Sims v. Fisher

Kenna, Judge,

concurring:

I am in full accord with the conclusion reached in the majority opinion, but I believe that from a practical, as well as from a sound theoretical, standpoint, the unavoidable result should be to expressly overrule the holding of this Court in the case of

McClure

v.

Maitland,

24 W. Va. 561 . In so doing I would not be disturbed by the fear that land titles in this State might, or could, be upset to an appreciable extent by the entire elimination of a legal principle upon which they may be founded, because I regard this as one of the extremely rare occasions which justify the exercise of the principle commonly known as the “Rule of Property”, the effect of which is to prevent the findings of a court of last resort from operating retroactively so as to disturb titles acquired under a former well-established- rule in conflict therewith. See

Gelpcke

v.

City of Dubuque,

68 U. S. 175 , 1 Wall. 175 , 17 L. Ed. 520 ; and 18 Columbia Law Review, 230. To state it shortly, I would maintain titles acquired under the rule laid down in the

Maitland

case when that case was recognized as establishing the rule in West Virginia. I would say positively, however, that from now on that case establishes no binding rule in this State.

As I understand the holding of this Couyt in the

Mait-land

case, it was that a school commissioner’s proceeding for the sale of delinquent and forfeited lands was administrative, and that the person in whose name the land

*543

was last charged on the land books prior to its forfeiture for nonentry, or in whose name the delinquency, under which the State acquired title, occurred, although included in an order of publication and actually appearing, had no appealable right and hence the review was improvidently granted upon their petition, it not being a judicial proceeding.

At the time that this State was formed, the Virginia Act of February 13, 1844 (Acts 1843-44, c. 19), was in effect, and under its provision any person interested could file a petition in three years contesting the validity of a sale or order of sale, or the fact that the land in question was subject to sale, and thereupon'proceedings were required as upon a bill in chancery, with the right to appeal expressly granted to any party in 'interest. See Harlow on “Delinquent and Forfeited Lands” at page 68, cited in the

Maitland

case at page 574.

It is true, as stated in the

Maitland

opinion, that by adopting Virginia statutes, referring expressly to the Acts of 1837 and 1838, under a general rule of construction, unless otherwise stated, this State also adopted the Virginia interpretation and construction. However, I think that it is unnecessary to invoke that general principle since Section 8 of Article XI of our Constitution of 1863 reads in part as follows: “Such parts of the common law and of the laws of the State of Virginia as are in force within the boundaries of the State of West Virginia, when this Constitution goes into operation, and are not repugnant thereto, shall be and continue the law of this State until altered or repealed by the Legislature. * * * ” In so far as the title to land is concerned, to the same effect is the express provision of Section 1, Article XIII of our present Constitution. In the light of that express provision it is unnecessary to invoke a general rule of construction involving the same principle. Furthermore, in the light of that express wording, the statement in the

Maitland

opinion at the top of page 575 to the effect that the Virginia Act of February 13, 1844, has been entirely omitted from both the constitu

*544

tional and statutory provisions of this State, is quite inaccurate.

Remembering that we adopted the laws of the State of Virginia by our Constitution of 1863, we must not lose sight of the fact that when our constitutional provision requiring a proceeding in the circuit court to dispose of delinquent and forfeited lands held by the State was adopted, the Virginia Act of February 13, 1844, conferring upon the former owner a right to contest the validity of a sale by a proceeding “as upon a bill in chancery” was in effect. That Act was the only method expressly provided for testing a forfeiture. It was not done by an

ex pajrte

administrative proceeding in court. The Act created a plainly judicial method. If the only method provided for contesting the validity of a sale in the circuit court was a judicial proceeding, then the expression “by proceedings in the Circuit Courts” as used in Section 4, of Article 13 of our Constitution of 1872 was to my mind plainly misapplied in the

Maitland

case. That the nature of a duty required of a judicial body should, in case of doubt, be held to be administrative seems decidedly strained.

For the foregoing reasons I would expressly overrule the case of

McClure

v.

Maitland,

24 W. Va. 561 , because I do not regard the position taken by the Court therein as sound, and would restrict the alteration of principle to its prospective effect.

I agree that the Act under consideration is unworkable upon any sound constitutional theory.

I am authorized to say that Judge Rose concurs in this opinion.