brief for appellee — Pearson v. Dodd

eae

FILEO

SEP 3 1976

| MICHAEL RODAK, JR.CLERK

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1975

No. 75-1318

CECLE G. PEARSON,

Appellant,

v.

W.P. DODD; ERNESTINE DODD,

his wife; and COLUMBIA GAS TRANSMISSION

CORPORATION,

Appellees.

ON APPEAL FROM A DECISION OF THE

SUPREME COURT OF APPEALS OF WEST VIRGINIA

BRIEF ON THE MERITS

Of Counsel WM. ROY RICE

JOHN D. DALY Post Office Box 1273

THOMAS E. MORGAN Charleston, West Virginia 25325

Post Office Box 1273 Counsel for Appellee

Charleston, West Virginia Columbia Gas Transmission

25325 Corporation

September 3, 1976

Dunber Printing Co., Dunbar, W. Va.

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1975

No. 75-1318

CECLE G. PEARSON,

Appellant,

Vv.

W.P. DODD; ERNESTINE DODD,

his wife; and COLUMBIA GAS TRANSMISSION

CORPORATION,

Appellees.

ON APPEAL FROM A DECISION OF THE

SUPREME COURT OF APPEALS OF WEST VIRGINIA

BRIEF ON THE MERITS

Of Counsel WM. ROY RICE

JOHN D. DALY Post Office Box 1273

THOMAS E. MORGAN Charleston, West Virginia 25325

Post Office Box 1273 Counsel for Appellee

Charleston, West Virginia Columbia Gas Transmission

25325 Corporation

September 3, 1976

Dunber Printing Co.. Dumber, W. Va.

TABLE OF CONTENTS

OPINIONS BELOW ....cccccccccccscssocccccosccescopsscoscscsssqsgoosss

JUIN cccccccccecseseccccccocsecccsosesenssnaticcsstbasenioteosesi

STATUTES INVOLVED. .....00c...ccccosccsdscccecnccccsscccccscscess

QUESTIONS PRESENTED ..............::scccceeererereeeeeseeneees

STATEMENT OF THE CASE ............ccccessssesereeseeeeeenees

SUMMARY OF ARGUMENT ...........cccccceessseeeeeeeereenees

ARRGUDEEINE cccccccccerccccsocovossneccsecososcssscnasedbasscescegsesteganes

I. WEST VIRGINIA CODE §11A-4-12 PERMIT-

TING A TAX SALE OF REAL PROPERTY,

OWNED BY THE STATE, UPON PUBLICA-

TION NAMING THE FORMER OWNER AS

A DEFENDANT AND ALSO NAMING UN-

KNOWN PARTIES CLAIMING UNDER

HIM AS DEFENDANTS, DOES NOT DENY

DUE PROCESS OF LAW .000....ccccsccseeeeesseseneee 6

Il. WEST VIRGINIA CODE §11A-3-8 VESTING

TITLE IN THE STATE TO TAX DELIN-

QUENT PROPERTY, NOT TIMELY RE-

DEEMED, RENDERS MOOT ANY QUES-

TION OF THE ADEQUACY OF NOTICE BY

PUBLICATION ONLY TO THE PRIOR

OWNER AT THE SUBSEQUENT SALE OF

THE STATE'S TITLE. .....ccccsecsstcocescsessoveesosscoces 17

lll. INDEPENDENT OF THE OTHER QUES-

TIONS, DUE PROCESS OBJECTIONS DO

NOT JUSTIFY THE RETROACTIVE IN-

VALIDATION OF INNUMERABLE LONG

ESTABLISHED LAND TITLES ...............20000+8 23

CONLIN oc cccccccsccoccecocccccccosennososcssecsocsssnssoossnennibabe 25

etapa The,

TABLE OF AUTHORITIES

Cases

Ballard v. Hunter, 204 U.S. 241, 262

ee ee ee 9,13

Balthazar v. Mari Lid., #1 F. Supp.

103 (N.D. Ill. 1969), aff'd 396

ES He IEE hicrnbacticennsnncedasetsnsrenenssennnensnstbersccngpenine 7

Bell’s Gap Railroad v. Pennsylvania,

RAE EE LN 7,15

Cipriano v. Houma, 395 U.S. 701 (1969) ........ccccceeeeeeeees 24

City of New Rochelle v. Echo Bay Waterfront

Corp., 49 N.Y.S.2d 673, 268 App. Div.

182, affd 60 N.E.2d 838, 294 N.Y. 678,

cert. denied, 326 U.S. 720 (1945) 2..........cccccccccecceeeeeeeees 13

Covey v. Town of Somers, 351 U.S. 141 (1956) ............. 14

Freudenberger Oil Co. v. Simmons, 75 W.Va.

EG ae 12

Fuentes v. Shevin, 407 U.S. 67 (1972) ......ccccceccceceeeeeeeeees 15

Huling v. Kaw Valley R. & Improv. Co.,

ee 10,13

Kahn v. Shevin, 416 U.S. 351 (1974) .......cccccccccecceeeereenes 15

Kentucky Union Co. v. Kentucky, 219 U.S.

PIE ctintiinbieididinecnpntcimcuninimenannmenndas 8

King v. Mullins, 171 U.S.

ETT Le 4,6,7,8,15,17

King v. West Virginia, 216 U.S. 92

GD iiaeidnnctatetiictlnnsidiiaielihtatiandetectinidumiumesnepementeanasinenes &

Leigh v. Green, 193 U.S. 79, 90 (1903) ..........ccccceeeeeeeeeees 8

McClure v. Maitland, 24 W.Va. 561 (1884) ..................+. 10,20

Cases—continued

Page

Mullane v. Central Hanover Bank & Trust Co.,

ES ee ee Passim

Murdock v. City of Memphis, 20 Wall. 590

CRITE cesrescccctntnsrccnestenctattabinianstteliniiadbesenbiabiitaeesil 5,19,20

Paschall v. Christie-Stewart, Inc.,

GOB UD. TR GI CED ccccsclbiiiincccsbechtttncnsnebecestiittbbereitestisii 19,20

Phoenix v. Kolodziejski, 399 U.S.

POE cclvladiincidtnlecdesevitailciniapssnnsgitinsiuibienetidaseades 23

Robinson v. Hanrahan, 409 U.S. 38

(RRREE SERRREAE SS ate ee ole RE DR a OE 15

Schroeder v. City of New York, 371

CB, TID Ge alba tencdechttactnitntiiniinctiitstnibenitinkess 13

Sniadach v. Family Finance Corp., 395

oD Rf PR ER I IE EA EF 14

State v. Blevins, 131 W.Va. 350, 48

DEES GPE ctitcnicsccetndnietiiiicaniatiinbentticccnatehiasens 10,21

State v. Farmers Coal Co., 130 W.Va.

