MR. JUSTICE BROWN, after making the foregoing statement, delivered the opinion of the court.
The general charge is made by the appellant in his assignments
The particular errors which are alleged in the bill to invalidate the sale in question are —
That it nowhere appeared in the return of the sale made by the sheriff for these taxes, either (1) that the land had been certified to him as delinquent by the auditor of the State as required by law, or (2) that he published or posted the notice of the sale as required by law, or (3) that said sale was made at a time at which he would be authorized by law to make such sale, or (4) that such sale was at a place, to wit, at the front door of the courthouse, at which the sheriff was authorized to make it, or (5) that such sale was made at public auction, or (6) that such land was sold to a person or persons who would take the least number of acres and pay the taxes thereon, or (7) that such sale was made in accordance with the provisions of the law of the State.
In making sales of land for unpaid taxes the procedure indicated by the above exceptions is undoubtedly required by the statute, the provisions of which are so numerous that they do not require citation. It will be observed, however, that there is no allegation in the bill that such requirements were not actually followed, but simply that the return of the sale failed to set forth a compliance with them. It is true the bill avers that the statements in the tax deed of a compliance with the law, "as the record evidence shows, were without foundation in fact." This, however, is but a restatement of the proposition theretofore stated more particularly, that the return did not show that the successive steps laid down by the statute were followed. That the pleader did not intend thereby to charge that the statutory procedure was not actually pursued is evident from the plaintiff's brief, that, "while the proceeding may have been conducted under this statute, yet the system provided is arbitrary and uncertain in its character," etc. As the statute does not require the sheriff to show in his return of sale that he has complied with these requirements, or any of them, or even to
The act of 1882, ch. 130, secs. 12 and 13, specially provides a form of return of the sale as follows:
"12. The sheriff or collector who made the sale, shall forthwith make out a list of sales so made, with a caption thereto in form or effect as follows: `List of real estate sold in the county of ____ in the month (or months, as the case may be), of ____ eighteen ____, for the non-payment of the taxes charged thereon, in the said county, for the year (or years, as the case may be), eighteen ____.' Underneath shall be the several columns mentioned in the tenth section of this chapter, with a like caption to each column.
"13. There shall be appended to such list an affidavit in form or effect as follows: `I, A---- B----, sheriff (or collector or deputy for C---- D----, sheriff or collector), of the county of ____, do swear that the above list contains a true account of all the real estate within my county which has been sold by me during the present year, for the non-payment of taxes thereon for the year ____, and that I am not directly or indirectly interested in the purchase of any of said real estate. So help me God.' Which oath shall be subscribed and taken before some person authorized to administer oaths."
By section 15 of the same chapter "the owner of any real estate so sold, his heirs or assigns, or any person having a right to charge such real estate for a debt, may redeem the same by paying to the purchaser, his heirs or assigns, within one year from the sale thereof, the amount specified in the receipt mentioned in the tenth section of this chapter, and such additional taxes thereon as may have been paid by the purchaser, his heirs or assigns, with interest on said purchase money, and taxes, at the rate of twelve per centum per annum from the time the same may have been so paid." No attempt was made by the plaintiff to comply with this statute.
By section 19 of the same chapter it is provided that after the expiration of the year the purchaser may obtain from the
The substance of this legislation, then, is this: that a certain procedure is prescribed for the sheriff in making sales of land for unpaid taxes; but it is not required that he incorporate the various steps of such procedure in his report of sales — merely that he shall swear that the list of lands to which his affidavit is appended contains a true account of all the real estate within the county sold by him during the current year for the nonpayment of taxes, and that he is not directly or indirectly interested in the purchase of any such real estate. A year is then allowed for redemption, after the expiration of which, a deed of the land is executed to the purchaser at the sheriff's sale by
Counsel for the plaintiff criticises this legislation, and particularly section 25, upon the ground that it does not provide for any record of the successive steps of procedure in advertising and selling lands for the non-payment of taxes, and yet declares that the title to the land shall be vested in the purchaser, notwithstanding any irregularity, unless such irregularity appears upon the face of the proceedings. The inference is that there is no irregularity which can vitiate the sale. This is not entirely accurate. It is true that the statute prescribes a general form of return by the sheriff, which does not set forth in detail the proceedings prior to and at the sale; but that there are irregularities which appear of record, and therefore that the exception in the curative statute is not without force, is evident from the case of McCallister v. Cottrille, 24 W.Va. 173, in which it was held to be the official duty of the clerk of the county court to note in his office the day on which the sheriff returned his list of the sales of lands sold for delinquent taxes, and if he fails to make such note, or his office shows that such list was not returned and filed for more than ten days after the completion of such sales, this, in either case, is such an omission and irregularity as to materially prejudice the rights of the owner of lands sold at such sale, and therefore vitiates any deed made to the purchaser by the clerk. The court went further in this case, and held that parol evidence could not be introduced to affect the validity or invalidity of a tax deed. So, too, in Carrell v. Mitchell, 37 W.Va. 130, 136, it was said the fact that land was advertised and sold as delinquent under a description in the advertisement, locating it in a different district from that in which the land was situated, was such an irregularity as would void the deed made in pursuance of such sale. In Hays v. Heatherly, 36 W.Va. 613, the title obtained by a purchaser was held to be defective for the reason that the affidavit
That it is competent for the legislature to provide by curative statutes that irregularities in the sales of lands shall not prejudice the purchaser after a certain time has elapsed, and a deed has been given, is entirely clear, although as observed by Judge Cooley in his work upon Taxation, chapter 10, such defective proceedings cannot be cured where there is a lack of jurisdiction to take them. "Curative laws may heal irregularities in action, but they cannot cure want of authority to act at all," and that "whatever the legislature could not have authorized originally it cannot confirm." It may not be altogether easy in a particular case to determine whether the defect be jurisdictional or not, but certainly irregularities in the personal conduct of the officer making the sale would not be so regarded; and it is at least exceedingly doubtful whether the failure to preserve the auditor's list of delinquent lands or the evidence of the publication and posting of the statutory notices would vitiate a deed made by the clerk, after a lapse of twelve years.
