# Appendix — Kentucky Union Co. v. Kentucky

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1911
- **Citation:** 219 U.S. 140

## Text

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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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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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

PAE AER

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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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

=
PEAR

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.

SAME 2

Co
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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
td atoms tad —

ebtaes sian".
WED TR aibbintiek
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: 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-

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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

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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
certainty and definiteness, are appended statements,
showing how and on which side they are bounded by
other designated tracts described in the petitions or by
the County line, when the County line is one of the
boundaries.”

** All these tracts adjoin each other and a plat can
easily be drawn of the whole of them in their relative
positions, and as some of the descriptions refer to nat-
ural monuments each and all of the tracts can thus be
located. There are no excluded parts, except parts of
the surface, and the land under the surface is not ex-
cepted in any case. These excepted parts of the surface
could not have been accurately determined unless the
petitioner had been given much more time than was al-
lowed by the statute to determine the rights of those
claiming by adverse possession, and, perhaps, unless also
the Commonwealth had furnished a large police force
or the militia of the Commonwealth to protect survey-
ors, &c., needed to determine such parts to be ex-
cepted ” (Record No. 223, fols. 306-307).

It is respectfully submitted that the conclusion of the
Court denies due process and equal protection of the laws
in that

(I) The Court injects into the petitions something that
was not there, when it treats the statement that plaintiff
in error is ‘‘ an owner ” as equivalent to saying that it is
owner only of an interest in common with others and to
be assessed only on a part of the land claimed under its
muniments of title. The petitions to list were drawn with
the belief of Counsel that any claimant of au interest in
these lands under the earliest patents must list and pay
taxes on all the land not lost by adverse possession.

These petitions do not state that there are any owners
in privity with the plaintiff in error, and it would seem,
although the Opinion seems to be somewhat ambiguous,
that it must be to such co-owners in privity that the Court
refers, and not to adverse claimants of parts of the land,
because the Court complains of the lack of statement of

Sezai ee

44

‘in what proportions” the other owners own, which
could be only in case of owners in privity with petitioner,
and declares that the ‘‘interest” of the listing owner
must be identified. It seems also necessary to assume
that the Court here referred to owners in privity with the
petitioner, so as not to stultify the Court by the assump-
tion that it is stating ‘‘ Firstly ” and “ Secondly ” as sepa-
rate objections merely what is stated in another form in
the third and last. The Court states why the things (omit-
ted from the petition, but it is submitted, not required by
the Act) are, in the Court’s estimation, needed for the
purposes of a revenue act (Record No. 223, fols. 189-193).
But no one is bound to conform to requirements that the
Court thinks ought to have been contained in an act, if
not actually contained therein, and this is of course
especially true of a forfeiting act which, according to all
the canons of construction, must be construed with the
greatest strictness.

(2) The Court adds to this Article III a requirement
that is not there when it dismisses the petitions to list for
an alleged failure to state ‘‘ the names of the owners”
other than petitioner. Article III directs that ‘‘ the
land sought to be charged,” not the listing owner's
interest in it, shall be listed (Record No. 223,
fol. 140). The prior Statutes of Kentucky and the
the re-enactments in other Articles of this same Act
of 1906, make no _ provision for listing an un-
divided interest, but do provide for a remedy over
against his co-owners after partition by one joint owner
who has listed and is assessed for land owned in common
with others (Gen. Stats., (Bul. & Fel.) 1887, p. 1090; Ky.
Stats., Carroll Ed’n, 1903, Section 4035; Russell’s Ed’n, 1909,
Section 5927).

(3) The Court in order to forfeit the title applies ex
post factoa new rule that is contrary not only to the
Statutes of Kentucky, as construed by the same Court
but also of the States generally, including West Virginia,
when it requires that the plaintiff in error should have
listed an undivided interest instead of the land. The pay-
ment by a tenant in common of one undivided fourth of a
tract of land, of one-fourth of the taxes and damages,

45

when the whole tract has been returned delinquent for the
non-payment of taxes will not prevent forfeiture of the
entire tract of land or any part thereof (Smith v. Tharp,
17 W. Va., 221).

‘It was not then, and is not now, the policy of the
State to tax mere undivided interests or particular estates
in land” (State v. King (W. Va.), 683 S. E., 472. The
assessor need not ascertain and assess to joint owners their
respective interests in the property (Meyer v. Dubuque
County, 49 Iowa, 193). Kansas Statutes, 1868, Sec. 32,
&c., requiring that in the assessment of land “each
parcel” must be separately listed, held that an undivided
interest in land could not be legally assessed (Corbin v.
Inslee, 24 Kan., 154).

As a general rule taxes are imposed upon the owner or
person in possession of real estate, as a whole or as one
entire interest without reference to particular estates or
interests in the property. The land being charged with
the taxes all claims and pretensions must yield to such
charge, and all persons must take notice (25 A. & Eng.
Encyc. of L., 1st ed., pp. 121-123, citing many cases in
many States).

(4) The Court contradicts or overrules its own prior
decisions or opinions, and disregards provisions of Ar-
ticle III as well as provisions of other Articles of the
same act of 1906 when it says that ‘‘The State is inter-
ested not only in having its taxes paid to it but in having
them paid by the persons who ought to pay them” (Rec-
ord No. 223, fol. 184); for the same Court had said a few
years earlier (construing sections of the tax laws that
have been re-enacted without change in this Revenue
Act of 1906, of which Article III purports to be a part):
“The object was to insure that the property paid the tax
once; zt was not deemed material to the State which of
those made responsible for it paid it” (Commonwealth v.
Ingalls, 28 Ky. L. R., 166, citing Commonwealth v.
Gaines, 80 Ky., 489, in which case the same Court had
said:

“The words ‘owner’ and ‘ possessor’ and ‘owning’

or * possessing’ are not used in the statute as synony-
mous terms, as contended by the ingenious counsel for

ia “y

br AV ee sipianenasnaes

46

appellees.” . . . ‘* *nossessor ’ relates to the person
who has the property of himself or others in hand or

keeping, or under physical control, and such possession
may exist with or without title” (Commonwealth v.
Gaines, 80 Ky. Rep., p. 494).

The Court in its opinion in the case at bar seems also
not to agree with the legislature respecting the interests
of the Commonwealth for the legislature by statutes in
force at all the period of five years when the alleged arrears
in question ‘‘ ought to have been paid,” expressly provided
that the owner or occupant must pay, but as between
themselves the owner shall be liable .~fra, p. 231).

Confronted with these statutes and its own prior deci-
sions, the Court has been forced to take refuge in an as-
sertion that in these cases there was a privity of title
(Record No. 224, fol. 344), and that Article III intends to
tax titles not lan@, but this notion seems to be imported
from West Virginia for the occasion and attempted to be
applied e~ post facto and is inconsistent with the above de-
cisions of the same court, and with the provisions of other
articles of the same statute re-enacting the prior law and
expressly declaring that the land shall be assessed without
reference to conflicting title, and the tax shall be paid by
either the legal owner, the equitable owner or the occu-
pant (infra, p. 231), and the Constitution and Statutes
of Kentucky require that taxes shall be uniform (infra,
p. 230).

The Court’s rigor in its requirements for definiteness
of description purports to be based on the ground, among
others, that the assessment would follow the description
of the petition to list and that if the assessment were in-
effectual for indefiniteness of description ‘‘ the proceedings
to forfeit would fall by the way ” (Record No. 223, fol. 192)
but later, in case No. 224, the same Court sustained a
declaration of forfeiture of these same lands, where the
descriptions in the petitions to forfeit were less definite
than those in the petitions to list except that there was
no disclaimer of parts of the surface not owned by the
the plaintiff in error (supra, p. 60); a disclaimer which
as hereinafter shown was necessary in order not to violate
truth, justice and the law (infra, p. 41); and a few
months before this last mentioned decision, the same

47

Court in another case had overruled the demurer of a land
owner who objected that the petition to forfeit ‘ fails to
disclose what parts if any of the land described in the pe-
tition is held by occupants who have paid taxes thereon
for the five years preceding the judgment of forfeiture
and that the judgment is erroneous because it does not
segregate the parts to which the forfeited title would
inure;” and in overruling the objection the Court ex-
pressly says that ‘‘It is not necessary for the petition to
describe more than the tract of land the title to which is
sought to be forfeited . . . We have no hesitancy
therefore in holding that it is not necessary for the judg-
ment to ascertain and describe tho parts held by occu-
pants (Kentucky Union Co. v. Commonwealth; 33 Ky.
L. Repr. at pp. 11 and 12).