D, Sp ee NED cenctakicncsotnnnecracncteinancicsismmeniaiten 21

State v. Gray, 132 W.Va. 472, 52

S26 Tae Ce cccttbcteeiitibidibcnccdinnentncnititnandesiteiansies 10,21

State v. Simmons, 135 W.Va. 196, 64

RE a ae ne oe 10

United Fuel Gas Co. v. Dyer, 185 F.2d

GD CEE Gicdedebinnstincnccscennsinsabimiuiharcnidevtanindnenntiviictas 12

Walker v. City of Hutchinson, 352 U.S.

7) Se eee es | SS 13

-iii-

Statutes

West Virginia Code !931 Page

D0 OO sai scticcdeerpicbiniocpnedlideccepmpinncctcndighdvinicidipncitiiibtes 17

RIO ccrnscotstmenemnntemasttenatanantingiiiagrmenemestonennen 17

BODIED cccevscecesssescteneinnsneitstttinintnerereseesseseeneemmeesensese 17

BOER cecccccscovsccrelibbinninnbivnctnedlicrerenvesceencvesenreense 18

OBR cresscnsceisesespretenenyoroqenqeunapegptenastuasimnnetsensenmeese 11

a ee 18

OD cniticnescttenetcenseientnesesnenreere-cotnmmiemitevitiniegnacmeanes 18

ERG ccccsniecocscsseenscesoqnniccticnsesccenenencansinmenenimennorrenss 18

OBR cccececssccseqevesrenqsenseqsenpupesoreememmmetanenninngiqeerssseees 18

BO BABB ..ccrcncscercectontsbiutsbbesncccnetnessectostesngssscsbininesntie Passim

BOGART ccccececssercstnicsbeseahicaitadenceten ouatatpimiguanlesnesiete 18

BERD cecccserecescsccesnscsncsmsnsennectteeanesensetemathanemeestvensee 18

BARA BE ceececsocnsoceseccpsenintorseccsenscensidinteneimpesibeneviontingeese 18

OBR cccncizscrcstccticiecsivinsechasivineinetisesetbinsntiesoeteshoreee 18

BODE cccncecscnscssessencemecensensessnstetennmemmmacosnnemenneceieess 18

GERAD cnccccisdecicbetictedtinectsnsnentdantecintetestoossossoessssscese 18

BO DA ceccccescecessnsscosscessenesnenenstnaneiennnnsnenseneensneqnsstertss 11

BR GAD crcctssncccidssersncisercvadenesisvasisanttetensnteoenectenenesnenes 6

Constitutions

West Virginia Constitution, Article XIII ...............:0000++ Passim

United States Constitution,

Fourteenth Amendment .................:scsessesseeseesseeseeeeees Passim

|

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1975

No. 75-1318

CECLE G. PEARSON,

Appellant,

Vv.

W. P. DODD; ERNESTINE DODD,

his wife; and COLUMBIA GAS TRANSMISSION

CORPORATION,

Appellees.

ON APPEAL FROM A DECISION OF THE

SUPREME COURT OF APPEALS OF WEST VIRGINIA

BRIEF ON THE MERITS

In this Brief on the Merits, Columbia Gas Transmission

Corporation, Appellee (including its predecessor, United Fuel

Gas Company) will be referred to as “Columbia” and the

Appellee, W. P. Dodd (a defendant below and the purchaser

of Pearson’s title at the tax-sale) will be referred to as

“Dodd”. Appellant, Cecle G. Pearson (the plaintiff below)

will be referred to as “Pearson”.

OPINIONS BELOW

The opinion below by Chief Justice Haden of the Supreme

Court of Appeals of West Virginia is reported at 221

S.E.2d 171 (W. Va. 1975). A copy of the opinion below

is set out in full in Appendix A, aprentes to Appellant’s

Jurisdictional Statement.

2

The judgment of June 19, 1972, by the Circuit Court

of Kanawha County, West Virginia, incorporating the Court’s

memorandum of opinion of April 17, 1972, is set out in

full in Appendix B, appended to Appellant’s Jurisdictional

Statement.

JURISDICTION

The suit involved in this appeal was brought by Pearson

to set aside, as a cloud upon her alleged title to an oil

and gas interest, a conveyance of such interest by a tax deed

made pursuant to a state statute. The judgment of the

Supreme Court of Appeals of West Virginia was filed

on December 18, 1975. Notice of Appeal was filed with the

Supreme Court of Appeals on February 26, 1976.

The asserted jurisdiction of the Supreme Court to hear

this appeal rests upon 28 U.S.C. §1257(2), or, in the

alternative, $1257(3). This Court noted probable jurisdiction

on June 21, 1976.

STATUTES INVOLVED

The case involves the validity of West Virginia Code

§§11A-4-12 and 11A-3-8. These statutes are set out in

Appendix C, appended to Appellant’s Jurisdictional Statement.

QUESTIONS PRESENTED

The questions presented for review are:

I. Do the due process requirements of the Fourteenth

Amendment to the United States Constitution invali-

date a West Virginia statute which permits a tax

sale of real property, owned by the State, upon

publication naming the former owner as a defendant

and also naming, as defendants, unknown parties

claiming under the former owner?

Il. Do the provisions of West Virginia Code §11A-3-8

vesting title in the State to tax delinquent property,

3

not timely redeemed, render moot any question of the

adequacy of notice by publication only to the prior

owner at the subsequent sale of the State’s title?

Ill. Independent of the other questions, will due process

objections justify the retroactive invalidation of in-

numerable long established land titles?

TATEMENT OF THE E

By a deed executed and recorded in 1937, Pearson acquired

a one-fourth interest in all of the oil and gas in sixty-

eight acres of land located in Kanawha , County, West

Virginia (App. 63-64). Although Pearson did not cause a

change of the entry in the Land Books (the official assess-

ment rolls for real property in West Virginia) from the

former owner’s name to her own, Pearson’s husband paid the

real estate taxes on her interest from 1938 until 1960

(App. 41). No taxes were paid on Pearson’s interest in

1961. As a result of this nonpayment, in 1962 the property

embraced by the assessment of Pearson’s interest (an oil

and gas interest) was declared delinquent and was sold to

the State of West Virginia pursuant to statute (App. 53-54,

72).

