When this Court has determined the constitutionality of a state
statute, that question is not open, and cannot be made the basis of
jurisdiction for a writ of error, and so held as to the statute of
West Virginia involved in this case and sustained as constitutional
in
King v. Mullins, 171 U. S. 404.
On writ of error, this Court cannot deal with facts, and whether
the land involved is within or without certain boundaries is for
the state court to determine.
The construction and effect of, and rights acquired by, a decree
of the state court are matters of state procedure. Nothing in the
federal Constitution prevents a state court from modifying a decree
while the case remains in the court; nor is a beneficiary of a
decree deprived of his property without due process of law, within
the meaning of the Fourteenth Amendment, by the subsequent action
of the Court modifying or reversing the decree while the case is
still pending therein.
The decision of the state court that the only portion of a
statute which is unconstitutional is separable and inapplicable to
the case is final.
Writs of error to review 64 W.Va. 545, 546, 54, 610
dismissed.
The facts are stated in the opinion.
Page 216 U. S. 93
MR. JUSTICE HOLMES delivered the opinion of the Court.
These writs of error are taken in a suit by the State of West
Virginia, brought in May, 1894, for the sale of so much of a tract
of 500,000 acres of land granted to Robert Morris in 1795 as is
within the state and liable to be sold for the benefit of the
school fund.
See 64 W.Va. 545;
id., 546, 584;
id., 610. The Constitution of the state provides as
follows:
"It shall be 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. When, for any five successive years after the
year 1869, the owner of any tract of land containing 1,000 acres or
more shall not have been charged on such books with state tax on
said land, then, by operation hereof, the land shall be forfeited
and the title thereto vest in the state."
Art. XIII, § 6 (W.Va.Code, 1906, p. lxxxv). By c. 105 of the
Code of the state, as amended by the Act of February 23, 1893, c.
24 (W.Va. Acts, 1893, p. 57), a suit like the present is to be
brought by the state for the sale of land so forfeited, and the
former owner is to receive the surplus proceeds if he files a
petition and proves title, or, if he prefers, may redeem. Further
details are stated in
King v. Mullins, 171 U.
S. 404, where the validity of the system
Page 216 U. S. 94
created by the Constitution and statute referred to was
considered and maintained in a suit concerning this same tract.
See also King v. Panther Lumber Co., 171 U.
S. 437;
Swann v. West Virginia, 188 U.S.
739.
These provisions being in the interest of actual settlement in
the country, the Constitution also provides that all titles of the
state to forfeited lands, etc., not redeemed or redeemable, shall
be vested in any person, other than the one in default, his heirs
or devisees, for so much thereof as he shall have held for ten
years under color of title, having paid taxes on the same for any
five of the ten years, with ulterior provisions if there be no such
person. The statute further provides for bringing in parties
interested, and enacts that land already sold under the statute, on
which taxes since have been regularly paid, or land transferred by
the Constitution, shall be dismissed from the suit, and thus
exempts it both from sale in that suit and from the redemption
incident to the proceedings for a sale. Section 6. The redemption
allowed is only from the title still remaining in the state, and
does not affect titles under previous sales or the Constitution;
the petitioner acquires no other title than that which was vested
in him immediately before forfeiture. § 17. By § 20, the bar of the
final decree is limited in accord with these provisions of §
17.
After the bill in this case had been filed and several times
amended, the plaintiff in error, King, answered, in June, 1896,
setting up title to the 500,000 acres, charging that the statute
which attempts to work out a forfeiture of land etc., is contrary
to the Fourteenth Amendment of the Constitution, but asking "if it
would be adjudged that said tract of land is forfeited to the State
of West Virginia by reason of the nonassessment thereof," etc.,
that a decree be made allowing him to redeem. The answer also set
out a very long list of claims to parcels of the tract, and charged
that the persons making them should be made parties defendant to
the bill. There were parties intervening at this stage, but they do
not seem to need notice. The case was sent to a commissioner, who
found,
Page 216 U. S. 95
among other things, that about 10,000 acres of the land were not
subject to junior claims, and that the taxes and interest were
$2,195.65. On his report's coming in, King paid $3,090.08 for taxes
and costs, and thereupon, on September 30, 1897, a decree was
entered declaring that King "has the right, superior to all others,
to redeem said land so far as the record in this case shows," and
that the portion of the land lying in West Virginia, "so far as the
title thereto is in said state," which portion is adjudged to be
bounded as set forth in the decree,
"is hereby, by the said Henry C. King, fully redeemed, and all
forfeitures of said land, and taxes and interest heretofore charged
or chargeable thereon, are hereby released and discharged. . . .
