Appendix — Kentucky Union Co. v. Kentucky

APPENDIX.

Being Article 3, of Chapter 22, of the Acts of the

General Assembly of Kentucky, approved March 15, 1906.

1. It shall be the duty of each and every owner or

claimant of land to pay all taxes which have been as-

sessed, and which should have been assessed, against

him, and those under whom he claims, as the owner or

claimant of said land as of the 15th day of September,

1901, the 15th day of September, 1902, the 15th day of

September, 1903, the 1st day of September, 1904, and

the Ist day of September, 1905; and if the said owner or

claimant, or those under whom he claims, has failed to

list said land, or any part thereof, for taxation, as of said

dates, or any of them, it shall be his duty to have same

assessed and listed for taxation, in the manner and with-

in the time hereinafter provided, as of each of said dates

for which the assessment has been omitted, and to pay

the taxes, interest and penalties thereon as herein pro-

vided.

The fact that said land has been listed for taxation,

or the taxes have been paid thereon, by another claimant,

shall not relieve against the duty herein imposed.

If any such owner or claimant, or those under whom

he claims, has failed to list such land for assessment

and taxation, as of any three of said dates, or has failed

to pay the taxes charged, or which should have been

charged against him, or those under whom he claims,

as the owner or claimant thereof upon said dates, for

any three of said years for which said assessments were,

or should have been made, said owner and claimant and

those under whom he claims are hereby declared to be

delinquent; and such failures, or either of them, shall

46

because for the forfeiture and transfer to the Common-

wealth of his said claim and title thereto, in a proceeding

to be instituted for that purpose, as hereinafter pro-

vided. But seid cause for forfeiture shall be extinguish-

ed if said owner or claimant, his heirs, representatives,

or assigns, shall within the time and in the manner in

this article provided, cause said land to be assessed

for taxation, and, on or before March 1, 1907, pay the

taxes charged, and which should have been charged

against him, or against those under whom he claims,

as the owner and claimant thereof, for each and all of

said five years, for which he or those under whom he

claims are delinquent, together with the interest and

penalties provided by law in case of the redemption of

land sold for the non-payment of taxes.

2. The ascertainment of the amount of taxes un-

paid and the assessments required by the preceding

section shall be made by the county court of the county

wherein the land lies, upon the application of said owner

or claimant, by a petition, verified by himself or his

agent, filed in said courts on or before January 1, 1907,

in which the land sought to be charged shall be de-

scribed, so as to be identified, and the years for which

it was not listed and the years in which the taxes were

not paid shall be stated, and in which also shall be

stated the grant under which he claims, if he derived

title from a grant, and the instrument through which

or the manner in which the title devolved upon him.

Said application shall be set for hearing upon a day

to be fixed hy the applicant, not less than ten nor more

than twenty days after the filing of the petition, of

which he shall give at least ten days’ written notice

to the county attorney, whose duty it shall be to attend

said hearing and represent the State and county; for

47

which service he shall receive as compensation ten per

centum of the amount ultimately collected by sale or

otherwise, by virtue of such delinqueney.

It shall be the duty of the county court to decide

upon said application in a Summary manner, upon such

evidence as may be offered, having due regard to the

value of adjacent property as of said dates, and to

ascertain the amount of unpaid taxes which the appli-

cant and those under whom he claims should have paid

for any and all of said years, whether assessments were

originally made as of said dates or not. Upon finding

the amount, the court shall also ascertain the proportion

of such taxes due for county and State purposes at the

rate fixed by law for such years; and shall cause a record

of the findings to be made on the order book of the

court, and certified to the Auditor of the State and

county clerk. Should the court find that the land has

heen assessed against such owner and claimant, or those

under whom he claims, as of any of said dates, it shall

accept such assessment as a basis upon which to ascertain

the amount of unpaid taxes for the year such assess-

ment may have been made.

Nither the petitioner or the Commonwealth, feeling

aggrieved by the finding of the County Court, shall have

the right to take an appeal, within thirty days after

the entry of the finding of the County Court, to the Cir-

cuit Court for said county, in the manner that other

appeals are taken, except that no bond shall be re-

quired of the Commonwealth.

It shall be the duty of the Circuit Court to hear

and determine said application de novo, and to give it

precedence over all other civil business in said court.

The finding of the Circuit Court shall be conclusive and

hot subject to appeal. A copy of the findings shall be

Sighs oes Saal

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48

certified to the Auditor of the State and to the Clerk of

the County Court.

As soon as the time for appealing from the finding

of the County Court has expired, if no appeal is taken,

or as soon as the final order of the Circuit Court is en-

tered, if an appeal is taken, the obligation of said owner

or claimant to pay the taxes therein called for, with

imterest and penalties, as provided by law for the re-

demption of land sold for the non-payment of taxes, shall

be complete; and the same shall be paid to the Sheriff

of the county within thirty days thereafter. Provided,

however, that if in a proceeding hereunder begun within

the time herein allowed, the amount payable by the

delinquent shall not be finally determined until within

less than thirty days before March Ist, 1907, or until

after said date, then the right of forfeiture as set out

in Section 1 of this article shall not be complete in the

Commonwealth, unless and until said delinquent shall

have failed to pay said amount, interest and penalties,

for thirty days after the entry of said order.

Upon collecting said taxes, interest and penalties,

the Sheriff shall, after paying the costs of the proceed-

ings and retaining the commission allowed by law for

himself, pay over and account for the remainder to the

Auditor of the State and to the county, in the same

manner and subject to the same responsibilities of him-

self and his bondsmen as in the ense of other taxes

collected by him. Out of the amount so paid, there

shall be paid to the county attorney ten per centum

thereof and an additional ten per centum to the Com-

monwealth’s attorney, should an appeal have to be prose-

cuted to the Cireuit Court.

3. If any such owner or claimant shall fail to have

said land assessed, or fail to pay the taxes charged, or

ee a asa ee

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49

which should have been charged against him, or those

under whom he claims, as the owner or claimant of any

such tract of land, as provided and within the time pre-

scribed in Sections 1 and 2 of this article, together with

the penalties and interest as provided by law, then it

shall be the duty of the Commonwealth’s attorney to

institute in the Cireuit Court of the county in which

said land or any part thereof lies, a proceeding in equity,

in the name of the Commonwealth of Kentucky as plain-

tiff against said tract of land, and the owners or claim-

ants of said land as defendants, naming them if their

names are known to him, and if their names are un-

known to him, designating them as the unknown owners

and claimants thereof, for the purpose of declaring the

title or claim of said defendants forfeited to this Com-

monwealth, and selling same. The suit so instituted

shall be proceeded with to final judgment in all respects

as other equity causes so far as applicable.

In addition to the requirements of the Civil Code

of Practice respecting process and service thereof, no-

tice shall be given of the pendency of said action by

posting a copy of the petition at the front door of the

court house which shall be done by the Clerk imme-

diately after the petition is filed, and he shall show by

endorsement upon the original petition the time at which

said copy was posted. The defendants shall not he re-

quired to answer until after the expiration of thirty days

from the posting of said copy. And such copy, when

So posted, shall he deemed notice to all defendants of the

pendency of said action and its object.

The petition of the plaintiff shall allege the facts

constituting the cause of the forfeiture under the pro-

visions of this article, and there shall be filed with it

® copy of the grant or instrument upon which the title

50

or claim sought to be forfeited is based; and no other

title, claim or possession or continuity thereof, whether

owned or claimed by the defendant or by others, shall

be forfeited or in any manner affected by said _pro-

ceeding. The prayer shall be for a judgment of for-

feiture and sale of the title or claim in the petition de-

seribed.

The court shall render judgment in accordance with

the pleadings, exhibits and evidence adduced; and if

it shall find that said title-or claim sought to be for-

feited is or has been subject to forfeiture under the pro-

visions of this article, it shall render judgment declaring

the same forfeited and the title thereto vested in the

Commonwealth. Such judgment shall operate as a trans-

fer to, and vesting in, the Commonwealth of the said

title and claim of each and all the defendants, and those

under whom they claim, without execution of deed or

other instrument. If the court shall find that the same

is not subject to forfeiture under the provisions of this

article, then it shall so adjudge and dismiss the petition

of plaintiff.

Judgments rendered by the Circuit Court under this

article shall be conclusive as against all defendants, in-

cluding infants, lunatics and married women, as to their

title or claim derived through or under the grant, title

or claim described in the petition, and said judgments

and the proceedings upon which they are based shall

not be subject to the provisions of Sections 391, 410, 414

or 574 of the Civil Code of Practice. Issues as to whether

or not the title and claim sought to be forfeited is or

has been subject to forfeiture under the provisions of

this article, shall be triable by jury; and the judgment

of the court shall be in accordance with the verdict, as

in ordinary actions.

Sar

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51

Kither party may prosecute an appeal from such

judgment to the Court of Appeals within thirty days

after same may be entered; but if any such appeal be

prosecuted, the transcript of the record shall be filed

in the Court of Appeals within sixty days after the en-

try of said judgment; and the hearings upon appeal shall

have the same precedence as other Commonwealth cases.

No bond on appeal shall be required of the Common-

wealth.

+. If, before or during the term of the Cireuit

Court next succeeding the term at which a judgment of

forfeiture may have been entered, as authorized by

Section 3 of this article any of the said defendants, in

privity with the title so forfeited to, and vested in the

Commonwealth, file his counterclaim in said action, ac-

companied by a bond, with good and sufficient resident

personal security, to be approved by the court, if in

session, otherwise by the clerk of the court, conditioned to

pay, and in all respects abide by and perform, the judg-

ment that the court may enter upon such counterclaim,

and in said counterclaim offer to purchase back from the

Commonwealth the title and claim in said section so for-

feited to, and vested in, the Commonwealth, and praying

to be allowed so to do, and exhibiting title thereto in him-

self, it shall be the duty of the court, upon proper plead-

ings as in other equity cases, and upon such evidence as

may be adduced in the manner authorized by law, to as-

certain and adjudge the amount of unpaid taxes, charged,

and that ought to have been charged against the defend-

ant and those under whom he claims, as the owner or

claimant of said land, for the fifty years immediately pre-

ceding the filing of such counterclaim, and if the court

finds and adjudges that said defendant is the owner of the

title so forfeited to and vested in the Commonwealth, to

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52

enter a judgment against such defendant for a sum equal

to the amount of the unpaid taxes charged, and that ought

to have been charged, against said defendant and those

under whom he claims as the owner and claimant of said

land, for said fifty years, together with interest thereupon

at the rate of 15 per cent per annum from the time of the

said unpaid taxes for said several years were due, and the

costs of the proceedings, including a reasonable attorney

fee for the Commonwealth’s Attorney, to be fixed by the

court. Provided, that no person herein provided, shall be

allowed to purchase back from the Commonwealth the

title so forfeited to, and vested in it, except such defend-

ant as may, but for such forfeiture, establish in such pro-

ceeding a title thereto in himself upon which he could

maintain an action in ejectment.

If, thereupon, such defendant shall pay to the sheriff

the amount of such judgment, it shall be the duty of the

court to enter a judgment re-transfering to such defend-

ant the title and claim so forfeited to, and vested in, the

Commonwealth; and said judgment shall have the effect

of re-transferring and vesting same in said defendant

without the execution of a deed or other instrument.

Should such defendant not thereupon pay said judg-

ment the court shall thereupon enter an order directing

the sale of the said title and claim as in Section 7 of this

article provided, and the amount realized upon said sale

shall be used in the payment of costs and commissions

hereunder; and the remainder, if any, shall be paid to

the State and county as provided in this article, and the

counterclaim shall be dismissed. If the sale does not

produce enough to pay the costs, an action may thereupon

be maintained upon said bond for the costs, and reason-

able attorney’s fee for the Commonwealth and County

Attorney, to be fixed by the court.

BA VY

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53

If, at any time during the pendency of said action, it

shall be made to appear that the bond theretofore tend-

ered and approved by the court or the clerk is insufficient,

additional security shall be required, and the failure to

execute same upon being so required shall have the same

effect as if no bond had been given originally, and the

counterclaim shall be dismissed.

Appeal may be prosecuted to the Court of Appeals

from the Cireuit Court under this section within the time

and in the manner, and subject to all the conditions pro-

vided for appeals in Section 3 of this article, except that

the judgment of the Circuit Court as to the amount

thereof shall be final and not subject to appeal.

All amounts paid to the sheriff under this section shall

be by him received and paid out to the persons entitled

to the same as costs, and the remainder to the Auditor of

the State and to the county in proportion to the amount

due them for taxes and penalties for the said fifty years,

in the same manner and subject to the same responsi-

bilities of himself and his bondsmen as in the case of taxes

colleeted by him. Provided, that fees required by law to

be paid to the Auditor shall be paid to him by the

sheriff, and by the Auditor paid to the person entitled

thereto. It shall be the duty of the county attorney to as-

sist the Commonwealth’s Attorney in all proceedings un-

der this article for which he shall be allowed the per-

centuim as herein provided. Certified copies of the judg-

ments of the Cireuit Court, under Sections 3 and 4 here-

of, shall be recorded in the deed books of the county

Where the land, or any part thereof, lies, and indexed as

deeds are required to be indexed.

9. Any owner or claimant who instituted a proceed-

ing allowed by Section 2 of this article, and who did not,

within the time herein limited, pay the amount therein

=

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54

ascertained as charged or chargeable against him and

those under whom he claims, as the owner or claimant of

said land, shall not be allowed the right to purchase back,

under the proceedings authorized by Section 4 of this

article, such title or claim so forfeited to, and vested in,

the Commonwealth.

6. All title and claim proceeded against under this

article and forfeited to, and vested in the Commonwealth

and not purchased back by the owner or claimant thereof,

as authorized by Section 4 hereof, whether such forfeit-

ure be for past delinquencies or for future delinquencies

as authorized under Section 10 hereof, shall be, and is

hereby, transferred to, and vested in, any person for so

much thereof as such person, or those under whom he

claims, has had the actual adverse possession for five

years next preceding the judgment of forfeiture, under

claim, or color of title, derived from any source whatso-

ever, and who, or those under whom he claims shall have

paid taxes thereupon for the five years in which such pos-

session may have been held or may be held; and in those

in privity with such person, his heirs, representatives or

assigns. as to the mineral or other interests or rights in

or appurtenant to such land.

7. All title and claim to land transferred to, and

vested in, the Commonwealth under the provisions of this

article and not purchased back by the owner or claimant,

as provided by Section 4, and not vested in the occupant,

as provided by Section 6, shall be sold to the highest and

best bidder for cash in hand. Said sale shall be made

pursuant to a judgment of the circuit court in said action,

and shall be at public auction at the front door of the

court house on the first day of some regular term of the

circuit or county court, after notice of sale shall have

been advertised in the manner required by law in the

4)

case of the sales of land under execution. The Commis-

sioner shall report the sale to the court for its confirma-

tion, and, when confirmed, the court shall order the Com-

missioner to make a deed to the purchaser. Such deed

shall operate to transfer to said purchaser such title and

claim to the land so forfeited and transferred to, and

vested in, the Commonwealth as remains in it after the

operation of Section 6 of this article, and shall so recite.

The money realized from said sale shall be paid out

and distributed as follows: First, to the payment of the

costs of the suit, including Commissioner’s fee as fixed by

law and a reasonable attorney’s fee, to be fixed by the

court and paid in the manner provided by law; second, to

the county and State the proportion to which each may

he entitled, together with interest and penalty, as in this

article provided; third, the remainder shal] be paid over

to the former owner or claimant or his personal repre-

sentatives or assigns.

8. No action to enforce a forfeiture as authorized

and provided in this article shall be instituted after the

expiration of five years from the acerual of the right

thereto.

9. No owner or claimant of any land in this Com-

monwealth shall be allowed to prevent the operation of

this article by the payment, after January 1, 1906, of any

amount less than the whole of the unpaid taxes, interest

and penalties provided by law, that were charged, and

that should have been charged, against said owner or

claimant of said land and those under whom he claims,

as of each and all of said five dates, first mentioned in

Section 1 hereof ; and where such payment is made after

the passage of this act, the amount to be paid shall be

ascertained and payment made, as in this article provided.

10. When, for any five successive years after the first

56

day of August, 1906, any owner or claimant of or to any

land in this Commonwealth shall fail to list same for taxa-

tion and cause himself to be charged with the taxes

chargeable thereon, or fail to pay the same as provided

by law, then such failure shall be cause for the forfeiture

of his title and claim thereto, and the transfer of the

same to, and vesting it in, the Commonwealth of Ken-

tucky. And wherever such failure exists, it shall be the

duty of the Commonwealth’s attorney to institute an

equitable action in the circuit court of the county

wherein the said land, or a part thereof, lies, for the pur-

pose of declaring said forfeiture and vesting said title

and claim thereto in the Commonwealth of Kentucky, and

for the sale of such parts thereof as, under the provisions

of this article, are liable to sale. Such actions ‘and pro-

ceedings pertaining thereto shall conform to the provi-

sions of this article as far as same may be applicable.

THE EVENING POST JOB PRINTING OFFICE, 156 FULTON ST., N. Y.

Supreme Court of the Mnited States,

EASTERN Kentucky COoaAL

LANDS CORPORATION,

Plaintiff in Error,

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COMMONWEALTH OF KENTUCKY,

Defendant in Error.