But, even if parol or other evidence were competent to impeach this sale, none such was offered, and it may well be doubted whether due process of law, within the meaning of the Fourteenth Amendment, requires a punctilious conformity with the statutory procedure preceding and accompanying the sale. Whether all the steps required by law were actually taken in a particular case, and whether the failure to take such steps would invalidate the sale, would seem to be a matter for the state courts, rather than for this court, to decide, and it would appear that the Fourteenth Amendment would be satisfied by showing that the usual course prescribed by the state laws required notice to the taxpayer and was in conformity with natural justice. Exactly what due process of law requires in the assessment and collection of general taxes has never yet been decided by this court, although we have had frequent occasion to hold
It was said in Witherspoon v. Duncan, 4 Wall. 210, that the States, as a general rule, had the right to determine the manner of levying and collecting taxes upon private property, and could declare a tract of land chargeable with taxes, irrespective of its ownership, or in whose name it was assessed or advertised, and that an erroneous assessment did not vitiate the sale. In McMillen v. Anderson, 95 U.S. 37, it was held that due process of law did not require that a person should have an opportunity to be present when the tax was assessed against him, or that the tax should be collected by suit; and in Kelley v. Pittsburgh, 104 U.S. 78, that the general system of procedure for the levy and collection of taxes, established in this country, is, within the meaning of the Constitution, due process of law. In Bell's Gap R.R. Co. v. Pennsylvania, 134 U.S. 232,
The main objection to section 25, above quoted, seems to be that it makes the deed conclusive evidence of the regularity of all proceedings not appearing of record, and hence that it is obnoxious to the ruling of this court in Marx v. Hanthorn, 148 U.S. 172, in which we held that as the legislature could not deprive one of his property by making his adversary's claim to it conclusive of its own validity, it could not make a tax deed conclusive evidence of the holder's title to land.
But conceding this to be so, there is another section proper to be considered in this connection, and that is section 29, which reads as follows:
"29. In all cases in which a question shall arise as to any such sale or deed, or the effect thereof, such deed shall be prima facie evidence against the owner or owners, legal or equitable, of the real estate at the time it was sold, his or their heirs and assigns, . . . that the person named in the deed as clerk of the county court was such, that the sheriff or other officer who made the sale was such sheriff or officer as stated in such deed, that the material facts therein recited are true, and that such estate as is mentioned in the twenty-fifth section of this chapter vested in the grantee in the deed."
Assuming the common law rule to be, as stated by the elementary writers upon taxation, that the purchaser at a tax sale is bound to take upon himself the burden of showing the regularity of all proceedings prior thereto, it is entirely clear that statutes declaring the tax deed to be prima facie evidence, not only of regularity in the sale, but of all prior proceedings, and of title in the purchaser, are valid, since the only effect of such statutes is to change the burden of proof which rested at common law upon the purchaser and cast it upon the party who contests the sale. Indeed, the validity of these acts was
Even if the provisions of section 25, making irregularities of a sale immaterial, were invalid, it would still result that under section 29 the facts recited in the deed would be presumed to be true, and the burden be thrown upon the landowner of disproving them. This burden the plaintiff has not assumed, but he is content to rely, and stake his whole case, upon the fact that the return of the sheriff did not show a compliance with the procedure marked out by the statute. Even if it were admitted that due process of law required the observance of all the steps prescribed by this statute, it does not demand that they shall be made matter of record, much less that they shall be made matter of a particular record, such for instance as the return of the sheriff of the sale of the lands. Under the Fourteenth Amendment, the legislature is bound to provide a method for the assessment and collection of taxes that shall not be inconsistent with natural justice; but it is not bound to provide that the particular steps of a procedure for the collection of such taxes shall be proven by written evidence; and it may properly impose upon the taxpayer the burden of showing that in a particular case the statutory method was not observed. The fact that the return of the sheriff does not recite the various steps of the procedure when the statute does not contemplate that it shall do so, is no evidence whatever that they were not followed to the letter. If the plaintiff had alleged that in the proceedings for the sale of these lands the sheriff had failed to comply with the law, and the defendant had pleaded that by the curative section (25), irregularities not appearing of record would not vitiate the deed, the constitutionality of that section would properly be raised; but the plaintiff in this case was content to put his bill upon the ground that the record, namely, the sheriff's return of sale, did not set forth that the procedure prescribed by statute, preceding and accompanying the sale, had been followed. This is an effort to test the constitutionality of the law without showing that the plaintiff had been injured by its application, and in this particular the case falls within our ruling in Tyler v. Judges of Registration, 179 U.S. 405,
The exact case then made by the bill is this: The plaintiff seeks to avoid a sale made twelve years before by an allegation that the record, namely, the sheriff's return of the sale, does not show a compliance with the statute in certain particulars, without also averring that in fact there was a failure to perform some step required by law. To hold a sale invalid upon these allegations might result in upsetting every sale for taxes made in West Virginia for the past twenty years.
We are of the opinion that no case is made by the bill, that the judgment of the Circuit Court is correct, and it is therefore