The statutes of West Virginia in regard to the sale of land for
unpaid taxes require certain proceedings to be taken by the
sheriff, but do not require the sheriff to show in his return that
he has complied with these requirements; the statutes also make the
deed given by the sheriff
prima facie evidence that the
material facts therein recited are true.
Held that the
effect of these statutes is to change the burden of proof, which
rested at common law upon the purchaser at a tax sale to show the
regularity of all proceedings prior to the deed, and to cast it
upon the party who contests the sale.
Exactly what due process of law requires in the assessment and
collection of general taxes has never yet been decided by this
Court; while it has been held that notice must be given to the
owner at some stage of proceedings for condemnation or imposition
of special taxes, it has also been held that laws for assessment
and collection of general taxes stand upon a somewhat different
footing, and are construed with the utmost liberality, sometimes
even to the extent of holding that no notice whatever is necessary
(Mr. Justice Field's definition of "due process of law" in
Hager v. Reclamation District, 111 U.
S. 701, followed), and the Fourteenth Amendment is
satisfied by showing that the usual course prescribed by the state
laws requires notice to the taxpayers, and is in conformity with
natural justice.
A plaintiff is bound to show that he has personally suffered an
injury by the application of a law before he can institute a bill
for relief to test its constitutionality.
This was an appeal from a decree of the Circuit Court for the
District of West Virginia sustaining a demurrer to and dismissing a
bill filed for the purpose of impeaching a tax sale and deed of
certain lands, and of obtaining a judicial declaration that the
defendants, who were purchasers under such tax deed, took no title
to or interest in such lands.
The facts set forth in the bill were substantially as follows:
on April 30, 1874, Turpin, a citizen of the State of Pennsylvania,
purchased from the executors of one Smith C. Hill 225 acres of land
in the County of Ritchie, West Virginia, and received
Page 187 U. S. 52
a deed therefor. In the year 1879, 100 acres of this land were
sold for delinquent taxes for prior years, by which the quantity
owned by Turpin was diminished to 125 acres, which were assessed to
him for taxes for the years 1883 and 1884. Being absent from the
state for several years, in poor health, and unfit for business, he
paid no attention to the land, which was returned delinquent for
the nonpayment of these taxes, and was sold by the sheriff of
Ritchie County for such taxes on January 12, 1886. Having failed to
redeem the land within the year allowed by law from the time of the
sale, on February 3, 1887, some weeks after the expiration of the
year, a deed was made by the clerk of the County Court of Ritchie
County to the defendants.
Nothing was done, and no effort was made to pay these taxes,
until about February 21, 1899, when Turpin met the defendant John
B. Lemon, and tendered him the sum of $176.50, to cover the amount
of the taxes paid by the defendants in the purchase of the land,
and all taxes paid by them subsequently, as well as the cost of all
surveys, etc., which amount he now offers to pay into court; but
Lemon refused to receive the money, and has since cut large
quantities of timber and removed the same from the land.
Whereupon he filed this bill, which really raises but a single
question, and that is whether the laws of the State of West
Virginia enacted with reference to the sale of delinquent lands for
taxes are contrary to the Constitution of the United States, or
constitute due process of law within the Fourteenth Amendment.
Other questions were raised in the bill, but, in his petition for
an appeal to this Court, the appellant rests his case upon the
single question of the constitutionality of these laws.
MR. JUSTICE BROWN delivered the opinion of the Court.
The general charge is made by the appellant in his
assignments
Page 187 U. S. 53
of error, that the tax sale complained of in the bill, as well
as the statutes of West Virginia, are obnoxious to the Fourteenth
Amendment of the Constitution in failing to provide due process of
law or the equal protection of the laws.
