ON SUGGESTION OF ERROR. We have carefully considered the suggestion of error and are convinced that the opinion heretofore written is sound. The state has formulated a scheme for the assessment of property for taxation and a procedure for enforcing the collection of the taxes by a sale of the property. It appears that this proceeding under the statute for sale of the land for taxes was made by the tax collector. The proceedings were regular and valid on their face. If they were void they had to be proven by facts aliunde the tax proceeding. Under this scheme of assessment and sale for taxes, the taxes are assessed and collected upon the same rule for practically all the taxing districts other than municipalities.
In the case of McLaran v. Moore, 60 Miss. 382, it was held that a sale for taxes under the statutory procedure for collection of taxes satisfied and discharged the owner of the property from liability for taxes. By section 6103, Hemingway's 1927 Code, Laws of 1912, chapter 230, amending Code of 1906, section 2933, it is provided: "If, upon offering the land of any delinquent taxpayer, constituting one tract, no person will bid for it the whole amount of the taxes and all costs, the collector shall strike off the same to the state, and he shall, on or before the first Monday of May thereafter, transmit to the land commissioner a certified list of the lands struck off by him to the state," etc. The effect of this is for the state to bid amount of the taxes and costs for the land, and the state obtains title to the land subject to the right of redemption, and, of course, is vitally affected by a proceeding to set aside its sale and is a necessary party to any suit for that purpose. Without the state being there represented, a judgment would not affect its right, and the proceeding would be fruitless; it was therefore *Page 407 sound to hold that the county alone could not enter suit for taxes where such suit would involve setting aside a a sale valid on its face made to the state.
By section 8304, Hemingway's 1927 Code, section 4374, Code of 1906, it is provided: "All taxes due the county or a levee board on lands sold to the state for taxes and listed into the land office shall remain in abeyance until the land be sold, and thereafter such taxes shall be paid out of the purchase-money; but taxes will not accrue on such lands after the fiscal year preceding the one in which the period for redemption expires. On paying the purchase-money of any tax land into the treasury, the land commissioner will certify to the treasurer and auditor of public accounts the amount of the county and levee board taxes due thereon, and the auditor of public accounts shall issue warrants in favor of the proper county and levee board for the same."
It is said in the suggestion of error that it is not competent for the legislature to deprive the county of the money due it for taxes, or to postpone it, under section 100 of the Constitution. Section 100 of the Constitution does not prohibit the legislature from fixing the conditions up which an obligation to the state may become final. It is true that if the obligation had become final and unconditional the legislature could not, in favor of an individual, release a debt due from a corporation or person to a county, or limit it, or postpone it, except as authorized in the section of the Constitution providing for the compromise of doubtful claims; but in levying taxes the legislature may provide, as it has done by the various statutes, the terms on which the obligation will depend. The statute on taxation must be construed together and viewed as a whole, and so viewed they provide that the state will bid the amount of the taxes and costs if no other person does so, and when property is sold to the state for taxes the claims of the counties, levee districts, and other subordinate agencies of the state are in abeyance until the state disposes of the land. Were it *Page 408 otherwise, and if section 8189 of Hemingway's 1927 Code, section 4256, Code of 1906, was valid as standing alone and apart from the system of listing and equalizing taxation, it would be possible for the governing authorities not only to confiscate property for taxation but to place against the owner of the property debts in addition to the property taken.
The legislature provided a scheme for the collection of the taxes, and the duly authorized regular representatives of the state having followed the statutory scheme of selling property, and in default of other bidders striking it off to the state, the effect was to discharge the obligation of the owner for the taxes if the sale was valid. The sale being valid on its face, it cannot be set aside for facts not appearing on the face of the record, unless the parties in interest are before the court. It is not a case of misjoinder or nonjoinder of parties, but is a case of the absence of an absolutely essential party to the maintenance of a suit to set aside a sale; it being invalid, if at all, on account of disputable facts. The county has no right to maintain a suit on behalf of a state, or a levee district.
The foregoing is all that is deemed necessary to express the views of the court, but I desire to say a few words with reference to section 8189 of Hemingway's 1927 Code, section 4256, Code of 1906; it will be only a personal view for such consideration by the legislature as it may receive. An analysis of section 8189, Hemingway's 1927 Code, section 4256, Code of 1906, discloses that in a suit, as contemplated by the statute for taxes as a debt and not as taxes per se the assessing of the property by the constituted authorities is neither essential nor, if made, binding upon the agency suing for the tax, or the taxpayer, but only prima-facie correct. It therefore apparently gives a right of action without reference to the assessment and without providing any terms for giving notice to the taxpayer of the assessment so as to constitute a personal service before the assessment is made. It seems to carry the idea that such a *Page 409 suit may be maintained on the tax roll as made by the taxing authorities whether personal notice be given the taxpayer or not; and again it seems to authorize a suit for taxes from the mere fact that a levy has been made by regular authorities, whether the assessment has been made on the property or not. What was said with reference to this section in Delta Pine Land Company v. Adams, 93 Miss. 340, 48 So. 190, was said with reference to a proceeding to back assessed property for taxation in which not only was notice given to the corporation sought to be assessed, but the assessment had been appealed from by the taxpayer and litigated to a final conclusion so far as establishing the correctness of the assessment was concerned.
It seems to me a doubtful question as to whether this statute can successfully pass between the charybdis of State Revenue Agent v. Tonella, 70 Miss. 701, 14 So. 17, 22 L.R.A. 346; and the scylla of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. In the Tonella Case, 70 Miss. 701, 14 So. 17, 22 L.R.A. 346, supra, a statute very much like section 8189 of Hemingway's 1927 Code, was held to be unconstitutional on the ground that it dispensed with an assessment made by the regular assessing authorities provided by the Constitution; and that this could not be done without disturbing and overturning the system of equality and uniformity of taxation as provided by section 112 of the Constitution. In Pennoyer v. Neff, supra, it was held that while the legislature of the state could provide for the disposition of property by some suitable notice, as a proceeding in rem, and would be valid for the purpose of applying the property to any legitimate demands cognizable by the state, still an obligation could not be created by the legislature which imposed a personal liability upon a person, or citizen, without personal summons, or personal notice served upon him, prior to the obligation becoming a final and binding one. It is of course, possible for suit to be brought to subject property to taxation and to take the property in satisfaction of the *Page 410 tax obligation in an appropriate proceeding, but no such proceeding is involved in the case before us. It is possible to provide for the tax to become a personal debt in an appropriate proceeding for that purpose in which personal notice is given prior to the making of the obligation final, but it is doubtful whether the statute is capable of such construction, and, in my opinion, should receive a careful analysis at the hands of the legislature in the light of the decisions above cited.
Suggestion of error overruled.