dissenting.—I deeply regret that the majority of the court have felt constrained to reverse this case for the reasons assigned. The magnitude of the interests and the questions involved, both to the people and defendant, the Atlantic & Pacific Railroad Company, render the final determination of those interests and questions a matter of grave public concern. If the railroad is not liable to taxation, it should be no longer harassed with suits to enforce the collection of taxes from it; if it is liable, the people are entitled to the revenue. In either case, the public interests and justice require that the matter should be speedily adjudicated. We do not mean to intimate, however, that if the judgment was erroneous ;t should not have been reversed, but we do contend most strenuously that neither of the reasons assigned in the opinion of reversal is tenable.
The first position taken is that the district court of Apache County had no power or jurisdiction to render a *79judgment in the tax suit at the special April term, 1888, and could have only rendered the judgment at the regular July term of that year. We deny this proposition, and hold that - said district court had plenary power, even if it possessed none other than that conferred by our statute, to render such judgment at any other term provided for bylaw ; the sole and only prerequisites being that it be a term provided for by law, and that it be the next ensuing term after the due perfection of the statutory notice or summons. It cannot matter that such term be a general or special term. The notice required is the same at each, and the power and jurisdiction of the court is as full and complete at one term as at the other. If this be not so, the statute itself is meaningless, and its language a delusion. It says: “Special terms of the district courts may be held in any county of this territory for the trial of civil and criminal causes, and the transaction of civil and criminal business, generally or of either, whenever in the judgment of the presiding judge of said court public justice demands it.” See Rev. Stats. Ariz. 1887, par. 628. Well, in the judgment of the presiding judge of the district court of Apache County, public justice demanded that the special April term, 1888, thereof be held. Accordingly, in compliance with the statute, the judge issued the order calling said term, and requiring the clerk of said court to publish due notice thereof in the St. Johns Herald, a newspaper published in Apache County. It is not denied that all this was done, and that said order was by the clerk filed with the records of said court; but it is claimed that the order and notice are not set out in the record of this case. Now, we do not know what law-maker drew this statute; but, after mature deliberation, we have been wholly unable to conceive of language, conferring upon the court power and jurisdiction more fully, accurately, and completely, to render any sort of judgment or transact any sort of business, either civil or criminal. But, while this is incontrovertible, the majority of the court in their opinion say: £ £ This is certainly not to embrace special proceedings requiring fixedness of time. The time of sale is on Monday next succeeding the day fixed by law for the commencement of such term.” What term? *80What is the day fixed by law for the commencement of such term? Where is the fixedness of time? The opinion do'es not tell us. The only “fixedness” is that it must be the first term following the publication of the notice. The opinion makes it in this case the second term thereafter. Do my learned associates mean to say that the statute prescribes any definite, fixed term eo nomine? If the legislature had named any particular special or general term at which alone tax-suits should be tried and tax-judgments rendered, that would perhaps be a limitation upon the power and jurisdiction of the court. But it has not done so. There is absolutely nothing in the revenue act “requiring a fixedness of time” for the commencement of tax-suits in the district court, or a definite term of court, either general or special, at which alone tax judgments shall be rendered. The nearest approach to “a fixedness of time” is where the tax collector is required to apply for the tax judgments at the next ensuing term after the due completion of the statutory notice. The word “ensuing” is synonymous with the word “following”; both mean “coming after.” Now, it is not and cannot be denied that the court had power to call the special April term, 1888.
It is not and cannot be denied that that was the next ensuing term after the completion of the notice. It was the first term following or coming after said notice. Did the legislature mean what it said when, by specific enactment, it required the tax collector to apply for the tax judgment at the term next ensuing or following, or coming after the completion of the statutory notice or summons to delinquent tax-payers? If it had meant the next ensuing general term only, would it not have used the one single word “general”? Or, as it is more probable, as it had provided only one general term for Apache County, viz., the term • beginning on the first Monday in July, would it not have said that such judgment should be applied for at the general July term? If this had been the ease, and the judgment had been rendered at the special April term, it would have been clearly irregular. This was the case with the principal authority relied upon by the majority of the court to sustain their opinion. See Brown v. Hogle, 30 Ill. 119. There the collee*81tor was required by statute to apply for judgment at the June term. Of course, that did not mean the July term, or any other term, general or special. It meant the June term; no more, no less. And when he applied at the July term he was wrong. But our statutes do not say the July term, or any other term, special or general, except the particular term next ensuing, following, or coming after the completion of the publication of the notice; and that term in this case was the special April term, 1888. Nothing can be clearer and more certain than this. No sort of ambiguity can be detected here. It is plain, unmistakable. The conclusion is irresistible, then, that the court had power, under the statute, to call the special April term, 1888, and, if it did call it, according to the provisions thereof, it had power and jurisdiction, even under the same statute, to render the tax judgment. The tax-suit was either a civil or criminal suit, or it was civil or criminal business. It is idle to contend otherwise. Well,_ if it was either, the statute authorizing special terms clothed the court, even if, as a court of general jurisdiction, it had no inherent power, with complete and plenary power and jurisdiction to act. Does not the power to try civil and criminal causes, and to transact civil and criminal business, generally, necessarily include the power to transact civil or criminal business specially? Does not the greater include the less ? If the opinion herein is correct in this regard, we have in this territory this unprecedented judicial condition, viz.: That at a special term of the district [court], called as provided for by the statute, a man may be indicted for murder, tried, convicted, and sentenced to be hanged, and the hanging would be legal, but a judgment cannot be had against him for a two-dollar tax. Pretext can generally be found, if sought with diligence; and the history of tax litigation reveals that delinquent tax-payers have generally been as successful in this direction as any other class of litigants. More especially is this true with reference to corporations that have sought to avoid taxation. Hence nothing is truer of modern jurisprudence than that the great bulk of adjudication is towards stricter construction, where exemption from taxation is sought, and more liberal construction in favor of revenue laws.