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va. No. 3%. rovae

SAME.

The Defendant in Error, the Commonwealth of Ken-

tucky, will take notice that on Tuesday, April 5th, 1910,

in the Court-room of the Supreme Court of the United

States, in Washington, D.C., at motion hour, or as soon

thereafter as Counsel can be heard, the Plaintiff in Error

will move the Court to advance these two cases, numbers

223 and 224, to be heard immediately following the close

of argument in case No. 193 of the Kentucky Union Com-

pany against the Commonwealth, all three of said cases

now pending for argument on the docket of said Court.

SAMUEL HowLanp Hopptn,

EuGENE M. Berarp,

Wm. Jackson Henprick,

Counsel for Plaintiff in Error.

Service of this notice is hereby accepted this 23rd day

of March, 1910.

Jas. BREATHITT,

Attorney General of Kentucky.

“. Su teustavet es eo en cual

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WED TR aibbintiek <3 ASC IR? be DLV Ue

2

MOTION AND GROUNDS TO ADVANCE.

Comes the Plaintiff in Error, Eastern Kentucky Coal

Lands Corporation, by Counsel, and moves the Court to

advance these two cases, Nos. 223 and 224, to be heard

immediately after argument in case No. 193 of the Ken-

tucky Union Company v. the Commonwealth of Kentucky.

SAMUEL HOWLAND Hoppin,

EvuGene M. BERARD,

Wm. Jackson HENDRICK,

of Counsel for Plaintiff in Error.

The grounds on which this motion is made may be

thus stated:

It is highly improbabie that the Court will be able to

hear any cases at the present term beyond number two

hundred.

The Kentucky Union Case No 193 and these two Cases,

Nos. 223 and 224, are each and ail of them Writs of Error

from the Kentucky Court of Appeals challenging the Con-

stitutional soundness of Article III of an Act of the Leg-

islature of Kentucky approved March 15th, 1906.

That is the contention common to each of the three

cases, 193, 223 and 224.

Counsel for Defendant in Error under date of March

25th, 1910, write that they ‘“‘have no objection to the

cases being so advanced, neither would we object to the

Supreme Court * * * ordering all three of the cases

to be heard together.”

Counsel for Eastern Kentucky Coal Lands Corporation,

Nos. 223 and 224, sought the consent of Counsel for Ken-

tucky Union Company, No. 193, to unite in a motion to

advance cases 223 and 224 to be heard with 193.

This consent the Counsel for Kentucky Union Com-

pany declined to give.

Counsel for Eastern Kentucky Coal Lands Corporation,

the Plaintiff in Error in 223 and 224, in contemplation of

the probability that the Court would reach these cases 223

and 224 within ten days after hearing 193 and before

rendering opinion in the latter case, were content to await

their turn on the docket. But as it nuw develops that if

8

the regular call is followed 193 may be heard and deter- 7

mined at this term and 223 and 994 go over to October

Term next, Counsel for Plaintiff in Error in 223 and 294,

deem it their duty no less to their client than to the Court

to make this motion.

The pressing necessity therefor will appear from the

following considerations:

The Plaintiff in Error in 193 relies solely upon the con-

tention that Article II[ of the Act of March 15th, 1906, is

void because it is an ex post Sacto Act.

In its petition for rehearing in the Kentucky Court of

Appeals the Plaintiff in Error in 193 says (page 24 of

record in 193);

“We presented as our only contention against

the validity of Article III of the Revenue Law of 8

1906 that it violates the ex post facto prohibition in

Clause 1 of Section 10 of Article 1 of the Constitu-

tion of the United States. We prayed for a

reversal of the Leslie Circuit Court upon that

ground alone, and we expressly waived both in

brief and in argument the right to have the case

reversed upon any other ground. We, furthermore,

expressly prayed in our brief on appeal (page 38)

that if this court should affirm the judgment of

forfeiture it would ‘show by its opinion that the

law is not in violation of the Constitution of the

United States.” In view of the emphasis which we

placed upon this request it was with great sur-

prise that we found that the opinion of this court

contains no mention whatever of the fact that the

qontes of ex post facto raised by our appeal is a

‘ederal question. ‘This omission was surely due to 9%

an oversight, for it is the policy of this court, and

all other State courts, to promote the fullest hear-

ing of any question raised under our Federal Con-

stitution, © now come again to this court and

earnestly ask that it will allow the record in this

case to show that a Federal question was raised, so

that our client may take a writ of error to the

Supreme Court of the United States.”

And the Court of Appeals, in overruling its petition for

rehearing, says (page 31 of Record in 193):

“As the appellant is under no disability, does

not claim under a grant from the State of Virginia,

TODAY OPO OAS hy ome?

3 mba hag

4 ;

4

4

10 and did not seek to list its property, or offer to pay

the taxes for the years 1902, 1903, 1904, 1905, and

1906, either with or without interest and penalties,

we hesitated in the opinion to pass specifically upon

these questions raised by it. However, out of the

consideration entertained for the eminent counsel

presenting them, we have expressed our views upon

these points, in order that he may have the benefit

of specific adjudication thereon.”

SRR S

oe ee

But the Plaintiff in Error in 223 and 224 does claim

under grants from the State of Virginia, did seek to list

its property, and did offer to pay the taxes for the years

1901, 1902, 1903, 1904 and 1905. (See Record in 223 where

at page 35 it offered to pay on 88,415 acres in Floyd County:

11 at page 32 on 20,058 3/4 acres in Knott County: at page 17

on 55,020 acres in Letcher County: at page 69 on 275,236

acres in Pike County, at the rate of $1.00 per acre.)

In addition to all this, the Plaintiff in Error in 223 and

224 are prepared to show, in addition to the ex post facto

feature of this Article III.

I. That Article III stands repealed on the face of the

Act by a subsequent article of the same Act.

II. That Article III is in letter and spirit a violation

of the compact between Virginia and Kentucky of Decem-

; ber 18th, 1789.

III. That Article III violates the provisions of the Con-

12 stitution of Kentucky and the Constitution of the United

States requiring due process of law.

IV. That Article III violates Section 10 of Article I of

the Constitution of the United States prohibiting any

State from passing any law impairing the obligation of

contracts.

V. That Article III violates the XIV amendment of

the constitution forbidding any State to deprive any per-

son of property without due process of law or deny to

any person within its jurisdiction the equal protection of

the law.

a ~ lea cob mie - FE EW SU Ta eh RI

5

VI. That Article ITI is an Act of spoliation and law- 13

less confiscation and is revolutionary and subversive of

all constitutional and orderly government.

VII. That notwithstanding all, the Plaintiff in Error,

disregarding its flagrant violations of constitutional in-

hibitions has complied with Article III so far as it is ap-

plicable to Plaintiff in Error.

To the end, therefore, that the Court may hear con-

secutively all these cases at the same time, fraught as they

are with consequences so momentous to large interests

and to a large number of parties in interest, the motion to

advance is presented, in the hope that the Court may see

its way clear to grant it, as well for the ends of justice as 44

to expedite the business of the Court.

SaMUEL HOWLAND Hoppin,

EuGENE M. BERARD,

Wm. JAcKSON HENDRICK,

Of Counsel for Plaintiff in Error.

(386%)

ered

PRE rg TOA,

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Supreme Court of the United States.

OCTOBER TERM, 1909. Oliee Sener

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= JAMES jj, NeKt Nine \

'

EASTERN KENTUCKY COAL LANDS CORPOR?

Plaintiff in Error,

US.

THE COMMONWEALTH OF KENTUCKY,

Defendant in Error.

BRIEF FOR PLAINTIFF IN ERROR.

‘*TO LAY WITH ONE HAND THE POWER OF THE GOVERNMENT ON THE

PROPERTY OF THE CITIZEN, AND WITH THE OTHER TO BESTOW IT

UPON FAVORED INDIVIDUALS . . . IS NONE THE LESS A ROBBERY

BECAUSE IT IS DONE UNDER THE FORMS OF LAW AND IS CALLED

TAXATION. THIS IS NOT LEGISLATION. IT IS A DECREE UNDER LEGIS-

LATIVE FORMS.”

Mr. JUSTICE MILLER,

Loan Association vs. Topeka, 20 Wall. 055.

SAMUEL HOWLAND HOPPIN,

EUGENE M. BERARD,

JAMES H. HAZELRIGG,

WM. JACKSON HENDRICK,

Of Counsel for Plaintiff in Error.

oes

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I (AP 00S hi wane a cex dune be bias voscchuwenawen

ARGUMENT.

Statement

The judgments and proceedings under review and the de-

pendence of those of No. 224 on those of No. 223 and of both

on Article III of the Ky. Revenue Act of 1906

Earlier judgment, Dec. 20, 1907, affirming dismissals of peti-

tions to list the lands of plaintiff in error (Record No. 223)...

Later judgment, June 20, 1908, affirming judgment purporting

to declare forfeiture of title of plaintiff in error (Record N 0.224)

Part of the Record in No. 223 is an exhibit in No. 224, and all

of the record in No. 223 is referred to by the Court of

MPN I SEW 6s kes a ais da acid daeadbvneedduudecc,

Article III of the Ky. Revenue Act of 1906

—went into effect 90 days after adjournment of legisla-

REA CMELAN WNC EN ye AE ANRC EMERNS ho 4 naa dk de wecic eeu,

tions, the sections, other than the 10 of Article III, being

mainly re-enactments of the prior law of Revenue and

NI eee 540s seek ds wow i abd cies <0 bes6 chee cca.

1789 by which Kentucky covenanted to hold them “ valid

oc eit ci gh PEE EE TO OLE LT LIE ES INT 1

—contains a provision that ‘‘the fact that said land has

been listed for taxation or the taxes have been paid

thereon by another claimant shall not relieve against the

” : IDLE TSE REELS AREER DOLLIES EL me!

Il

duty herein imposed” which did not exist in any prior

statutes of Kentucky (although the Court of Appeals has

otherwise stated), and does not exist anywhere else in the

Bat OF 1906. cccsccccccscccccccscceccoeesessetesescocens

—requires ea post facto an owner to list for and pay again

taxes paid which he is already bound to pay to those who

have been subrogated to the claim of the state...........

—declares a purchaser to be delinquent for non listing of the

lands before he bought..........-+e08 cee eeeee eee e eee:

—makes such delinquency of others a cause of forfeiture of

his title, which cause must be ‘‘extinguished”..........

—imposes ex post facto payment of new penalties as a con-

dition of such “ extinguishment ”........-+:.++22 +++:

~— erroneously claimed to have precedent in West Va.

MPR Pererere rT Pre rT er tr oe ei kios

Section 2—requires the ‘‘ cause ” to be ** extinguished ” before

Jany. 2, 1907, and is inconsistent with other Articles of the

ee es one ct Ka dhe hae ANCA RAES DERE SESE ERS, ON ALAN

Section 3—abdicates and repudiates the office of paramount

protector of infants, married women and insane, and

thereby denies to them if owners of these lands the equal

protection granted to others.......-++.+sseeeess ee: oak awe

Section 4—limits time to ‘‘ purchase back” to next term of

lower Court, requires as conditions proof of title and pay-

ment of arrears of taxes for 50 yearsS.....--.e sees ener eee:

Section 5—further restricts right to ‘‘ purchase back ” by ex-

cluding one who has listed but failed to pay........------.

Section 6—provides that title forfeited and not purchased

back ‘is hereby transferred to and vested in” occupants

‘‘under claim or color of title derived from any source

whatever” and ‘those in privity . . . as to the mineral

or other interests,” which the Attorney-General has shown

to be unconstitutional as inconsistent with the general provi-

sions of the same Act, Special Legislation and denial of the

equal protection of the law of fifteen years’ limitation. ....

Section 7—contains a deceptive and delusive provision for sale

of anything that does not go to the adverse occupants......

Section 8—limits action to enforce forfeiture to five years

after accrual of so-called right thereto.....----+++-+sseees

Section 9—prevents escape from ‘‘ cause” of forfeiture of

those who have paid taxes prior to this enactment if not

aod to January 1, 1906, contrary to the general law; is

oth penal and retroactive and denies due process and equal

protection of the laws..... ---.--sseeseere seers tener

Section 10— diseriminates against those in arrears at the time

of enactment by requiring five successive years of future

delinquency, instead of three out of five years of past delin-

quency, asa “‘cause”’ of forfeiture, and omits the statement

PAGES

RIES IPR PARE EG TEATS SER DBI LILY ELE ERR GRRL UES: Sto Ditto i Peta PEI: OAR, Ee Rs

III

PAGES

that payment of taxes on the same land by another claimant

shall not excuse the so-called delinquency as provided in

Section 1 relating to past so-called “ delinquencies ”......

The instigators of the enactment of Article III

—private persons and corporations who had paid from 50

cents to $5 per acre for claims under alleged adverse pos-

eg: EEE OL DENI 0)

—their object to vest in themselves as in privity with the

occupants the title which Article III says “‘is hereby

NE tissu kp air 853i ba isan dekowtae a eck dae 21

—their pretended purpose ‘‘ to raise revenue”............. 2

--their real purpose “to outlaw” titles................... 22

—the attempted excuses for their purpose—as stated by the

Article III) to purchase titles under the ancient patents... 24

—the deeds to the plaintiff in error made in December, 1906,

pursuant to the Agreement of Feb’y 8,1906.............. 24

—its method the usual method of settling titles to similar

WU 6 ifs abs hie hacs Ve aceneets anna ee 25

Case 223—The Attempt of Plaintiff in Error to Comply with

Article III by listing the lands.

Reasons for the attempt although then advised that Article IIT

was unconstitutional —fear of the hostility of the officials

of Kentucky and the cloud that would be cast on the title. 26

—the filing of the petitions as Court of Appeals says was in

‘claiming to comply with the provisions of the Act and at

the same time attacking its constitutionality ”........... 27

The petitions to list—are all in the same form, and state the

number of acres, date and county of survey, date and places

of record of patent, and the full description by metes and

bounds and by what other tract or county line each tract

is bounded so that a plat of all could be easily made...... 27

—the filing of the petitions was not a waiver of the objec-

tion that the act was unconstitutional..............._... 29

—the Court below admits that the petitions were *‘ suffi-

ciently explicit to have located the several boundaries ”.. 30

MELTS ELS CROAT MO, RE,

“4

IV

_the disclaimer of title to improvements and to the parts of

the surface owned by others by adverse possession was

required by truth, justice and the Statutes of Kentucky

and decisions of its Courts........+--s+eeeere se ettteees

—_the allegation of payment of taxes by occupants who had

been thereby subrogated to the State’s claim against the

owner was to enable the Court to relieve the petitioner...

The ge of the County Officers—the attorney for Let-

a cher County files an answer as in an ejectment suit......

_all the County attorneys opposed the attempt to list and

pay taxes, although it was their duty to assist in increas-

ing the revenues of the County and State.....-....---::

‘The hearing of the Petitions in the County and Circuit Courts

—an armed and excited crowd present in the Court room of

the County Court. ......-.eee seer eee ee erste tect en esse

The offer of the plaintiff in error to pay taxes on over 400,000

acres a tax of over $40,000 and an amount which was more

than the annual tax of the four Counties although much

ot the land in these Counties was not owned or claimed

3 by plaintiff in error.......----+sserrente ster ett

- The Judgment of the County Courts dismissing these petitions

) and refusing the offer to pay taxes stated no reasons and

was contrary to the Article making it the duty of the

3 County Court to assess the amount CU as cokansannness

| The singularly similar formula of dismissal in all the Circuit

Courts ‘* that said petition and application is insufficient in

that it does not comply with the mandatory provisions of

said Article and for other good and sufficient reasons ”

4 without stating the mandatory provisions or the reasons. .

3 7 hearing of the appeals in the Court of Appeals of Case

A UE nis i Rvad dee benea des useteessveessueesesesesss

appearance in opposition by the attorneys of the instigators

of Article III who state that one of the questions to be

determined is whether the article is a violation of the

National Constitution. ........-.+-- sserenee serene

—the Attorney General declares his Opinion that Article III

is unconstitutional. .........-.seeee sere eeeeeee reeeeet

(Sh Sari cA ah Leo WO SRN ELS CREAT Se PAR EEE SABRE

PI Sache oe

elles ina

SRA,

The Opinion of the Court of ppeals in Case No. 223 sustain-

ing the Constitutionality of Article III and affirming the

denial of the petitions to list and the petition for rehearing.

The Opinion was delivered Dec. 20, BE wanes ssagsvecess

—was required by Kentucky Statutes to be in writing and

to be recorded, and is part of the record for all purposes. .

—contains the text of Article III (Record 223, fol. 139-151)

and is divisible into three parts....-...++e++erseerrrrett

PAGES

3+

34

(A) The grounds of the judicial divination of the legislative

intention to ‘‘cutlaw” these titles (Id. fols. 151-166)...

— (3) the Court’s Opinion that the patents were for too

large tracts of land (Id. fols.153, 156, answered fol.

— (4) the Court’s Opinion that the patentee paid a ‘‘ mere

pittance” for the lands (Jd. fol. 158, answered fols.

