I am unable to agree with the majority opinion in regard to a personal liability being created by a tax assessment, and the rights of the attorney-general, on the present record, to bring suit for the ad valorem taxes due state, county, and levee district, etc. I think the assessment was a valid charge against the property attached, and the bond to discharge such judgments as the court might render would be all right, if limited to subjecting the property seized to the tax assessed thereon, *Page 674 provided the attorney-general had authority to bring the suit.
The attorney-general's bill was against the appellants as partners, doing business under the name of "A.B. Nickey Sons."
The defendant's answer denied the partnership, and denied knowledge or notice of any proceeding or assessment of taxes. They also set up therein that A.B. Nickey was dead at the time the alleged tax assessment was made.
There could be no judgment created by an assessment against a partnership, and the alleged assessment against "A.B. Nickey and Sons" would clearly be void as to A.B. Nickey, as he was dead.
It is a settled rule in this state that partners cannot be sued, or sue, in their partnership name, and that it is necessary in a suit by partners that the names of the individual members be alleged. Lewis v. Cline (Miss.), 5 So. 112, not officially reported, and Blackwell v. Reid, 41 Miss. 102.
I am of the opinion that the right to sue for taxes cannot be based on section 3122, Code 1930, until the statutory time for collection of taxes by the sheriff has expired, which is on the first Monday of April in each year, and that no action by suit can be brought until after that time.
By statute, taxes constitute a lien upon all property subject to taxation, whether assessed to the true owner or not, from January 1st of each year. Therefore, the assessment of property on the assessment roll, as in the case before us, constitutes a valid assessment against the property itself, but does not constitute a valid assessment against the owners as an individual liability. In order to constitute an assessment against a person, it must be assessed to him, or them, if more than one.
A consideration of the different provisions of the revenue chapter (chapter 61, Code 1930), will show that it *Page 675 was within the contemplation of the legislature that the statutory proceedings as to the assessment of taxes and the collection thereof be followed up to the time when these authorities were given to completely act, and, unless they failed to act, no suit by any officer could take the place of the tax collector in the collection of taxes.
Under section 3145, Code 1930, and said section as contained in prior codes, the tax assessor is required to assess all lands in his county, and to see that none of the lands escape taxation, and that all are placed on the assessment roll so as to account for every particle of land in the county.
Section 3147 makes it the duty of the supervisors to furnish the assessor with necessary maps and plats of the county, showing all lands of the county, including the municipalities.
Section 3148 provides how the land roll shall be made up, and that when the owners are not known the land shall be assessed to "unknown."
Section 3151 provides for the description and designation of lands.
Section 3161 requires the assessor to file the rolls of assessment with the clerk of the board of supervisors on or before the first Monday in July of each year, with an affidavit appended thereto that he has endeavored to ascertain and assess all the persons and property in his county; has required every taxpayer to make oath as to his property; and showing the name of every person who has refused to make oath. It also provides that if the assessor fails to file his roll on or before the first Monday in July in each year, the board of supervisors, at its July meeting, shall adopt an order showing such failure, and showing to the state tax commission that the assessor has so failed, and the tax commission shall order when such roll shall be completed, and the time *Page 676 when such objections as may be made thereto may be heard by the board of supervisors.
Section 3162 provides for the equalization of such rolls by the board of supervisors, and shall complete same at least ten days before the August meeting, and advertise that same are ready for inspection and examination.
Section 3163 requires the assessor to attend the July meeting, and all subsequent meetings of the board of supervisors.
Section 3164 provides what shall be done in equalizing taxes.
Section 3165 provides how persons may object to the assessment roll.
Section 3166 provides that objections must be filed, or the assessment will stand, and that such objections must be filed at the August meeting of the board of supervisors, in writing.
Section 3178 makes it the duty of the board of supervisors to carry out the instructions from the state tax commission, and provides for a revision of its instructions.
Section 3179 provides that any aggrieved taxpayer may appeal to the circuit court in the manner provided by law within ten days after the adjournment of the board of supervisors' meeting at which the approval of the roll by the state tax commission is entered.