The particular errors which are alleged in the bill to
invalidate the sale in question are --
That it nowhere appeared in the return of the sale made by the
sheriff for these taxes, either (1) that the land had been
certified to him as delinquent by the auditor of the state as
required by law, or (2) that he published or posted the notice of
the sale as required by law, or (3) that said sale was made at a
time at which he would be authorized by law to make such sale, or
(4) that such sale was at a place, to-wit at the front door of the
courthouse at which the sheriff was authorized to make it, or (5)
that such sale was made at public auction, or (6) that such land
was sold to a person or persons who would take the least number of
acres and pay the taxes thereon, or (7) that such sale was made in
accordance with the provisions of the law of the state.
In making sales of land for unpaid taxes, the procedure
indicated by the above exceptions is undoubtedly required by the
statute, the provisions of which are so numerous that they do not
require citation. It will be observed, however, that there is no
allegation in the bill that such requirements were not actually
followed, but simply that the return of the sale failed to set
forth a compliance with them. It is true the bill avers that the
statements in the tax deed of a compliance with the law, "
as
the record evidence shows, were without foundation in fact."
This, however, is but a restatement of the proposition theretofore
stated more particularly that the return did not show that the
successive steps laid down by the statute were followed. That the
pleader did not intend thereby to charge that the statutory
procedure was not actually pursued is evident from the plaintiff's
brief that, "while the proceeding may have been conducted, under
this statute, yet the system provided is arbitrary and uncertain in
its character," etc. As the statute does not require the sheriff to
show in his return of sale that he has complied with these
requirements, or any of them, or even to
Page 187 U. S. 54
state in general terms that the sale was made in accordance with
the statutes, the plaintiff fails to show that he has suffered any
actual injury, or that the forms of law were not literally
observed.
The act of 1882, c. 130, secs. 12 and 13, specially provides a
form of return of the sale as follows:
"12. The sheriff or collector who made the sale shall forthwith
make out a list of sales so made, with a caption thereto, in form
or effect as follows: 'List of real estate sold in the County of
_____, in the month (or months, as the case may be) of _____,
eighteen _____, for the nonpayment of the taxes charged thereon, in
the said county, for the year (or years, as the case may be)
eighteen _____.' Underneath shall be the several columns mentioned
in the tenth section of this chapter [with a like caption to each
column]."
"13. There shall be appended to such list an affidavit in form
or effect as follows: 'I, A_____ B_____, sheriff (or collector or
deputy for C_____ D_____, sheriff or collector), of the County of
_____, do swear that the above list contains a true account of all
the real estate within my county which has been sold by me . . .
during the present year, for the nonpayment of taxes thereon for
the year _____, and that I am not . . . directly or indirectly
interested in the purchase of any of said real estate, so help me
God.' Which oath shall be subscribed and taken before some person
authorized to administer oaths."
By section 15 of the same chapter,
"the owner of any real estate so sold, his heirs or assigns, or
any person having a right to charge such real estate for a debt,
may redeem the same by paying to the purchaser, his heirs or
assigns, within one year from the sale thereof, the amount
specified in the receipt mentioned in the tenth section of this
chapter, and such additional taxes thereon as may have been paid by
the purchaser, his heirs or assigns, with interest on said purchase
money and taxes at the rate of twelve percent per annum from the
time the same may have been so paid."
No attempt was made by the plaintiff to comply with this
statute.
By section 19 of the same chapter, it is provided that, after
the expiration of the year, the purchaser may obtain from the
Page 187 U. S. 55
clerk of the county court of the county in which said sale was
made a deed of conveyance for the land, and by section 25, when the
purchaser shall have obtained a deed thereof,
"and caused the same to be admitted to record, . . . such right,
title, and interest in and to said real estate as was vested in the
person or persons charged with the taxes thereon for which it was
sold, . . . shall be transferred to and vested in the grantee in
such deed, notwithstanding any irregularity in the proceedings
under which the same was sold, not herein provided for, unless such
irregularity appear on the face of such proceedings of record in
the office of the clerk of the county court, and be such as
materially to prejudice and mislead the owner of the real estate so
sold, as to what portion of his real estate was so sold, and when
and for what year or years it was sold, or the name of the
purchaser thereof, and not then, unless it be clearly proved to the
court or jury trying the case that but for such irregularity the
former owner of such real estate would have redeemed the same under
the provisions of this chapter."