MIN sa cawoear chaedsnsacs cbaess aston. eter:

— (5) the failure of legislatures to provide for transcribing

the records on formation of new Counties (Id. fol.

the true owners (Jd. fol. 158, answered fols. 204-205).

stability in peace and war” (Jd. fol. 158, answered

ve a nak ie eiaeatacn ys

—(10) and (11) the Court’s condemnation of the true owner’s

for alleged failure to ‘‘ answer to the imperative com-

mand of the law,” 7. e., to pay taxes (Id. fol. 153,

anewered fols. 990-291)... ......ccccccccsccncc....

—(12) the Court’s statement of alleged similar conditions in

Virginia and West Virginia and alleged success of

confiscation there (Jd. fols. 163-165, answered fols.

The further plea in the petition for rehearing that

none of these alleged faults were of the plaintiff in

error, a subsequent purchaser (Id. fols. 232-258)......

(B) The arguments with which the Opinion overrules the objec-

tions that Article LIT is unconstitutional (Id. fols. 169-189)

—after deciding that the question of constitutionality must

be determined because if Article III is unconstitutional

the plaintiff in error would be entitled to list its property

under other provisions of the same Act..................

The overruling of the objections

—(1) to the violation of the Virginia Compact (Id. fols.

175-180, answered fols. 261-262, and more fully p. 96,

WU a tninney it cadecesederi cokesac Oe

PAGES

37

‘ DS REMI ILL BEI 0 tll AR WI 2 ot ik

va

VI

—(2) to attempt to forfeit for failure to pay an unlawful

duplicate tax (Id. fols. 160-184, answered fols. 262-272

and more fully p. 227, infra)......---+eeer see ee eee:

—(3) to the denial of due process and equal protection of

laws (Jd. 184-187, answered fols. 272-279 and more

fully p. 189, infra)...... 6. ss eee cece seer teste cess

—(4) to the ea-post facto provisions of Article III (/d.,

fol. 187, answered fol. 279-284, and more fully p. 74,

$NA)... ca cecececcccccccccecscasensecececerseces

—(5) as an act of spoliation and revolutionary and subver-

sive confiscation (Id., fols. 324, 188-189, answered

fol. 295, and more fully, p. 308, afra)...... -.--+-:

_ (C) The grounds of dismissa: of the petitions to list (Record,

No. 223, fols, 189-193).

The Court’s enumeration of alleged defects of the petitions

(Id.,fols. 190-191), answered in the petition for rehearing

(Id., fols. 306-807). ..... 0. cece e erence ener eet eee ees

The rulings of the Court in dismissing the petitions to list

denies due process and equal protection of the laws, in

that it

—(1) Injects into the petitions a statement that is not there.

--(2) adds to Article III a requirement that is not there...

—(3) applies ex-post facto a new rule.......-++-++ se 5e000

—(4) Contradicts or overrules the Court's prior decisions or

opinions and of other provisions of Article III and

other Statutes of Kentucky re-enacted by other articles

of the same act... ... cece cece cece cece cee sceeeceess

—(5) Requires under pain of forfeiture that plaintiff in error

should have made under oath a claim contrary to truth

and justice and against the Statutes of Kentucky and

prior decisions of that Court.....-.++2++sserecerees

—(6) Discriminates unlawfully against plaintiff in error in

favor of aco-defendant as well asin favor of others not

parties to the proceeding. ....---.+++++ersseeeeee cess

—the Court ignores the murderous threats of outlaws that

would probably have made asurvey impossible without

DAA 0 og bc osc b ceded ebescrsusencecneadesteeevers

—_The Courl’s assurance that its objections are not ‘‘ merely

technicai interposed to defeat the listing of the lands ”—

not sustained by the facts......--+++eeee seers etree

—the plaintiff in error was given no opportunity to amend,

and the Court was enforcing an Act it esteemed as

’

‘highly politic ”........-.eeeee rere eee eee e ee eeeees

PAGES

45

SEO RP EIRS LLIN RIES ILITT DES SUG BI ENE ABN a Shh TAB 2 Sere tee arene sneseat: _ a

VII

PAGES

Case 224-—The Attempt of the Instigators of Article IIL to

Forfeit the Title of Plaintiff in Error.

Begun June 3, 1907, in Pike Circuit Court by the attorney

for the judicial district, six months before the Court of

Appeals had dismissed the petitions to list............... 60

—justifies the forebodings of sinister influences............ 60

—describes the lands less definitely than did the petitions to

list that the Court held described insufficiently........... 60

—uuseemly and untrue allegations, some contradicted by

other parts of the petition to forfeit, others contradicted

by the Commonwealth’s own witnesses................. 61

Demurrer of plaintiff in error overruled..................... 61

Motions of plaintiff in error to strike out allegations of petition

to forfeit as to failure to list, etc., prior to year 1901—

granted ........ 504443 V4 ON RCRD KES OND CER BOSH CUES DARE ORET 62

Answer and cross-petition of plaintiff in error

—denies material allegations of petition to forfeit.......... 62

—makes a part of this answer in Case 224 the proceedings

in the Pike County and Circuit Courts in Case 223....... 62

—sets up that Article III was enacted at the behest of

designated Instigators of Article III who wanted plaintiff

in error’s title, and sought to array all local interests

against it, and by threats and menaces to terrorize its

counsel, and gathered armed crowds at the Court House

on the hearing of the petitions to list to intimidate the

attorneys of plaintiff in error and to influence the Court.. 62

' —alleges that the refusal of the County Court to assess the

lands listed by plaintiff in error in Case No. 223 was a

denial of pe

to the action as the real ‘‘ party in interest ”............. 62

WD Riatwhen bas ubaruveccae sea Sickes deacon ins vac: 62

Amended Answer of plaintiff in error,

—verified in the month preceding the trial term an@ before

the cause was set down for hearing and offered to the

SE a anes Senet ceet ond 63

—sets forth

—(a) that during all the years 1901 to 1905 and for many

years prior thereto and ever since, plaintiff in error

and those frem whom it derives title have been pre-

vented from entering upon the lands by fear of bodily

harm and death threatened by some of the occupants 63

Vill

PAGES

—(b) that taxes on all or almost all the lands for the

years 1901 to 1905 had been assessed thereon and

prior to the enactment of Article II1 paid by occu

pants of part thereof........ccccscscrccrceces veos: Oe

—(c) that during all the years 1901 to 1905, and for many

years prior thereto and ever since, by the laws of

Kentucky each occupant immediately on such pay-

ment beeame subrogated to the Commonwealth’s

claim and hen on the land against the true owner,

and hence no taxes are due or can be charged there-

on against plaintiff in error or those under whom it

CIMMNNS TEDC oc ccc dns souzeescases Sevinw cued ab earns ff

—(d) that the provisions of Article III violate the various

Sections, Articles and Amendments of the National

Constitution there named, the objections being stated

verbatim as they afterward appeared in the specifica-

tion of errors in the record now before this Court,

and that plaintiff in error relied upon each of said

Sections, Articles and Amendments as defences..... 64

—the trial Court’s refusal to permit the filing was contrary

to the practice of the Court and of the earlier and later

decisions of the Court of Appeals and was a denial of due

process and equal protection of the laws..........+...65. 65

The Trial and Judgment of “ Forfeiture” in the Pike Circuit

Court in Case No, 224.

Depositions for the Commonwealth

—were taken in the month preceding the trial. ............ 68

—all the witnesses were examined, not by the Attorney for

the Commonwealth, but by one of the instigators of Arti-

cle III who was counsel for others of them....... 545805)

—on cross-examination the witnesses contradicted some of

the irrelevant allegations of the petition of the Conimon-

wealth’s Attorney as to non listing for taxes prior to 1901. 6!

—and also against the objection of counsel acting in the

name of the Commonwealth testified that taxes on all or

almost all these lands for the years 1901 to 1905 had been

paid, and as a rule by occupants of parts of these lands.. 6!

—but the Court sustained exceptions to these depositions

except in so far as related to listing or failing to list for

and payment of taxes of years 19U01 to 1905....6....50055 6

--defences in the original answer having been stricken out

and its Amended Answer having been refused, Plaintiff in

error offered no evidence except the record of proceedings

in Pike County and Circuit Court on proceedings to list _

now before this Court as part of Record No, 223....-...: 6

The verdict—was after refusal of the Court to permit the

proceedings in case No. 223 to be read to the jury........ 6

cl, DE INO ATS STAI We 9 BOO: a " 7 ao wee “ ; . Same aed I Ot Bt IOC, nl Sa le Say Sia

IX

PAGES

—and under instructions from the Court which made the

verdict a foregone conclusion............ csccecceecees 69

Judgment of the Circuit Court declaring forfeiture having

been entered, plaintiff in error appealed to the Court

OE GIN oo ent seb brdas ket besieaueresessesebadeesess . 69

The hearing in the Court of Appeals of Case No. 224—on appeal

from the judgment of forfeiture. ....... ccc cece cece ec eeee 69

—again Counsel employed by the Instigators of Article III

appear and are heard on behalf of forfeiture............. 7

—again the Attorney General declares to the Court his

opinion that Article II] is unconstitutional.............. 70

—again Counsel for plaintiff in error plead that this Article

is unconstitutional, and also plead that the proceedings

thereunder are so irrespective of the unconstitutionality

of the Act, and that the Amended Answer should have

been received by the trial Court...........c..eeeeeeeees 7

The Opinion of the Court of Appeals in Case No. 224, affirm-

ing the judgment of attempted forfeiture............... 70

—is marked ‘‘ Not to be reported ”............ccccccereces 70

—but like the Opinion in Case No 223 is part of the Record

for all purposes............ (ABD ve de'es SESS asa sereeeeents 70

—reviews a part of the proceedings below and states that

the Record in Case No. 223, filed with the answer in this

Case No, 224, shows that plaintiff in error filed its petition

claiming to comply with the provisions of Article II

‘while denying its Constitutionality ”.................. 70

~—but does not mention the defence that Article III was

instigated by private persons and corporations, nor the

allegations of the gathering of armed crowds at the

Court house; nor that plaintiff in error was not an owner

until after the latest of the dates of alleged delinquency prior

to the act; nor that it and its grantors had been for many

years prevented by threats of violence and death from

entering on the lands; nor that taxes on these lands had

been paid by occupants who had thereby become subro-

gated to the State’s lien and claim; nor the fact of the re-

fusal of the lower Court to file the amended Answer and

the contention that this refusal was a denial of due pro-

PEO SucareksLticsntend een casevaecesckin ee kieel 70

—but states that neither patentees nor any in privity with

them had paid taxes since 1825; a statement for which

there was no evidence before the Court and which if un-

true the plaintiff in error would have been prevented from

disproving by the rulings of the trial Court.............. 71

—overrules specifically each of the objections that Article

III violates designated clauses and Articles of the Na-

iit es pg oe RT PE ten, hee pee 72

| om AT asm ALT” PALO «Diana

4

%

?

,

—denies equal protection of the law by discriminating un-

lawfully against plaintiff in error in favor of a co-

BeGemEOG oo cccccnccccoccccscccscctecccccvcsscsccssess

The assignments of Error reiterate verbatim the objections

made in the Amended Answer offered to the trial Court

and the Brief filed with the Court of Appeals on the

hearing .. 2206 ccccccccces-vecces SeenaeFEsEHR EA a neesBaes

Argument.

I.—Article I11 void as an ex post facto law.

(1) As against all owners of land affected. ..-.+-+++++0++.

—it has been ——— condemned by the decisions of the

Supreme Court of the United States here cited ...

—and of the same Court of Appeals ....-------+++++5

—and of the Courts of the other States ......... ie

—(a) Because it seeks to make a delinquency prior tothe

act a ‘‘cause” of forfeiture when it was not a ‘‘ cause”

prior to the enactment...... 0... eeee cece eee e ee eees

—(b) Because it seeks to forfeit the true owner’s title for

failure to pay again taxes that had been already

paid by ethers who, by express provision of the

Statutes of Kentucky, have been subrogated to the

State’s claim and lien therefor and the State's claim

against the true owner thereby discharged.........

—(c) Because it seeks to forfeit the true owner’s title for

failure to extinguish the *‘cause” of forfeiture by

complying with requirements that did not exist prior

to the enactment .........60 ce cee cree e ee eeeneeees

—(d) Because the State Court construes the Article to

require the listing and payment of taxes for past

years on each conflicting title to land, whereas prior

to the enactment the Statutes required only one pay-

ment of a tax on the land irrespective of title ......

—(e) Because it expressly prohibits and prevents escape

from the ‘‘cause” of forfeiture by payments of

taxes made three months before the enactment and

six months before the Act took effect........------

—(f) Because it requires as a condition of ‘‘ extinguish-

ing” forfeiture the payment of penalties that were

not imposed at the time of the alleged delinquency

nor prior to the enactment ....---+++seeeeeesseres

(2) It is also void as ex post facto because the plaintiff in

error was a purchaser subsequent to the latest of the

alleged delinquencies and by the express provisions of

the Statutes took title free from any obligations to pay

prior taxes then assessed or unassessed......+--+++++:

PAGES

72

85

SF

si

ss

ae

33

Uv

——— AO LIOEOO DE AL SAPO BI Ke le ORGS MAB 95h NRE RE RN SMN SPRL NRE Al

xI

PAGES

I1.—The same Article III is void because it violates the Compact

between Virginia and Kentucky of December 18, 1789...... 96

The Compact and the preliminary acts ...........cc cece renee 97

—the Act of Congress thereon. ............. ccc ceee cues 102

(1) in the General Assembly of Virginia................... 106

—resolutions of Va. Assembly March 22, 1822........... 106

(2) in the General Assembly and Courts of Kentucky ...... 107

(3) in the Supreme Court of the United States ............. 120

SY MC d66 te Retaded bad 6 Kd 464008 044K dv ck siae'e 121

SGN DUD Sincadnwuddas dc nccc ees iveicenesees 129

—declared to be ‘‘a law of the Union”.................. 144

—summary of history of construction of Compact ....... 146

(4) The Compact is to be construed

—(a) by the laws of Virginia existing Dec. 18, 1739 ...... 147

—(b) according to contemporaneous construction ........ 147

—(c) according to same rules as ordinary contracts....... 150

—(d) according to same rules as treaties..... ........... 150

—(e) m gies ** of justice and equity....... 150

—(f) in a spirit of uberrima fides ......... 00... cceeeees 150

—(g) without altering, amending or adding thereto...... 151

—(h) not to provide means for perpetrating frauds....... 152

—(k) in a liberal spirit not restrictive of rights under it .. 152

—(l) conclusively presumed that both States understood it. 153

—(m) restricts the Courts as well as Legislature of Ken-

MEE ska Podechedaddaddbends vianees tees vededs cure 153

(5) The Compact is violated by Article LIT................ 154

—(a) Because the intention of Virginia to protect the ear-

liest title is shown by cotemporaneous acts.......... 155

—(b) Because the Compact restricts Kentucky’s power to

forfeit to the laws existing in Virginia on Dec. 18, 1789. 156

—(c) Because at the date of the Compact, Virginia did not

permit forfeiture for any cause, not even for treason. 164

—(d) Because at the date of the Compact there was no law

in Virginia requiring the owner to list lands if the

same had been listed and taxes paid by others...... 170

—(e) The Opinion of this Court in King vs. Mullins calls

for a decision declaring this Article IIT to be void... 170

IIL.—The same Article IIL is void because it impairs the obliga-

tion of contracts: (a) of the Compact; (b) of the original

grants; and (c) of the deeds to plaintiff in error.

—(1) Grants from the State are protected like grants from

tite tc adedadeGghis ces 0sncanea tea cae» 179

—(2) The Supreme Court will determine independently of

the State Court whether there is a contract and

whether it has been impaired.....................6+- 179

—(3) Impairment by a change in the law is prohibited. .... IS1

—(4) Impairment by judicial decision is prohibited......... 182

—(5) Impairment by change of decision is prohibited....... 183

pe iticrretes 6 cstse sree riz cesy tee, IANS RAUSING RL Ms

&

, a

XII

PAGE

IV.—The same Article III is void because it denies due process ;

of law and equal protection of the laws.................... 189

—(1) The plaintiff in error is protected by this clause of the

eerer eer errr rr tt Teer Teer Tee Pee eee ee 190

—(2) The Fourteenth Amendment requires more than the

due process theretofore required...........00eeeeeees 199

—(3) A ‘day in Court” in the State Court does not make

this Article or the proceedings thereunder constitu-

SEPT STE ETT pide NEU RIeEUENS eb OS) Sa eRE EAS busi 195

—the cect as well as the legislature are Lound by

the Fourteenth Amendment..............0.0eeee eens 193

—(4) The decision in King vs. Mullins does not sustain the

Article and proceedings now at bar.........0eeee eee. 900)

Because the West Virginia law

—Ag) is ROC OF POG FUCIO. ocr ccscecccsesiccscccerccs 210 |

—(b) is not restricted by the Compact of 1789......... 911

—(c) has not been objected to as impairing the grant by

making a condition subsequent what is lawful

only as acondition precedent.........-.22..0005 212

—(d) provisions for redemption are fair.............. 219

—(e) prospective only.........cs.cees+ sees: oes ace

tht) NG TUNED sv ocancereevs cbc chev esevewnsass 212

—(g) is not enforced by proceedings denying due process

GG CURE PEONRCTI ccc cece nw ecces cones 912

—(h) does not seek to forfeit at allcosts............5. 213

—(i) requires listing of whole interest................ 213

—(k) permits listing of only the parts not lost by adverse

DOs 5a vas cckncsnne 30500 heek cabs veseces 214

—(l) saves those under disabilities.................5. 214

—(m) shows by its title that it is not a revenue act.... 21)

--(n) does not exempt subsequent purchaser......... 215

—(o) provides fair opportunity for redemption........ 215

—(p) returns surplus to ownerSs.......0 6. eeee eee eee ees 216

—(q) each claim of title is taxed and there is no subro-

OPP PEE TEE TTT POEL TET ER eT Tey CT 217

—(r) does not apply to lands sold to State for taxes... 2I*

—(s) occupant not liable for tax.........ccecsceseces 219 §

—(t) is not accompanied with murderous threats of

GUEINWS 10 HOUROURION 6 ccc cs - cc en ciscnnts 500 Be

— (u) requires occupant to have color and good faith... 21! f

—(v) purports to validate patents, not to exterminate s

SE cach oa een neat tens Nest teer'et< 259 oe KORE

—(w) had become a rule of property..............2+5 2

—(5) The plaintiff in error has been deprived of its prop-

erty without due process of law and has been denied

the equal protection of the laws........ccceccercceers NE

—(a) By unconstitutional discrimination .......6.000 2)

DE RAYA BS AE IIR SELB RO EA Ral Lol DIR A a ag a is PONS FEBS HIT GOA 8 aiken ie ate

XIII

—(b) By unconstitutional duplicate taxation ............ 227

—‘‘ there never has been a valid law in Kentucky by

which the true owner could lose his land if taxes

thereon were paid by any one else”...............