In other words, consistently supporting the alleged
legislative intent to ‘‘ outlaw ” the ancient titles, in two
approximately contemporaneous proceedings under the
same law, the same Court, in order to effect forfeiture,
has inconsistently held, according to the exigencies of the
situation, that the omission of a detailed description of
adverse occupancy—(a) in the voluntary petition of a
landowner for permission to pay taxes, 7s a fatal defect;
(0) in the petition of the State in the exceedingly tech.
nical forfeiture proceeding, zs immaterial.

(5) The Court requires under pain of forfeiture that
plaintiff in error shall make under oath a claim contrary
to justice and against the Siatutes of Kentucky and the
prior decisions of that Court. It might seem from a
hasty reading of this opinion that the objection of the
Court would have been met if the plaintiff in error had
had the opportunity without bloodshed to make surveys
and had designated by metes and bounds the parts of the
surface not owned or claimed by plaintiff in error because
the same had been lost by adverse possession. Such a
conclusion might be hastily drawn from statements in
the opinion and from the Court’s ending the opinion
with a reproof to the plaint+f in error for offering a plea
of excuse for its failure to discover the limits of the parts
lost by adverse possession (Record No. 223, fol. 193, infra,
Pp. 55). But it has since appeared that the investigation,

48

which here the Court reproves the plaintiff in error for not
having made, would have been of no avail if made,
although the Court did not deem it necessary so to decide
in the case at bar,in order to forfeit the property of
plaintiff. For unless the Court has since changed its
construction of Article III that article requires under
pain of confiscation that the owner claiming under a
patent shall list -and pay taxes on all the land described
in the patent under which he claims, whether or not it
is certain that he has no title to part because of
adverse claims, 7. e., he must pay full taxes on all the
land described in his muniment of title, although it is
certain that he does not own all and describes exactly
what he does not own within the boundaries. On failure
to list and pay onall that he does not own he must lose
all that he does own. This is one of the many ways in
which the Court of Appeals has sought to extend the
principles of the West Virginia laws which of course have
no such feature (infra, p. 214). The ruling was made
at the term next following that in which the Court had
affirmed the declaration of forfeiture in Case No. 224
and related to lands in a neighboring County (Leslie),
where it appeared that the Circuit Court had permitted
the unhappy owner to file an amended petition to list, in
which as the Court of Appeals itself says, ‘it appears
that he had eliminated all that portion of his various
boundaries which conflicted with what he conceived to
be better titles” (Commonwealth v. Gatliff, 116 S. W., at
p. 265). He offered to list and pay taxes on the part not
so eliminated, which offer the Circuit Court accepted
(Id., 1b.). But the Court of Appeals, the same Judge writ-
ing who wrote the Opinion now under review in Case No.
293, reversed the judgment of the Circuit Court, agail
citing the provision already referred to (supra, p. 6),
which the instigators of Article III had inserted in that
Article (but without however again erroneously stating
that such a provision had existed in prior Statutes) and
held that the restriction of the number of acres to be
listed to a less amount than that stated in the patents,
because prior patents rendered such title invalid for part,
was forbidden, as the Statute ‘‘ by clear implication, if &

stax: A es 3 IRA aE

49

not by express negation, forbids it when it excludes the
fact that any other person has listed or paid taxes on the
land, or any part of it, from releasing the claimant now
offering to list it from full liability for taxes upon it”
(Commonwealth v. Gatliff, 116 S. W., at p. 265); and
the Court also there holds that
“It was the duty of the claimant to list his title
whether good or bad; that it was his title or claim such
as it was that was aimed at by the Act to be taxed; and
that his omission or exclusion of parts of his boundary
was a violation of the Act and failed to bring him within
its saving provisions. The petition in this case is sub-
ject to all the vice differing only in degree, that the peti-
tion in the case cited (Eastern Ky. Coal Lands Corpora-
tion v. Commonwealth, 106 S. W., 260; 832 Ky. Law
Rep., 129) was subject to. Neither the petition nor the
amendments were a sufficient compliance with the Act
and should have been dismissed,” and also holds that
any amendment of the petition by the Circuit Court
was too late and that neither the County Court nor Cir-
cuit Court could accept a petition after January 1, 1907
(Id., Ib.).

So that it seems from the latest decision of the Court
of Appeals that even if the petitions had exactly de-
scribed the parts of surface disclaimed, the petitions of
plaintiff in error would have been held defective for
failure to claim all the surface of the land within the
boundaries of the patents if this ruling had been needed to
forfeit the title, although the Court knew and any one
else having any knowledge of the condition in this locality
knows, that there is much land in the ‘‘ bottoms” in-
cluded within these patents that has been fenced and cul-
tivated for many more years than sufficient to bar the
title of the patentees. Such aclai m, it is respectfully sub-
mitted, would have been contrary to justice and fairness,
contrary to law and contrary to prior decisions of the
Court of Appeals.

Under the Statutes of Kentucky and the decisions of
the Court of Appeals an actual adverse possession of fif-
teen years under the requisite conditions not merely tolls
and bars the remedy of the true owner, but transfers the
title to the occupant, and gives him a right of entry.
Botts vs. Shields, 13 Ky. (3 Litt.), 32, 34; Chiles v. Jones,

50

34 Id. (4 Dana), 482; McCracken County v. Mercantil
T. Co., 84 Ky., 344; Sutton v. Pollard, 96 Ky., 640; 16
Ky. L. R., 685; 29 S. W., 687; Pollock v. Maysville & B.
S. R. Co., 103 Ky., 84; 19 Ky. L. R., 1717; 44S. W., 359,

It would have been, of course, simple and easy to have
claimed in the petitions to list, all the lands within the
boundaries of the patents; but the officers of the plaintiff
in error could not honestly nor truly verify a petition
making such a claim, for they knew with absolute
certainty, as do the Judges of the Court of Appeals and
every one else having a knowledge of the locality, that
parts of the land had been lost to the true owners by ad-
verse possession of occupants. Indeed, so baseless a
claim might have been made by the Court a ground for
dismissing the petitions for dishonesty or perjury.

But these officers also knew that the mineral interests
in most of the land in the unsettled portions had been con-
veyed by the occupants to the enernies of the plaintiff in
error,who had procured the enactment of this Article III,
and they did not know whether title by adverse possession
had been acquired to any of these mineral rights at the
time of the deeds of such rights, and as they claimed that
no title tothe mineral rights could have been subsequently
acquired by the grantors continuing to possess the surface,
and grantees of merely mineral interests are required to
list such interests separately for taxation.

By a deed of minerals reserving the surface, the two
estates are severed and should be separately taxed (Stuart,
Trustee, vs. Commonwealth, 94 Ky., 595; 15 Ky. L. BR,
513; 238. W., 367; Carter v. Estep, 30 Ky. L. R., 1144;
Kincaid vs. McGowan, 88 Ky., 91 (4S. W., 802); 9 Ky. L.
R., 987; Baker vs. Royal, etc., Co., 32 Ky. L. R., 982; Vir-
ginia C. & I. Co. v. Kelley, 93 Va., 332; 24 8, E., 1020;
Low v. Lincoln Co. Ct., 27 W. Va., 785; U. 8. Coal. etc.,
Co. v. Randolph Co. (t., 38 Id., 201; 18 S. E., 566;
Consolidated Coal Co. v. Baker, 135 Ills., 545; 26
N. E., 65).

‘*The possession of the surface of a tract of land by
putting a tenant thereon is not an actual possession of the
mineral rights thereof within the champerty statute.”
Syllabus in Combs v, Virginia Iron, Coal and Coke Co.,

51

82 Ky. L. R., 601; (Ky. Ct. App., 1908, citing White on
Mines and Mining, Section 436; Armstrong v. Caldwell,
63 Pa., 284); S. P., Price v. Big Sandy Co. (32 Ky. L. R.,
969).

‘Each estate may be occupied, conveyed, incumbered,
sold by the Sheriff, or allotted in partition, without any
effect upon the offer. If a trespasser enters either estate
and maintains possession, he can acquire title by the
statute of limitations, after twenty-one years, to so much
as he has actually held for that length of time; but his
title will not extend above or below the estate on which
he enters. If he would acquire any part of the mineral
he must make his entry upon and maintain his position
within the limits of the mineral estate for the requisite
period of time in an open, notorious, exclusive and con-
tinuous manner. . . . The intruder must keep his
flag flying in a visible and hostile manner. . . . There
is no allegation in the pleadings that would even tend to
show that appellee had been operating the mine, or had
taken possession of the mine or any portion of the mineral
beneath the surface, and, therefore, there has been no ad-
verse holding on the part of appellee or its predecessors
that would affect appellant’s interest ” (Baker v. Royal
Lead & Spar Co., 32 Ky. L. R., 987).