*82And it is here to be observed that the three authorities relied upon in the opinion, viz., the decisions in 12, 14, and 30 Illinois, have been virtually abrogated by the Illinois revenue laws of 1872-73; and the supreme court of Illinois in 1875-76, and in fact down to the present time, in construing this revenue law, and proceedings under it, has distinctly recognized this fact. In the case of Thatcher v. People, 79 Ill. 597, the supreme court of that great state says: “Henee this amendment to our. revenue law; and by it nearly, if not all, our previous decisions have been abrogated as rules for the determination of cases arising after the adoption of the amendment. ’ ’
Now, in 1887, the territory of Arizona, through its legislature, adopted this Illinois revenue law of 1872-73, almost verbatim, et literatim, with the construction put upon it by the supreme court of Illinois in Thatcher v. People, and other cases passed upon prior to 1887. 30 Ill. 119, has already been noticed; but it is to be further observed that March v. Chestnut, 14 Ill. 224, and Spellman v. Curtenius, 12 Ill. 409, the other two cases relied on, only uphold the old, dogmatic, common-law rule that requires technical accuracy in the form of tax assessments. Not one word is said in either case about the power or jurisdiction of the court. ■ And we have just seen that by our revenue law, and its prototype, the Illinois revenue law of 1872-73, those common-law rules have either been abrogated entirely or greatly modified. How is it, then, that the majority of the court rely solely on these authorities to sustain their opinion on this branch of the case 1 The language of the opinion on this point, after quoting approvingly these authorities, is: “We must conclude that the term fixed by law must mean the regular term as fixed by the statute. ” Here, again, we most respectfully dissent, and hold that a special term of court, called according to the provisions of the statute, is as much a term “fixed by law” as any regular or general term. The mode of fixing by law the term is different; that is all. In the one case the legislature fixed the term in the statute; in the other, by the presiding judge, the term was fixed by law, i. e., by authority and according to the provisions of the statute. A term fixed by law means a term determined upon *83by law. So it is fixed and definite, it is wholly immaterial whether it be a term fixed by the statute, or a term fixed by the judge by authority of the statute. In either case, or in both, it is “a term fixed by law.” Is it not, therefore, a strained construction to say, “the term fixed by law” must mean, alone, the regular-term of court fixed by the statute? The converse of a proposition is necessarily true, and therefore, if the phrase “fixed by law” means only regular terms fixed- by the statute, special terms, although fixed by the judge by authority of the statute, are not terms fixed by law. And if they are not terms fixed by law they are not legal terms, and can therefore have no legal existence.