—Statutes of Kentuc y relating to taxes and deci-

to confiscation of all its property ...................

(6) Irrespective of the invalidity of the Article the pro-

ceedings thereunder deny due process and equal pro-

WENO ik ep enehastswseneanes RCNA KASS DROS ALL SE 606 ba f

—these denials of due process and equal protection by

the Courts below, summarized ................... :

(7) Article III and the proceedings thereunder are not a

constitutional exercise of the power of taxation.....

—That power requires due process and equal protection. :

—That power is not exempt from the prohibition

against impairing contracts..............eec0c0....

—A fortiori such laws are void when a mere pretext for

WOE Psd Katsnbkadassenxiossedeeesie ule...

(8) Article LIT and the proceedings thereunder are not a

constitutional exercise of ** police power”...........

—(b) Even if this Article ITI were an attempted exercise of

the ** police power” it would not be superior to the

National Constitution. .............206 seseecese.., §

—(c) en property be taken compensation must be

sa “aise Lede EE Eee Eee re Pee a

—-(e) Escheat is impossible if heirs exist although unknown :

—(f) Confiscation is justifiable only under the ‘ war

i ei EI EEO CE ee IE

—(yg) Even treason does not justify confiscation........., ,

—(h) The Kentucky Courts declare Acts of Congress,

more nearly an exercise of the police power than

Article III, to be COM iis at ohes an iusndsrne cet ae

—(i) In the attempted extension of the police power

.

“lurks no small danger to the Republic”........

4 . c - te tat ee

Se eM Pe Bete eats Wor cre She REe ENCE ts res. |

— EDIE IED LOLO ILE EEG RAS “i ei AS il it SUD aig, _ /_—a

XIV

V. Conclusion. a

I et Td ied phi dwheadsces 289

—The proceedings thereunder are void irrespective of the

BOOTING OE GRO BIUIIEG oo oc cess scctccccessceccees os 285

—the lands sought to be confiscated are not the homes of

occupants but unenclosed forests..............0..eee008. 299

—the patentees were not mere speculators and adventurers. 29)

—the mere pittance was paid not by them but by those

who seek to obtain the benefits of confiscating these titles,

who paid but 5 cents per acre, and have done no more

than the patentees to improve the lands......... aeaeanme 243

—title has not been lost by ‘‘abandonment”.............. 295

—non-pay ment of taxes not proved..............eeeeeeee, 296

—reasons for failure to pay taxes explained............... 297

—no protection of the owners against violence and no bene-

ee a de aes 660 2 cd RSE OER EC CRE OO 297

—increase in value of these lands has come not from

settlers but,from railroad attracted, not by settlers, but by

I in tia dd dads ana hake 640 00450449 when ss 297

—plff. in error cannot be punished for alleged delinquencies

Oe Geo ct ctacceccunacvaerisiccecsesvcccveses 299

—Art. III needless for any honest purpose..............65. 300

--not needed for purposes of revenue, which has been re-

Es ow datenssc dere cure eus pen een oad 3000

—not needed to protect rights of settlers.................. 301

—not needed to settle titles. ........... cece eee cee cece 309

—needed by instigators for unlawful purposes............. 308

—not only needless but void... ........ ccc cc ccc csececeees 3u3

—not sustained by West Va. laws or by King vs Mullins... 303

—seeks to tax two claims and protect but one............. 303

ane Se GD A” GO GY 6 cots caves ncn gtheuacseres 36

—the power behind Art. [II is not the ‘‘ war power,” nor

—the ‘‘ revenue power,” nor the “ police power”.........-. as

—is a power transcending the Constitution of the Nation

and that of the Universe.............. avh ea eeee nek ee 30

—is approved as “‘highly politic”..... 2... 0... cece eee eee all

—the distinctions between ‘‘ police power” and ‘‘ politic

SD rp eeecnees disc cvcesscuwsenguvans ves 312

—the Spirit of Kentucky’s ancient objections to the National

Constitution and the Supreme Court................25.5 313

—the dire outcome of the union of a West Virginia doctrine

of confiscation with a Kentucky doctrine of ‘“‘ politic

CE a tare ccd ndseanaesdesnen sinc ade veedecss $040 400s ald

—the welfare of Kentucky and of the whole Nation calls

for nullifying the Article and proceedings thereunder.... 31)

STATEMENT.

These two cases come up on writs of error to review

two judgments of the Court of Appeals of Kentucky.

The Earlier Judgment, December 20, 1907 (Record No.

223, fol. 137), affirmed, after hearing together the Ap-

peals from, the judgments of the Circuit Courts for Pike,

Floyd, Knott and Letcher Counties, which respectively,

had affirmed the orders of the County Courts of the same

Counties, and had denied and dismissed the petitions filed

by the plaintiff in error, in December 1906, in each of

those County Courts, to list its lands in those Counties,

respectively, for assessment and taxation under the pro-

visions of Article III of the Kentucky Revenue Act, ap-

proved March 15, 1906.

The Later Judgment, June 20, 1908 (Record No. 224,

fol. 338), affirmed the judgment of the Pike County Cir-

cuit Court, of February 14, 1908 (Jd., fol. 303-338), which

purported to declare the forfeiture of the title of plaintiff

in error to its lands in Pike County on the ground that it

had failed to so list its lands.

These two cases relate to the same lands in Pike

County, Kentucky. The first (No. 223) also relates to ad-

joining lands of the plaintiff in error in the other three

above mentioned Counties.

The earlier case (No. 223) contains the record of the

attempt of the plaintiff in error to avoid the (foreseen)

later attempt of its enemies, by the proceedings in case

No. 224 to forfeit its title on the pretext of a failure

to comply with the terms of the above mentioned

Article ITI.

All that part of the Record No. 223, which contains

the proceedings in the Pike County and Circuit Courts

was filed by plaintiff in error as an exhibit with its

Answer in the later case of attempted forfeiture No,

224 (Record No. 224, fol. 236), but the trial Court in case

No. 224 sustained a demurrer to that part of its answer

which set up the proceedings in case No. 223 as a de-

—

Pe Se Se |

7

»

fense (Record No. 224, fol. 232), and prevented the read.

ing of those proceedings to the jury (Id., fol. 303). The

‘ Court of Appeals, however, in its opinion in Case No.

224, considers the record in Case No. 223 in connection

with the answer of plaintiff in error in case No, 224 (Re-

cord No. 224, fol. 341).

The whole of the above mentioned Article III, is set

forth in the Opinion of the Court of Appeals and appears

in the Record of No. 223 (fols. 139-151). The entire Act

is published as Chapter 22 of the Laws of 1906 (Ky. Acts,

1906, pp. 88-248). Under the Kentucky Constitution it

went into effect ninety days after adjournment of the

Legislature (Ky. Const., Section 55; Boggs v. Common-

wealth, 121 S. W., 433; Dissenting Opinion of Judge

Hobson, Record No. 223, fol. 316).

It is entitled, “‘ An Act relating to Revenue and Tax-

ation ” and consists of 318 sections divided into (9 Ar

ticles, all of which, except those of Article ILL which

contains 10 Sections, are the ordinary provisions of an Act

relating to the subject declared by the title of the Act

and are generally re-enactments, in substantially the

same form, of prior Statutes of Kentucky.

It is thesame enactment that was recently brought be-

fore this Court in the case of Kentucky Union Co, v. Com-

wealth of Kentucky (No. 193); but the cases now at bar

involve many more questions because (1) the plaintiff

in error now before the Court did not become an owner of

the land until after the period of the alleged delinquency

in payment of taxes prior to the Act, and (2) claims title

under patents granted by Virginia before the existence of

Kentucky, and hence protected by the Virginia-Kentucky

Compact, and (3) endeavored, so far as it was able, to

comply with the requirements of Article IIT.

The Attorney General and Assistant Attorney General

of Kentucky in an able brief filed on the heariug in the

Court of Appeals of Case No. 223 (after a careful com-

parison of the provisions of this Article III with the pro-

visions of Article I and II of the same Act), declared

that ;

‘These provisions (of Articles 1 and LU) of Chapter

22, Acts 1906, have been copied therein from the Gen-

3

eral Revenue Law of the State in force prior to the

passage of said Act. They constitute within themselves

a complete and general system of law for the assexs-

ment of all lands in this Commonwealth, when the

owner has failed or omitted to list the same for taxa-

tion.

‘* Article 3 of said Chapter is in conflict with this gen-

eral system from beginning to end. It is sandwiched

between the general provisions of the law and is en-

tirely new. Either the general provisions of the law or

this special law must be held invalid because they are

so inconsistent; both cannot stand together ” (Brief of

Attorney General, p 7).

The conclusions of the Attorney General were con-

firmed by Judge Hobson, who, in the course of his dis-

senting opinion, says:

“By the general law the person owning land at

the time it should be assessed is not only liable for the

taxes but remains bound therefor; by this article the

present owner’s land is forfeited to the Commonwealth

Jor; by this article, the fact that the land has been listed

for taxation and the taxes vaid by the occupant does

not prevent the forfeiture as thetnin set out. By the gen-

eral law land may be assessed retrospectively at any

time not later than five years, but not to prejudice the

rights of purchasers acquired in the meantime; by this

article the purchaser is required to pay the taxes with

interest and penalty. By the general law if the owner

sells the land after the Ist of February of the year in

Which the taxes are due and payable, it is the duty of

the owner to pay the taxes; by this article the pur-

chaser’s title is forfeited if he does not pay them. By

the general law where property has been sold for taxes,

he owner may redeem it within two years; by this ar-

ticle the owner forfeits his title to the land if he fails to

assess it and pay the taxes thereon as therein provided,

y the general law if the owner fails to assess his

Property, it may be assessed retrospectively, but the

taxes are then collected as other taxes; by this article

the taxes are not collected as other taxes, but must be

paid at once with interest and penalties to avoid a for-

feiture of the title. By Section Four of this article,

before the defendant may redeem, he must pay not only

the amount of unpaid taxes charged, but those that

rs SPR NES PLOW IDSA OLE BESET SES BEDE EI SENSE iste a RNG

POPE SARS SE 2 REGS

ome ae pet

+

ought to have been charged against those under

whom he claims for fifty years preceding the filing

of the counterclaim. No such provision is found

in the general law relating to other propety, and

there is no provisionin the general law for double taxa.

tion of the same property, and the payment of the taxes

by such claimant where there are two claimants to it.”

(Record, No. 223, fols. 319-320).

Although this Court is not generally concerned with

conflicts or contradictions in the Statutes of a State those

here stated, it is submitted, come within the cognizance

of this Court as among the indications of an intention to

deny due process of law and equal protection of the laws;

for which reason, among others, the Brief of the Attor-

ney-General expressly declares that this Article IIT ‘‘is in

conflict with both the State and Federal Constitutions”;

and Judge Hobson after stating his opinion that the Ar-

ticle was void as an ex post facto law concludes also that

‘‘ A reading cf the Article shows that it was a de-

liberate attempt on the part of the Legislature to deny

the equal protection of the laws to the owners of the

land titles referred to and to provide as to the holders

of these land titles an entirely different system from

that provided for the holders of other species of prop-

erty. Itis therefore in my judgment void both under

the Constitution of this State and the Constitution of

the United States” (Dissenting Opinion, Record, No.

223, fols. 316-321).

These conflicts, it is also contended, support the charge

hereinafter made that this Article III was not the spon-

taneous act of the Legislature but the outcome of sinister

influences, and the object of its enactment was not public

good but the satisfaction of private greed (infra, p. 21).

Although the Act appears in full in the record, tue

sections, for the convenience of the Court, will be here

quoted or summarized, the more notable parts being here

emphasized by the type.

The Article consists of ten sections. Section I reads

as follows:

I. It shall be the duty of each and every owner or

claimant of land to pay all the taxes which have been

assessed, and which should have been assessed, against

him, and those under whom he claims, as the owner or

———

5

claimant of said land as of the 15th day of September,

1901, the 15th day of September, 1902, the 15th day of

The fact that said land has been listed for taxation, or

the taxes have been paid thereon, by another claimant,

shall not relieve agaiust the duty herein imposed.

If any such owner or claimant or those under whom

he claims, has failed to list such land for assessment

and taxation, as of any three of said dates, or has

failed to pay the taxes charged, or which should

have been charged against him, or those under

whom he claims, as the Owner or claimant

thereof upon said dates, for any three of the years for

claim and title thereto, in a proceeding to be instituted

for that ae as hereinafter provided. But said

or claimant, his heirs, representatives, or assigns shall,

within the time and in the manner in this article pro-

he or those under whom he claims are delinquent,

together with the interest and penalties provided by

law in case of the redemption of land sold for the non-

payment of taxes.” (Record No. 223, fols. 139-140).

This section holds the essence of the venom of the

Article, and is, it is submitted, void, because it is ex post

facto (infra, pp. 8, 74-96); violates the obligation of the com-

pact between Virginia and Kentucky (/d., pp. 97-170): and

the obligation of the original grants of the land by Vir-

ginia (Id., pp. 179-189), and denies to its victims due process

and equal protection of the laws (/d., pp. 189-288). Shining

2 2 Sid see Ne

o aiban eke |

out among the marks of its evil origin and purpose is the

sentence here emphasized by the type, viz.:

‘* The fact that said land has been listed for taxa-

tion or the taxes have been paid thereon by another

claimant shall not relieve against the duty herein im-

posed.” The Court of Appeals cited p. 1036 Gen. Stats.

as proof of its statement that ‘‘the provision existed

under the General Statutes” (Record 223, fol. 183).

The reference is most unfortunate. The section found

at the place cited by the Court is (in Bul. & Fel. Ed.,

1887) as follows: ‘*§ 8. Lands and town lots and the

improvements thereon shall be valued for taxation with-

out reference to any conflicting title.”

There is no provision similar to that above cited from

Article Ill at the place cited by the Court nor any-

where else in the General Statutes or in any other statute

of Kentucky; nor in this act of 1906, except in Article

LT; nor in this Article III, except in this Section I which

relates to delinquencies prior to the act, for there is no

similar provision in Section 10 which relates to future

delinquencies (p. 19, infra).

Although by the Petition for Rehearing (Record No. 223

fol. 266) the attention of the Court was called to this very

serious error, it has uot been retracted nor corrected. The

error is especially serious because, as hereinafter shown,

taxes on all or almost all these lands have been paid by ad-

verse claimants, and the statutes of Kentucky for many

years past have provided, and the provisions of other

articles of this same Act of 1906 still provide, that an occu-

pant or lienor paying the tax is subrogated to the claim of

the Commonwealth against the owner of the land.

It is with reference to this that Judge Hobson says in

his dissenting opinion, already quoted (supra, p. 4) that

there is no provision *n the general law for double taxa-

tion of the same properly where there are two claimants

to it.

And the Attorney-General referring to this same pro-

vision in his brief at the hearing before the Court of Ap-

peals said:

“Although the occupant of such land has listed and

paid the tax thereon which by the provisions of Sec-

‘

tion 7 of Article I of Chapter 22, satisfies the require-

ments of the revenue laws of this State for the as-

sessment and taxation of land because said section pro-

vides that land shall be valued without reference to

conflicting title: and though the occupant may have

paid the taxes in compliance with this law, the real

owner of this land is required to pay the taxes again on

said land before he is enabled to redeem his land.

This is clearly double taxation upon such lands

and is in conflict with Section 171 of the State

Constitution, which provides that taxation shall be

uniform and equal on all property subject to taxation

within the Commonwealth (Attorney-General’s Brief,

pp. 23-24).

And again he said: “By Section 12 of Article 2.

Chapter 22, it is provided that the person owning land

on the first day of September in the year in which it is

listed is not only liable for the taxes but shall remain

_ bound therefor. While Section I of Article 3 provides

that the present owner's land shall be forfeited to the

Commonwealth for the non-payment of such taxes by

such former owner,

* By Section 15 of Article I, which is a re-enactment

of the former Revenue law of the State, it is provided

occupant shall be entitled to recover of such owner the

amount of such taxes so paid and interest, and the

same shall constitute a lien on the land.”