‘‘ Adverse possession of the surface of and for the stat-
utory period does not carry with it the possession of min-
erals below it, where the title to the latter has been
severed from that of the surface by deed; and the owner
seeking to establish title to a mine must prove possession
of the mine as such, independently of his possession of
the surface” (Am. & Eng. Encyc. of Law (1st ed.), Vol. I,
p. 296, note).

“The Statute of Limitations, for want of adverse pos-
session, does not apply in favor of one claiming coal in a
state of nature in place not developed ” (Syllabus by the
Court). (1906, Supreme Ct. of App. of West Va., New-
man vs. Newman, 55 8. E. Rep., 377; citing Wallace vs.
Elm Grove, 52S. E. Rep’r., 485).

Hence the petitioner disclaimed title to so much of the
surface only as had been lost by adverse possession.

52

It was thought by many at the time of the hearing in
the County Courts that those of the counsel for plaintiff
in error who attended the hearings in the County Courts
of Pike and Floyd Counties had about an even chance of
coming out of the court room alive. If the petitions to
list had claimed the surface of all the land, as the Court of
Appeals afterwards said should have been done, this
statement would have lent countenance to the statements
of the enemies of the plaintiff in error that it was in-
tended to deprive occupants of their homes, and this
might have been enough to turn the scales in favor of
murder,

Article III requires the petition to list to be verified,
So that (again it is respectfully submitted) the construc-
tion by the Court of Appeals of this Article III finally
reduces to this: the title of the true owners of land is for.
Seited for failing to make under oath a claim contrary to
truth, contrary to fairness and justice, and contrary to
the Statutes of Kentucky and the prior decisions of the
same Court.

(6) The Court discriminates unlawfully against the
plaintiff in error in refusing to the petitioner the protec-
tion extended to a co-defendant in the same cause, one
Twyman, resident of Kentucky, whose answer appears
in the Record (No. 224, fols. 173-183) as to whom the Court
reversed the forfeiture while sustaining it as to the plain-
tiff in error, and in doing so said: ‘‘ In argument it was
admitted by Appellee that the lower court erred in sus-
taining a demurrer tothe answer of Twyman. .. .
So far as his petition disclosed, he was the owner of the
entire tract which he sought to list, and not merely such
parts thereof as were not owned by others. His petition
was unlike that of the Appellant Eastern Kentucky Coal
Lands Corporation. He was seeking to avail himself of
the provisions of the Act, and had done all that could be
reasonably required of him” (Record No. 224, fols. 344
OFT). ~

This statement of the Court that ‘‘ so far as his peti-
tion disclosed he was the owner of the entire tract” is con-
tradicted by the terms of the petition, which is part of

53

the record now before this Court, and which expressly
states that he is only one of an undesignated number of
co-owners, and claimed only a part, not designated in
quantity, of an undivided eighteenth owned by the heirs
of George Twyman, one of the descendants of Reuben
Twyman, who himself owned only one-third (Record No.
224, fols. 173-174) and that the petitioner and the other
unnamed heirs of Reuben are the owners and entitled to
“an undivided interest” (amount not stated) of the tract
(fol. 176). On the other hand, as already shown, the plain-
tiff in error does not state that it has an y co-owners, (supra,
p. 43) but the Court injects such a statement into the
petition of the plaintiff in error and then states as a reason
for disznissing, that ;the petition shows that plaintiff in
error owned only an undivided interest in the tract (supra,
p. 44) so that in brief, the Court releases Twyman from
forfeiture on the ground that his petition does not show a
fact which he expressly states and forfeits the title of
plaintiff in error on the ground that its petition shows the
same fact when, in truth, it does not.

Again, the Court saves Twyman on the ground that
“he had done all that could be reasonably required of
him” (Record No. 224, fol. 345) although he not only
failed to list his land or even to describe his interest
therein but also, as the Court itself says, failed to appeal
from the judgment of the County Court dismissing his
petition (Record No. 224, fol. 342); and although by the
very terms of Article III his right to so appeal expired at
theend of thirty days, and by so appealing he would have
had the right to a hearing de novo in the Circuit Court
(Record No. 223, fols. 141-142). On the other hand, the
Court affirms the judgment forfeiting the title of plaintiff
in error on the ground that it had failed to comply with
the requirements of Article III and expressly approves
and adheres to the former Opinion in case No. 223 (Re-
cord No. 224, fol. 343) in which, in order to dismiss the
petitions to list of plaintiff in error, the Court rules that
the interest of the listing owner, if he owns less than the
entire tract must be so described as that it may be identi-
fied (supra, p. 44); and Twyman as his petition shows on
its face had not complied with this requirement.

—

54

All this seems to be pretty bad, but it is not all.

The petitions of plaintiff in error more nearly and fully
comply with the rulings of the Court than does the peti-
tion of Twyman with the sole exception that Twyman
does not, like the plaintiff in error, disclaim title to the im-
provements and parts of the surface to which title had
been acquired by adverse possession. This disclaimer, as
already shown, was necessary in order to avoid making
under oath a claim contrary to truth, contrary to jus-
tice and contrary to the Statutes of Kentucky and the
prior decisions of that Court (supra, p. 47); and a failure
to make such disclaimer might have been the occasion
of murder (/d., p. 47); and such a claim would have been
based upon assumptions that the Court judicially kuew
were not true, for the Court has elsewhere stated that it
judicially knows that similar lands are adversely occupied
(infra, p. 18). It must therefore know that part of the
land so occupied is lost to the former owner. Yet the in-
terest claimed by Twyman is a part of one of the tracts
that plaintiff in error sought to list. The Court there-
fore in effect holds that Twyman is released from for-
feiture because he did not state what the Court knows is
true, 7. e., that part of the land within the boundaries
of his muniment of title are not owned by him or those
in privity with him, and forfeits the title of plaintiff in
error for not claiming to own what the Court knows is
owned by others.

‘‘The Appellee” referred to in the foregoing portion of
the opinion as having conceded the validity of Twyman’s
defence was ostensibly the Commonwealth, but was really
represented at the hearing by attorneys employed by the
instigators already referred to, who, under the mask of the
Commonwealth throughout these proceedings, have ap-
peared in the Courts to enforce against the plaintiff in error
this Article which the real representative of the Common-
wealth, the Attorney General, had declared was in his
opinion unconstitutional (supra, p. 4). But a ruling in
favor of Twyman, who claimed for himself and associates
only a small fraction of one out of twenty-one tracts
claimed by plaintiff in error, would be of small practical
consequence to the instigators of Article III and of the

55

attempted forfeiture thereunder, and would diminish the
opposition to that Article; for Twyman was represented by
able counsel, residents of Kentucky, who appeared at the
hearing by consent of the Attorney General whose name
was printed with theirs on their brief submitted to the
Court of Appeals on the hearing by that Court of the
appeal by the plaintiff in error. The freeing of Twyman
(who owned only at most a few hundred acres) from the
snare of Article III was also perhaps supposed to be worth
far more than cost to its instigators by offering for the
unscrutinizing eye a factitious aspect of equity and im.
partiality to rulings of the Court that, on closer inspec-
tion, it is respectively submitted, prove to be the outcome
of a grossly unfair discrimination.

The last words of the Opinion state that ‘It does not
answer to say the taxpayer did not know his property or
its description. He is required to know it and to furnish
it so as the property may be certainly identified from it;
nor is it an answer to say that it would be too expensive
for him to make the necessary investigation ” (Record
No, 293, fol. 193).