4 1966, the Deputy Commissioner of Forfeited and

Delinquent Lands for Kanawha County (the statutory officer

of the State charged with the duty of selling delinquent

and irredeemable real estate) instituted a statutory suit

in the name of the State for the sale of this real property

interest (App. 65-76). On June 1, 1966, in keeping with

orders entered in the suit (App. 73-80, 83-88, 97-101), the

Deputy Commissioner conveyed by a tax deed to Dodd (the

purchaser at the Deputy Commissioner’s sale), the property

assessed in the name of H. C. Pearson, Jr. (App. 102).

In 1967, Dodd and his wife ratified an existing lease (App.

103-105) upon the sixty-eight acres held by United Fuel

Gas Company, and granted United the right to drill a

natural gas well (App. 106-107). This well was completed

in 1968 at a cost of $104,500.87 and produced an initial

4

open flow of one hundred million cubic feet of gas (App.

117-120). Columbia is the successor in interest to United

(App. 49).

On July 26, 1968, Pearson paid the State Auditor

$101.86 and received what was designated a Certificate of

Redemption of Lands in her name for the property in

question (App. 121). However, at that time, the property was

irredeemable under Code §I11A-3-8 and the attempted

redemption was, within the statutory intention, of no effect.

Pearson subsequently filed this suit against the Dodds and

United (now Columbia).

West Virginia Code §11A-4-12 permits the sale of delin-

quent property interests previously sold to the State and

irredeemable (the situation involved in this case) upon

notice by publication upon “unknown parties who are or may

be interested in any of the lands included....” A

statutorily sufficient notice of the sale in question was given

by publication.

Upholding the statutory scheme for tax sales and affirming

that this particular sale was in keeping therewith and in

keeping with due process requirements, the Circuit Court

granted judgment for the Dodds and Columbia. In its

letter memorandum of opinion, it held, inter alia, that the

notice provisions of §11A-4-12 did not deny Pearson due

process of law under the State Constitution or the United

States Constitution. The Supreme Court of Appeals of West

Virginia affirmed the judgment of the Circuit Court against

the former owner, Pearson.

SUMMARY OF ARGUMENT

Eighty years ago, King v. Mullins, 171 U.S. 404 (1898),

held that the notice by publication provisions under the

West Virginia statutory scheme for collecting real property

taxes did not violate due process under the Fourteenth

Amen*ment. Insofar as the due process question is concerned,

the statutory tax collection provisions remain essentially

the same.

5

Procedures for collecting real property taxes do not require

the same kind of notice or process required in a suit

at law.

Other decisions by this Court affecting Illinois, Pennsyl-

vania, Kentucky, Nebraska and Arkansas have held likewise,

substantiating no violation of due process under the Four-

teenth Amendment in State notice by publication provisions

under procedures for collecting real property taxes.

The State’s need to collect revenue requires that an

owner either pay real property taxes or lose his title to

another who will pay the taxes.

A property owner who does not pay his taxes is presumed

to know that the property will be sold to allow collection

if the delinquency continues. In this regard, the owner

of property is a caretaker who has a duty to watch published

legal notices affecting his property.

The principles in Mullane v. Central Hanover Bank &

Trust Co., 339 U.S. 306 (1950), do not apply in cases

such as this where the names and addresses of affected

parties are rot at hand. However, Mullane does not require

an impracticable and expensive title search to determine

the identity of interested parties in a prospective tax deed

situtation.

Decisions following the principles in Mullane in condem-

nation and other appropriation cases can be distinguished

from cases where real property taxes are being collected.

This appeal does not involve a windfall to one party

at the expense of another party.

West Virginia Code §11A-3-8 vesting title in the State

to tax delinquent property, not timely redeemed, renders

moot any question of the adequacy of notice by publication

only to the prior owner at the subsequent sale of the

State’s title.

An independent State ground on which the decision below

is based will bar attacks in this Appeal, under the doctrine

of Murdock v. City of Memphis, 20 Wall. 590 (1875).

6

West Virginia Code §1i1A-3-8 is such independent State

ground barring this Appeal.

By virtue of West Virginia Code §11A-3-8, Pearson had

no significant property interest in 1966 to question the ade-

quacy of notice by publication at the State’s sale of its title.

The decisions in other state courts are not probative or

determinative on the issue of due process under the

Fourteenth Amendment. The decision by the highest Court

in the State of West Virginia has held that due process

is not denied by procedures for collecting real property

taxes.

Independent of the other questions, due process objections

do not justify the retroactive invalidation of innumerable

long established land titles.

The desired stability of land titles requires that tax-deeds

should not be upset.

Tax-deeds, like securities or municipal bonds, should

not be upset in arrears but only prospectively, if at all.

ARGUMENT

I. WEST VIRGINIA CODE §11A-4-i2 PERMITTING

A TAX SALE OF REAL PROPERTY, OWNED BY

THE STATE, UPON PUBLICATION NAMING THE

FORMER OWNER AS A DEFENDANT AND

ALSO NAMING UNKNOWN PARTIES CLAIM-

ING UNDER HIM AS DEFENDANTS, DOES NOT

DENY DUE PROCESS OF LAW.

Almost eighty years ago this Court directed its attention

to the question once again before this Court on appeal

by Pearson. In King v. Mullins, 171 U.S. 404 (1898), the

very question now before this Court was whether the system

of taxation in the State of West Virginia, and its provisions

for forfeitures, were repugnant to the Fourteenth Amendment

of the Constitution of the United States. In holding that

the system established by the State of West Virginia is

7

not inconsistent with the due process of law required by

the Constitution of the United States, this Court said:

“The judiciary should be very reluctant to interfere

with the taxing systems of a state, and should never

do so unless that which the state attempts to do is in

palpable violation of the constitutional rights of the

owners of property. Under this view of our duty, we are

unwilling to hold that the provision referred to is re-

pugnant to the clause of the 14th Amendment forbidding

a denial of the equal protection of the laws.”

The principles governing the situation in this appeal by

Pearson are more recently and succinctly endorsed in a case

styled Balthazar v. Mari Lid., 301 F. Supp. 103 (N.D. Ill.

1969), affd 396 U.S. 114 (1969), wherein the Court below

said:

“Relying upon Supreme Court condemnation cases,

plaintiffs also maintain that they were deprived of ‘just

compensation’ for their property. See, e.g., United States

v. Miiler, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336

(1943); City of Cincinnati v. Vester, 281 U.S. 439, 50

S.Ct. 360, 74 L.Ed. 950 (1930); Dohany v. Rogers, 281

U.S. 362, 50 S.Ct. 299, 74 L.Ed. 904 (1930); Brown v.