‘Section I of Article 3 provides that the fact that

said land has been listed for taxation, and the taxes

paid thereon by such occupant shall not prevent the

forfeiture set out therein.

‘Section 3 of Article I of said Chapter 22 provides

that when any lands or improvements shall not be as-

sessed in any one year it may be assessed retrospectively

in the manner provided for by law for that year any

time not later than five years thereafter, bué the lien

thereby accruing shall not affect the rights of purchasers

acquired in the meantime. - . By Section 5 Ar-

ticle I of Chapter 29 by amendment of the former law,

itis provided that if «A? purchased the lands of * B’

after February ist of the year in which the taxes are

due and payable, it shall be the duty of ‘B’ to pay the

taxes thereon. Yet Section I of Article 3 requires that

‘A’ should pay the taxes.” From all of which the

Attorney General concludes that—

_ ‘Section I of Article 3 is a penal statute in so far as

tt provides for the Sorfeiture of the title of the owner for

ens SALMA ANRC SLE SA eie Ra SBNLORERET AEE aah

8

the non-payment of taxes of others, is both ex post facto

and a law impairing the obligation of contracts. That in

so faras it attempts to vest the title of the owner of the

land in the Commonwealth in the manner therein set out,

it is the taking of the individual's property for public

use without compensation, without the consent of his

representatives or without just compensation made

therefor” (Atty. Gen’l’s Brief, pp. 21-23).

The Court of Appeals sought to justify this provision

by the foregoing erroneous statement of fact followed by

the contention that duplicate taxation is not per se un-

constitutional (Record No. 223, fol. 183). But this is not

a mere case of duplicate taxation. It is a case of ex post

facto duplicate taxation. Not only this, but also of er

post facto taxing the same owner fora tax which he must

also pay tothe occupant whom the State has subrogated

to its claim. Not only this, but also forfeiting his land for

failure to submit to the unconstitutional extortion (infra,

p. 13); the forfeiture, too, being for an alleged de-

linquency of a former owner and intended for the benefit

of private parties who procured the enactment, and the

whole edifice being attempted to be supported by the un-

founded statement of the Court that there was a similar

provision in prior laws.

This section also expressly states that the owner is

‘*hereby declared to be delinquent” for the alleged past

delinquencies of ‘“‘those under whom he claims” and

that the failures prior to the Act ‘‘ of those under whom

he claims” shall be ‘‘ cause for the forfeiture” of his

title. The same expression ‘‘ cause for forfeiture ” is used

in Section 10 of the same Article which applies to future

delinquencies, but as to the future it is only the failure of

the owner, not of those under whom he claims, that is

stated to be the cause for forfeiture, and for the future,

after the date of the Article, the delinquency must be

for five years (infra, p. 19).

In either case it is the failure to list as of the original

dates that causes the forfeiture. Both the letter and the

spirit of this Article IIT show this, and that the later

judgment does not forfeit. but is merely the declaration

of the forfeiture (Section 3, Record 223, fol. 144).

a EN AR SS IOS PARP

— Pores —

9

Would it be possible to state more clearly that it is the

past failure to list these lands prior to the passage of this

Act of Legislature that is declared by the Act to be the

‘cause ” of forfeiture (although it was not such a “‘ cause”

prior to the passage of the Act) and that the failure to list

after the passage of the Act, and on or before January 1,

1907, is not a cause of forfeiture but is a failure to ‘‘ ex-

tinguish” the ‘‘ cause,” which in case of such failure

simply persists as it was before, and according to the

Article becomes after the Ist of January, 1907, “inex.

tinguishable,” no matter what the unhappy owner may

do. This Article, being an attempt at forfeiture, must be

strictly construed and held rigidly to its terms; but no

difference in its terms or provisions, and no subterfuge, if

attempted, to forfeit for failure to remedy after the Act a

delinquency which in reality occurred, if at all, before the

Act of 1906 would have validated the provisions to forfeit

for failure to list for taxes that “should have been

assessed” in the years 1900 to 1905.

Hence the ruling of the Court of Appeals that the

land is forfeited by the failure to list after the Act, and

prior to January 1, 1907 (Record, No. 223, fol. 187), is con-

trary to the express letter as well as the spirit of the Act.

Ail of which was pointed out in the petition fora rehear-

ing (Record, 223, fols. 281-282),

This Court is not bound to accept a construction of a

State statute which is contrary to the clear meaning of

the English language. But even if the construction of

the Court of Appeals were sound it would merely shift

the ground of the unconstitutionality of the Act. For

the legislature had no more power to require the plain-

tiff in error, a purchaser subsequent to the alleged delin-

quencies, to pay taxes on these lands on which others

had paid the taxes and been subrogated to the State’s

claim, than to pay taxes on other lands of a stranger or

to pay the debt of a stranger who owned no lands.

Still less, if possible, could the legislature impose the

pena. y of forfeiture for the ‘ delinquency ” of failing to

comply with such an unconstitutional attempt at extor-

tion. For (as hereinafter shown) under the laws of Ken-

tucky when plaintiff acquired title the purchaser of lands

EL I TOS hl NE BS. FA tT A LEER INE EO A ma

10

owed no debt to the Commonwealth even for taxes that

had been already assessed on the lands bought, and when

taxes had not actually been assessed, although the same

should have been assessed, he took the lands free even

from any lien therefor (infra, p. 92).

Again, in its last sentence providing for exacting,

under pain of failure to ‘‘ extinguish” a ‘* cause” of for-

feiture, the payment of penalties for past delinquencies

not imposed by law at the time of the past so-called de-

linquency, this section would be unconstitutional as er

post facto legislation (infra, p. 58).

This minor iniquity of the Act is also noticed by Judge

Hobson, who, in his dissenting opinion, says:

‘* By the law in force up to the time this act took

effect, the owner of land which had been omitted

from assessment might voluntarily have it assessed at

any time and pay the taxes without interest or pen-

alties. If he failed to list it voluntarily, and a proceed-

ing was instituted against him under Section 4241 of

the Kentucky Statutes, he was liable to a penalty of

twenty per cent., which went to the officer instituting

the proceding; but, even in this case, he was not liable

for interest at ten per cent. on the taxes; and if he made

the assessment voluntarily without a proceeding being

instituted against him, he was not liable for the pen-

alty of twenty per cent. While the act gives him until

March 1, 1907, to list his property and pay the taxes,

from the moment the act took effect the only way

that he could escape the forfeiture of his title was to pay

5 not only the taxes but the interest and penalty. The

: act does not give him a certain length of time to list his

property and provide that if he fails to list within that

time he shall be subject to the penalty, but it imposed

the penalty upon all who are delinquent in listing their

land and who would escape the forfeiture of their title

by listing it after the act takes effect ” (Record No. 223,

fols. 317-318).

The Court of Appeals in another case construing this

same Article III has half-admitted that this provision for

penalty was void, but in order to sustain the act contended

that the provision for penalty might be disregarded and

the forfeiture nevertheless held valid (Kentucky Union

vs. Commonwealth, 33 Ky. L. Repr., p. 11).

But in this the Court disregards the fundamental dis-

11

tinction between Statutes that forfeit for failure to com-

ply with the terms of the act and those that do not; and

demption from a forfeiture that otherwise persists. The

contention had been already answered by Judge Hobson

who in his dissenting opinion in case No. 223, now at bar,

says:

“It is said that so much of the act as imposes the

penalty for the past delinquency may be rejected; and

that the balance of the act may stand; but this is not a

case in which that rule can be applied—for the reason

extinguishment of the forfeiture is invalid then there is

no way in which the owner can escape the forfeiture ”

(Record No. 223, fols. 318-319).

The contention of the Court of Appeals is also con-

trary to the decisions of this Court as hereinafter shown,

Finally, even if this section of Article III could be sus-

tained as against one who was an owner at the timeof the

alleged past delinquency, the construction which makes it

apply against the plaintiff in error, who did not become

an owner until after the latest of the alleged delin-

quencies, makes it unconstitutional under the National

Constitution,

The opinion below states that the West Virginia Consti-

tution contains ‘a provision in every feature or principle

the same as the Kentucky Statute of 1906 except that in

the West Virginia Constitution there is not a provision

for a trial in court ” (Record No. 2238, fol. 164), and gives

the impression that the Legislature and Courts of Ken-

tucky are but following in the footsteps of the Legislature

and Courts of Virginia and West Virginia, and even of

this Court in its decision in King vs. Mullins (Id., Ib.).

A glance at the face of this Section I of Article III

shows the lack of foundation for such a claim. The dis-

tinction between the statutes of Virginia and West Vir-

ginia on the one hand and those of this Article II] on the

PARE ee — =

SRE A SN i PML IY, toy LR aE OOS AEN A EON PRAM PET we

12

other are hereinafter shown (infra, pp. 210-225). It is

enough to say here that there is, of course, not a trace of

the ex post facto elements of Article III in any of the laws

of Virginia or West Virginia relating to forfeiture of lands,

and that the West Virginia laws do not, and those of

Kentucky do, subrogate to the claim of the State an

occupant or lienor who pays the tax on the land.

Again, as stated by the Attorney-General:

‘‘This Section One also denies the equal protection of

the laws by making an arbitrary and unreasonable

classification in that it provides for a forfeiture for fail-

ure to list lands for any three of the five years immedi-

ately prior to the Act, while Section ten of the same

article provides for a forfeiture only for a failure to list

lands for five successive years in the future. ;

‘‘The Legislature cannot by one and the same act im-

pose a heavier burden for the past years than it imposes

for the future. The status of tax-payers for the three

years prior to the Act in question was already fixed, and

to provide a forfeiture for the failure to list for those

three years without making a similar provision for the

future was equivalent to making the provision for such

a forfeiture apply to the persons by name who had

already failed to list. If public policy demanded a for-

feiture for failure to list for any three of five years, the

forfeiture should have applied to future as well as past

years, and the fact that it was not made to so apply ¢s

conclusive that the Act was intended to serve some pri-

vate interest and not to promote a wise public policy.”

This Article III also increases the penalty for omission,

which, before the Act of 1906, read, “‘ not exceeding one

hundred dollars” (Ky. Stats., $§ 4061, re-enacted in Rev.

Act, 1906, ch. I, art. II, § 21), and makes the penalty for-

feiture of the land; and it attempts to cut off the previously

and still existing power of the Court in all other cases ex-

cept under Article III to excuse the delinquent altogether

if satisfied that he ‘‘was not wilfully in default” (Ky.

Stats., § 4063, now in Rev. Act, 1906, ch. I, art. IT, §. 23).

Section 2 of the same Article III provides that the ascer-

tainment of the amount of taxes unpaid and the assess-

ment required by the first section shall be made by the

County Court upon application of the owner or claimant

by verified petition filed in that court on or before January

1, 1907, stating the manner in which title devolved upon

Sa A. eb

13

the petitioner. It is made the duty of the County Court

to decide upon the application in a summury manner,

upon such evidence as may be offered, and to ascertain

the Circuit Court within thirty days after the finding It

is made the duty of the Circuit Court to hear and dete;-

mine the application de novo, and its finding to be con-

clusive and not subject to appeal. The applicant is re-

quired to pay the taxes Sound to be due on or before March

1, 1907. (Record No. 223, fols. 140-143.)

This section merely carries out the intention of the

article as stated by the Court of Appeals ‘‘ to outlaw ” the

title of plaintiff in error (Record No, 223, fol. 166). Asthe

Attorney General has well stated, it is inconsistent with

Section 3 of Article 15, and Section 4, Article 16 [XVII] of

omitted property, and requires an assessment in an un-

reasonably limited time contrary to the general provisions

of the laws of Kentucky expressed in other Articles of the

same Act.

And notwithstanding that this section purports to pro-

vide for a hearing de novo in the Circuit Court, the Court

list after January 1, 1907 (Commonwealth v. Gatliff, 116

S. W., 263, 265),

the name of the Commonwealth against the land and

Owners or claimants thereof, for the purpose of declaring

the title forfeited to the Commonwealth and selling the

Same,

—

14

There is further provision that judgment rendered

under this article shall be conclusive against all defen-

ants, including infants, lunatics, and married women,

and that judgments and the proceedings upon which they

are based shall not be subject to the provisions of Sections

391, 410, 414 or 574 of the Civil Code of Practice. Issues

as to whether or not the title and claim sought to be for-

feited is subject to forfeiture to be triable by jury, and

either party may prosecute an appeal to the Court of

Appeals within thirty days after judgment (/d., fols.

143--145).

The sections of the Civil Code of Practice from the

trammels of which the proceedings to forfeit are freed by

this section are intended for safeguarding the rights of

married women, infants and the insane. By this section

the Commonwealth abdicates and repudiates its office as

their paramount protector in so far as they may be owners

of land wanted by the instigators of this Article III.

In the words of the Brief, already mentioned, of the

Attorney General:

‘* This section is the most arbitrary abrogation of the

rights of infants, lunatics and persons laboring under

disability that ever a Legislature of Kentucky undertook

to enact.”

Section 4 provides that if, before or during the term

of Court next succeeding the term at which judgment

of forfeiture may have been entered, any of the de-

fendants in privity with the forfeited ¢ztle, shall file

his counterclaim accompanied by a sufficient bond and

offer to purchase back from the Commonwealth the

title and claim so forfeited, exhzbiting ttle thereto in

himself, it shall be the duty of the Court to ascertain

and adjudge the amount of unpaid taxes charged and

that ought to have been charged against the defendant

and those under whom he claims, as the owner or claimant

of the land for the fifty years immediately preceding the

filing of the counter-claim, and 7f the Court finds that de-

fendant is the owner of the title forfeited, to enter a judg-

ment against such defendant for a sum equal to the

amount of such unpaid taxes, together with interest at

he rate of fifteen p er cent. per annum from the time

15

said unpaid taxes for said

the costs of the proceedin

attorney fee for the Comm

several years were due, and

gs, including a reasonable

OnWealth’s attorney, and if

such defendant shall pay the amount of said judgment it

shall be the duty of the Court to enter a judgment retrans.

ferring to such defendant the title forfeited (Id., fols. 145-

148).

This section is a fair example of the unfairn

ess of the

entire article and of its spirit. As shown b

taxes, says: ‘No such provision is found in the general

law relating to other property ” (supra, p. 4).

The time to redeem is limited to the next succeeding

term of the lower court, so that it would expire before

the victim would have had time to have the validity of

the forfeiture determined by this Court, or even by the

Court of Appeals. This, in itself, makes the Article un-

constitutional (énfra, p. 243). He must algo exhibit title

in himself; pay taxes for fifty preceding years, although

the State’s claim to all taxes prior to 1879 have been

released by statute (dufra, p. 296), and the right to redeem

is further restricted by the following Section 5.

Again, it is contended that the hand of private inter-

ests is shown through the terms of this Section, whose

rigorous restrictions of the time and means of redemp-

tion and extraordinary imposition of penalties as condi.

tions of redemption can find no parallel in the laws of

any other State.

Section 5 of the

owner or claimant who Institute

lowed by Section 9 and who did not, withi

ited, pay the amount ascertained as ch

against him and those under whom he

allowed the reght to purchase back un

authorized by Section 4 (dd., fol. 148).

In view of the rigorous construction of other sections

of this Article in order to effect what the Court of Appeals

has declared to be the intention of the Legislature, Viz. :

“to outlaw ” the titles of plaintiff in error (Record No,

Sie ae

16

923, fol. 166) it seems not improbable that one who, like

the plaintiff in error, had ‘‘ instituted” a proceeding to

list and failed to obtain an assessment would be held to be

prevented by this Section 5 from redeeming or ‘‘ purchas-

ing back” its title; because the Court migut easily hold

in pursuance of the legislative intention “ to outlaw ”

these titles, that the failure to obtain an assessment was

the fault of the petitioner, and that hence he was excluded

from redemption by the ‘‘ spirit” if not by the letter of

this section.

Section 6 of this same Article III provides that all title

and claim forfeited to the Commonwealth and not pur-

chased back as authorized in Section four, whether such

forfeiture be for past delinquencies or for future delinquen-

cies as authorized in Section ten, ‘‘ 1s HEREBY transferred

to, and vested in, any person for so much thereof as

such person, or those under whom he claims, has had the

actual adverse possession for five years next preceding the

judgment of forfeiture, wnder claim or color of ittle, de-

rived from any source whatsoever, and who, or those un-

der whom he claims, shall have paid taxes thereon for five

years in which said possession may have been or may be

held; and in those in privity with such person, his heirs,

representatives or assigns, as to the mineral or other in-

tereste or rights in or appurtenant to such land.” (Record,

No. 223, fols. 148-149.)

To quote again the same Brief of the Attorney Gen-

eral.