This same section further declares, in a subsequent clause,
that
"no irregularity, error, or mistake in the delinquent list, or
the return thereof, or in the affidavit thereto, or in the list of
sales filed with the clerk of the county court, or in the affidavit
thereto, or in the recordation of such list or affidavit, or as to
the manner of laying off any real estate so sold, or in the plat,
description, or report thereof made by the surveyor or other
person, shall, after the deed is made, invalidate or affect the
sale or deed."
The substance of this legislation, then, is this: that a certain
procedure is prescribed for the sheriff in making sales of land for
unpaid taxes, but it is not required that he incorporate the
various steps of such procedure in his report of sales -- merely
that he shall swear that the list of lands to which his affidavit
is appended contains a true account of all the real estate within
the county sold by him during the current year for the nonpayment
of taxes, and that he is not directly or indirectly interested in
the purchase of any such real estate. A year is then allowed for
redemption, after the expiration of which a deed of the land is
executed to the purchaser at the sheriff's sale by
Page 187 U. S. 56
the clerk of the county court, which deed, the statute provides,
shall not be invalidated by reason of any irregularity in the
proceedings under which the land was sold unless such
irregularities appear upon the face of such proceedings of record
in the office of the clerk and be such as to materially prejudice
and mislead the owner.
Counsel for the plaintiff criticizes this legislation, and
particularly section 25, upon the ground that it does not provide
for any record of the successive steps of procedure in advertising
and selling lands for the nonpayment of taxes, and yet declares
that the title to the land shall be vested in the purchaser,
notwithstanding any irregularity, unless such irregularity appears
upon the face of the proceedings. The inference is that there is no
irregularity which can vitiate the sale. This is not entirely
accurate. It is true that the statute prescribes a general form of
return by the sheriff, which does not set forth in detail the
proceedings prior to and at the sale, but that there are
irregularities which appear of record, and therefore that the
exception in the curative statute is not without force, is evident
from the case of
McCallister v. Cottrille, 24 W.Va. 173,
in which it was held to be the official duty of the clerk of the
county court to note in his office the day on which the sheriff
returned his list of the sales of lands sold for delinquent taxes,
and if he fails to make such note, or his office shows that such
list was not returned and filed for more than ten days after the
completion of such sales, this, in either case, is such an omission
and irregularity as to materially prejudice the rights of the owner
of lands sold at such sale, and therefore vitiates any deed made to
the purchaser by the clerk. The court went further in this case,
and held that parol evidence could not be introduced to affect the
validity or invalidity of a tax deed. So too, in
Carrell v.
Mitchell, 37 W.Va. 130, 136, it was said the fact that land
was advertised and sold as delinquent under a description in the
advertisement, locating it in a different district from that in
which the land was situated, was such an irregularity as would void
the deed made in pursuance of such sale. In
Hays v.
Heatherly, 36 W.Va. 613, the title obtained by a purchaser was
held to be defective for the reason that the affidavit
Page 187 U. S. 57
did not comply with the form contained in the statute. In that
case, the deed had not been obtained; but in
Phillips v.
Minear, 40 W.Va. 58, the same defect was held to be fatal
after the deed was obtained, and after the curative section (25)
had taken effect.
See also Jackson v. Kittle, 34 W.Va.
207;
Baxter v. Wade, 39 W.Va. 281.
That it is competent for the legislature to provide by curative
statutes that irregularities in the sales of lands shall not
prejudice the purchaser after a certain time has elapsed and a deed
has been given is entirely clear, although, as observed by Judge
Cooley in his work upon Taxation, chapter 10, p. 227, such
defective proceedings cannot be cured where there is a lack of
jurisdiction to take them. "Curative laws may heal irregularities
in action, but they cannot cure want of authority to act at all,"
and that "whatever the legislature could not have authorized
originally, it cannot confirm." It may not be altogether easy in a
particular case to determine whether the defect be jurisdictional
or not, but certainly irregularities in the personal conduct of the
officer making the sale would not be so regarded, and it is at
least exceedingly doubtful whether the failure to preserve the
auditor's list of delinquent lands or the evidence of the
publication and posting of the statutory notices would vitiate a
deed made by the clerk, after a lapse of twelve years.