United States, 263 U.S. 78, 44 S.Ct. 92, 68 L.Ed. 171

(1923); Chicago Burlington and Quincy R. Co. v. City

of Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979

(1897). These cases are inapplicable. Rather than taking

private property for a public purpose, Illinois is here

collecting taxes which are admittedly overdue.”

Once again, the Court cited with approval the definitive

and determinative decision of King v. Mullins, supra.

To some considerable extent, the decision in King was

founded upon the earlier decision of this Court in Bell's

Gap Railroad v. Pennsylvania, 134 U.S. 232, 239 (1890),

wherein this Court declared:

“ ‘The process of taxation does 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 ne violation of « »-

process of law, when it is executed accor” .

customary forms and established usages * * * ’”

in the Balthazar holding, affirmed by this Court, the Court

below cited with approval as late as 1969 the holding of

this Court in the Bell’s Gap Railroad case, supra.

in King v. West Virginia, 216 U.S. 92 (1910), which

was a companion case to King v. Mullins, supra, once

again the former owner raised the spectre of an alleged

denial of due process under the Fourteenth Amendment.

Because of the previous holding by this court in King v.

Mullins, in King v. West Virginia this Court said then (and

the expression is apt to this appeal): “The question is not

open and we shall discuss it no more.” Columbia submits

that as long ago as 1898 it was determined that the system

for perfecting tax deeds in West Virginia does not violate

the due process provisions of the Fourteenth Amendment.

In Kentucky Union Co. v. Kentucky, 219 U.S. 140 (1911),

as against a claim of denial of due process under the

Fourteenth Admendment to the Constitution, this Court

upheld the Kentucky Act of 1906 Relating to Revenue and

Taxation. As recited in the opinion, the Kentucky Act

permitted a proceeding by publication “in the name of the

Commonwealth of Kentucky, as plaintiff, against the said

tract of land and the owners or claimants of said land,

as defendants, naming them if their names are known to

him, and if their names are unknown to him, designating

them as unknown owners and claimants thereof”. Columbia

submits that Pearson was proceeded against here by publi-

cation as an unknown defendant because she was an

unknown defendant, and that she was not denied due process

within the holding of the Kentucky Union case.

In Leigh v. Green, 193 U.S. 79, 90 (1903), the Nebraska

statute involved clearly authorized a foreclosure to satisfy

a tax lien without actual service against all lienholders

within the jurisdiction of the Court. In upholding the statutory

provisions for process by publication, the Court observed:

9

“Nor is the remedy given in derogation of individual

rights, as long recognized in proceeding in rem, when

the i4th Amendment was adopted. The statute under-

takes to proceed in rem, by making the land, as such,

answer for the public dues. Of course, merely giving a

primary object of the statute is to reach the land which

has been assessed. Of such proceedings, it is said m

Cooley on Taxation, 2d ed. 527: ‘Proceedings of this

may ap enlgee Bn aye gts wg Sy Ro agente a

!

5

g

lk

|

Ee

not be lost to them, than from any necessity that the

case shall assume that form.’ ”

In Ballard v. Hunter, 204 U.S. 241, 262 (1907), im

upholding an Arkansas statute, which permitted other than

personal service, against the onslaught of alleged violation of

due process of the Fourteenth Amendment, this Court said:

“It should be kept in mind that the laws of a state

come under the prohibition of the 14th Amendment only

of its provisions or proceedings to everyone. It charges

everyone with knowledge of its provisions; of is proeeed-

ings it must, at times, adopt some form of imdirect

notice, and indirect notice is usually efficient notice when

the proceedings affect real estate. Of what ae

may concern their real estate men usually keep inf.

and on that probability the law may frame Lane

10

ings; indeed, must frame them, and assume the care of

property to be universal; if it would give efficiency to

many of its exercises. This was pointed out in Huling v.

Kaw Valley R. & Improv. Co. 130 U.S. 559, 32 L.ed.

1045, 9 Sup. Ct. Rep. 603, where it was declared to

be the ‘duty of the owner of real estate, who is a

non-resident, to take measures that in some way he

shall be represented when his property is called into

requisition; and, if he fails to get notice by the ordinary

pubiications which have been usually required in such

cases, it is his misfortune, and he must abide the

consequences.” It makes no difference, therefore, that

plaintiffs in error did not have personal notice of the

suit to collect the taxes on their lands or that taxes

had been levied, or knowledge of the law under which

the taxes had been levied.”

As observed in the decision in this case by the Supreme

Court of Appeals of West Virginia, under Code §11A-3-8

if redemption by the owner does not occur within eighteen

months of the date that the tax delinquent property is

sold to the State of West Virginia, then absolute title vests

in the State of West Virginia. The interest of Pearson was

sold to the State in 1962. The publication of which Pearson

complains occurred in 1966 at a time when the State, in

effect, was auctioning off land which it owned because of the

previous delinquent tax procedure.

Decisions of the Supreme Court of Appeals of West

‘Virginia have consistently held that the former owner has

no right to be a party to the proceedings for the sale of

land previously sold to the State of West Virginia for

delinquent taxes. State v. Simmons, 135 W.Va. 196, 64 S.E.

2d 503 (1951); State v. Gray, 132 W. Va. 472, 52 S.E.

2d 759 (1949); State v. Blevins, 131 W.Va. 350, 48 SE.

2d 174 (1948); McClure v. Maitland, 24 W. Va. 561 (1884).

Pearson cites the authority of Mullane v. Central Hanover

Bank & Trust Co., 339 U.S. 306 (1950), to the following

effect:

“Where the names and post office addresses of those

affected by a proceeding are at hand, the reason dis-

appears for resort to means less likey than the mails

to apprise them of its pendency.” (At page 318 of 339

U.S.)

In the factual situation in this case involving Pearson,

the notice complained of occurred in 1966. The record is

devoid of any indication that the Deputy Commissioner of

Forfeited and Delinquent Lands for Kanawha County, West

Virginia, knew or should have known the name or address

of Pearson. Indeed, in her statement of the case, Pearson

concedes that in spite of the deed to her from H.C.

Pearson, Jr. in 1937, the Appellant did not have corrected

the entry in the Land Books from the former owner’s

name to her own..

The plain import of Pearson’s position is that a valid

tax sale in 1966 required the State to pursue a record

title search for a period of thirty years going back to

1937, to find Pearson’s name and claimed interest, and then

to pursue some further inquiry as to her address, despite

the imposssibility or impracticability of such an endeavor

by reason of the passage of almost thirty years.