Section 3180 provides for the procedure of the appeal and its effect.
Section 3191 provides for changes in the assessment roll.
Section 3227 provides for the levy of taxes by the counties and taxing districts.
Section 3229 directs the tax collector to proceed to the collection of taxes, adding the county tax to the state tax, and collecting all together.
Section 3238 provides that all taxes remaining unpaid after the first day of February shall be collected by distress *Page 677 and sale of any personal property liable therefor, at the courthouse door, unless such property be too cumbersome, after five days' notice of the time and place of sale.
Section 3249 provides that the collector shall sell said land for delinquent taxes on the first Monday of April, first offering forty acres, and if this does not bring the amount due, then he shall offer another similar subdivision, and so on until the requisite amount be produced, or until all the land constituting one tract and assessed as the property of the same owner be offered. It also provides that, if no person will bid for it the whole amount of taxes and costs, the collector shall strike the land off to the state, and that the sale shall be continued from day to day, and that any person sustaining damage by reason of failure or error of the tax collector may recover damages therefor on his official bond.
These various sections are to be construed in connection with section 3122 giving a right to act, which section, in my opinion, clearly contemplated that such right of action shall be postponed until the taxing authorities have had time to pursue the statutory scheme and collect the taxes due.
In Robertson v. Shelton, 127 Miss. 360, 90 So. 83, it was held that the revenue agent could not recover taxes by suit where he had taken no coercive proceeding, even after the first day of April, so long as the tax collector was still collecting taxes.
Under other decisions, when the revenue agent began a proceeding, he had the right to fees resulting from the collection of taxes, although the tax was actually collected and paid to another person than himself.
This case, Robertson v. Shelton, supra, while not directly in point, but by implication is in accord with the view that so long as the tax collector is proceeding to collect the taxes, and so long as the period fixed by him *Page 678 to act, to-wit, the first Monday in April, has not expired, then no other proceeding shall be taken.
In the case of State v. Piazza, 66 Miss. 426, 6 So. 316, it was held that a statute creating a tax, and providing a special remedy for its collection, should have such remedy applied in the collection of the tax, and that this remedy is exclusive, and does not authorize suit to be brought for the tax. It was also held to be beyond the power of courts to supply by judicial construction what is omitted from the statutes. The court there said: "If the plain, simple, and inexpensive statutory method of collecting taxes may be disregarded, and the district attorney may become tax-collector at pleasure, by suit at law, in one case, why may it not be done in all cases? And to what consequences would such new and dangerous principle incorporated into our system of taxation, by judicial interpretation, lead? What is the limit of time within which such suits might be brought? To what statute of limitations would the state be subject? How long would the citizen be left to the mercy of spies and informers, and exposed to the vexation and cost of legal proceedings in reference to a burden which is generally sufficiently onerous?"
In Adams, State Rev. Agt., v. Tonella, 70 Miss. 701, 14 So. 17, 22 L.R.A. 346, it was held that the constitutional scheme of assessing property was essential to create liability for taxes, and that the legislature was without power to provide that the assessment should be made by another than the constitutional officer. The statute there involved gave the state revenue agent the power to assess taxes which had escaped taxation, and to collect all revenue improperly withheld from payment, and was, I think, as comprehensive as section 3122, Code of 1930. It is therefore clear to my mind that no right of action existed in the attorney-general, and that he had no authority to suspend the activities of the sheriff in *Page 679 proceeding to sell, at the time fixed by law, the property, as was done in this case.
The majority opinion conveys the idea to my mind that the attorney-general acted at the instance of the sheriff, in instituting a suit. I do not agree with this idea. What happened, according to what was dictated into the record, is as follows: "By Mr. Dulaney (one of counsel representing the attorney-general). At the request of counsel for the defendants, I will state, as a part of the record, that a conference was held in Jackson, Mississippi, between Mr. Rush Knox, then attorney-general, E.C. Sharpe, assistant attorney-general, and myself, in regard to the subject-matter of this suit, sometime prior to the regular time for selling land for taxes in 1929, and at that conference it was agreed that on my return to Tunica, I would request the tax collector of Tunica county not to make sale of the lands described in the bill of complaint in this case for the recovery of taxes on which bill is filed, and that, in accordance with that request, no sale has been made by the tax collector of Tunica county, Mississippi, of these lands. It is true they were advertised for sale on first Monday of April, 1929, this request was made perhaps a week or so before that date, for the taxes for which this suit is now being prosecuted."