But even if parol or other evidence were competent to impeach
this sale, none such was offered, and it may well be doubted
whether due process of law, within the meaning of the Fourteenth
Amendment, requires a punctilious conformity with the statutory
procedure preceding and accompanying the sale. Whether all the
steps required by law were actually taken in a particular case and
whether the failure to take such steps would invalidate the sale
would seem to be a matter for the state courts, rather than for
this Court, to decide, and it would appear that the Fourteenth
Amendment would be satisfied by showing that the usual course
prescribed by the state laws required notice to the taxpayer and
was in conformity with natural justice. Exactly what due process of
law requires in the assessment and collection of general taxes has
never yet been decided by this Court, although we have had frequent
occasion to hold
Page 187 U. S. 58
that, in proceedings for the condemnation of land under the laws
of eminent domain or for the imposition of special taxes for local
improvements, notice to the owner at some stage of the proceedings,
as well as an opportunity to defend, is essential.
Spencer v.
Merchant, 125 U. S. 345;
Huling v. Kaw Valley Railway, 130 U.
S. 559;
Hagar v. Reclamation District,
111 U. S. 701;
Paulsen v. Portland, 149 U. S. 30. But
laws for the assessment and collection of general taxes stand upon
a somewhat different footing, and are construed with the utmost
liberality, sometimes even to the extent of holding that no notice
whatever is necessary. Due process of law was well defined by Mr.
Justice Field in
Hagar v. Reclamation District,
111 U. S. 701, in
the following words:
"It is sufficient to observe here that by 'due process' is meant
one which, following the forms of law, is appropriate to the case,
and just to the parties to be affected. It must be pursued in the
ordinary mode prescribed by the law; it must be adapted to the end
to be attained, and wherever it is necessary for the protection of
the parties, it must give them an opportunity to be heard
respecting the justice of the judgment sought. The clause in
question means, therefore, that there can be no proceeding against
life, liberty, or property which may result in the deprivation of
either without the observance of those general rules established in
our system of jurisprudence for the security of private
rights."
It was said in
Witherspoon v.
Duncan, 4 Wall. 210, that the states, as a general
rule, had the right to determine the manner of levying and
collecting taxes upon private property, and could declare a tract
of land chargeable with taxes, irrespective of its ownership, or in
whose name it was assessed or advertised, and that an erroneous
assessment did not vitiate the sale. In
McMillen v.
Anderson, 95 U. S. 37, it was
held that due process of law did not require that a person should
have an opportunity to be present when the tax was assessed against
him, or that the tax should be collected by suit, and in
Kelly
v. Pittsburgh, 104 U. S. 78, that
the general system of procedure for the levy and collection of
taxes established in this country is, within the meaning of the
Constitution, due process of law. In
Bell's
Gap R. Co. v. Pennsylvania, 134 U.S.
Page 187 U. S. 59
232,
134 U. S. 239,
it was held that the process of taxation did not require the same
kind of notice as is required in a suit at law, or even in
proceedings for taking private property under the power of eminent
domain.
"It involves no violation of due process of law when it is
executed according to customary forms and established usages, or in
subordination to the principles which underlie them."
The main objection to section 25, above quoted, seems to be that
it makes the deed conclusive evidence of the regularity of all
proceedings not appearing of record, and hence that it is obnoxious
to the ruling of this Court in
Marx v. Hanthorn,
148 U. S. 172, in
which we held that, as the legislature could not deprive one of his
property by making his adversary's claim to it conclusive of its
own validity, it could not make a tax deed conclusive evidence of
the holder's title to land.