While the State is not concerned with who specifically

pays the taxes, if the taxes are not paid, the State’s

requirements for revenue dictate the need of a tax-sale to

place the asset in the hands of an owner who will pay the

taxes. In this regard, the declarations of legislative purposes

and policy are clear. See Code §11A-3-1 and Code §11 A-4-1.

In West Virginia, there is no requirement of or procedure

for determining the address of the taxpayer. The rationale

underlying the lack of any such procedure is particularly

evident with reference to severed mineral interests, such as

here involved. Hidden assets of this nature cannot be

likened to improvements on the surface, such as residences,

where the whereabouts of parties in interest may be

apparent or easy of determination, and where seizure for

12

delinquent taxes would be notice of the lien, delinquency

and impending disposal to satisfy the taxes.

In Pearson’s case, while the interest was owned by

Pearson, it remained assessed in the name of her son (who

had conveyed it to Pearson) for almost a quarter of a

century. For years, the tax tickets were in fact secured

and paid by Pearson or her husband (App. 40-42). Pearson’s

husband was an experienced businessman (App. 39) who,

at one time, owned interests in fifty to seventy tracts of

land (App. 40). Not only had Pearson or her husband paid

the tax ticket for many years, the effect—loss of title—of

not paying the tax ticket was clearly known to them

(App. 41-42).

In distinguishing the principles of Mullane from the facts

in Pearson (the present case), it is apparent that an

attempt to comply with Mullane in a prospective tax-deed

situation would involve not just the relatively minor costs

of, say, mailing the notices to the interested parties. Applying

Mullane to a prospective tax-deed situation would involve

the impracticable, frequently impossible and unquestionably

considerable expense of first determining the identity of the

interested parties. In this case, the interest of Pearson

would have been revealed in 1966 only by an examination of

records covering a period back to 1937—a 30 year title

search. In West Virginia, to determine the ownership of

gas, oi! and mineral interests, such as here involved, a title

examiner could not stop short of the year 1850, the begin-

ning of the era of severances generally of surface and

maneral titles. See Freudenberger Oil Co. v. Simmons,

75 W. Va. 337, 83 S.E. 995 (1914) and United Fuel Gas

Co. v. Dyer, 185 F.2d 99 (1950). An application of the

principles of Mullane in prospective tax-deed situations

would require searching the records back 125 years! Ulti-

mately, such search would, if fruitful, disclose merely the

mames of parties in interest. One is left to imagine the

impossible effort and prohibitive expense required in at-

tempting to determine the addresses of the interested

parties whose names were disclosed by such title search.

13

Pearson’s contention for direct notice within Mullane

is best answered by the authority of City of New Rochelle

v. Echo Bay Waterfront Corp., 49 N.Y.S.2d 673, 268 App.

Div. 182, affd 60 N.E.2d 838, 294 N.Y. 678, cert. denied,

326 U.S. 720 (1945), to the following effect:

“It is settled law, however, that indirect notice is

sufficient to persons interested in real property which

is in default in payment of taxes. ‘The land stands

accountable to the demands of the state, and the owners

are charged with the laws affecting it and the manner

by which those demands may be enforced. Huling

v. Kaw Valley Ry. & Imp. Co., 130 U.S. 559, 9 S.Ct. 603

32 L.Ed. 1045. This accountability of the land and the

knowledge the owners must be presumed to have had

of the laws affecting it is an answer to the contention

of the insufficiency of ine service.’ Ballard v. Hunter,

204 U.S. 241, 254, 255, 27 S.Ct. 261, 266, 51 L.Ed.

461.”

Pearson cites the authority of Walker v. City of Hutchin-

son, 352 U.S. 112 (1956), in which this Court held

that newspaper publication of condemnation proceedings

against a landowner, whose name was known to the city

and on official records, was insufficient notice to meet the

requirements of due process. Here there is not the slightest

indication that the Deputy Commissioner of Forfeited and

Delinquent Lands for Kanawha County, West Virginia,

knew or should have known the name or address of

Pearson at the time of such publication.

With reference to Walker, supra, which was a condemna-

tion case, beyond peradventure the landowner who

complained of inadequate notice was truly the owner. In

the facts involved in this appeal by Pearson, in view of

the provisions of Code §11A-3-8, after the passage of

eighteen months from the sale of Appellant’s land in

1962 to the State of West Virginia, the owner in 1966

was not Pearson but rather the State of West Virginia.

The case of Schroeder v. City of New York, 371 US.

14

208 (1962), cited by Pearson, must be distinguished from

the present appeal. Once again, the Schroeder case was a

condemnation action wherein the Appellant was admittedly

the true owner. Moreover, the record in that case reflected

that both the name and address of the Appellant were

readily ascertainable. Furthermore, analysis of this decision

indicates that the condemning authority did not comply

with the requirements for posting, as specified in the

enabling legislation, which omission alone violated the

requirements of statute. In the present case, the tax

delinquency proceedings were in exact compliance with the

statutes.

The case of Covey v. Town of Somers, 351 U.S. 141

(1956), also relied on by Pearson, involved the foreclosure

of tax liens on real property where the conceded owner of

the property (proceeded against by mailing, posting and

publication) was an incompetent without the benefit and

protection of a guardian. In contrast, in this case Pearson

concedes that she knowingly did not fulfill her responsibility

in changing the entry on the Land Books from the name

of the former owner to her own. Moreover, after paying

the taxes for the years 1938 through 1960, Pearson concedes

that she omitted to pay taxes assessed for 1961. Under

such facts, Pearson can hardly equate her position with

that of the incompetent in the Covey case.

The case of Sniadach v. Family Finance Corp., 395

U.S. 337 (1966), involved a garnishment procedure in

Wisconsin, held violative of due process because the

defendant was deprived of the “use” of the garnished

portion of her wages during the interim between the garnish-

ment and culmination of the main suit. However, even

Sniadach conceded distinguishable situations where such

summary procedure may well meet the requirements of

due process in extraordinary ‘situations. Special protection

to a State interest was observed as a distinguishable fact

not present in Sniadach (395 U.S. 337, 339). A_ viable

State interest is certainly extant in this present case.

15

As pointed out in the dissent in Sniadach, if a procedure

has prevailed for many years by common consent, it

should require a strong case for the Fourteenth Amendment

to affect it (395 U.S. 337, 349). The procedure for collection

of real property taxes in West Virginia finds its aegis in

its Constitution of 1872 and upheld by this Court in

King v. Mullins, 171 U.S. 404 (1898). Literally thousands

of land titles are founded upon the procedures long followed

in West Virginia.