But it is provided that this redemption shall not affect the rights
of any person not party to this suit may have, if any, under the
provisions of Section 3, Article 13, of the Constitution of the
State of West Virginia, such rights and claims not being in any
manner adjudged or determined hereby."
In fact, whatever it said, the decree could not grant a
redemption affecting anybody's right but that of the state. The
rights of purchasers at court sales and transferees under the
Constitution are protected by § 17 of the Act of 1893, as pointed
out by the Supreme Court of Appeals. 64 W.Va. 590.
The state appealed in October, 1898, to the Supreme Court of
Appeals, and on February 7, 1900, the decree,
"insofar as it allows the appellee, Henry C. King, to redeem the
land described in this decree by reason of the payment of the sum
of $3,090.08, costs, taxes, and interest as fixed by the circuit
court, and insofar as it ascertains such costs, taxes, and
interest,"
was reversed and in all other respects affirmed. The cause was
ordered to be remanded with directions to permit King to amend his
petition so as to carefully describe and accurately locate the
portion of said land he desired to redeem. 47 W.Va. 437. A little
later in the same year (1900), the state submitted a fifth amended
bill, making the persons mentioned in King's answer as having
interest in the
Page 216 U. S. 96
tract parties, and asked the directions of the court, King now,
contrary to his answer above stated, protesting, on the ground of
the above-mentioned decree. The bill was ordered to be filed, and
in March, 1901, King filed an amended answer and petition, stating
that he had not been able in the time allowed to define all the
land, but that he did there give a careful description of certain
portions upon which he desired to pay such future sum as was
properly chargeable thereon. Schedules were set forth, and the
prayer was to be permitted to pay the sum properly chargeable upon
the land above described and to be described in a supplemental
petition.
In many instances, the land claimed by the newly joined parties
was dismissed without controversy from the suit as subject neither
to sale nor to redemption under the Constitution and laws. In
others, the land claimed was within the boundaries established by
the above-mentioned decree of September 30, 1897, but was alleged
to be outside the true lines of the Morris grant, the correctness
of the decree being denied. And again, claims inconsistent with
King's right to redeem, that were not admitted by him, were set up
on the footing of purchases from the state. On July 5, 1901, the
case was referred to a commissioner to report, among other things,
the quantity, description, and location of the portions of the
Morris grant and other land concerned, to which the title then
remained in the state, and which was subject to sale. On July 14,
King answered the answers of some of the new parties, claiming
portions of the land. In September, he applied for a prohibition
against the proceeding in the county court, which was denied on the
ground that the court had jurisdiction, and that, if it made a
mistake, it would be only error to be corrected in the usual way.
King v. Doolittle, 51 W.Va. 91. The commissioner proceeded
to take evidence, King being represented at the hearing, and this
lasted until April 6, 1903, when the report was filed. On December
6, 1905, the court made a decree establishing very different
boundaries from those fixed by the decree of September 30, 1897,
and cutting down the Morris
Page 216 U. S. 97
grant to about 97,000 or, as the plaintiff in error says 90,000,
acres. Meantime, the state made a sixth, seventh, and eighth
amendment to its bill, bringing in new defendants, but these seem
to need no further mention.
Motions had been made by Egbert Mills to dismiss a tract of 112
acres from the suit, and by the Spruce Coal & Lumber Company to
dismiss a tract of 7,000 acres, and by others on the ground that,
as has been stated by the statute under which the suit was
instituted, whenever it should appear to the court that any part of
the land in question had been sold by the state in former similar
proceedings, etc., or was held under § 3 of Article 13 of the state
constitution, the bill should be dismissed as to such part.