But says the opinion: “All the tax-payers are presumed to know the regular terms of court.” Of course, they are supposed to get this knowledge from the statute. Is the statute fixing the regular terms of court the only portion of that repository of law that delinquent tax-payers are presumed to know? Are they not equally presumed to know the other provisions of the statute, especially those providing for special terms ? But again says the opinion: ‘ ‘ Special terms are held in the discretion of the judge.” Well, has the delinquent tax-payer any cause of complaint? He is presumed to know the law. He knows that that law provides that, whenever in the judgment of the presiding judge public justice demands it, special terms of the district court may be held for the trial of any sort of eases and the transaction of any sort of business. He knows his taxes are overdue; that public justice demands that he should pay his taxes as well as the rest of his fellow citizens. He knows that public justice demands that, if he is to be shielded with the protection of the government, he should be burdened with and should pay his share of taxes to support the government. He knows, or ought to know, that protection and taxation are correlative rights. Has not the revenue law been just to him ? Does it not provide that if the tax-payer is-dissatisfied with the taxes assessed against him he may appeal to the board of equalization? Was not that privilege allowed and embraced in the case at bar ? If the court was speaking of tax-payers before they became delinquent, it seems to us there would be more force in the opinion. It *84must be borne in mind, however, that delinquent tax-payers alone are here spoken of,—those who are endeavoring to thwart the purposes of the revenue law; a purpose whieü that law, in its broad, comprehensive, just, and enlightened provisions, did not intend should be accomplished by mere technicalities. Finally, on this branch of the ease, the court say: “He [meaning the delinquent tax-payer] may temporarily leave the territory, and while resting in fancied security, ’ ’ etc. What right has he to rest in fancied security ? He is defaulter in the payment of his taxes, and does he not know it? In that sense, if he leave the territory temporarily is he not temporarily a refugee from justice? Would it not be an honest and reasonable apprehension on his part to suppose that that government, which had protected him and his property, and to which his taxes had long since been due, would use every legitimate means at its disposal, after those taxes became due and were not paid, to compel him to do that which he, as a good citizen, ought to have done long ago ? Is not every day that he is indulged, after his taxes have become delinquent, a matter ex gratia the government, for which he ought to be thankful, instead of complaining and “resting in fancied security”? If a tax-suit is different from other actions, it is just as widely different at a regular as at a special term of court.
Our conclusion, therefore, is that as the court had unquestionable authority to hold the special April term, 1888, of the Apache County district court; that, as at said term it had plenary power and jurisdiction, not only as a court of general jurisdiction, but from the broad and unlimited grant of power in the statute authorizing such terms to render any sort of judgment, civil or criminal, including tax judgments, or transact any sort of business, civil or criminal, including tax business; and that as said special April term, 1888, was the term next ensuing, following, or coming after the due completion of the statutory notice to delinquent taxpayers, it alone was the legal and proper -term at which the tax-collector should have applied for his tax judgment; and that the proceedings of the court in the tax suit were coram yodice. The law being peremptory in requiring the tax collector to apply for judgment at the first term coming after *85the completion of the notice, he could not, without some good excuse, legally apply at the second term thereafter.
In the next place, the court, in their opinion say: “Conceding, though, that the next ensuing term meant the special April term of the district court, the record must affirmatively show the authority by which the special term was held.” We most respectfully, but solemnly, deny this proposition also, and hold that the law conclusively presumes the special term to have been properly held till the contrary be made to appear. The district court of Apache was and is as much a court of general jurisdiction at a special term as at a general term. There are no words of limitation as to its jurisdiction at a special term, contained in any law or statute; nor is its power limited in any degree differently at a special term from what it is at a general term; and therefore the same presumptions as to jurisdiction and the regularity of its proceedings at a special term must he indulged as at a regular term. In either case, its proceedings are to be according to the course of the common law, modified only by statutory limitation. It is everywhere and always a court of general jurisdiction. Of course, it would be competent for a defendant to show affirmatively that the court had not acquired jurisdiction of his person, for instance; but the onus probandi would be on him, and until he made the requisite proof the presumption would hold that the court had jurisdiction. Let it be observed that it would be as competent for him to make such affirmative proof at a regular term as at a special term, and vice versa,. It is a misapprehension to suppose that, because the term of the court is a special term, its proceedings are necessarily special. Some of its proceedings might be special; so might they be at a general term. ■ If tax suits are special proceedings, they are not less so because had at a general term. The truth is the law contemplates that court proceedings at a special term shall be as general as at a regular term; for special terms are held for the trial of civil and criminal causes, and for the transaction of civil and criminal business generally or either. This language would certainly compass all the purposes for which regular terms are held. The legislative will is thus clearly revealed, that the proceedings of a special *86term shall be as general as at a regular term, and, that the court should be as much a court of general jurisdiction at the one term as at the other. The law then presumes that the district court had jurisdiction, and that its proceedings were legal and regular at the special April term, 1888, in Apache County, until the contrary is made to affirmatively appear. But says the opinion: “The record does not disclose that the notice to be given by the clerk upon the order of the judge was so given.” The record does not disclose this fact, and it is perfectly certain that it did not have to disclose it. Nor was it necessary that the order of the judge calling the special term, should be set out in the record.