‘Tt is not until we reach Section 6 of this Article

that the purpose and object of this legislation is dis-

closed,”

and then quoting and emphasizing by the type the herein

above quoted provision for ‘‘those in privity ” with the

occupant ‘‘as to the mineral or other interest ” (and after

citing the provisions of the Constitution of Kentucky

against special legislation and the fifteen year limitation

of an action for the recovery of real property (Ky. Stats.,

Section 2505) and other provisions of the same Act of 1906

which are inconsistent with this Section 6), the Attorney

General concludes that this section 6

‘is not only inconsistent with these general provi-

sions of the same Act but is in conflict with the general

law of limitation and violates Section 59, sub-sections 5

17

and 29 and Section 60 of the State Constitution. ‘ By

this section the disseizor’s possession is made to ripen

intoa fee simple title in five years by the forfeiture pro-

vided for in sections 1 and % of said Article and the

transferring of the owner's title to such disseizor or oc-

cupant . . . This is not only special legislation

but it is a discrimination in the general law of limita-

fion and denies the equal protection of the law of fif-

teen years limitation to the owner of such lands.”

Again in this Section do the marks of the real evil

origin of this Article III appear. For it does not seem

credible that a legislature acting of its own motion and

merely for the public good would ever think of such a

specific and caret'al solicitude for the interests of ** those

in privity” with the occupants **as to the mineral inter-

ests” and probably no similar provision can be found in

the Statutes of any other State, nor in the Statutes of

Kentucky except one other Act hereinafter referred to,

procured by the same influential parties who seem to have

uncommon facilities for obtaining the enactment and en-

forcement of unconstitutional legislation in Kentucky.

Those ‘influential ” parties who, as plaintiff in error

charges, procured the enactment of this Article have

derived their claims to this land from occupants claiming

under bogus ‘ patents” issued by Kentucky officials

against the Compact with Virginia but purporting to be

issued under a Statute of Kentucky which expressly pro-

hibits and declares * absolutely void” any patents issued

for land already appropriated as all this land had been

appropriated (difra, p. 294).

Section 7 of this same Article III provides that all

title and claim forfeited to the Commonwealth and not

purchased back by the owner or claimant as provided by

Section four, and not vested in the occupant, as provided

by Section six, shall be sold to the highest and best bid-

der for cash, tine remainder of the money realized from

the sale to be paid over to the former owner or claimant

after paying the amount of said taxes, together with

interest and penalties (inclading taxes for fifty years

past) and costs of the snit, including commiissioner’s fee

and a reasonable attorney's fee (Id, fol. 149),

hs

he

{

|

t

18

The provision in this Section 7 that the surplus of pro-

ceeds of sale shall be paid to the owner, is (like other pro-

visions of the act and of the attempted arguments in its

support) delusive and deceptive. Nothing is to be sold

except where the land is not vested in the occupant (Sec-

tion 7, Record, 223, fol. 149); and the statute vests in the

occupants all land of which they have had adverse pos-

session ‘‘ under claim or color of title derived from any

source whatever” (Id., fol. 148), and the Court of Appeals

has stated in regard to neighboring lands in this Section

of the State that ‘‘the Court judicially knows that prac-

tically if not quite, all the land described in the petition

is adversely held by occupants under claim or color

of title” (Ky. Union Co. v. Commonwealth, 33 Ky.

L. Repr., at p. 12), and the depositions of County officers

in Case No. 224 show that occupants have paid taxes on

all or almost all these lands (Record No. 224, fols. 265-299).

Section 8 of this same Article III provides that no

action to enforce a forfeiture shall be instituted after the

expiration of five years from the accrual of the right

thereto (Record No. 223, fol. 150).

Section 9 of the same Article provides that no owner

or claimant shall be allowed to prevent the operation ot

this article by the payment after January 1, 1906, of any

amount less than the whole of the unpaid taxes, interest

and penalties that were and that “should have been”

charged against him and against “ those under whom he

claims, as of each of said five dates,” and that “ where

such payment is made after the passage of this act the

amount to be paid shall be ascertained, and payment as

in this article provided” (Id., Ib.).

This section fittingly crowns the work. By its terms,

which are not easily reconciled, the unhappy owner

might not escape from the toils of this Article, even if

before the enactment, if after January 1, 1906 (which was

more than three months before the enactment and more

than six months before the Act became effective), he had

paid all the taxes that had been charged for every year

together with all interest and penalties. He certainly

could not do so after the passage of the Act, although

under the Constitution it did not go into effect til] ninety

days after adjournment of the Legislature (supra, p. 2).

Nevertheless, he must still give the courts an oppor-

tunity to hold that his petition to list was insufficient.

No case has been found in which the Kentucky courts

have held a petition under this Act to be sufficient, except

One judgment of a Circuit Court, which was reversed for

that reason by the Court of Appeals (Commonwealth v.

Gatliff, 116 S. W., 263).

This Section 9, the Attorney General has said,

‘‘is in conflict with the general revenue law for the

quent taxes, and denies to the owner the time allowed

under the general law to redeem his land.”

Section 10 of this same Article III is as follows:

‘* When for any five successive years after the first

the transfer of the Same to, and vesting it in, the Com-

monwealth of Kentucky. “And wherever such failure

exists, it shall be the duty of the Commonwealth’s at

torney to institute an equitable action in the Circuit Court

of the county wherein the said land, or a part thereof,

instigators of the Article were not much interested in

what might happen five years thereafter. Their efforts

were concentrated upon obtaining immediately the cov-

Steen REN, aii

RY DAT RE ORAM OO EN 9 MIELE Moons

20

eted title that Section 6 of this Article declared ‘* shall be

and is HEREBY TRANSFERRED ” to the occupant and

‘those in privity with such person, his heirs, representa

tives or assigns as to the mineral or other interests or

rights in or appurtenant to such land * (supra, p. 16).

This Section 10 requires as condition of forfeiture that

there shall be a delinquency for five years instead of for

any three of five years*as In Section 1 (p. 5, supra), and

omits the statement that the claimant shall not be relieved

from the duty to list by the fact that the land has been

listed and taxes paid thereon by another claimant, which

appears in Section 1 with respect to delinquencies prior to

the Act (/d., Ib.), but was not contained in any prior law

of Kentucky and is not contained in the other Articles of

this Act.

Again it is submitted that it is incredible that provi-

sions of this charaeter could have been adopted by any

Legislature acting solely for the public good; and that it

is reasonable to seek elsewhere for the motives and the

real promoters of this Article ILI.

The plaintiff in error now charges, as it has charged

from the outset of the proceedings in the courts below

and in a brief on its behalf in Court of Appeals on the

heariug of Case No. 224, that

“The instigators of this Article III and of the pro-

ceedings thereunder were and are certain corporations

and their largest stockholders, who had_ purchased

claims (junior and adverse to the appellant’s title),

mainly of mineral interests, in several hundred thou-

sand acres of these wild lands (see Northern Coal &

Coke Co. v. Nield, 29 Ky. L. R., 188), and for which

they paid generally prices ranging from 50 cents to

$5 per acre.”

‘They are the same as those who in another desperate

attempt to bolster up their claims procured the enact-

ment of the Act of February 26, 1906, ‘‘ relating to the

possession of land and interests therein where there has

been or may be a severance of the mineral or other in-

terests from the surface” in which is manifested so

tender a regard for ‘the holder of said mineral inter-

ests and rights” (Acts 1906, Ch. 7, p. 19) as to declare

that the grantor after conveying his mineral interests

shall be deemed to have been in possession of such

mineral interests . . . for the benetic of ” the

= oewkreras " sii BO ANI CR TRAN 5 ah IV OO GEE F

RAR Lehi

21

grantee, although in law, in fact and in truth, the

grantor was not in possession of anything but the sur-

face. Itis these same other corporations or their pro-

moters that secured the enactment. of Article III of

the Revenue Act that manifests such haste, harshness

and hunger for an attempted forfeiture of the title of

the true owners, with a ruthless and brutal disregard,

even of the interests of married women and children, a

period of redemption of hitherto unheard-of brevity

under conditions of hitherto unheard of severity in order

that the title of the true owner (not even shall be, but)

“Is Hereby Transterred to and vested in any person

Who has had the actual adverse possession for

tive years next preceding the judgment of forfeiture

under claim or color of title, derived from any source

whatever, and who, . shall have paid taxes

thereupon for five years. and in those in pri

vity with such person... as lo the mineral or

other iuterests appurtenant to such land.”

“ The Object of the promoters of this A rticle IIT was

to vest the appellant’s title in. those promoters as pur-

chasers from so-called * occupants ” who had not been

in actual occupation, nor improved the lands, but who

paid to officials of the Commonwealth five cents per

acre for ** patents” which the Legislature of Kentucky

had previously declared should be ‘‘absolutely null and

and void”; the appellant’s ancestors in title having long

before paid to the Commonwealth of Virginia for the

same land ‘fone pound and twelve shillings current

money ” per acre, and thereby obtained a title which

the Commonwealth of Kentucky hus solemnly coven-

anted shall * remain valid and secure” and “shall be

determined by the laws now (on December Isth, 1789)

existing in * Virginia.”

“The Pretended Purpose of the promoters of Article

III was to raise revenue, which was probably the only

reason which could be thought of to induce the Legisla-

ture to include this Article in a Revenue Act. The

hollowness of this pretext is shown by the deposi-

tions of the Sheriffs in the record now brought to this

Court, which show that taxes have been paid by others

than the appellant on all these lands. and by the state-

ments to the same effect made prior thereto by the

counsel for the promoters. of Article HI who were

allowed to step into the shoes of the Attorney General

for the Commonwealth and to oppose the appellants

petitions to list and pay taxes on the lands (Brief for

Syaax ees peepee

AS Me MIRON BA A TREE

Appellee on former Appeal, pp. 62, 66, cited in Appel-

lant’s Petition for Rehearing, pp. 45-46). It is also

shown by the fact that the Act seeks to forfeit the

rights of infants, married women, the insane, and all

remaindermen who have no existing rights to the land

and are not liable for the taxes during the ownership of

the life tenant and even the title of subsequent pur-

chasers ” (Appellant’s Brief, pp. 90-94; 113-116; Petition

for Rehearing, pp. 68-72).”

‘That the true motive of the procurers of the enact-

ment of Article III of the Revenue Act was not the

public good but private greed, is, it is submitted, shown

also in the proceedings on the former appeal, in which

the active opponents of the appellant were also counsel

for one or more of these other corporations, and in

which the representatives of the Commonwealth, which

was a formal party to those proceedings, were placed

in the singular position of endeavoring to prevent the

listing of lands for taxation and the payment there-

under by the appellant of large sums into the public

treasury.

‘So, too, in these suits for attempted forfeiture now

before the Court, the real prosecutors in the name of

the Commonwealth in the courts below, were the coun-

sel for these same other corporations and their principal

stockholders.”

“The real purpose of the promoters of Article III

was the same as has been already found by this Court

to have been the purpose of the Legislature, to-wit, to

‘‘ outlaw ” these titles (Opinion, p. 142) under the forms

of law. It was doubtless in pursuance of such a pur-

pose that the courts refused to accept appellant’s peti-

tion to list for alleged defects in the form of the peti-

tion, without giving appellant an_ opportunity to

amend, and that in the suits now pending for forfeiture

based upon appellant’s failure to list, because prevented

by the Court, the Court has refused to permit appellant

to prove facts in its defense set up by an amended an-

swer offered before the trial of the cause.”

“ The attempted excuses for this purpose, so far as any

have been disclosed, are stated in the Opinion of the

Court on the former appeal (Opinion, pp. 136-143),

which are answered in the appellant’s petition for re-

hearing (pp. 9-27), where are also shown the origin of

appellant’s title, the character of the patentees under

whom appellant claims title, the large price paid by

them for the land, the character of these wild lands,

and the violence of some of the occupants, gnd the pay-

KV en)

23

ment of taxes by others, and other reasons why those

under whom appellant claims title have not paid taxes

during the five years prior to the enactment of Article

III (/d., Ibid).”

Some of the counsel employed by these private parties

who were active in the litigation in the Courts below ap-

pear now on the record of this Court and at the bar of

this Court on the side of the Commonwealth in these

cases, doubtless by permission of the Attorney-General,

who from a sense of fairness desires that they shall have

an opportunity to be heard in behalf of a cause that he or

his predecessor has so heartily condemned.

The incorporation ot the plaintiff in error, its objects,

and the method and time of its acquisition of title are set

forth in its Amended Answer in Case No. 224, as follows:

‘“*(1) That this defendant was duly incorporated under

the laws of the Commonwealth of Virginia on the 7th

day of February, 1906, and its purposes were and are,

as stated in its Charter, ‘to purchase, acquire and hold

‘lands and titles, claims and Interests in, upon or affect-

‘ing lands and appurtenances thereto, situated in all or

‘any of the States of Kentucky, Virginia and West

‘ Virginia, and to do whatever may be deemed expedient

‘to protect and enforce said titles, claims and interests,

‘and if it be deemed expedient, to improve and develop

‘said lands or any parts thereof, or interests therein, by

‘mining operations or otherwise, and to sell and con-

F ‘vey, mortgage, lease or otherwise dispose of any or all

; ‘such lands, titles, claims and interests aforesaid, or

‘ parts thereof at one time or from time to time as may

‘be deemed expedient :

‘*(2) That for many years prior to the incorporation

of this defendant the titles to the lands described in the

plaintiff's petition herein had beer unsettled because the

true title was vested in those who were entitled thereto

under and by virtue of the grants from the Common-

wealth of Virginia referred to in the plaintiff's petition

herein, except in so far as the right of entry of said true

Owners to parts thereof had been tolled by an actual ad-

verse possession by others for a period of time and under

the other conditions required by law to toll such right

of entry of said true owners; that the evidence regard-

ing the origin, condition and extent of actual adverse

possession to any parts of said lands, was generally

—

2

vague, indefinite, conflicting ane bot of record, and the

threats by some of the occupants of violence against any

and a!l claiming title under said grants from the Com

monwealth of Virginia prevented said troe owners from

entering upon any parts of said lands or from ascertain

ing or protecting their lawfel interests therein; whereby

the development ef the resources of said lands had been

retarded, lk cause the title thereto was revarded by i

vestors as unmarketable; that for the purpose of umit-

ing under one ownership the tithes, claims and interests

of those deriving the same from said grants from Vir-

ginia and of consolidating the same with claims by ad

verse possession of the same lands in order to have a

marketable title thereto, for purposes of development

of the resources of said lands the defendant Charles

B. Hillhouse and his associates had already prior to

the incorporation of this defendant spent much fime

and money in examining records in the States of Vir

ginia and Kentucky and elsewhere and had acquired

much information relating to what appeared to be such

earliest titles of record claims and interests in the

Counties of Pike, Floyd, Knott and Letcher in the State

of Kentucky and the claimants thereof, and had cov-

tracted to purchase from some of such claimants, and

was then negotiating with and expecting to purchase

from many other claimants of sirilar titles, claims and

interests in and to lands in said Counties, the aggregate

quantity of land covered or affected by such titles,

claims and interests purchased or sought to be purchas: «

a said Hillhouse from such claimants being between

hree hundred thousand acres and Five hundred thou

sand acres;

ee

ne ee ee eT

*©(3) That thereafter, on the sth day of February.

1906, this defendant, Eastern Kentucky Coal Lands

Corporation, entered into an agreement with said de-

fendant, Charles B. Hillhouse, in writing, and under

the seals of the parties thereto, executed, acknowl dyed

and delivered on said sth day of February, 1906,

whereby, among other things, said Hiilhouse, for a val-

uable consideration, duly agreed to sell, and on receipt

of the consideration therein stated to convey, to said

Corporation (to-wit, this Gefendant), or its assizMs, any

of such titles, claims and interests then or thereaatter

purchased by said Hillhouse that said Corporation (to-

wit, thie defendant) should elect to purchase. That

immediately thereupon said Hillhouse proceeded dili-

gently to fulfill said agreement and to complete negotia-

tions and purchase such titles, claims and interests and

te

has ever since continued so todo, and said Corporation

(to-wit, this defendant) tas from time to time elected to

purchase many of said titles, claims and interests in

and to the various tracts of land described in the plain-

tiffs petition herein; and by deeds from said Charles bs.

Hillhouse to this defendant, dated and duly acknow!-

edyed and delivered on the Zist and 24th days of De-

cember, 1906, in pursuance of said Hillhouse’s prict

agreements to convey to this defendant, including the

aforesaid agreement of the =th day of February, 1906,

said Charles @. Hitlhhouse. for valuable considerations,

duly conveyed to this defemiant, said Eastern Ken.

tucky Coal Lands Corporation, tities, claims and inter-

ests in and to each and all of said tracts of land which

said tillhouse prior thereto had acquired by deeds to

him, duly executed, acknowledged and delivered by

many owners of undivided interests in said tracts of

land respectively;

(4) That this defendant was not an owner or claim-

ant of any of the lands deseribed in the plaintiff’s pe-

tition herein or of any part thereof or interest therein on

the 15th day of September, 1901, nor on the 15th day

of September, 1902, nor on the ith day of September,

1903, nor on the Ist day of September, 1904, nor on the

Ist day of September, 1905. nor at any time between

or prior to said days, nor thereafter prior to the afore-

said Sth day of February, 1906, on which last men-

tioned day this defendant Eastern Kentuck y Coal Lands

Corporation and the defendant herein Charles B. Hill-

house entered into the agreement aforesaid: That said

Hillhouse was not an owner or claimant of any of the

tracts of land described in the plaintiff's petition herein,

or of any part thereof, or interest. therein on or at any

time prior to the 1st day of September, 1905, and that

none of the titles, claims and interests so purchased by

said Hillhouse, were purchased or conveyed or agreed to

he conveyed to him until after the Ist day of September,

1905; that such titles, claims and interests were respect-

'vely in and to undivided shares of the tracts described

in the plaintiff's petition herein; that some thereof

were purchased by said Hillhouse and sold by him

to this defendant prior to the enactment of the Act re-

lating to Revenue and Taxation. approved March 15,

1406, and deseribed in the plaintiff's petition herein

(Record, No. 224, fois, 23s -242),

The method adopted by the plaintiff in error of acquir-

ing the legal title under the most ancient patents as a pre-

liminary to settling with occupants and merging all con-

SRG NET TAP ERC ARRON MELEE SC AGE ya tp RMR Sima aera eT Ges

PEEP ae en res es SSE CTS hE. te Re oS SUD UW SE RE ne

SRRIOAETS he: eS eee SER!