On February 23, 1905, the act of 1893 was amended so as to allow
defendant claimants to file deeds or certified copies of deeds made
under an order of court in previous proceedings for the sale of
school land, or patents from Virginia or West Virginia, purporting
to convey any part of the land in suit, and it was enacted that, if
the state or some other claimant did not, within thirty days,
allege and prove by a proper certificate that such part again had
become forfeited since the date of the conveyance, the court should
have no jurisdiction to sell such part or to permit redemption of
it, but should enter an order dismissing the suit as to such part.
(It was left an open question in 64 W.Va. 594 whether this did not
enlarge King's rights, in case of a second forfeiture.) It was
enacted also that, if it should appear that any part of the land
had been held for ten years under color or claim of title, and that
taxes had been paid for five of the ten years, or if it should
appear that the land had been held under color of title and taxes
paid for five years since 1865, the suit should be dismissed as to
such part. The court further was authorized to dismiss the suit in
whole or in part if satisfied by report of the commissioner of
school lands and inquiry that the whole or part of the lands was
not liable to sale. Previous sales of school lands were validated
so far as to pass the title of the state. After
Page 216 U. S. 98
this amendment, new motions were filed on June 1, 1905, and
subsequently, with copies of patents and deeds, if not previously
filed. King objected on the ground that, if § 3 of Article 13 of
the Constitution was construed to apply to land forfeited after the
Constitution was adopted, it was contrary to the Constitution of
the United States, and that § 6 of chap. 105 was also, if construed
not to permit King to redeem all the land described in his
petition. Time was allowed until the first day of the next October
term for the state or any other claimant to show any defenses to
these motions, and, no defense appearing, on December 7, 1905, the
day after the new boundary decree, and on later days, the motions
were granted and the suit dismissed as to the tracts of land
concerned.
The dismissals were on two grounds: that the tracts concerned
were outside the Morris grant as bounded by the new decree, and
that they were held under grants from the state, etc., and
therefore were within c. 105, § 6, of the Code, as amended and
Article 13, § 3, of the Constitution. On December 3, 1907, King
appealed to the Supreme Court of Appeals, but on December 22, 1908,
the decrees were affirmed. It was held that the above-mentioned
tracts claimed by Egbert Mills (No. 446 in this Court) and the
Spruce Coal & Lumber Company (No. 445 in this Court) were
outside the Morris grant. 64 W.Va. 545. The new boundary was upheld
in 64 W.Va. 546. In that case, it was decided that the defendants
made parties after the first boundary decree of September 30, 1897,
were not bound by it as partially affirmed, even if they had
instigated and contributed to the appeal. Pages 559,
et
seq. See Rumford Chemical Works v. Hygienic Chemical
Co., 215 U. S. 156.
Finally, in
State v. King, 64 W.Va. 610, the court
sustained a dismissal of land claimed by Buskirk (No. 447 in this
Court) on the ground that it had been sold as school land pending
the present proceedings, and so the right to redeem was gone, and
moreover, the sale was validated by the amendment of 1905 to the
Act of 1893, as above set forth. In 64 W.Va. at 564 is a separate
opinion
Page 216 U. S. 99
discussing the amendment of 1905, and deciding that it merely
made legitimate rules of evidence, and changed no rights.
To complete the history of the case, even if not material, it
may be added that petitions for rehearing were presented and
disallowed, but that, on January 21, 1909, it was decreed that the
boundary decree of December 6, 1905, should be
"so modified and limited in effect as not to affect or impair
any right vested in any person by the decree entered herein by the
Court of Appeals of Wyoming County on the 30th day of September,
1897, as modified and partially affirmed by a decree entered by
this Court on the 7th day of February, 1900, and to the like extent
the decree made and entered herein on the 22nd day of December,
1908, by this court, insofar as the same affirms said decree of
December 6th, 1905, is hereby so modified and limited."
The decrees as to the defendants in error were not modified, but
still stand. Perhaps the meaning of this last decree is as
contended for by some of the defendants in error -- that, as
between the state and King, on one side, and the defendants brought
in after September 30, 1897, on the other, the new boundaries shall
prevail, but that, as between those who were parties before
September 30, 1897, the old boundaries still are to be taken as
correct; so that, if, within the latter bounds, there is land to
which the state alone has title, King still may redeem. The court
has indicated a tendency to believe that the old decree still bound
the state,
King v. Mason, 60 W.Va. 607, while it clearly
holds that it does not bind parties afterwards introduced.
