary and proper for carrying that power into effect, includes all known and appropriate means of effectually collecting and disbursing that revenue, unless some such means should be forbidden in some other part of the Constitution. The power has not been exhausted by the receipt of the money by the collector. Its purpose is to raise money and use it in payment of the debts of the government; and, whoever may have possession of the public money, until it is actually disbursed, the power to use those known and appropriate means to secure its due application continues. As we have already shown, the means provided by the act of 1820 do not differ in principle from those employed in England from remote antiquity Much of the argument on behalf of the plaintiff proceeds upon the erroneous theory that all the principles involved in due process of law as applied to proceedings strictly judicial in their nature apply equally to proceedings for the collection of public revenue by taxation. On the contrary, it is well settled that very summary remedies may be used in the collection of taxes that could not be applied in cases of a judicial character. This subject was fully considered in Den, Murray's Lessee, v. Hoboken Land & Improvement 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 yielded 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 McClure v. Maitland, above cited, gations, opportunity to answer, and a trial touching the rights of the owner of lands foraccording 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 commisson, 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. Dec. 274; Vanzandt v. Waddel, 2 Yerg. 260; Bank of the State v. Cooper, 2 Yerg. 599 [24 Am. Dec. 517]; Jones's Heirs v. Perry, 10 Yerg. 59, 30 Am. Dec. 430; Greene v. Briggs, 1 Curt. C. C. 311), yet this is not universally true. There may be and we have seen that there are cases, under the law of England after Magna Charta, and as it was brought to this country and acted on here, title to the land and all the right and interest of the former owner having thus, by his default and the operation of the law, become absolutely vested in the state and become irredeemable, she, having thus acquired a perfect title to, and unqualified dominion over, the land, had the undoubted right to hold or dispose of it for any proper purpose, in any manner and upon any terms and conditions she might in her sovereign capacity deem 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 canfor 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, substanforce, 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. Proceedjudicial 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 son 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 euit; 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 queshim 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 subject of litione 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 a party to a judicial proceeding, of which he was entitled to notice, and in which the court had authority to relieve him, upon terms that were reasonable, from the forfeiture of his lands. 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 left by the statutes of West Virginia without any right or opportunity, by any form of judicial proceeding, to get it back or to prevent its sale, and, therefore, it is argued, he is absolutely devested of his lands solely by reason of his failure to place them on the proper land books. *It is said that the landowner will be wi [434] out remedy if the commissioner of the scho fund should fail to institute the proceeding in which the statute permitted such owner to intervene by petition and obtain a redemption of his lands from the forfeiture claimed by the state. It cannot be assumed that the commissioner will neglect to discharge a duty expressly imposed upon him by law, nor that the courts are without power to compel him to act, where his action becomes necessary for the protection of the rights of the landowner. An answer to this view is, that what was said in McClure v. Maitland, on this point, had reference to proceedings under the act of November 18, 1873 (Acts 1872-73, p. 449, chap. 134), which were not judicial in their nature but administrative. But, as declared in Hays, Com'r, v. Camden's Heirs, 38 W. Va. 109, 110, the act of 1873 was so amended by the act of March 25, 1882 (Acts W. Va. 1882, p. 253, chap. 95), as to make the proceeding in the circuit court for the sale of forfeited lands, in which the owners or claimants could intervene and effect a redemption of theirginia despite any effort of the landowner to lands from forfeiture, a judicial proceeding. This view was reaffirmed in Wiant v. Hays, Com'r, 38 W. Va. 681, 684, in which Judge [433]Brannon,*delivering the unanimous judgment 171 U. S. U. S., Book 43. 15 It is further said that a forfeiture may arise under the Constitution of West Vir prevent it; that although the owner may 225 books may neglect to perform his duty. Thus, | failure of those who owned or claimed to own them on the land books, so that the extent Having discussed all the points suggested by the assignments of error which we deem it necessary to examine, we conclude this opinion by saying that as neither the plaintiff nor those under whom he claims title availed themselves of the remedy provided by the statutes of West Virginia for removing the forfeiture arising from the fact that, during the years 1884, 1885, 1886, 1887, and 1888, the lands in question were not charged on the proper land books with the state taxes thereon for that period or any part thereof, the forfeiture of such lands to the state was not displaced or discharged, and the circuit court properly directed the jury to find a verdict for the defendants. The plaintiff was entitled to recover only on the strength of his own title. Whether the defendants had a good title or not the plaintiff had no such interest in or claim to the lands as enabled him Another point made by the plaintiff in error cur in what the supreme court of appeals of |