by John Marshall Harlan

“ The right of the commonwealth, through its executive and ministerial officers, to assess property for taxation, to ascertain the sum payable by each taxpayer, and to seize and sell his property in satisfaction of such sum, is not open to doubt. It is equally clear the legislature may impose upon the taxpayer the duty of listing his property for taxation, and may prescribe, for the neglect of the duty so imposed, penalties reaching even to the forfeiture of the estate not listed. ”

“ We do not so interpret the state constitution, or the statutes enacted under it. If the landowner does all that is reasonably in his power to have his lands entered upon the land books, and to cause himself to be charged with taxes thereon, no forfeiture can arise from the owner not having been 'charged on such books' with the state tax. The state could not acquire any title to the lands merely through the neglect of its agent having custody or control of its land books. ”

“ 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 to maintain this action of ejectment. We concur in what the supreme court of appeals of Virginia said in a case recently decided: 'In an action of ejectment, the plaintiff must recover on the strength of his own title; and if it appear that the legal title is in another, whether that other be the defendant, the commonwealth, or some third person, it is sufficient to defeat the plaintiff. ”

“ The whole history of that system shows a most earnest and determined effort on the part of the legislature, the judiciary, and the people, speaking through our present constitution, to destroy and annihilate the titles of such delinquent owners, who should, after every reasonable opportunity had been given them to comply with the laws, continue in default, and to protect actual settlers and those not in default. ”

“ It is true that a different purpose appears to have dictated the provisions relating to redemption after sale, and to the disposition of the lands purchased by the government,-a policy which had reference to the suppression of rebellion, rather than to revenue. But this purpose did not affect the operation of the act before sale, for, until sale actually made, there could be, properly, no redemption. The assessment of the tax merely created a lien on the land, which might be discharged by the payment of the debt. ”

“ Its meaning and intention is that no man shall be deprived of his property without being first heard in his own defense. * * * We conclude, without hesitation, that so much of the act of 1825 as provided that for a mere failure to list lands for taxation the title should be forfeited, and should ipso facto, without inquiry or trial, and without opportunity to the party supposed to be in default even to manifest his innocence, be vested in the commonwealth, is unconstitutional and void.'
The question of constitutional law thus presented is one of unusual gravity. ”

“ The former owner of any such land shall be entitled to receive the excess of the sum for which the land may be sold over the taxes charged and chargeable thereon, or which, if the land had not been forfeited, would have been charged or chargeable thereon, since the formation of this state, with interest at the rate of twelve per centum per annum, and the costs of the proceedings, if his claim be filed in the circuit court that decrees the sale, within two years thereafter. ”

“ It does not direct the possession and appropriation of the land. It was designed, rather, as we think, to declare the ground of the forfeiture of title, namely, nonpayment of taxes, while the second clause was intended to work the actual investment of the title through a public act of the government in the United States, or in the purchaser at the tax sale. The sale was the public act, which is the equivalent of office found. What preceded the sale was merely preliminary, and, independently of the sale, worked no devestiture of title. ”

“ Camden's Heirs, 38 W. Va. 109, 110, 18 S. E. 461, the act of 1873 was so amended by the act of March 25, 1882 (Acts W. Va. 1882, p. 253, c. 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 their lands from forfeiture, a judicial proceeding. ”

“ For, though 'due process of law' generally implies and includes actor, reus, judex, regular allegations, opportunity to answer, and a trial according to some settled course of judicial proceedings (2 Inst. 47, 50; Hoke v. Henderson, 15 N. C. 15; Taylor v. Porter, 4 Hill, 146; Van Zandt v. Waddel, 2 Yerg. 260; Bank v. Cooper, Id. 599; Jones' Heirs v. Perry, 10 Yerg. 59; Gren e v. Briggs, 1 Curt. 311, Fed. Cas. No. 5,764) yet this is not universally true. ”