It does not appear that Mr. Dulaney was a representative of the tax collector. He was, perhaps, a representative of the board of supervisors.
But, at all events, I think it is clear that the attorney-general was unauthorized to sue, even though the sheriff was stopped from proceeding with the tax collection. The attorney-general had no right to institute a suit where the condition was brought about by his participation and aid, which prevented the regular procedure, and consequently is not entitled to prosecute the suit here involved, although he might have been authorized to bring suit had the sheriff, of his own accord, and without *Page 680 the influence of the attorney-general, failed to consummate the sale of the lands for taxes.
In my opinion, it is not permissible for the state, or any of its agents, without legislative action, to defeat a taxpayer of his right to let his lands be sold for taxes and knocked off to the state, with the right given by law to redeem should he so desire, within a two-year period. And in the construction of section 3122, this right should not be defeated. If the construction placed upon this section by the majority opinion is correct, it is my opinion that it will violate the equal protection clause of the federal constitution.
It appears from the record in this case that the other taxpayers in Tunica county who did not pay their taxes had the benefit of section 3249, and their property was sold to the state, subject to their right to redeem within two years.
In the case at bar, under the construction given, the appellants are denied this right. They have equal rights with the other taxpayers to let their land go in the regular procedure.
Under the construction given, it is within the power of the taxing authorities to select some taxpayers and give them the benefit of this section, while denying it to other taxpayers by instituting suit to collect the taxes rather than allowing it to be sold in the regular order with the right to redeem in two years.
Under section 3166, Code of 1930, and corresponding sections in prior Codes, if no objection was made to the assessment roll, and no appeal taken therefrom, it became final, and the taxpayer was bound thereby, and so was the state. It could not be changed except under limited conditions provided by section 3191, Code of 1930. If the tax collector did not choose to resort to the distress method and sell the property, then both the state and the taxpayer are not bound by the assessment made, because by the terms of section 3122, the whole *Page 681 assessment may be opened up and either party may challenge its correctness. It is a little difficult to see how this can be done consistently in connection with the equal protection clause of the constitution.
This suit was instituted in the chancery court, and it has often been held that the chancery court could not be made a tax assessing body. See Enochs v. State, 128 Miss. 361, 91 So. 20, and the authorities there cited.
Section 3122, Code of 1930, making taxes a debt against the owner of property recoverable by suit, as applied to a nonresident of the state is void in so far as it undertakes to impose a personal obligation as distinguished from an obligation imposed on the property for the tax. The cases of Illinois Cent. R.R. Company v. Adams, 78 Miss. 895, 29 So. 996, and George County Bridge Company v. Catlett, 161 Miss. 120, 135 So. 217, and Delta Pine Land Co. v. Adams, 93 Miss. 340, 48 So. 190, in no manner refer to a nonresident who had not appeared, and who had not been served with personal process within the state. In the cases of Delta Pine Land Co. v. Adams, and George County Bridge Co. v. Catlett, supra, the appeals were prosecuted by the taxpayers from the assessments, and the assessments had been sustained and made final. All questions were presented, and the taxpayers were in court prior to the assessment becoming final.
The case of Powell v. McKee, 81 Miss. 229, 32 So. 919, is not in point, because it was not a suit to recover a tax, but an injunction to restrain the collection of the tax by the taxing authorities. The remarks made in that case have no force as a decision, but are mere illustrations used by the court.