Fuentes v. Shevin, 407 U.S. 67 (1972), held violative

of due process Florida and Pennsylvania repievin statutes

insofar as they denied the right to a prior opportunity to be

heard before chattels were taken from their possessor.

Once again, Fuentes conceded and distinguished situations

allowing seizure of property necessary to secure an im-

portant government function or general public interest

(407 U.S. 67, 90-91). Columbia submits that the collection

of taxes is such an important governmental function and

general public interest.

Robinson v. Hanrahan, 409 U.S. 38 (1972), held that

notice of forfeiture of an automobile violated due process

since the notice mailed by the State to the owner at his

home address was not “reasonably calculated” to apprise the

owner of the proceedings, when the State was holding

the owner in jail. Such objectionable procedure can hardly

be equated with the facts in Pearson.

This Court is not faced with a claim of a denial of equal

protection within the intent of the Fourteenth Amendment.

However, even in a case involving such a contention, this

Court has recentiy deferred to a state tax law reasonably

designed to further a siate policy. Kahn v. Shevin, 416

U.S. 351, 355 (1974). In that case, this Court again cited

with approval Bell’s Gap Railroad v. Pennsylvania, supra.

The Court will recall that Bel/’s Gap was the case which

preceded and, to some considerable extent, formed the

bases on which King v. Mullins, supra, was founded. To

reiterate, it was King, almost eighty years ago, which held

16

that the system of taxation in the State of West Virginia,

and its provisions for forfeitures, were not repugnant to the

protection of the Fourteenth Amendment.

Implicit in Pearson’s complaint (and sometimes suggested

by the commentators on Mullane) is the possibility of a

windfall in the tax-deed purchaser. In proper perspective,

there is no “windfall” involved in this case. For the year

1961, Pearson valued the asset so highly that she discontinued

paying taxes in the amount of 77¢ per half. In 1966, Pearson

valued the asset so highly that she did not pay $42.58

(App. 92) to redeem it during the pendency of the suit

by the Deputy Commissioner of Forfeited and Delinquent

Lands.

In short, but for the improvements by Columbia in

drilling the well for the sum of $104,500.87 and the value

of the gas produced since March 26, 1968, the asset would

not now be worth the time and effort of Pearson.

In 1968, only after the investment of $104,500.87 by

Columbia in improving the property, did Pearson attempt a

redemption from the State Auditor for the sum of $101.86

(App. 121). It is apparent that any asserted “windfall” will

not be at the expense of Pearson but—rather—at the expense

of Columbia.

The Supreme Court of Appeals of West Virginia in its

decision against Pearson went to the heart of the matter

when it held:

“We have determined that the forceful arguments ad-

vanced to restore the property interest of a former owner

must, necessarily, fall before compelling State interests,

—often recognized in prior decisions and tenaciously

maintained in statements of legislative policy—, to. resolve

uncertainties in land titles and to protect the State's

revenues derived from land usage taxation. In this

endeavor, we have intended to balance delicately the

interests of the individual with those of all the State's

citizenry, within the constitutional parameters of due

process.” (App. at 23A Jurisdictional Statement).

principle; indeed any other holding would wreak havoc

in the State of West Virginia.

Since the authorities support Columbia's position that the

notice by publication involved in West Virginia’s tax de-

linquency statutes does not deny due process of law, this

appeal does not require consideration of whether a statute

of limitation (which Pearson characterizes Code §11A-3-8)

might bar Pearson from contesting the validity of the tax

sale. Nevertheless, Columbia will respond, arguendo, to

Pearson's last Point.

Il. WEST VIRGINIA CODE §11A-3-8 VESTING TITLE

IN THE STATE TO TAX DELINQUENT PRO-

PERTY, NOT TIMELY REDEEMED, RENDERS

MOOT ANY QUESTION OF THE ADEQUACY OF

NOTICE BY PUBLICATION ONLY TO THE PRIOR

OWNER AT THE SUBSEQUENT SALE OF THE

STATE'S TITLE.

In a maze of facts and allegations, some pertinent facts

~haye been obscured. In West Virginia, real property taxes

are a lien—on—the—property for all taxes, interest and

charges as of each July Ist of the year for which they are

assessed. Code §11A-1-2. The taxes involved in the present

Pearson case were for the year 1961. Taxes are payable

in two installments, the first half on September Ist (de-

linquent October Ist) and the second half payable the

following March Ist (delinquent April Irt). Code §11A-1-3.

No taxes were paid on Pearson's interest for 1961 taxes or

subsequently. Delinquent lists are posted at the Courthouse

and published pursuant to Code §11A-2-13. This is not the

publication of which Pearson complains. Of course, at this

stage, the affected owner has a rizht to redeem.

Pursuant to Code §11A-2-14, on or before June 15th of

the next year, the Sheriff presents the delinquent lists

to the County Court for examination. If that Court is

satisfied that the lists are correct, the Clerk of the Court

certifies a copy of the list to the State Auditor not later

than July Ist.

On or before September 10th, the Sheriff prepares a

second list of delinquent lands, together with a Notice of

Sale, and publishes the same pursuant to Code §11A-3-2.

Once again, the owner has an opportunity to redeem. Beyond

question the interest of Pearson was delinquent and pro-

ceeded against as provided by statute (App. 52-53, 72).

However, if the land or interest therein is not redeemed,

between October 15th and November 23rd, the Sheriff sells

the item at public auction pursuant to Code §11A-3-4.

At the Sheriff's sale, the delinquent item can be bid in by

any interested party, which successful bid (after sundry steps

and passage of time) culminates in a tax-deed from the

County Clerk to the successful bidder. Code §11A-3-15,

20, 21, 23, 24 and 25. It is not a County Clerk’s tax

deed which is involved in the Pearson case.

At the Sheriffs sale, if no person present bids the

amount of taxes, interest and charges due, the delinquent

land is purchased by the Sheriff on behalf of the State of

West Virginia for the amounts so due. Code §11A-3-.

This is what occurred in 1962 as to Pearson’s mineral interest;

the State did not undertake to divest its interest until 1966.

The State’s title was pursuant to Code §11A-3-7 by which

title vested in the State in 1962, subject to a right of

redemption in the former owner from the State Auditor in

the 18 months next ensuing.