This statement leaves the reader to infer that the lands
were not described so as to be identified although the
Court elsewhere admits that the descriptions were “* suffi-
ciently explicit to locate the several boundaries ” (Record
No. 223, fol. 189), and the only objection was to exclusion
of parts of the surface; and also leaves the reader to infer
that the only ground urged for failure to comply with the
Court's requirements before those requirements were
stated, was because of expense. But the plaintiff in error
had pleaded lack of time between the date of the enact-
ment of Article III and the date required for filing the
petitions, and had also pleaded that the necessary surveys
to show the excluded parts could not be made without
bloodshed if at all; which facts must have been known to
the Court which stated, a few months later (in another
case of the same kind relating to lands in a neigh-
boring County), ‘that the Court judicially knows
and it was admitted in argument, that practically if
not quite all the land described in the petition is ad-
‘versely held by occupants under claim or color of

56

title” (supra, p. 18), and it later appeared by the depo-
sitions of the Commonwealth’s witnesses that taxes on all
or almost all these lands had been paid by claimants ad-
verse to the plaintiff in error (supra, p. 69); and the con-
ditions of violence that for many years have existed in this
locality have became notorious, through the press,
throughout the United States; and as was pointed out to
the Court in the brief of plaintiff in error submitted to
the Court on the hearing before this Opinion was deliv-
ered and again referred to in the petition of rehearing
(Record No. 223, fol. 211) it appeared from the records of
the Court of Appeals itself that only a few years earlier
(7. e., in 1903), the Court had released a party from a con-
tract to survey lands in this same Pike County, and part
of which are included in those claimed in the petition to
list of plaintiff in error, on the ground that it appeared
in evidence that two corps of surveyors had been unable
to complete the survey, and that “‘ persons residing within
‘* the exterior lines of the patent, in actual possession and
‘*claiming title thereto, were hostile and threatening
‘‘ and by threats and hostile demonstration, by force and
** arms, alarmed and intimidated and drove the surveying
‘* parties from the land.” The lower Court ordered speci-
fic performance of the contract, but the Court of Appeals
excused from performance on the ground that ‘zt would
** probably result in loss of life or bloodshed. . . . The
‘* resistance made by occupying claimants to a survey
‘* of the land is a circumstance which so affects the ap-
‘* pellant that he could not perform” (Williamson v.
Dills, Ex’tx., 24 Ky. L. R., 1792); and the judge who
wrote the Opinion now under review in Case No. 223 was
a native and resident of this section of the State, elected,
and since this Opinion was delivered re-elected, to his
high office to represent that judicial district of the Com-
monwealth, and hence must have been unusually familiar
with the state of things there long existing.

But the Court ignores the plea of the violence and
threats of the occupants, which would have prevented a
survey before making the petitions to list, as it also
ignored later the plea in the answer of the plaintiff in
error in Case No. 224 setting forth the appearance of a

cag

57

threatening crowd even in the Court House on the hear-
ing of the petitions to list (supra, p. 62).

In Fremont vs. United States, this Court, speaking by
Mr. Chief Justice Taney, in excusing a grantee from
performance of conditions required by his grant, said:
‘“The land being a wilderness, bordered by dangerous
neighbors, the disorders of the times made it impossible
to take possession and obtain a survey.” Head-note, 17
How., 442.

Moreover the petitions did give the entire boundaries
of the tracts under which plaintiff in error claimed title——
so that the County Court had before it all the data for
making the assessment. I[t was merely necessary to dis-
regard the disclaimer of ownership of parts of the surface
owned by others by adverse possession. By the express
mandate of Article lII it was the duty of the County
Court, and not the duty of plaintiff in error, to make
the assessment. The law is mandatory and says
“the ascertainment of the amount of taxes unpaid
and the assessments required shall be made by the
County Court,” etc. The obvious intention of the law is
that whenever a bona fide application is made by petition,
there shall be an assessment made by the Court provided
any taxes are found to bedue. The amount of the assess-
ment is entirely another matter. An offer having been
made to pay on the whole acreage, disregarding the ex-
ceptions, showed conclusively that the petitioner was
attempting in good faith to have its land assessed under
the law, so that it could pay the tax to the State; and
surely no stricter rule can be applied to this petition,
which is an instrument relating to land than is applied to
a grant of land; namely, that if a grant contains excep-
tions and they are uncertain, the grant is good, but the
exceptions are void.

There is no doubt that the grants described in the peti-
tion can be located, and that the location of the same is
well known, and if the Court did not see fit to order a
Survey, or did not wish to assess an unknown part of
same, then (if Article III were valid) the Court should
have ordered that the petitioner pay on the whole acreage
claimed, and should have fixed the assessment accord

Hse ER BAe Sa?

CMM PST ARE LIGE ——

58

ingly. Where exceptions are void for indefiniteness a
deed is not thereby made void, but the exceptions are dis-
regarded (10 B. M., 145; 5 Mon., 159; 11 Pet., 557; Viners
Abridgt., Vol. I, p. 250).

It was the duty of both the County and Circuit Courts,
as assessing officers, to disclose to the plaintiff in error
what were claimed to be the defects in the petitions, so as
to afford an opportunity for amendment, and to seek such
further information as would enable the Courts to do
their plain duty.

Article III provides for forfeiture in the case where
the owner or claimant has failed in his duty, but this is
necessarily predicated upon the State officials having done
their duty.

Referring to the Constitution of West Virginia, this
Court, by Mr. Justice Harlan, in King vs. Mullins (171
U. S., 404), said:

** Tf the landowner does all that is reasonably in his
power to have his lands entered upon the land books
and to cause himself to be charged with taxes thereon,
no forfeiture can arise from the owner not having been
charged on such books with the state tax.”

At the hearing before the County Courts the plaintiff
in error offered to pay taxes on the entire land owned and
not owned by it a sum greater than the annual tax of all
the land in all four counties (supra, p. 34), If the amount
was not right it was the duty of the County Courts, not
the duty of plaintiff in error, to determine the true
amount.

A lawful tender is equivalent to actual payment, and
makes every subsequent step of the State officers for col-
lection void (Poindexter v. Greenhow, 114 U. $., 270;
Royall v. Virginia, 116 U. S., 572). In case of dereliction
of duty by officers of a State, whereby owner was kept in
ignorance of the sales, held, he was excused for failure to
redeem within the statutory period (Martin v. Barbour,
140 U. S., 634).

The cases hereinavove cited are, it ts betieved, alt the
decisions that have as yet been reported of the Court of
Appeals under this Article III. So far the Court of Ap-
peals has ‘‘ outlawed” or held to be confiscated all the

59

titles of all the parties who have sought to comply with
the terms of Article III, save the claimant Twyman,
claimant of a few hundred acres, in whose favor unfair
discrimination was made (supra, p. 52), and one other
who was excused, although it was proved that for years
he had been doing almost the very thing which the Court
made a ground for forfeiting the title of plaintiff in error
(t. e., listing only so much as he estimated remained of
his lands after deducting what he estimated belonged to
others by adverse possession or otherwise (1909, Lockard,
v. Commonwealth, 118 S. W., p. 331). This is another
instance of discrimination.

It is not surprising that the Court itself finds the occa-
sion calls for its assurance, viz.: ‘‘ Nor are these objections
merely technical, interposed whimsically so as to defeat
the proposed listing of the land, and so as to work its for-
feiture” (Record No. 223, fol. 191); but the facts, it is re-
spectfully submitted, cry out against the assurance.

Even if the contentions of the Court had been well
founded, yet it is respectfully submitted that since all the
property of the plaintiff in error was supposed by the Court
to be at stake, it still remains true as stated in the petition
for hearing, that

** In any event, the appellant should have been given
an opportunity to amend after the alleged defects had
been definitely declared by the Court.

‘‘ The rigor of the Court’s requirements would seem
more appropriate to an examination on an application
to be exempted from paying taxes rather than on an
application to pay taxes which the applicant did not
owe” (Record No. 223, fol. 307); and that ‘“‘if there are
any defects in the petitions they are not defects that the
appellant refused to remedy. They were never pointed
out, and the appellant was not given an opportunity to
amend.

‘* But it is useless to discuss this further. The Court’s
attitude like that of the local Courts, seems to be the
result of the conclusion that the Legislature intended
that these titles should be ‘ outlawed’ instead of being
taxed ” (Id., fol. 310).

But all was done in enforcing an enactment which the
Court has announced that it esteems as ‘ highly politic”
(Id., fol. 189).

60

The petition for rehearing was denied (Id., fol. 315)
without further opinion from the Court and without
even acorrection of what, as plaintiff in error contends
and respectfully submits, were extremely grave errors in
_ statements of fact in the Opinion, pointed out in that
_ petition (supra, p. 6). The dissenting opinion, after-
- wards delivered by Mr. Justice Hobson and already cited,
- appears in the record (Jd., fols. 316-321) and is also re-
ported, (33 Ky. L. Rep’r., 49).

Mee dull cade he

Case No. 224. The attempt to declare
forfeiture.

Meanwhile, on June 3rd, 1907, pending the appeal in
Case No. 223 (so great was the hunger of the instigators
of Article III and their helpers), the petition seeking a
judgment of forfeiture (Case No. 224) was filed in the
name of the Commonwealth by the Commonwealth’s at-
torney for the district including Pike County. This was
six months before the Court of Appeals had passed upon
the constitutionality of Article III and five months before
the Attorney General had declared on the hearing of the
appeal of case No. 223 that that Article was unconstitu-
tional as against both the State and National Constitu-
tions (supra, p. 4).