26

flicting claims under one ownership is, it 1s believed, the

method which has generally been adopted by those seek-

ing to produce a marketable title for development of wild

lands in West Virginia and Kentucky.

Case 223-The Attempt of Plaintiff in

Error to Comply with Article III by

listing the lands.

Confronted with this amazing Article III of the Act

of 1906, the officers of the plaintiff in error were advised

by counsel and believed that the Article was, and any

proceedings to enforce it would be, unconstitutional as

against the prohibitions of the National Constitution as

well as of the Constitution of Kentucky. But they feared

the ill will of the officials of the Commonwealth that

would result from a neglect to attempt to comply with

the Article, and were then, of course, unaware that the

Article would be construed and vigorously enforced by

the courts as a method ‘‘ to outlaw ” its titles (Record, No.

223, fol. 166).

They also feared the possible cloud upon the title of

plaintiff in error and other evils that would come from

the attempt to enforce the provisions of that Article III

by means of proceedings such as those shown in Case No.

224, which were conducted in the name of and ostensibly

on behalf of the Commonwealth, but in truth, as plaintiff

contended in the courts of Kentucky and still contends,

mainly for the benefit of the instigators above referred to

who are designated by name in the answer of the plaintiff

in error (Record No. 224, fols. 215, 216, 218, 219, 220).

Hence, Case No. 223 was begun in December, 1906, by

the plaintiff in error by filing in the four above mentioned

County Courts, its petitions to list its lands.

The petitions to list are in the record of Case No. 223

(for Pike County, fols. 95-112; for Floyd County, fols.

68-81; for Knott County, fols. 49-56; for Letcher County,

fols. 13-21).

The Court of Appeals in the Opinion in Case No. 224,

says that the petition for Pike County in Case No. 223,

sp

27

was filed by plaintiff in error ‘‘ claiming to comply with

the provisions of the Act and at the same time attacking

its constitutionality (Record, No. 224; fol. 341).

The petitions were all inthe same form. After stating

the incorporation of plaintiff in error, and its objects

as stated in its charter there follows the here following,

viz. :

“IT: Your petitioner claims to be an owner of the

hereinbelow described tracts of land situated in the

County of , State of Kentucky, but not of

the improvements thereon nor of the — of certain

parts of said tracts as hereinafter stated.”

Thereupon follows the descriptions of each of the

tracts; stating the number of acres, the date of survey,

the County in which the land was at the date of the sur-

vey; the County in which it was at the time of making

the petition; the State, whether Virginia or Kentucky, by

which the Letters Patent were granted; the date and place

of record of the Letters Patent in the Land Office of Ken-

tucky, and also in the Land Office of Virginia when

granted by Virginia. Each tract is also described in the

petition to list by full metes and bounds as described in

the Letters Patent; and the petition further states in each

case which (if any) side of the tract is bounded by a State

or County line or natural monument, such as a river, and

designates by the number stated in the petition each tract

which adjoins the tract described; and on which side it so

adjoins; so that from the statements of the petition a map

might be made in half an hour’s time which would show

the local relation of each tract to all the others and to the

County lines, and to the principal natural monuments. In

the case of tracts crossed by a county line the petitioner

stated to the best of the ability of its officers how many

acres were estimated to lie within the County in which

the petition is filed (see, for instance, the petition for

Letcher County, Case No. 223, fols. 13-21).

These descriptions are immediately followed by the

here following sections, which complete the petitions ex-

cept the signatures and verifications, viz.:

‘“IIl: Your petitioner claims said tracts of land re-

spectively under the grants stated respectively in the

foregoing descriptions of said tracts; and the instru-

SE eT or ee

Jpn habe ASE Raha Me aa ile

Sse andar bens = it steal a ueAS:

"

.

ca

Bec: ESTEE OER YC ae

28

ments through which title to each of said tracts de-

volved upon your petitioner, ave deeds from Charles B,

Hillhouse, grantor. to your petitioner grantee, dated re-

spectively the 21st and 24th day of December, 1906, not

yet recorded, conveying all the right, title and interest

of said Charles B. Hillhonse in and to each of sid

tracts of land respectively. the title of said Hillhouse

having been derived by deeds to him by others claiming

by inheritance devise or mesne conveyances from those

to whom said tracts of land respectively were granted

as aforesaid by the Letters Patent above described re.

spectively.”

“TV: Said tracts of land have not been listed for tax-

ation for any of the years 1901, 1902, 1905, 1904 or 1805

by your petitioner, nor, as your petitioner is informed

and believes, by any of those under whom your peti-

tioner claims, nor have the taxes for any of said years

been paid by your petitioner, nor, as your petitioner ts

informed and believes, by any of those under whom

your petitioner claims; but your petitioner 1s informed

and believes and therefore avers and alleges that parts

of each of said tracts have been listed for taxation for

each of said years by occupants and others than those

under whom your petitioner claims, and that taxes for

each of said years on parts of each of said tracts have

been paid by said occupants or others.”

“V: Your petitioner does not claim to be the owner

of any improvements on any of said tracts of Jand, nor

of so much of said land as has been adversely held by

others for a period sufficient to toll the petitioner's right

of entry.”

‘VI: Your petitioner is advised by counsel learned in

the law ard believes that in all of said years and now,

under the laws of the Commonwealth of Kentucky,

whenever the occupant or occupants of any part or parts

of any of said tracts have paid the taxes thereon which

those under whom your petitioner claims ought to have

paid or ought to pay the person so paying the tax shall

be entitled to recover of the owner the amount of the

tax so paid and interest, which shall continue a lien on

the property apon which such tax was paid.”

“VTi: Your petitioner now files his petition under

the provisions of Article ITE of an Act of the Legisla

ture of the Commonwealth of Kentucky, entitled * An

Act relating to Revenue and Taxatior,’ approved March

15, 1906, and applies to and asks this Honorable Court

to ascertain the amount of unpaid taxes which your pe-

titioner or those under whom your petitioner claims

should have paid for any and allof said years 1901, 1902,

29

1905, 1904 and 1905 and to make the assessments re-

quired by said Act of the Legislature.”

"And as in duty bound, so your petitioner will ever

pray.”

Counsel for the instigators of Article III on the first

hearing before the Court of Appeals objected that “the

appellant became a voluntary participant in judicial pro-

ceedings, which, by fair inference, acknowledge the valid-

ity of the statute in question, and is, therefore, precluded

from attacking it as unconstitutional.” To this the plain-

tiff in error answered in the petition for rehearing: ‘ This

objection indicates to what straits the promoters of Arti-

cle IIL may be ultimately driven in’ their attempts to

effect their purpose. The statement is not even consistent

with the statement previously made by the same counsel,

for another purpose, in another part of the same brief,

viz., that the appellant ‘seeking the benefits of Article

IL, but denying its coustitutionality, filed its petition in

the Pike County Court.’

‘The objection seems to have been already overruled

by the Court, in ruling that ‘The constitutionality of the

act is questioned by appellant. The question must be de-

cided, as, if it is unconstitutional, appellant would have

had the right to list its lands under other provisions of

law relating to the assessment of omitted property.’

‘The Court, therefore, seems to be in no need of au-

thority to show that an objection to the constitutionality

of a law is not waived by complying, or offering to com-

ply, with some of its provisions in order to avoid some of

the injury from its unlawful threats and penalties. If

any authorities are wanted, here are, surely, enough:

O’Brien vs. Wheelock, 184 U. S., 450, 492; U.S. vs. Seven

packages of tea, 126 Fed., 224; Holcomb vs. Boynton, 151

Ull., 300 (37 N. E., 1033); Moredock vs. Kirby, 118 Fed.,

180,”

“An attempted forfeiture under this ‘Article III’

would have clouded appellant’s titles, and appellant was

seeking, not a benefit, but to avoid an injury.”

————

30

imate _—

The Court of Appeals admits that the descriptions in

these petitions ‘‘ were sufficiently explicit to have located

the several boundaries ” (Record 223, fol. 189) and hence,

necessarily, sufficiently explicit to ‘‘identify ” the land

: within those boundaries as required by the Article. The

3 Court’s main objection as stated in the Opinion in the case

5 at bar was that the petitions failed to identify thuse parts

of the surface which had been lost by adverse possession;

but according to the later ruling in another case the real

4 objection was not that the petitions failed to identify the

excluded parts but that the petitions excluded any parts

3 of the land within the boundaries of the patents. For after

y holding in the case now at bar that the excluded parts

i must be identified, under pain of forfeiture of all not ex-

: cluded, the Court soon afterwards in another case held

under the same penalty of forfeiture that no parts must

be excluded even if identified and that Article III required

the petitioner to list and pay taxes on all the land de-

scribed in its muniments of title whether or not wt was

certain that parts belonged to adverse claimants (infra,

p. 47).

4 As herein elsewhere shown this exclusion was not

3 a ground for forfeiting title, for (1) the full description of

4 all the land within the patents being given, the exclusion,

% could have been disregarded; and (2) although the peti-

tions stated a disclaimer of the parts owned by others the

4 petitioner did not in the petitions refuse to pay taxes on

those parts, but on the contrary, at the hearing, offered to

pay taxes on all the lands within the boundaries of the

patents (infra, p. 34), and the County Court having all

the facts before it from the statements in the petition, it

was under the express terms of the Statute the duty of the

County Court, not of the petitioner, to make the assess-

ment and determine the amount of the tax (infra, p.

57); and the plaintiff in error could not comply with

the requirement of the Court without violating truth,

justice, the Statutes of Kentucky and the prior decisions

of the same Court (infra, p. 47).

As the Statutes in Kentucky had provided for many

PROTA eae BARS SLO AING vob eae tea esc aa ite

31

years prior to the filing of the petitions and still so pro-

vide under other Articles of the Revenue Act of 1906,

that the occupants paying taxes were subrogated to the

claim and lien of the Commonwealth against the true

owner (infra, p. 232), the petitions called the attention of

the Court to the fact of such payments by occupants with

the hope that the Court might to the extent of such pay-

ments relieve the petitioner from again paying to the

State such taxes as the petitioner would be still obliged

to repay to the occupants who had been subrogated to

the lien of the State. The information regarding such

payments was not within the control of plaintiff in error

but of the County Officers who were seeking to forfeit the

petitioner’s title.

The rulings of the Court of Appeals upon these peti-

tions to list were made after construing this Article III

as intended to ‘‘outlaw” these titles (Record, No. 223,

fol. 166). The County officials showed the same zeal to

effect the same intention. For instance, the ‘‘ Answer

of R. Blair, the duly elected, qualified and acting county

attorney for Letcher County” ‘‘ denies that the said pett-

tioner is the owner of or has any claim right or title to

either or any of said tracts of land” and “denies that the

said petitioner has any right whatever under the provt-

sions of Article3 . . . to have an order made by the

Letcher County Court assessing said lands” and “for

further answer says”:

‘‘ that if it should turn out that either of said tracts do

lie within the county of Letcher, then, he says, that each

and every portion thereof is held, owned and in the ad-

verse possession of citizens of Letcher County and others

who have title thereto deducible of record from the

Commonwealth of Kentucky, and under and by virtue

of such title they have held every part and parcel of said

land to a well-defined and marked boundary and been

in the occupancy and possession thereof for a period of

more than five years, more than fifteen years, and for

more than thirty years, next before the application was

filed herein, claiming and holding every part and parcel

of said lands to a well-defined and marked boundary

against the claim of all persons whatsoever and against

all the world.”

_,\ And he states that all claim, if ever there any ex-

isted, to any one by virtue of either of the grants re-

Pe Soe ea Beas

o.

32

ferred to in the application, have long been barred and

their right to entry tolled, under and by virtue of the

statutes of repose in vogue in the state of Ken-

tucky.”

‘Third: For further answer, he says that at the ex-

ecution of the said alleged deed, or deeds, from Charles

B. Hillhouse to the petitioner, on December 21st and

December 24th, 1906, that all the lands within the

bounds of Letcher County were in the actual, peace-

able adverse possession of citizens and other persons oc.

cupying said lands, who claimed and held same under

titles of record deducible from the Commonwealth of

Kentucky to well-defined and marked boundary, hold-

ing and claiming same adversely to all the world, and

he states that said deed, or deeds, if in fact made, were

champertous, null and void and passed no title, right or

claim whatsoever to the petitioner.”

‘* Wherefore he prays that the application herein be

dismissed and the prayer of the petitioner be denied, and

he prays for all proper relief” (Record No. 223, fols.

23-25).

Even this Article III makes no provision for answers

by County attorneys in oppositio¥i to offers of landowners

to increase the revenues of the State, and this re-

markable document, which reads like the answer

of a defendant in an ejectment suit, is here quoted

merely as one of the many indications that the County

officials, as did afterwards the Court of Appeals, construed

this Article III to intend not to increase the revenues of

the State but to ‘‘ outlaw” titles deemed to be obnoxious

to the interests of the majority of the voters in that

lovality. This ‘‘ answer’ was not repeated by the

attorneys for the other three counties; perhaps for

‘reasons of State.” For, although the Court of Appeals

has since declared that the purpose of the article to con-

fiscate the property of plaintiff was ‘* highly politic”

(Record No. 223, fol. 189), yet the instigators of that

article, who were in close touch with the county attorneys

throughout these proceedings in both cases 223 and 224,

may have thought it ‘‘ highly impolitic” that that pur-

pose should be needlessly disclosed. But in all other

respects the opposition of the Commonwealth’s attorneys

in the other counties was quite as strenuous. All through

these proceedings in the County and Circuit Courts the

33

County attorneys, who are generally supposed to have

at heart the increase of the revenues of the County

and State, fought ‘‘tooth and nail” to prevent the

listing of these lands or the payment of taxes thereon

by the plaintiff in error. Their efforts ceased only

when these applications to list were out of these

lower Courts and in the Court of Appeals where interests

of the instigators were supposed to be safe in the hands

of their own private counsel, who were heard in that as in

all the other Courts.

The hearings in the County and Circuit Courts of the

petitions to list.

Such of the counsel for plaintiff in error as appeared in

the County Courts on the hearing of these applications to

list, took their lives in their hands as was well known to

residents of that locality. The facts stated in the Answer

of the plaintiff in error in the later case No. 224, although

the same could not then and there be proved because the

Court sustained a demurrer to these allegations (Case No.

224, fol. 232), are nevertheless true, viz; that the instiga-

tors of Article III, there designated by name (Record No.

224, fols. 215, 216, 219), claiming by deeds from occupants

adversely to the plaintiff in error, had caused to be brought

to the court house an excited crowd of armed men for the

express purpose of intimidating counsel of plaintiff in

error, influencing the Court and preventing plaintiff in

error from securing an assessment for taxation of the

lands described in the petitions (Jd., [b.), and to this end

and with the intent and purpose of acquiring the title to

the lands of the plaintiff in error, excited the citizens of

these four counties by representations that plaintiff was

about to eject from their homes all persons within the

boundaries of the patents (Jd. fol. 218-219); wherefore

plaintiff in error prayed by cross-petition that such per-

sons and corporations be made parties to the action as

they and not the Commonwealth of Kentucky were the

real ‘* party in interest” in these proceedings attempting

to forfeit the plaintiff’s title (Jd., fols. 219-220).

But the Circuit Court on motion of these persons and

corporations sustained a demurrer to this defense and

cross-petition (Case, No. 224, fol. 232).

ot

The offer of the plaintiff in error to pay taxes on all

the lands. On the hearings of the petitions to list in the

County Courts or Circuit Courts, counsel for plaintiff in

error, produced and offered to read in evidence the asses-

sors books and moved the Court to assess the total of

acres listed by the plaintiff in error for assessment, Viz;

| ERE Pee TS: Ee BN dine SS tah MRO

a

Ba

i

a

p>

x

+

5

~

: in Letcher County 55,020 acres at $1.00 per acre (Case, No.

: 9293, fols. 31 and 34); in Floyd County, 83,415 acres at

$1.00 per acre (Jd. fol. 65), in Knott County, 20,058 3/4

: acres at $1.00 per acre (/d., fol. 59). In Pike County,

¢ pending the hearing on the motion to dismiss the petition

to list, plaintiff in error in the Pike Circuit Court offered

to list 275,236 acres claimed by it in Pike County and de-

: scribed in its petition ‘‘at the rate of one dollar per

§ acre and to pay the taxes thereon assessed at said rate”

(Id. foi. 114-115).