Moreover, Code §11A-3-8 contains the language and details

the effect of which Pearson complains:

“The former owner of any real estate so purchased

by the State, or any other person who was entitled

to pay the taxes thereon, may redeem such real estate

from the auditor at any time withineighteen months

19

after the date of such purchase. Thereafter such real

estate shall be irredeemable and subject to transfer

or sale under the provisions of sections 3 and 4, article

XIII of the Constitution.”

Pearson made no effort in the 18 month period to redeem

her interest.

In Pearson’s Brief on the Merits (p. 9), Appellant cites

Paschall v. Christie-Stewart, Inc., 414 U.S. 100 (1973), observ-

ing that this appeal presents the Court with the precise

issue found not to be present in Paschall.

Columbia concurs in Pearson’s observation of the perti-

nency of Paschall. However, Paschall, and the authority

therein cited, have a more telling effect in this appeal than

merely defining an undecided issue which should be decided.

A comparison of Paschall with the present appeal by

Pearson is both necessary and determinative. The rule of

Paschall requires the dismissal of this appeal.

In Paschall, the former owner oj real estate brought

a suit to quiet title as against the purchaser at a tax sale.

The trial of the case involved issues of due process and a

statute of limitations, and the trial court upheld the

Oklahoma statutes on both issues. On the issue of due

process, the Oklahoma Court of Appeals reversed the trial

court. However, the Supreme Court of Oklahoma overruled

the Court of Appeals on the issue of due process. Upon

appeal to the United States Supreme Court, this Court,

observing that it had probable jurisdiction on the authority

of Mullane v. Central Hanover Bank & Trust Co., supra,

remanded Paschall to the Supreme Court of Oklahoma to

determine whether, under state law, the statute of limita-

tions independently barred the former owner's attack on the

tax title. If that should prove to be the case, this Court

observed, any decision by this Court would be advisory

and beyond its jurisdiction, citing Murdock v. City of

Memphis, 20 Wall. 590 (1875). On remand, the Oklahoma

Supreme Court held that there existed an adequate state

ground (a statute of limitations) to support its earlier

20

decision. Christie-Stewart, Inc. v. Paschall, 45 J. Okla B.

Ass'n. 2523 (1974).

What, then is the decisive meaning of Paschall on the

present appeal? In Pearson, now before the Court, the

former real estate owner (Pearson) brought a suit to quiet

title as against the purchaser (Dodd) at a tax sale. The

trial court upheld the West Virginia statutes in all respects,

including the issue of due process. Upon appeal from the

trial court, the Supreme Court of Appeals of West Virginia

upheld the lower court on the issue of due process and,

further, held that the attack by Pearson on the tax sale

was barred by the absence of a statutory entitlement

pursuant to the provisions of Code §11A-3-8. This is con-

ceded by Pearson in her Brief on the Merits (p. 14-15).

Following the rationale of the Paschal! case, Columbia

submits that there is no need for remand to the Supreme

Court of Appeals of West Virginia: under the law of

the State of West Virginia, it has already been determined

that the absence of a statutory entitlement under Code

S11A-3-8 independently bars Pearson’s claim. McClure v.

Maitland, 24 W. Va. 561 (1884). As this Court observed in

Paschall, any decision by this Court would be advisory only

and beyond its jurisdiction. Murdock v. City of Memphis,

supra.

For more than 100 years, the applicable rule of law

has been, and remains, as stated in Murdock:

“5S. If it [this Court] finds that it [the constitutional

question] was rightly decided, the judgment must be

affirmed.”

“6. If it [the constitutional issue] was erroneously

decided against plaintiff in error, then this court must

further inquire, whether there is any other matter or

issue adjudged by the State Court, which is sufficiently

broad to maintain the judgment of that court, not-

withstanding the error in deciding the issue raised by

the federal question. If this is found to be the case,

the judgment must be affirmed without inquiring into

21

the soundness of the decision on such other matter

or issue.” (22 L.Ed. 429, 444).

Based on previous decisions of local law in West Virginia,

the Supreme Court of Appeals of West Virginia held in

its decision in the present Pearson case:

“It is our belief, and we so hold, that [under

Code, 11A-3-8, supra] a former owner possesses a

statutory entitlement, ie. a right to redeem at any time

within eighteen months of the date of the State pur-

chase. If, however, redemption does not occur during

this period, then the statutory entitlement no longer

exists because absolute title has vested in the State.

Only at this latter point in time is the State per-

mitted by W. Va. Const., Art. XIIl, §§ 3 and 4 to in-

stitute a suit to sell lands for the school fund. State

v. Gray, 132 W. Va. 472, 52 S.E.2d 759 (1949); State

v. Blevins, 131 W. Va. 350, 48 S.E.2d 174 (1948);

State v. Farmers Coal Co., 130 W. Va. 1, 43 S.E.2d

625 (1947)”. (App. at 20A Jurisdictional Statement).

In Pearson's Brief on the Merits, the position is taken

(p. 12-13) that Columbia did not raise the issue of the

absence of a statutory entitlement in Pearson under West

Virginia Code §11A-3-8. Such assertion is not consistent

with the Record in this case. The thrust of §11A-3-8

is that after any sale to the State for delinquent taxes,

the former owner may redeem within 18 months; thereafter,

such real estate is irredeemable and subject to transfer or

sale by the State under the provisions of Sections 3 and 4,

Article XIII of the Constitution of the State.

As early as December 2, 1968 in its initial pleading,

Columbia, in addition to denying Pearson's title, in its

Second Defense at paragraph 4 thereof, affirmatively took a

position as follows:

“4. Defendant admits that the Deputy Commissioner

sold the subject land; admits that such sale included

all interest of H. C. Pearson, Jr., and the interest

claimed by plaintiff and that such sale included all

ie

22

the title to the subject land and interests therein ac-

quired by the State of West Virginia through the sale

to it in the year 1962 for nonpayment of property

taxes thereon for the year 1961. This defendant avers

that such sale, and the deed executed pursuant thereto,

included all right, title and interest of the State of West

et however acquired, in the subject land.” (App.

).

Such specific defense is, in effect, the thrust of Code

§11A-3-8 merely restated.

In support of Pearson’s argument that West Virginia

Code §11A-3-8 violates due process, this Court is referred

by Pearson to decisions by the high Court in sister states,

such as Michigan, Minnesota, Mississippi and Kansas (Brief

on the Merits, p. 10-12).

To attempt to compare the situations involved in those

states with the situation involved in West Virginia with

Pearson is to compare “apples” with “oranges”. If state

law is probative or determinative on the issue, the Supreme

Court of Appeals of West Virginia has determined that the

procedure for tax deeds in West Virginia, formulated by its

Constitution and Legislature, independently vests all title

in the State, renders the same irredeemable and does not

violate due process (App. A Jurisdictional Statement).