The district court of Apache County at its special April term, 1888, being a court of general jurisdiction, the presumption of law is in favor of the regularity of its said term until the contrary is made to appear. If the opinion is correct in this regard, we have this singular condition of affairs : That if a hundred civil and criminal cases are to be tried at a special term of the district court, each trial will he void, unless the record of each case contain a recorded copy of the order of the judge calling the special term, and also a recorded copy of the notice thereof, published by the clerk upon the order of said judge in some newspaper in the county where the term is to be held. This is necessarily so, because the court speaks of the “record.” It means the record of the tax suit, no other record being before it, and that record must affirmatively show, etc.; and therefore what it means to say is that the record of this particular ease, as well as all others tried at that term, must affirmatively show that the said order and notice were given, and the only way that these facts can be made to judicially appear, is to record the said notice and order in each case. The record of each .case stands alone, so that a hundred cases having been tried, the order and notice would have to be recorded a hundred different times. Can this be law? Can this be essential to the jurisdiction of the court ? Now, the statute providing for special terms does not require that either the order or notice be filed or recorded by the clerk. It does require that the order be made and the notice given. *87Even these requirements, however, are only directory. It is not denied that this was done in this case. At all events, until the contrary he made to affirmatively appear, the law by intendment says it was done. Indeed, counsel for defendant in their argument admitted that the order of the judge calling the term was made and filed by the clerk, and that the clerk gave the notice. But the court say the notice should affirmatively appear; that is, that it should have been recorded by the clerk with the record of the case. That is not law. The Iowa statute of 1839, authorizing territorial district judges to hold special terms of court, was very similar to ours. The only difference was that there the judge was required to direct the sheriff instead of the clerk to give the notice. In the case of Harriman v. State, 2 G. Greene, 270, the record was silent as to whether the notice had been given or not, precisely as in the case at bar. Mr. Justice Greene, in delivering the opinion of the supreme court of Iowa in this ease, said: “Another objection was urged to this special term, to which we will merely advert. It is contended that if the court was legally empowered to hold a special term it was in this instance done without authority of law, because it does not appear by the record that the judge notified the sheriff of the same, or that the sheriff put up at each of the precincts in the county at least three weeks’ notice of the time when the special term was to commence. As decided by this court time and again, we must necessarily presume that the officers of the court performed their duty in such particular, unless the contrary appears. An averment of such facts in a record is not necessary. The record being silent, the fact that legal notice was given is established by intendment.”
Does not this exactly cover the case at bar? But even if it were a fact that the clerk gave no notice of the special April term, 1888, at all, the above authority settles the law that the proceedings of the court would not have been thereby invalidated. It says further: “The proceedings of the court, without such notice were not void. The statute providing for it is merely directory, and such notice is not considered an essential prerequisite to confer jurisdiction.” See Friar v. State, 3 How. (Miss.) 422.
*88Again, in the case of Wright v. Marsh, 2 G. Greene, on page 304, this same high authority, after clearly demonstrating that the territorial district courts of Iowa were in the highest sense courts of general jurisdiction, says: “The term ‘inferior courts,’ in a strict and technical sense, is only applicable to courts of a limited and special jurisdiction, in which the proceedings are not according to the course of the common law, but defined by statutory regulations. It must be obvious that our territorial district courts cannot be included under that term. They were endowed with all the general powers and universal attributes of common-law jurisdiction.
“But it is contended that if the district court, which rendered the decree, did possess general jurisdiction, it acted in the partition proceedings under special authority conferred by the statute, and was consequently quoad hoc an inferior or limited court. The requirements of the statute, so far as they are especially substituted for equity and common-law proceeding, are paramount, but, beyond such special substitution, law and chancery interpose with unabated and general concurrent authority. Hence we conclude that, even in eases in partition under our statute, the district court cannot be considered quoad hoc as inferior or limited. The doctrine will not be questioned that the general jurisdiction of a court cannot be taken away, unless by express words of exclusion. As the record comas from a court of general jurisdiction, it did not become necessary to incorporate into it a copy of the notice or the proof of publication. Without these the record would have been sufficiently authentic and conclusive. The authority of the court over the subject-matter and over the parties and she correctness of the proceedings would have been favored by all the force of legal presumption.”
But that great supreme court which gave such lucid and conclusive construction to the Arizona revenue law, while yet it was the revenue law of Illinois, has, it seems to us, put this question beyond the line of discussion. In the case of Teerney v. People, 81 Ill. 411, Mr. Justice Sheldon says: “It is unnecessary that the order calling a special term of the circuit court should be set out in the record. *89Unless the contrary expressly appears, the presumption of law is in favor of the regularity of the term.” And in the case of Cook v. Renick, 19 Ill. 598, the first error assigned by appellant was as follows: “That the term of the court, at and during which final judgment was rendered in said cause, does not appear by the record to have been held at the time, convened in the manner, and notice thereof given, as required by law.” In delivering the unanimous opinion of the court in that case, Chief Justice Catón said: “Where a proceeding appears to have been at a general or special term, the presumption of law is in favor of the regularity of said term, and of the jurisdiction of the court. This presumption may be rebutted, it is true, by showing affirmatively that there was no order of the judge or court appointing the special term, or where the court can see from the public law that the judge was required to be in another place, holding another court. Such were the cases of Goodsell v. Boynton, 1 Seam. 555, and Archer v. Ross, 2 Seam. 303.”