But, conceding this to be so, there is another section proper to
be considered in this connection, and that is section 29, which
reads as follows:
"29. In all cases in which a question shall arise as to any such
sale or deed, or the effect thereof, such deed shall be
prima
facie evidence against the owner or owners, legal or
equitable, of the real estate at the time it was sold, his or their
heirs and assigns, . . . that the person named in the deed as clerk
of the county court was such, that the sheriff or other officer who
made the sale was such sheriff or officer as stated in such deed,
that the material facts therein recited are true, and that
such estate as is mentioned in the twenty-fifth section of this
chapter vested in the grantee in the deed."
Assuming the common law rule to be, as stated by the elementary
writers upon taxation, that the purchaser at a tax sale is bound to
take upon himself the burden of showing the regularity of all
proceedings prior thereto, it is entirely clear that statutes
declaring the tax deed to be
prima facie evidence not only
of regularity in the sale, but of all prior proceedings and of
title in the purchaser, are valid, since the only effect of such
statutes is to change the burden of proof, which rested at common
law upon the purchaser, and cast it upon the party who contests the
sale. Indeed, the validity of these acts was
Page 187 U. S. 60
expressly affirmed by this Court in
Pillow v.
Roberts, 13 How. 472,
54 U. S. 476,
and
Williams v.
Kirkland, 13 Wall. 306.
Even if the provisions of section 25, making irregularities of a
sale immaterial, were invalid, it would still result that, under
section 29 the facts recited in the deed would be presumed to be
true, and the burden be thrown upon the landowner of disproving
them. This burden the plaintiff has not assumed, but he is content
to rely, and stake his whole case, upon the fact that the return of
the sheriff did not show a compliance with the procedure marked out
by the statute. Even if it were admitted that due process of law
required the observance of all the steps prescribed by this
statute, it does not demand that they shall be made matter of
record, much less that they shall be made matter of a particular
record, such, for instance, as the return of the sheriff of the
sale of the lands. Under the Fourteenth Amendment, the legislature
is bound to provide a method for the assessment and collection of
taxes that shall not be inconsistent with natural justice; but it
is not bound to provide that the particular steps of a procedure
for the collection of such taxes shall be proved by written
evidence, and it may properly impose upon the taxpayer the burden
of showing that, in a particular case, the statutory method was not
observed. The fact that the return of the sheriff does not recite
the various steps of the procedure, when the statute does not
contemplate that it shall do so, is no evidence whatever that they
were not followed to the letter. If the plaintiff had alleged that,
in the proceedings for the sale of these lands, the sheriff had
failed to comply with the law, and the defendant had pleaded that,
by the curative section (25), irregularities not appearing of
record would not vitiate the deed, the constitutionality of that
section would properly be raised; but the plaintiff in this case
was content to put his bill upon the ground that the record --
namely, the sheriff's return of sale -- did not set forth that the
procedure prescribed by statute, preceding and accompanying the
sale, had been followed. This is an effort to test the
constitutionality of the law without showing that the plaintiff had
been injured by its application, and, in this particular, the case
falls within our ruling in
Tyler v. Judges of
Registration, 179
Page 187 U. S. 61
U.S. 405, wherein we held that the plaintiff was bound to show
he had personally suffered an injury before he could institute a
bill for relief. In short, the case made by the plaintiff is purely
academic. For aught that appears, the proceedings may have been
perfectly regular, and his bill rests solely upon the proposition
that there may have been irregularities in the sheriff's sale, and
that if there were, the statute validating the deed,
notwithstanding such irregularities, is unconstitutional and
deprives him of his property without due process of law. This
proposition contains its own answer.
The exact case, then, made by the bill is this: the plaintiff
seeks to avoid a sale made twelve years before by an allegation
that the record, namely, the sheriff's return of the sale, does not
show a compliance with the statute in certain particulars, without
also averring that in fact there was a failure to perform some step
required by law. To hold a sale invalid upon these allegations
might result in upsetting every sale for taxes made in West
Virginia for the past twenty years.
We are of the opinion that no case is made by the bill, that the
judgment of the Circuit Court is correct, and it is therefore
Affirmed.