FAY v. CROZER

FAY v. CROZER. ERROR TO THE CIRCUIT COURT O.P THE UNITED STATES FOR THE •SOUTHERN DISTRICT .OP WEST VIRGINIA'.' No. 165. Argued April 21, 22, 1910. Decided May 2, 1910. A writ of error based on constitutional question will not lie unless the controversy is a substantial one and the question'open to discussion.- If the identical question has been determined in a suit involving a state statute it is foreclosed although it may subsequently arise .in connection with the provision of the constitution of the State under which the statute was enacted, and the writ of error will be dismissed. There is no greater objection under the Constitution of the United States to. the forfeiture of land for'five years’ neglect to pay .taxes than there is to a similar forfeiture by the. statute of limitation’s for neglect to assert title against one by whom the former owner has beén disseized. • The questions involved in this case having been determined in King v. Mullin,-171 U. S. 404; King v. West Virginia, 216.TJ. S. 92; the writ of.error is dismissed. The facts are stated in the opinion. Mr. George E. Price for plaintiff in error. Mr. J. F. Brown,-Mr. W. W. Hughes and Mr. D. J. F. Strother for defendants in-error. [MAJORITY — Per Curiam:] Per Curiam: This is a writ of error to the Circuit Court of the United States for the'Southern District of West .Virginia, brought directly to this court, and as such falls within the rule that the. controversy must be substantial and the question open to discussion.. Tested by that rule, we think the writ of error must be dismissed on the authority of King v. Mullins, 171 U. S. 404; King v. West Virginia, 216 U. S. 92. And see King v. Panther Lumber Company, 171 U. S. 437; Swann v. State, 188 U. S. 739, It is contended' that the question of the forfeiture of plaintiffs’ title under the constitution of West Virginia was hot ruled in those, cases, because- théy also involved the statute .of the State, referred to, while this case ' presents the validity of the forfeiture provision of the state constitution alone. But’ it was-pointed out in King v. West Virginia, 216 U. S. 100, that the right to redeem given by the statute was. not coextensive with the forfeiture under the state constitution, and yet the constitution was upheld,' as it was in ' King v. Mullins, 171 U. S. 404. I.t follows, therefore, that the státe constitution must be upheld in the present case. The . only hearing that could be necessary would be whether the facts- constitute a forfeiture,- and that question when it arises • between a.former owner and a claimant under the State can be tried in a case between..those parties, as it was here. There is no greater objection under the Constitution off the' United-• States to. the forfeiture of land- for five years’ neglect' to pay . taxes than "there is to a similar'-forfeiture by- the statute of limitations for.neglect to assert title against one. by whom-the ' former owner has been .disseised. We think, that the question, suggested is so plainly covered-by. the preceding cases that the writ of error must be dismissed. It is so ordered,