In so far as these cases hold that the statute gives a right of action against a nonresident who has not been served with process within the state, and, who has not appeared and contested the assessment prior to its becoming final, they are not authority for the position announced *Page 682 in the majority opinion, which announcement is in conflict with the decisions of the federal court, especially the case of Dewey v. Des Moines, 173 U.S. 193, 19 S. Ct. 379, 381, 43 L. Ed. 665. The decision in that case applied to an assessment made for betterment of property, which the statute of Iowa declared to be a personal liability against the owner of the property, just as section 3122, Code of 1930, undertakes to make the taxes there mentioned personal obligations. The court there said that: "It is asserted in the petition that the defendant Dillworth, the treasurer of Holt county, is attempting to enforce the assessment levied by the common council, and that he claims plaintiff in error is personally liable for the taxes and interest, and will enforce payment thereof unless restrained, and that plaintiff's personal property is liable to be illegally seized for the payment of the tax. . . . In this case no question arises with regard to the validity of a personal judgment like the one herein against a resident of the state of Iowa, and we therefore express no opinion upon that subject. This plaintiff was at all times a nonresident of that state, and we think that a statute authorizing an assessment to be levied upon property for a local improvement, and imposing upon the lot owner, who is a nonresident of the state, a personal liability to pay such assessment, is a statute which the state has no power to enact, and which cannot, therefore, furnish any foundation for a personal claim against such nonresident. There is no course of reasoning as to the character of an assessment upon lots for a local improvement by which it can be shown that any jurisdiction to collect the assessment personally from a nonresident can exist. . . . A judgment without personal service against a nonresident is only good so far as it affects the property which is taken or brought under the control of the court or other tribunal in an ordinary action to enforce a personal liability, and no jurisdiction is thereby acquired *Page 683 over the person of a nonresident further than respects the property so taken. This is as true in the case of an assessment against a nonresident of such a nature as this one as in the case of a more formal judgment. The jurisdiction to tax exists only in regard to persons and property, or upon the business done within the state, and such jurisdiction cannot be enlarged by reason of a statute which assumes to make a nonresident personally liable to pay a tax of the nature of the one in question. All subjects over which the sovereign power of the state extends are objects of taxation. Cooley, Tax'n (1 Ed.), pp. 3, 4; Burroughs, Tax'n, sec. 6."
I can see no difference between a nonresident and a resident in the imposition of a personal liability for a betterment tax, and a personal liability for an ad valorem tax. The liability, to constitute a foundation for judicial action, must exist at the time the action is instituted, and cannot be created after the filing of a suit and during its progress.
The Supreme Court of the United States has elaborately and learnedly discussed the question of distinctions between creating a liability against a property situated within a state, and liability against nonresidents who have not been served with process in the state, and who have not appeared. There was no appearance before the taxing authorities, and no service of process within the state in the case at bar. Consequently, what was said in Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565, and Dewey v. Des Moines, supra, is applicable here. In the decision of Pennoyer v. Neff, at page 570 of 24 L.Ed., 95 U.S. 714, the court said: "Substituted services by publication, or in any other authorized form, may be sufficient to inform parties of the object of proceedings taken where property is once brought under the control of the court by seizure or some equivalent act. The law assumes that property is always in the possession of its owner, in person or by agent; and it proceeds upon the *Page 684 theory that its seizure will inform him, not only that it is taken into the custody of the court, but that he must look to any proceedings authorized by law upon such seizure for its condemnation and sale. Such service may also be sufficient in cases where the object of the action is to reach and dispose of property in the state, or of some interest therein, by enforcing a contract or a lien respecting the same, or to partition it among different owners; or, when the public is a party, to condemn and appropriate it for a public purpose. In other words, such service may answer in all actions which are substantially proceedings in rem. But where the entire object of the action is to determine the personal rights and obligations of the defendants, that is, where the suit is merely in personam, constructive service in this form upon a nonresident is ineffectual for any purpose."
There are numerous cases referred to in this case, and they have been followed in many cases as will appear from the casenotes in 5 L.Ed. and in Rose's Notes. I will not elaborate upon them.
It follows that I believe that the judgment in the case at bar should be reversed and the bill dismissed entirely.