Thus it appears that the aggregate upon which the

plaintiff in error thus offered to pay taxes was nearly

440,000 acres in the four Counties and the total amount

nearly $44,000, although it was certain that much of this

jand had been lost to plaintiff by adverse possession. It

was also shown in the petition for rehearing that although

there was much land in these Counties not within the

boundaries of the patents of plaintiff in error this sum so

offered by the plaintiff mm error was more than the total

annual income of all four of these Counties taken together,

including therein the taxes paid by the enemies of plain-

tiff in error who claimed 200,000 acres of mineral rights

underlying the surface for which they were seeking to

forfeit and acquire the title of plaintiff in error (Record

No. 223, fols. 245-246).

The petitions furnished all the data needed to enable

the Court to make the assessment and under the express

terms of the Statute it was ‘‘the duty of the County

Court” not of the plaintiff in error ‘to ascertain the

amount of unpaid taxes ” (d., fol. 141). But ** the Court

upon consideration of said offer overrules the same” (/d.,

fols. 114-]15).

Thus again, it is submitted, is shown that this Article

III as construed by the Courts and enforced by the offi-

cials of the Commonwealth in the cases at bar, was not in-

ORES

RAID eens a ARI)

f

SSG Aa a See LEME BLE OR LID BRE LIS 1AM TP 9 CR Mle nde Ke RA BD ie bate

Qe

v0

tended to raise revenue and incidentally to ‘‘ outlaw”

titles, nor even to ‘“‘outlaw” titles and incidentally to

raise revenue, but solely to ‘‘ outlaw ” these titles.

The four county courts thereupon denied and dismissed

the petitions to list without stating any reasons or point-

ing out any defects in the petitions (Letcher County,

Record No, 223, fol. 26; Knott County, Id., fol. 59; Floyd

County, Jd., fol. 65; Pike County, Zd., fol. 114). There-

upon the plaintiff in error appealed to the Circuit Courts.

In the Circuit Courts, according to the terms of Arti-

cle III the hearings on the petitions to list were to be had

de novo (Record No. 223, fol. 142). But the Circuit

Courts, like the County Courts of all four counties, dismissed

the petitions to list. The reasons stated, and even the

words used, are the same in all four counties, the

formula for the judgments in all of these counties having

been, apparently, drawn by the same hand. It is ‘“‘ that

said petition and application is insufficient in that it does

not comply with the mandatory provisions of said Article

and for other good and sufficient reasons ” (Pike County,

Record No, 223, fol. 41; Floyd County, Jd., fol. 86;

Letcher County, Jd., fol. 36; Knott County, Jd., fol. 41).

In none of these cases eitherin the County Courts or

the Circuit Courts were the ‘ mandatory provisions ”

pointed out by the Court, nor were the ‘ other

good and sufficient reasons” stated, nor was any

opportunity given to amend the petitions. The Court

of Appeals, however, has since held in a case already

cited, that the Circuit Court had no power to allow

amendment of the petitions, and stated also that even the

County Court could not do so after January 1, 1907,

which was prior to the heariug in the County Court

(Commonwealth v. Gatliff, 116 S. W., 263, 265).

The hearing in the Court of Appeals. From the orders

or judgments of the Circuit Courts of the four Counties,

plaintiff thereupon appealed to the Court of Appeals of

Kentucky.

Ona preliminary motion to dismiss the appeals Counsel

representing the instigators of Article III, already referred

36

to, appeared again and stated as among the matters ‘‘to

be determined by the Court.”

‘‘ig Article III of the Act . . . within the legis-

lative power as limited by the Constitution of the State of

Kentucky and the Constitution of the United States?”

(Record No. 223, fol. 134).

The Court advanced the causes for argument and all

four appeals were heard together on the 20th and 21st

days of November, 1907. The claim that the Article was

constitutional was supported only by the private counsel

employed by its instigators. The Attorney-General ap-

peared personally in Court on the argument and also sub-

mitted a Brief in which he contended that Article III was

unconstitutional and ‘‘ desired that such be regarded as

the position of the Commonwealth.”

By consent of the Court however the above mentioned

counsel for the instigators were heard and filed briefs, and

many of the statements of fact and law in the subsequent

opinion of the Court, which plaintiff in error claims to

have been errors, seem to have been the consequence of

the adoption by the Court of statements of these Counsel.

The Opinion of the Court of Appeals and the Petition

for Rehearing.—The Opinion in this case No. 223 was

delivered December 20, 1907, about a month after the

argument. It is set forth in full in the record (No. 223,

fols. 139-193). It is, for all purposes, a part of the record

before this Court under the ruling in Kreiger vs. Shelby,

in which this Court said:

‘The statutes of Kentucky require written opinions

to be delivered by the Court of Appeals in all cases, and

to be recorded by its Clerk. Code of Civ. Pro., Sec. 765;

Gen. Stat., Ch. 28, Art. 2, Sec. 10; Chap. 16, Art. I, Sec.

I. By the settled course of decision under the existing

Judiciary Acts of the United States, this Court may

examine opinions so delivered and recorded to ascertain

the ground of the judgment of the State Court.” (125

U. 8., 39, citing many other decisions.)

The same statutes still exist in the same form, What

was at the time of this decision, Gen, Stat., Ch. 28, Art.

2, Sec. 10, appears in the later editions; Ky. Stats.

(Carroll, 1903), and Gen. Stats., Chap. 16, Art. 1, Sec. 1,

37

appears in Ky. Stats. (Carroll, 1903), Ch. 21, Sec. 372;

Stats. of Ky. (Russell, 1909), Sec. 4800.

Even without these statutes the Opinion is evidence in

this Court of the Federal rights set up and claimed by

plaintiff in error.

San José Land, etc., Co. v. San José Ranch Co.,

189 U. S., 186, and many cases there cited.

Plaintiff in error thereupon filed a petition for rehear-

ing, which is in the record (No. 223, fols. 197-314), and

contains an “* Analysis of the Opinion.” As the petition

for rehearing was mainly an answer to statements in the

Opinion of what the Court deemed to be the law and the

facts, the Opinion and the petition for rehearing will be

here considered together.

The Opinion is conveniently divisible into three parts,

setting forth, respectively: (A) The grounds of the judi-

cial divination of the legislative intention ‘to outlaw ”

these titles (Record No. 223, fols. 151-166); (B) the argu-

ments by which the Court seeks to sustain this Article

III against the objections that it is unconstitutional (Jd.,

166-189); and (C) the grounds upon which the Court holds

the petitions to list to be defective and sustains the dis-

missal and denial of the petitions (Id., 189-193).

(A) After quoting the whole of Article III (Record,

No. 223, fols. 139-151) the Court sets forth to “set out

here so much history of the State as will disclose the evil

sought to be remedied by this Act, in order that the legis-

lative purpose may be more surely divined ” (Record No.

223, fol. 151).

It must be assumed that the Court in thus seeking a

divination of the legislative purpose regarded this Article

III as ambiguous, for in a later case the same Court, the

same judge writing, said: ‘‘ Where an ambiguity exists,

Whether because of the uncertainty of meaning of the

words employed, or because of an apparent conflict in

statutes, or between a statute and the Constitution, then

and then only, are the courts permitted to look beyond

words of the particular statute as to the legislative pur.

pose. Such methods of construction are always for the

> nt

Sade OW ATE Ai ei SAE IO ed

Sent

she

Bo Hard Ae

38

sole purpose of arriving at the legislative intention (Com-

monwealth v. Internat. Harvester Co., 1155. W., 703, at

p. 707).

Thereupon the Court proceeds to specify in detail what

it contends are facts that justify its conclusion that

‘there can be no doubt that the Legislature intended to

outlaw these dormant titles” (Record No. 223, fol. 166),

which statements of the Court were answered in the peti-

tion for rehearing by pointing out (1) that the complezi-

ties and defects of the land laws of Virginia and Ken-

tucky (Record No. 223, fols. 151-156) were not the fault

but a misfortune for the original patentees and those

deriving title from them (Id., fol. 195); (2) that the Court's

surmise that the separation of Kentucky from Virginia

may have been delayed by the remote grantors of plaintiff

in error (Id., fol. 153) seemed inconsistent with the facts

then already shown in the brief of the plaintiff in error on

the hearing that many of these patentees were themselves

pioneers and founders of the Commonwealth of Ken-

tucky, members of its earliest constitutional conventions

and legislatures, etc., (Id., fol. 19%); (3) that the Court's

opinion that the grants made over a century ago

were for too large tracts of land, and that the grantees

were probably mere ‘* speculators and adventurers ” (Jd.,

fols. 152, 153, 156) were not grounds for forfeiture of title,

and that a very great part of the land in Kentucky and

adjoining states is now held under title derived from pat-

ents of quite as large tracts of land (Jd., fols. 200, 201);

(4) that the Court’s opinion that the patentees paid “a

mere pittance” for the lands (Id., fol. 158) did not apply

to the patents under which plaintiff in error claimed title

the consideration for which was generally *‘ more than one

and a half pounds current money ” per acre, and that these

patentees were injured by a later reduction in priceto junior

patentees (Id., fols. 202-203); (5) that the failure of prior

legislatures to provide for transcribing the records on the

splitting up of old counties (Jd., fols. 155-156) was a condi-

tion not in Kentucky any different from that in other

States generally (Jd., fol. 203); (6) that the finding by the

Court of a “‘ moral right” in adverse occupants (against the

39

legal right which the Court admitted was in the original

patentees) (1d., fol. 158) was generally irrelevant if applied

to the real settlements in the ** bottom” lands as to which

adverse occupants had already acquired the legal right by

adverse possession; and that if intended to apply to the

wild lands which are the real objects of the attempted

forfeiture, the same finding of “ moral right” was not

well founded since the occupants have neither enclosed

nor cultivated them but seek to hold them under a

claim of color of title originating under bogus ‘ pat -

ents” issued against the positive prohibition of the Ken-

tucky Statutes and for the most part only after rumors

that a railroad was coming through this locality (Jd., fols.

204-205); (7) that the Court’s conclusion that the occupants

were *‘innocent enough” of knowledge that these lands

were already owned by others (Jd., fol. 157) is contradicted

both by the numerous previous attempts of representatives

of the occupants in the legislature and constitutional con-

ventions to relieve the occupants from what the Court calls

the ‘‘ incubus” (Record No. 223, fols. 162, 208) of the title

of the true owners; and the same finding of innocence is

also contradicted by the fact that for many years it has

been unsafe for any one known to be claiming under a

Virginia grant to go into these “ unenclosed forests” for

the purpose of locating the boundaries of his land (Id.,

fols. 206-213); (8) that the Court’s condemnation of the

true owners for failure to ‘* develop, clear, tenant or work”

the lands (Id., fol. 158) was unjust, as the true owners

have been prevented by the violence of the occupants from

approaching these lands, of which, as stated in a bulletin

of the National Geological survey, ‘‘ the valleys are nar-

row and steep walled . . . there is practically no level

land except the narrow valley floors, to which settlement

is confined”; and that the occupants of adjoining lands

claiming these wild lands have done nothing with them,

except in some cases to denude them of timber; that

the lands are generally unfit for agriculture and could not

be developed till the advent of a railroad, and that any ten-

ant of a *‘ Virginia Granter” might have been effectively

“outlawed” by the occupants (Jd., 213-220); (9) that the

Court's condemnation of the true owners for an alleged

=

40

failure *‘to add to the State’s strength and stability in

peace or war” (Id., fol. 158) is without any evidence to

support it; is contradicted by history which shows that

some of the patentees defended the earliest settlements

against the Indians and one of them was one of the earliest

Governors of Kentucky, and by other facts, and would

not, if true, be a ground for forfeiting their title (/d.,

fols. 219-221; (10)-and (11) that the Court’s condemnation

of the true owners for alleged failure ‘‘ to respond to the

imperative command of the law” %. e., to pay taxes Ud.,

fol. 165) disregards the fact that the Commonwealth has

never protected the true owners so that they might safely

enjoy their property and the long existing and still exist-

ing Statutes of Kentucky which subrogate the occupant

who pays a tax on the land, to the claim and lien of the

State against the true owner (Jd., fol. 221). It appears in the

record of Case No. 224 by the testimony of County officials

hereinafter referred to that taxes on all or almost all these

lands have been paid by occupants or by those claiming

to be so and which Article III seeks to recognize as such

‘under claim or color of title from any source whatever ”

(Id., fol. 221-223); (12) that the Court’s statement of

alleged similar conditions in Virginia and West Virginia

and alleged success of confiscation there (Id., fols. 163-165)

are entirely wrong and probably the result of relying upon

the unsupported statements of counsel for enemies of the

plaintiff in error whom the Court allowed to be heard on

the argument of the appeal (Jd., fols. 223-232).

To all of these statements of the Court, the petition

for rehearing also pleaded that the alleged grounds of the

Court’s divination, even if true, would not justify an in-

tention by the Legislature to ‘ outlaw,” 7. e., confiscate,

the titles of plaintiff in error, and still less would they

make valid an enactment to effect such an intention; that

the attempted confiscation, and the interpretation by the

Court of the Kentucky Statutes as intending such ‘ out-

lawing ” or confiscation was based partly on alleged faults

which, if faults at all, were faults neither of plaintiff in

error or its immediate grantor, but of its remote grantors

or of the Commonwealth of Kentucky or its officials; and

41

that an attempt to punish the plaintiff in error for any of

these alleged faults, would not be just; and to carry that

attempt to the point of confiscating or “ outlawing ” the

titles to its lands would not be due process of law under

whatever form attempted (Record No. 223, fols. 232-258).

(B) After reaching the already quoted conclusion that

the Legislature intended to ‘‘ outlaw ” the titles of plain-

tiff in error, “‘and thereby protect the treasury and in-

crease the State’s revenues” (Id., fol. 166), the Court adds:

“‘Nor can there be any doubt that the legislative purpose

was to proceed carefully and in that manner that would

satisfy the requirements of the Constitution of the State

and of the United States ” (Id., Ib.).

Thereupon the Court proceeds to consider some of the

objections that had been raised by plaintiff in error to the

constitutionality of the Act (Jd., fols. 169-189). After

deciding that the appeal was properly before it, the Court

says:

‘“‘The constitutionality of the Act is questioned by

appellant. The question must be decided; as if it is

unconstitutional the appellant would have had the right

to list its lands under other provisions relating to the

a of omitted property ” (Record, No. 223, fol.

Then after disposing of some objections, exclusively

relating to the Constitution of Kentucky (Jd., fols. 169-

175), the Court overrules all the objections that Article

III violates the National Constitution, and holds (1) that

it does not violate the Virginia Compact (Id., fols. 175-

180), answered in the petition for reargument (Jd., fols.

261-262), and more fully in this argument (infra, p. 96);

(2) that it does not extort unconstitutionally an unlawful

duplicate tax (Id., 180-184); answered in the petition for

reargument (Jd., fols. 262-272), and more fully in this argu-

ment (infra, p. 227); (3) that it does not deny due process

and equal protection of the law (Id., fols. 184-187); an-

swered by the petition for rehearing (Jd., fols. 272-279),

and more fully by this argument (p. 189, infra); (4) that it

does not violate the National Constitution as an ex post

Sacto law (Id., fol. 187); answered in the petition for re-

hearing (Jd., fols. 279-294), and more fully in this argu-

=

wi

42

ment (¢nfra, p. 74); (5) that it is not unconstitutional

as an ‘‘act of spuliation and lawless confiscation, revolu-

tionary and subversive of all orderly and constitutional

government ” (Id., fols. 188-189); answered by the petition

for reargument (Id., fols. 295-305), and more fully in this

argument (p. 308, infra).

(C) At last after disposing of the constitutional ques-

tions in a way seeking to show that the petitioner’s prop-

erty was already forfeited and confiscated, unless the pe-

titions to list should be sustained, the Court comes to the

question,

‘** Finally. Did Appellant comply with the Statute so

that the County Court ought to have listed the lands?”

(Id., fol. 189).

On this question, after reviewing some of the allega-

tions of the petitions to list, the Court concludes:

**The defects of these petitions are, 1st, they do not

disclose the names of the owners, and therefore do not

show the proper persons to be assessed; they show that

the appellant is only ‘an owner,’ of what or in what

proportions and by whom the remaining portions are

owned is not shown. 2nd. They do not so describe the

land proposed to be assessed, as that in the language of

the statute ‘it can be identified’; the land to be as-

sessed is not only specific tracts so described in their

entirety as to be susceptible of accurate location, but

the interest of the listing owner, if he owns less than

the entire tract, must be so described that it may be

identified. 3rd. Some of the patent boundaries lie only

partly in the County where it is proposed to list it. The

petitions show that fact, but do not show where, in

what part of the County, the parts to be assessed do lie;

nor do they show where the excluded parts which it is

admitted do not belong to the petitioner do lie so that

the Court could with reasonable certainty and intelli-

gence fix a valuation on that part which is assessed”

(Record No. 223, fols. 190-191).

These statements of what the Court held to be defects

in the petitions to list were answered in the petition for

rehearing as follows:

‘* First, the statute does not require the petition to

state the names of owners of the remaining portions of

(or interest in) the tracts: second, the statute directs

that ‘the land,’ not the listing owner’s interest in it,

43

shall be listed; third, the place in the county where

the land lies is necessarily shown, because, as even the

Court admits, the descriptions are ‘by calls and dis-

tances, which it may be assumed were sufficiently ex-

plicit to have located the several boundaries’ (Record

No. 223, fol. 189) and to these descriptions, for greater

certain

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