The petition for forfeiture (Record No. 224, fols. 33-
157) justified all the forebodin.s of the plaintiff in error
of the sinister influences supporting this Article III. It
opens by describing the tracts of land of plaintiff in error
sought to be forfeited, the description being less definite
than those contained in the petitions to list (afterwards
held to be insufficient by the Court of Appeals), inasmuch
as the petition to forfeit does not show how the tracts
adjoin each other, nor which of the tracts are bounded by
County lines, nor what is the estimated number of acres
in the County of a tract which extends over into an ad-
joining county, but on the contrary alleges that the tracts
are ‘‘wholly or partly” within Pike County, Kentucky
(Record No. 224, fol. 72). Then, after some allegations
showing that deeds of some of these tracts appear of rec-

61

ord in Pike County in recent years and statements regard-
ing the alleged interests of some of the defendants in
some of the tracts (Jd., fols. 72-97), the petition to for-
feit states that neither the plaintiff in error nor any of its
predecessors in title nor any of the original patentees
have at any time after the issuance of these patents re-
spectively and before the filing of this petition ever caused
the said land or any part thereof or any interest therein
to be listed for assessment or taxation “ or paid any taxes
thereon and for more than 100 years next before the filing
of the petition had abandoned all claim of title and no
claim of title was ever made by any one under these pat-
ents until the claim by the plaintiff in error (Jd., fols. 98-
99). None of these allegations are relevant to the cause of
action which was based solely on the failure to list or pay
taxes for the five years next preceding 1906; none of such
allegations could have been based on any knowledge of
the Commonwealth and the statements as to abandon-
ment were contradicted by prior allegations in the same
petition showing deeds transferring interests in some of
these tracts and recorded in Pike County (Jd., fols. 74-86).
Other of these allegations were afterwards contradicted
by the depositions of witnesses called by the Common-
wealth’s attorney who signed this petition to forfeit, which
witnesses showed that most or all of the tracts had been
listed for years prior to 1825 and some of them in much
more recent years (infra, p. 69). Thereupon after some
statements of the County attorney’s construction of the
meaning of Article III and of the effect of the alleged fail-
ure of the defendants to list the lands, the petition prays
for judgment declaring forfeiture under the alleged pro-
visions of that Article III (Case No. 224, fols. 109-110).
Plaintiff in error demurred that the petition to forfeit
did not state facts sufficient to constitute a cause of action
against it (Record No. 224, fol. 162), and also moved to
strike out (Id., fol. 157) the allegations of non-payment of
taxes for the years prior to the five years immediately
preceding the enactment of Article ITE / "4., fois. 98-99)
and also the other allegations regarding the alleged con-
struction by the County attorney of Article III (Jd., fols.
100-105). The demurrer was overruled in October, 1907,

seagy

62

(Jd., fol. 205) and the motion to strike was granted with
respect to the allegations of non-payment of taxes prior to
1901 (Id., fols. 206-207) but denied with respect to the
other allegations of the petition to forfeit (Jd., fol. 207).
Thereupon plaintiff in error filed its answer and cross-
petition, a general denial, and as further defenses set up
its efforts to list its land for taxation, and made part of
its answer (Record No. 224, fol. 217) the record on appeal
from the Pike County Court to the Pike Circuit Court,
which is part of the record in case No. 223, now before
this Court, and stated that Article III of the Act of 1906
was enacted at the behest of the persons and corporations,
designated by name in that answer and cross-petition,
with the intent and purpose of thereby acquiring the title
of plaintiff in error, and with the hope and expectation
that the plaintiff in error would not appear to list its
lands (Record No. 224, fol. 218); and that upon the filing
of the petitions these same persons and corporations
immediately began a systematic effort to array all local
interests against the plaintiff in error, and by threats
of assassination, menaces of violence, personal in-
jury and disgrace sought to array local prejudice against
the plaintiff in error, and to terrorize the counsel,
agents and employees (Jd., fol. 215), and under various
pretenses gathered hostile and armed crowds at the
Court House to intimidate the plaintiff in error, its attor-
neys and representatives, and to influence the Court in its
action (Jd., fol. 219); and that the refusal of the Pike
County Court in case No. 223 to assess for taxation the
lands as listed by plaintiff in error was ‘‘ a denial of jus-
tice ” by which plaintiff in error ‘‘ was deprived of valuable
‘* property rights, denied the equal protection of the laws
‘‘and the obligation of the contract guaranteeing its
‘* titles impaired, in violation of the Compact between Ken-
‘‘tucky and Virginia, and the Constitution of Kentucky
‘Cand the Constitution of the United States” (/d., fol.
217), and thereupon prayed that the above-mentioned per-
sons and corporations be made parties to the action as the
‘‘real party in interest,” and required to answer the cross.
petition and to disclove their interest in these lands. The
Court sustained a demurrer to this defence, dismissed the

63

cross-petition against them (Record No. 224, fols. 220 and
232-234), but overruled a demurrer to the first paragraph
of the answer in which the plaintiff in error denied allega-
tions of the petition (Id., fols. 212-214. 232-234). This
answer and cross-petition had been verified by local coun-
selin Kentucky, none of the officers of the plaintiff in
error being in that State. Thereafter in January, 1909,
the case not yet having been set down for hearing, the
president of the plaintiff in error in New York verified an
amended answer which was sent at once to Kentucky, but
under the rules of practice could not be offered for filing

till after the opening of the then next, 7. ¢., February
Term.

In this amended answer, plaintiff in error after stating
its incorporation, its objects and the dates of its acquisi-
tion of title, which was after the latest dates of alleged
delinquency, and other matters in words hereinbefore
quoted (supra, p. 23), further alleged as follows:

“*(5) That during all the said years, 1901, 1902, 1903,
1904 and 1905 and for many years prior thereto and ever
since continuously until the present time, those under
whom this defendant claims and this defendant ever
since it has acquired title thereto, have and has been
prevented from entering upon said lands to possess or
enjoy any part thereof or to ascertain what parts
thereof has boon adversely held for a period sufficient
to toll the right of entry of those under whom this de-
fendant claims or of ‘this defendant, by a state of
violence and by fear of bodily harm and of death,
threatened by some of the occupants of parts of said
lands against any and all persons claiming title or in-
terest under the grants from the Commonwealth of Vir-
ginia set forth in the plaintiff's petition herein, and
under which this defendant claims title and interest as
an owner of the parts thereof whereof the right of
entry has not been tolled by an actual adverse posses-
sion for a period sufficient to toll the right of entry
of this defendant, and those under whom this defend-
ant claims.”

‘“(6) That prior to the enactment of the “ Act relat-
ing to Revenue and Taxation” referred to in the lain-
tift's petition herein, parts of each of said tracts o land
described in the plaintiff’s petition herein which parts
amounted altogether to the whole, or almost the whole
of each of said tracts of land were assessed and listed

ete a Ld a

64

for taxation on or as of the 15th day of September, 1901,
the 15th day of September, 1902, the 15th day of Sep-
tember, 1903, the Ist day of September, 1904, and the
Ist day of September, 1905, and on or as of each of said
days, and that taxes theroeby charged thereon were
prior to said enactment, paid by occupants of parts of
the lands so assessed, listed and charged therefor”;

**(7) That during all said years 1901, 1902, 1903, 1904
and 1905, and for many years prior thereto and ever since
and now, by the laws of the Commonwealth of Ken-
tucky each of said occupants so paying said taxes on said
parts of each of said tracts, immediately upon payment
thereof became subrogated to the claim of said Com-
monwealth against the true owners of said lands for
the amount of such taxes so paid and interest thereon
and each of said occupants immediately thereupon ac-
quired a lien on said land against said true owners, to
wit, those under whom this defendant claims and this
defendant, for the amount of such taxes so paid and in-
terest and that no taxes are due ner can any further
taxes be lawfully charged as of said years or any day
therein against said lands nor against this defendant or
those under whom this defendant claims,”

**($) That the provisions of said Article III of said Act
referred to in plaintiff’s petition herein violate Section
10 of Article I of the Constitution of the United States
which declares that no State shall pass any bill of attain-
der or ex post facto law;”

“(9) That said provisions of said Article III of said
Act violate the provisions of the Compact between the
Commonwealth of Virginia and the Commonwealth of
Kentucky of December 18, 1789, which provide that all
private rights and interests of lands within the Com-
monwealth of Kentucky derived from the laws of Vir-
ginia prior to the separation of Kentucky from Virginia
shall remain valid and secure under the laws of the State
of Kentucky and shall be determined by the laws exist-
ing on the 18th day of December, 1789, in the State of
Virginia;”

(10) That said provisions of said Article III of said
Revenue Act violate Section 10 of Article I of the Con-
stitution of the United States which provides that no
State shall pass any law impairing the obligation of con-
tracts;”

(11) That said provisions of said Article III of said
Act violate the Fourteenth Amendment of the Consti-
tution of the United States which provides that no State
shall deprive any person of property without due process

65

of law nor deny to any person within the jurisdiction
the equal protection of the laws;”

(12) That irrespective of the invalidity of said provi-
sions of Article III of said Act, this suit by the plaintiff
herein against this defendant violates the aforesaid Sec-
tions, Articles and Amendments of the Constitution of
the United States because this defendant has complied
with any and all (if any) of the provisions of said
Revenue Act that are valid so far as the same are ap-
plicable to this defendant if any of said provisions are
valid with respect to this defendant; and this defendant
has been guilty of no wrong and has not done or omitted
to do any act which would forfeit this defendant’s title
or claim to any of said lands even if said provisions of
said Article III of said Revenue Act were valid.