In Pearson, we have a situation where, for the year

1961, taxes were assessed, unpaid and delinquent. In .962,

Pearson’s title was sold to the State of West Virginia

where the title remained until 1966 when that title was sold

by the State of West Virginia to Dodd. »* that time, Pearson

had no significant property interest fo she had no title

or interest after the year 1962 when te. former interest

became irredeemable. With a lease from Dodd, Columbia

entered on the property and on March 26, 1968, at an

initial cost of $104,500.87, completed a natural gas well

with an initial open flow of 100,000,000 cubic feet of gas

(App. 117-120). Only thereafter, on July 26, 1968, did

Pearson pay the State Auditor $101.86 and receive what

23

was designated a Certificate of Redemption of Land in

the property in question (App. 121).

It was even later in 1968 before Pearson commenced

i the litigation now the suvject of this

appeal. By then, Pearson’s title had been sold to the

State of West Virginia and by it, in turn, to Dodd.

Irrespective of whether the issue of due process was

correctly decided (Columbia’s position is that it was

correctly decided), Columbia submits that the judgment of

the Supreme Court of Appeals of West Virginia is sufficient-

ly broad in its ruling that Code §11A-3-8 independently

bars Pearson’s claim and that the judgment should be

affirmed without further inquiry into the due process issue.

‘il. INDEPENDENT OF THE OTHER QUESTIONS,

DUE PROCESS OBJECTIONS DO NOT JUSTI-

FY THE RETROACTIVE INVALIDATION OF

INNUMERABLE LONG ESTABLISHED LAND

TITLES.

Certain legal principles applicable in Pearson are not unlike

those prior situations before this Court where municipal

bond issues were attacked on constitutional grounds as

violative of the Fourteenth Amendment. Phoenix v. Kolod-

ziejski, 399 U.S. 204 (1970), is such a case wherein a

restriction in Arizona, limiting the vote in elections to approve

the issue of general obligation bonds, without question violat-

ed the Fourteenth Amendment.

Nevertheless, this Court was careful to adopt a rule which

avoided any unjustifiably disruptive effect of retroactivity.

Touching on the question of any statute of limitations, this

Court said:

“In the case of States authorizing challenges to bond

elections within a definite period, all elections held

prior to the date of this decision will not be affected

by this decision unless a challenge on the grounds

sustained by this decision has been or is brought within

the period specified by state law.” (399 U.S. 204, 214).

24

In Cipriano v. Houma, 395 U.S. 701 (1969), this Court

recognized the significant hardships possibly imposed if

decisions finding unconstitutionality based on the Fourteenth

Amendment were given full retroactive effect. In confining

any decision to prospective application, this Court said:

“That is, we will apply it only where, under state law,

the time for challenging the election result has not

expired, or in cases brought within the time specified

by state law for challenging the election and which are

not yet final. Thus, the decision will not apply where

the authorization to issue the securities is legally complete

on the date of this decision. Of course, our decision

will not affect the validity of securities which have been

sold or issued prior to this decision and pursuant to such

final authorization.” (395 U.S. 701, 706).

In Pearson, the authorization by Court orders to issue

the tax-deed to Dodd has been legally complete since June

1, 1966 when the deed was made and delivered, pursuant

to existing procedures under state law. On the basis of

those existing state procedures and the tax-deed dated June

1, 1966, Columbia secured an oil and gas lease from Dodd

and drilled a valuable gas well on the tax-deed title at an

initial investment of $104,500.87. On March 26, 1968, Columb-

ia completed such well as a natural gas well with an

initial open flow of 100,000,000 cubic feet of gas. Surely

a tax-deed acted on in good faith by a sizeable investment

on the basis of existing law of presumed constitutionality

can be equated with a municipal bond and honored as an

existing security and asset, within the intent of Cipriano

as endorsed by Phoenix.

The Record is replete with indications of the ramifications

of this litigation in the State of West Virginia. In the

Order of Publication (App. 77-80) wherein the interest of

Pearson was proceeded against, 24 additional tracts, lots

or interests were proceeded against by publication.

In West Virginia, there are fifty-five Counties. Each

County has a Deputy Commissioner of Forfeited and Delin-

ih ii

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any determination of violation of the Fourteenth Amendmen

calls for a decision only prospective in application.

CONCLUSION

Counsel for Columbia respectfully submit that the decision

of the Supreme Court of Appeals of West Virginia is

clearly correct; that this appeal does not present a sub-

stantial federal question; that the judgment below rests on

an adequate non-federal basis; and, that this Court should

dismiss this appeal and affirm the decision below.

Respectfully submitted,

/s/ WM. ROY RICE

Post Office Box 1273

Charleston, West Virginia 25325

Counsel for Appellee

Columbia Gas Transmission

Corporation

Of Counsel

JOHN D. DALY

THOMAS E. MORGAN

Post Office Box 1273

Charleston, West Virginia 25325

September 3, 1976

26

AFFIDAVIT OF SERVICE OF

APPELLEE’S BRIEF ON THE MERITS

STATE OF WEST VIRGINIA

COUNTY OF KANAWHA, TO-WIT:

1, WM. ROY RICE, attorney for Columbia Gas Trans-

mission Corporation, Appellee herein, depose and say that

on the 3rd day of September, 1976, I served three copies

of the foregoing Appellee’s Brief on the Merits to the

Supreme Court of the United States upon Cecle G. Pearson,

Appellant herein, by depositing the same in a United States

post office or mail box, with first class postage prepaid,

addressed to Philip G. Terrie, counsel of record for said

Cecle G. Pearson, at 1009 Security Building, Charleston,

West Virginia 25301; and, further that I served three copies

of the foregoing Appellee’s Brief on the Merits to the

Supreme Court of the United States upon W. P. Dodd and

Ernestine Dodd, his wife, Appellees herein, by depositing

the same in a United States post office or mail box,

with first class postage prepaid, addressed to William E.

Hamb, counsel of record for said W. P. Dodd and Ernestine

Dodd, at his office at 950 Kanawha Boulevard, East,

Charleston, West Virginia 25301.

/s/ Wm. Roy Rice

Subscribed and sworn to before me by Wm. Roy Rice,

at Charleston, West Virginia, this 3rd day of September,

1976.

My commission expires April 4, 1985.

/s/ Mary Marie Clendenin

Notary Public in and for

The State of West Virginia