State v. King, 64 W.Va. 546, 561. At all events, we are of
opinion that this modification does not affect the cases before
this Court.
The present writs of error are for the purpose of reversing the
decrees as to boundary and dismissal that have been mentioned. The
defendants in error move to dismiss, and we are of opinion that the
motion should be granted. The only serious question in the case, if
we assume that King saved it, is whether the West Virginia
Constitution and statute are consistent with the Fourteenth
Amendment. But that question
Page 216 U. S. 100
was answered in
King v. Mullins, 171 U.
S. 404. The construction of the state constitution by
the state court as not confined in its operation to title vested
and remaining in the state when the Constitution went into effect
(which, of course, is final) is the only natural construction and
was to be expected; then, as now, it was obvious that the right to
redeem under the statute would not exist in case, part of the land
had been sold to a junior purchaser, so that, in that case, there
would not be a "revestiture commensurate with the divestiture," as
it is argued that there should be, and to say the least, it is not
surprising that it is held that the right may be lost by transfer
pending the proceedings. The whole discussion upon this point is
little more than an attempt, in respectful form, to reargue by
unreal distinctions what was decided in the former case. The
question is not open, and we shall discuss it no more. It hardly is
necessary to add that, on a writ of error, we do not deal with the
facts,
Behn v. Campbell, 205 U. S. 403,
205 U. S. 407,
and therefore the decision that most of the tracts in question are
not within the boundaries of the Morris grant disposes of King's
rights here.
But an attempt is made to maintain that King got vested rights
under the first boundary decree September 30, 1897, and his payment
of the sum fixed in that decree, coupled with the partial
affirmance of the same. But the construction and effect of that
decree, how far it bound the state, and whether or not it bound
parties subsequently coming in, were matters of state procedure
alone. The cases remained within the jurisdiction of the state
court, and if, by local practice, the lower or higher court had
power to change an earlier decree in the cause by direct order, or
indirectly, by construction, which latter we by no means intimate
was done, it is a matter that cannot be complained of here.
See
Patterson v. Colorado, 205 U. S. 454,
205 U. S. 460.
It is said that the decree established the law of the case, but
that phrase expresses only the practice of courts generally to
refuse to reopen what has been decided, not a limit to their power.
Remington v. Central Pacific
R. Co.,
Page 216 U. S. 101
198 U. S. 95,
198 U. S.
99-100.
See Great Western Telegraph Co. v.
Burnham, 162 U. S. 339,
162 U. S. 343.
In some states, it is true that a stricter rule is applied,
Northern Pacific R. Co. v. Ellis, 144 U.
S. 458, but there is nothing in the Constitution of the
United States to require it, or to prevent a state from allowing
past action to be modified while a case remains in court.
See
San Francisco v. Itsell, 133 U. S. 65. The
highest court of the state is the final judge of the powers
conferred by the state laws in that regard. It was said by the
Supreme Court of Appeals in this case that "the decree adds nothing
to King's rights." 64 W.Va. 599.
In view of what we have said, it hardly is necessary to consider
the amendment of the Code, c. 105, and the Act of 1893 by the Act
of 1905. It is argued that the state court misconstrued the
statute, but we have nothing to do with that. Judge Brannon clearly
shows, 64 W.Va. 584, 591
et seq., that the amendment does
not even change the burden of proof as to the validity or
invalidity of other sales or conveyances set up.
Id., 594.
The limitation of thirty days to overcome the effect of filing a
deed or patent from the state is thought to be merely directory,
and it is pointed out that in fact King was allowed five months,
and that he did nothing. The limitation is held to be reasonable,
and, even if void, to be separable from the rest of the act --
another point on which the state's decision is final. Giving
prima facie effect to the document cannot be questioned
seriously.
Marx v. Hanthorn, 148 U.
S. 172. The other provisions of the act are shown to
take no right from King that he had under the previous law, and are
held to be consistent with the state constitution. In our opinion,
there was no question raised in these cases that properly could be
brought before this Court for review.
Writs of error dismissed.