“‘ And this defendant relies upon the provisions and
declarations of each of said Sections, Articles and Amend-
ments of said Constitution of the United States as de.
fenses herein” (Record No. 224, fols. 242-245),

This amended answer was offered to the Court before
the trial; but the Court sustained an objection to filing it
and directed that it be endorsed “ Tendered and offered to
be filed on date of this order” (Id., fol. 236),

The refusal by the Court to permit it to be filed was, it
is contended, a denial of equal protection of the laws, be-
cause contrary to the practice of the Courts of that State
as declared before and since that time by the Court of Ap-
peals which has held that “ while great latitude is allowed
the trial judge in the exercise of his discretion as to per-
mitting the filing of amendments to pleadings, it should
not be extended so far as to deprive a litigant of his right
of defense” (Lexington v. Williamson (1908), 32 Ky. L.
R., p. 1019). In that case the amended answer was not
offered until the middle of the trial (Jd., p. 1020), but the
Court says:

‘ We are of opinion that the trial judge erred in re-
fusing to permit the amended answer to be filed and
proof to be offered in support thereof. It has been re-
peatedly held by this court that at any time before the
case is finally submitted to the jury the court may, in

a neranice of justice, permit an amendment to’ be
ed.

‘‘In the case of the National Mutual Association v.
Jones, 84 Ky. Law Rep., 110, it was held that it was not
error to set aside a submission and permit an amende

~

66

answer to be filed, where it did not substantially change
the defense, conformed to the proof, and was in further-
ance of justice. And in the case of Wade v. Moore, 3
Ky. Law Rep., 392, it was held not to be error to permit
an amendment to be filed after the jury had been sworn.
In all such cases it is the duty of the trial judge to put
the party offering the amendment upon terms and re-
uire, if necessary, that he should pay the costs incident
thereto, or even set aside the swearing of the jury and
4 continue the case at his costs, or make such other order
as may be necessary to do justice to the opposing
litigant.”

In Commonwealth v. Churchill, Ky. Ct. App., 1909,
115 S. W., 189, the syllabus reads: ‘* The Circuit Court on
appeal from the County Court dismissing a proceeding to
assess property omitted may, after the submission of the
case, allow an amendment of the answer so as to plead a
former judgment in bar”; and the Court in its opinion
said: ‘‘ The amended answer set up a matter of record.
The Circuit Court did not abuse a sound discretion in set-
ting aside the submission and allowing the amended
answer to be filed. The policy of the Code is to allow
amendments of the pleadings, so that justice may be bet-
ter administered (L. & N. R. R. Co. v. Hall, 115 Ky., 567,
74S. W., 280)”; and in Young v. MclIlhenny, Ky. Ct. App.,
1909, 116, S. W., 728, the head note states that ‘* under
the Code the trial judge has a large discretion in permit-
ting the filing of offered amendments, and te only limi-
tation on the exercise of such discretion is to prevent the
defeat of substantial justice, and an amendment should
always be permitted where the demands of justice require
it’; and the Court in the Opinion says: ** Appellant Young
insists that the Court erred in refusing to permit the
amendment setting up the additional indebtedness of
$125. to be filed, and that but for this error his claim
would by $250. Under the Code provision the trial judge
may exercise a large discretion in determining whether or
not amendments offered should be permitted to be filed,
and the only limitation which this court has ever placed
upon the exercise of this discretion is to prevent its being
exercised to the extent of defeating substantial justice.
Where the ends of justice require it, the trial judge
should always permit an amendment to be filed (Greer

ae ee ee

rene ae ce OF ey ee en ee Ne ee ey

* Po

Li ois ee ena AS

67

v. City of Covington, 83 Ky., 410, 28.W., 323: Donnelly v.
Pepper, 91 Ky., 383, 15 S. W., 879: Owensboro, etc., Rail-
road Company v. Harrison, 94 Ky., 408, 22 S. W., 545).”
In a recent case this Court reviewing proceedings of
the Kentucky Courts says: “‘ After the decision in the
other case, the railroad company asked leave to plead
the decree as a bar to so much of the relief in the present
action as relates to stock shipped or desired to be shipped
from points outside of Kentucky to points within Ken-
tucky. The trial Court being of opinion that the decree
would not be a bar, refused leave, but ordered the proposed
amendment to be made part of the record for the purpose of
appeal” (Louisville & N. R. R. Co. v. Central Stock Yards
Co., 212 U.S., 132); and in another recent case where
plaintiff in error offered amendments to its plea setting
up rights under the Federal Constitution not claimed in
the original plea, the State Court having struck out the
amendments on the ground that they were filed without
leave of Court, and the State Supreme Court having held
that it was “an ingenious but unsuccessful effort to inject
the Federal question,” the case thereupon coming up for
review, this Court said, Mr. Justice McKenna writing the
opinion, that
“Upon the ruling of the Court upon the amend-
ments to the notice we are not called upon to express
an opinion; but, we think, it is very clear that plain-
tiff in error was entitled to claim rights under the
Constitution of the United States, based upon the
case as presented. And if the rights asserted actu-
ally existed, plaintiff in error was entitled to an in-
struction directing a verdict in its favor. The claim
was, therefore, made in time. Green Bay & M. Canal
Co. v. Patten Paper Co., 172 U. S., 58, 43 L. ed. 364, 19
Sup. Ct. Rep., 97; Rothschild v. Knight, 184 U. S., 334,
46 L. ed., 573, 22 Sup. Ct. Rep.. 391; Meyer v. Rich-
mond, 172 U. S., 82, 43 L. el., 374, 19 Sup. Ct. Rep.,
106; Mallett v. North Carolina, 181 U. S., 589, 45 L. ed.,
1015, 21 Sup. Ct. Rep., 730; Dewey v. Des Moines, 173
U. S., 193, 4% L. ed, 665, 19 Sup. Ct. Rep., 379” (Na-
tional Mut. Bldg. & L. Asso. v. Brahan, 193 U. 8., 635,
at p. 646).
In Chicago, etc., R. Co. v. Chicago, 166 U. S., 226, the
federal right was first * specially set up and claimed” on
motion to set aside the verdict; and in N. Y. & N. E.

EP SET MS AIL NS —_—

68

Railroad Co. v. Bristol, 151 U. S., 556, 560, 566, by an
amendment to the ‘‘ reasons on appeal.”

Although the federal rights set up and claimed by
plaintiff in error sufficiently appear from the Opinions of
the Court of Appeals in both case No. 223 and No. 224
(Kreiger v. Shelby R. Co. 125 U. S. 39; Chambers v. Balt.
& Ohio R. Co., 207 U. S. at p. 142; Montana v. Rice, 204
U.S. at p. 291; San Jose Ranch Co., 189 U. S. 180; Mallett
v. North Carolina, 181 U. S. 188; McCullough v. Comm.
of Va., 172 U. S. 102); and this Court on the question of
sufficiency of allegations to present a federal right or
privilege is not concluded by the views expressed by the
State Court (Covington & L. Turnp. Road Co. v. Sand-
ford, 164 U.S. 595; Mitchell v. Clark, 110 U.S. 645; Boyd
v. Nebraska, 143 U. S. 180), yet this refusal to file the
amended answer, it is submitted was therefore a denial of
equal protection of the laws, although the record showing
that it was offered thereby shows what federal rights were
set up and claimed before and at the trial. This however
appears elsewhere on the record of both Case 223 and 224
including the Opinions of the Court of Appeals. This
amended answer was moreover included among the papers
of the record on appeal to the Court of Appeals and is
in the transcript of record of Case No. 224 now before
this Court (fol. 237).

The trial and judgment in the Circuit Court in Case 224.

The depositions for the Commonwealth were taken in
January, 1908, a few weeks before the opening of the
term at which the trial was had and are in the record
(No. 224, fols. 265-299). The direct examination of the
witnesses was not by the attorney for the Commonwealth
but by one of the instigators of Article III who was coun-
sel for others of them and who, with such others, plaintiff
in error had in vain sought to have made party to the
action (supra, p. 62).

Notwithstanding that the Court had stricken from
the petition to forfeit the irrelevant allegations regard-
ing alleged non-payment of taxes prior to 1901 (supra,
pp. 61-62), this counsel examined the witnesses upon
this subject. From these depositions, it appeared upon

69

cross-examination of some of the Commonwealth’s wit-
nesses that of the 22 tracts in question, prior to the year
1825 ‘‘some were listed for taxation, and I think all were”
(Case No. 224, fol. 259). This listing for taxation began
about the year 1792 (Id., Ib.). Some parties paid the taxes
on some of the tracts and other tracts were sold for non-
payment of taxes (Id., fol. 260) and the deputy Clerk of
Pike County testified that various of the tracts in ques-
tion were listed for taxation by various parties claim-
ing them, for years between 1882 and 1894 (/d., fols.
287-288). This contradicted irrelevant statements of
the petition of the Commonwealth’s attorney, (supra,
p. 61). On cross-examination it appeared and was ad-
mitted in evidence, against the objection of the counsel
acting in the name of the Commonwealth, that except in
relatively few instances, taxes on all these lands for the
years 1901, 1902, 1903, 1904 and 1905 have been paid, and
that the ‘‘citizens” who so paid were, as a rule, occu-
pants of the land (Record No. 424, fols. 295, 298). But the
Court sustained exceptions to thes depositions, except in
80 far as they are directed to the listing or failure to list,
or payment or failure to pay taxes, as of the dates Sep-
tember 15, 1901, 1902 and 1903, and September 1, 1904, and
1905 (Id., fol. 248-251).

The defenses in the original answer having been
stricken out (supra, p. 62), and the Court having refused
to file the amended answer, plaintiff in error offered no
evidence, except the entire record in the Pike County and
Circuit Courts (Record No. 224, fol. 236), which it filed as
an exhibit with its original answer. The same is now
before this Court as part of the Record in Case No. 223;
and although the trial Court sustained an objection to the
reading of it to the jury (Record No. 224, fol. 303-304), it
was considered by the Court of Appeals in its Opinion
(Case No. 224, fol. 341),

The Circuit Court, having rendered judgment purport-
ing to declare a forfeiture of its titles (Case No. 224, fols.
1-26, 303-335), plaintiff in error appealed to the Court of
Appeals,

On the hearing in the Court of Appeals, counsel for
Plaintiff in error again submitted a brief in which all the

ie
.
2

| .

10

objections to Article II] were set out verbatim as they
had appeared in the Amended Answer and afterwards
appeared in the specifications of error, on the petition for
writ of error from this Court supporting such objections
by references to the brief and petition for rehearing which
had already been submitted to the Court in Case No. 223,
and by adding thereto many other authorities; and also
contended that the refusal of the trial Court to file the
amended answer contrary to the well established practice
of the Court was a denial of equal protection of the laws.

The Attorney General filed a brief contending, like his
predecessor in office, that Article III] was unconstitu-
tional. But counsel for the instigators of Article LI
were again heard by the Court in support of that Article.

The opinion of the Court of Appeals in Case No. 224,
affirming the judgment of forfeiture was rendered June
20, 1908 (Record No. 224, fols. 339-346). Notwithstand-
ing that this is the earliest decision of the Court sustain-
ing forfeiture except that of the Kentucky Union Co.,
herein elsewhere referred to, decided a few months earlier,
but as herein elsewhere stated not involving the same
questions, the opinion is marked ‘ Not to be reported”
(Record No. 224, fol. 339) to wit, not to be contained in
the series of reports published at the expense of the State
(Ky. Stats., Carroll's Ed‘u., 1903, Section 956; Russell's
Ed’n., 1909, Section 2794). It is contained in the record
now before the Court (No. 223, fol. 389-846) and like the
Opinion in Case No. 22% as already shown, is part of the
record for all purposes (supra, p. 36) and is elsewhere
reported (33 Ky. L. Repr., 557).

It opens with what purports to be a review of the pro-
ceedings in the Pike Circuit Court from which the appeal
was taken, and states that the record inCase No. 223 filed
with the answer of plaintiff in error in Case No. 224 shows
that the plaintiff in error ‘had filed its petition in the
Pike County Court claiming te comply with the provi-
sions of the Act and at the same time attacking its con-
stitutionality ” (Record No. 224, fol. 341); but the Court
does not mention the defense that Article III was enacted
at the instigation of certain private parties and corpora-

71

tions, who sought to array local prejudice against plain-
tiff in error and its counsel and gathered hostile and armed

the plea that the plaintiff in error was not an owner of the
lands until after the latest dates of alleged delinquency;
nor the plea that its grantors for many years prior to the
enactment of Article III, and ever since had been pre.
vented from approaching their lands by threats of violence
and bodily harm and death from some of the occupants;
nor the plea that taxes upon all or almost all these lands
for all the years named in Article III had been paid by
occupants who thereby under the express provisions of
the Statutes of Kentucky had become subrogated to the
claim and lien of the State against the true owner, and
the Court takes no notice of the contention of plaintiff in
error argued on the appeal in Case No. 224, that the re-
fusal of the trial court to file the amended answer was a
denial of equal protection of the laws.
But the Opinion does make a statement of fact for
which, it is submitted, there was no evidence whatever
before the trial court nor before the Court of Appeals, viz.,
that neither the patentees or any others in privity with
the title of the plaintiff in error paid any taxes on these
lands since the year 1825 (Id., fol. 343). Here the Court
States as shown by the evidence an alleged fact which had
been denied generally by the answer of the plaintiff in
error (Id., fol. 212), and regarding which whether true or
not the plaintiff in error would have been prevented from
offering any evidence, because Article ITI relates only to
taxation in or after the year 1901, and the statements of
the petition of the Commonwealth’s attorney of an alleged
failure to pay taxes “for more than 100 years before the
filing of the petition ” (Id., fols. 98-99, p. 42), were stricken
out by the trial court before the trial (Id., fol. 207) and all
the evidence relating thereto had been excepted to by the
plaintiff in error and the cross-examination regarding the
same had been excepted to by the Commonwealth (/d., fols.

enero eg

249-251) and the trial court had sustained the exceptions
thereto (Jd., fol. 249).

Passing from the facts to the law, the remainder of
the Opinion is very short. In truth, it seems there was
little to be said but either to overrule or to reiterate the
rulings of the Opinion in Case No. 223 which had fore-
doomed the plaintiff inerror. The Court chose the latter
course and wrote as follows:

‘‘The various objections to the Act upon constitu-
tional grounds were urged in the original appeal of
Eastern Kentucky Coal Lands Corporation v. Common-
wealth, 32 Rep., 129, andin the case of Kentucky Union
Company v. Commonwealth, decided March 25, 190s,
not only upon oral argument, but also in exhaustive
briefs filed on behalf of appellants upon the appeal, and
again with the petition for rehearing. Because of the
importance of the questions involved, the time for oral
argument was extended in each case, and the questions
presented in argument and brief received careful con- _
sideration. In each of these cases we concluded that
the Act in question violated no provision of the con-
stitution, either Federal or State. This conclusion is
not shaken by the able reargument on this appeal,
and we now approve of and adhere to the opinions in
these cases. In conformity with those opinions we
hold that Article Three, as construed by this Court,
does not violate the provisions of the Federal Constitu-
tion denying the passage by any State of ex post facto
laws, laws impairing the obligations of contracts, or
laws denying to any person the equal protection of the
law, or depriving any person of his property without
due process of law ” (Record No. 224, fol 343).

After citing in support of this conclusion a number of
decisions, all of which, it is respectfully submitted, are
too irrelevant to require discussion, except the de-
cision of this Court in King v. Mullins, which is
herein elsewhere considered (infra, pp. 200-220), the
Court proceeds to distinguish some of its own prior
decisions on grounds which it is herein elsewhere
contended are untenable; then proceeds to free the
co-defendant Twyman on grounds which, it is again
respectfully submitted, have been already shown to
require a manifest unconstitutional discrimination
against and denial of equal protection of the laws to the

73

plaintiff in error (supra, p. 52); and concludes the opinion
with the statement that ‘‘ Judge Hobson does not dissent
from the opinion because he deems the matters concluded
by the former opinions of the Court, although he adheres
to the conclusions stated in his dissenting opinion in
those cases ” (Record No. 224, fol. 345).

Judgment of the Court of Appeals affirming the judg-
ment of Pike Circuit Court declaring the forfeiture of all
its property having been entered (Record No. 224, fol. 338),
plaintiff in error thereupon prayed for and was allowed
writs of error to bring before this Court the judgment and
proceedings in Casé No. 223 (Record, fol. 326) and No. 224
(Record, fol. 350), upon assignments of error which reit-
erate the many objections which in these cases have been
already so often urged in vain by the plaintiff in error
before the Courts of Kentucky (Record No. 223, fol. 323;
No, 224, fol. 347). —

Such are the outlines of the dark history of those
wrongs suffered by the plaintiff in error which it now
prays that this Court will set right.

Me SS Tl PSP eet SODA RG BED RE MED RAED SRE, GEM

v4

ARGUMENT.
I,

Article III violates Section 10, Article i,
of the Constitution of the United States,
which declares that no State shall pass
any bill of attainder or ex post facto law.

** Any law passed after the commission of an offense which
- + - in relation tothat offense, or its consequences, alters
the situation of a party to his disadvantage, is an ex post
facto law.”
Mr. Justice Miller,
in Kring vs. Missouri, 107 U. S., 233, quoting
with approval Mr. Justice Washington.

“Such a law may inflict penalties on the person, or may
inflict pecuniary penalties which swell the public treasury.
The legislature is then prohibited trom Passing a law by
which a man’s estate, or any part of it, shall be seized fora
crime which was not declared by some previous law to
render him liable to that punishment.”

Mr. Chief Justice Marshall,
in Fletcher v. Peck, 6 Cranch, 138.

“It was against the excited action of the States under
such influences as these that the framers intended to guard.
- » Under this torm of legislation the most flagrant in-
vasion of private rights in periods of excitement may be
enacted.”
Mr. Justice Field,
in Cummings vs. Missouri, 4 Wall., 322, 330.

~~

io

This objection was argued by Counsel for plaintiff in
error on the hearing of the earlier case (No, 223) and in
the petition for rehearing in that case (dd., 279-289) and
set up in express terms in the Amended Answer of Case
224 (fol. 244) and again argued on the hearing of Case No,
224 in the Court of Appeals, and is one of the assignments
of error in each case (Record No, 225, fol. 323, Record No.
224, fol. 347).

In the petition for rehearing, counsel deplored the
meagre consideration which the Court of Appeals devoted
to this objection and said:

‘It seems to be a misfortune to the cause of justice
that the Court in its opinion should have disposed in ten
lines of one of the most atrocious features of this Article
IIL., viz., its ea post facto provisions, and should have
then forthwith diverted attention to a supposed assump-
tion of counsel for appellant, ‘that every restrospect-
ive statute is unconstitutional.’ Jounsel for appellant
do not assume, and never have assumed, a proposition
so contrary to elementary law. But the inference that
the Court proceeds to draw, viz., that ‘ the only inquiry
is has the Legislature clearly indicated its purpose to
tax the property retrospectively’ is, it is submitted,
slaringly erroneous.”

“Tne real question on this point (it is submitted) is
Whether the contention stated in appellant’s brief is
well founded, viz., that Article TIT is an ex post facto
law imposing a punishment and extreme penalty for an
omission before its enactment. to comply with a daty
not then existing or not subject to sach penalties.”
‘Record No. 223. fol. 282).
This Court has neither faltered hor wav

ing and enforcing this clause of the ¢
In words

ered in constru-
Jonstitution.
never to be forgotten Mr. Chief Justice
Marshall in announcing the judgment of this Court a
century ago, declared:

The state legislatures can pass no er post facto law.
An ex post facto law is one Which renders an act pun-
ishable in a manner in which it was not punishable
when it was committed. Such a law may inflict penal-
ties on the person, or may inflict pecuniary penalties
which swell the public treasury. The legislature is then
prohibited from passing a law by which a man’s estate,
or any part of it, shall be seized for a crime which was
not declared, by some previous law, to render him liable

ied —

76

to that punishment. Why, then, should violence be
don the natural meaning of words for the purpose
of | ing to the legislature the power of seizing, for
ublic use, the estate of an individual in the form of a
aw annulling the title by which he holds that estate?
The Court can perceive no sufficient grounds for making
this distinction. This rescinding act would have the
effect of an ex post facto law. It forfeits the estate of
Fletcher for a crime not committed by himself, but by
those from whom he purchased. This cannot be
effected in the form of an ex post facto law, or bill of
attainder; why, then, is it allowable in the form of a
law annulling the original grant?”

Fletcher v. Peck, 6 Cranch, 87, 138, 139.

These words are quoted in a later Opinion in which

this Court said:

“By an ex post facto law is meant one which im-
poses a punishment for an act which was not punish-
able at the time it was committed; or imposes additional
punishment to that then prescribed; or changes the
rules of evidence by which less or different testimony is
sufficient to convict than was then required. . . .
Under this form of legislation the most flagrant inva-
sion of private rights, in periods of excitement, may be
enacted, and even whole classes may be deprived of
political and civil rights.”

Cummings v. State of Missouri, 4 Wall., 277, 332.
Still later this Court held that a West Virginia Act
requiring a non-resident defendant to state in his petition,
and verify the same by his oath as a condition of being
permitted to appear and defend, that he has not com-
mitted certain designated public offences, deprives such
defendant for past misconduct and without judicial trial
of an existing right, and partakes of a bill of pains and
penalties, and is violative of the constitutional inhibition
against the passage of bills of attainder. Pierce v.
Carskadon, 83 U. S. (16 Wall.,) 234.
All these cases were in the mind of this Court when
still later it was declared that:

‘*To impose upon the owner of the goods a criminal
punishment or a penalty of $377 for not paying an ad-
ditional tax of four cents a pound, would subject him
to the operation of an ex post facto law.”

** An ex post facto law is one which imposes a pun-
ishment for an act which was not punishable at the

Pipe oe

17

In Fletcher vy, Peck, 6 Cranch, 87, it was decided that
an Act of the Legislature by which a man’s estate shall
be seized for a crime which was not declared to be an
offense by a previous law, was void.”

“in Cummings v. Missouri, it was held that the pas-

Wall., 234.

‘‘ The cases cited hold that the ex post facto effect of
a law cannot be evaded by giving a civil form to that
which is essentially criminal.”

Burgess v. Salmon, 7 Otto, 381, 385,

Again this Court in holding not only that a change in
the character of crime or its punishment, but even a
change in the forms of precedure, if it substantially affects
a delinquent’s former rights, may be void as an ex post
facto law with respect to prior offenses, after reviewing
many authorities, says:

“We are of opinion that any law passed after the
the commission of an offense which, in the language of
(Mr. Justice] Washington, in U.S. v. Hall ‘In rela-
‘ tion to that offense or tts consequences, alters the sit-

‘uation of a party to his disadvantage’ is an ex post
facto law.”

Kring vs. Missouri, 107 U. S., 236.
And even in the dissenting opinion the other Justices
admit that alaw which “ gave to the circumstances which
constituted and attended the act a legal signification more
injurious to the accused than was attached to them by
the law existing at the time of the transaction” would be
ex post facto and void (dd., p. 249).
The above cited language of the opinion of the Court
in Kring vs. Missouri is quoted, approved and followed in
Thompson v. State of Utah, 170 U. S., 343, 351.
The repeal of a granting act can have no effect on
titles vested thereunder (Rice v. Minnesota, etc., R. Co.,

PDE LAE LRALN GLAD LSPA aI PEGE hg OR se ‘ ‘
B36 Mere. os A IMG itt ONG sae me ay

78

66 U. S., 358, 373, citing Terrett v. Taylor, 9 Cranch, 43;
Pawlet v. Clark, 9 Cranch, 292).

‘‘ Under the form of creating a qualification of atiach-
ing a condition the State cannot, in effect, inflict a pun-
ishment for a past act which was not punishable when it
was committed (Cummings v. Missouri, 4 Wall., 277).

A law denying remedy unless taxes have been paid
cannot retroact (Walker v. Whitehead, 16 Wall., 314, 318).

A statute ‘‘authorizing taxation of property for
‘“the taxation of which there was no previous legal
‘authority cannot justify the assessment of such
‘‘ property for previous years before the statute was
‘‘ passed * (Wagoner v. Evans, 170 U. 5., 588).
‘“« In order to render legislation unconstitutional as ex
post facto, it is not necessar

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0195%3A2. Public record. Not legal advice.