(dissenting). Section 6625 of Sandels & Hill’s Digest is, in my opinion, a valid statute. To support an opinion to the contrary, the court-cites Cairo & Fulton Railroad Co. v. Parks, 32 Ark. 131; Radcliffe v. Scruggs, 46 Ark. 96; and Townsend v. Martin, 55 Ark. 192—holding that these cases establish the principle “that it is beyond the power of the legislature to take away from the property owner a ‘meritorious defense’ against a substantially defective tax sale, where the defect goes to the power of the court to levy the tax, or of the officer to sell for non-payment.”
As to the doctrine maintained by the decisions of this court, the opinion in this case is clearly erroneous. The rule alleged to be settled in the cases cited cannot be deduced from them in any legitimate manner.
In Branch v. Mitchell, 24 Ark. 439, in an opinion prepared by Albert Pike, Esq., it is said: “The language of the courts is always to be understood by applying it to the facts of the case decided. That which seems to be general and of universal application has, in reality, often a limited application ; and so the words of truth and the utterances of the law, undeniable in the case wherein they are spoken, become the parents of error and false doctrine. That judges have often been too incautious in their language is true.”
In Marbury v. Madison, 1 Cranch, 137, 174, Chief Justice Marshall said : “It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which these expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented. The reason of this maxim is obvious. The question actually before the court is investigated with care and considered in its full extent. Other principles, which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.”
Courts are not vested with legislative powers. In the adjudication of the rights of parties they can declare the law only as applicable to the state of facts before them. Their duty is to determine the rights of the parties in the case under consideration. To do that, they ascertain the facts from the evidence adduced, and then the law which controls the rights of the parties under the facts so found, and render judgment accordingly. When they have done this, their whole duty in the case is discharged. What they say and do beyond this is extra judicial. They are not supposed to make laws, but to apply that already in force to the facts upon which they render judgment.
The expressions of appellate courts with reference to the validity of statutes should be read in the light of the statutes passed upon. Judges are not supposed to be gifted with the power to foresee all laws which future legislatures might enact upon any particular subject, and formulate a rule which would be a sufficient guide for the determination of their constitutionality. Their duty is to decide the questions presented in the case before them, and no others. What they say on other questions is without authority, and, for the reasons given .in Marbury v. Madison, supra, may be respected, but is not and should not be controlling.
Guided by the rule we have stated, do the cases cited in the opinion of the court contain any authoritative declaration as to the constitutionality of statutes like section 6625 ? In Cairo & Fulton Railroad Co. v. Parks, the statute considered was as follows: ‘‘At anytime after the lapse of two years from the time of sale of any tract or lot. of land for taxes, if the same shall remain unredeemed, the county clerk, or any of his successors in office, on the production of the certificate of purchase, shall execute and deliver to the purchaser, his heirs or assigns, a deed of conveyance for the tract or lot described in such certificate. In casé the certificate of purchase has been assigned, the county clerk shall briefly recite that fact in the deed. The deed so made by the county clerk shall be acknowledged and recorded in the same manner that other deeds and conveyances of real estate are required to be acknowledged and recorded by the laws of this state, and shall vest in the grantee, his heirs and assigns, the title to the real estate therein described, and shall be received in all courts and places, where the title to the real estate thereby conveyed is involved, as conclusive evidence that each and every act and thing required to be done by the provisions of this. chapter had been complied with, and the party offering such deed in evidence shall not be required to produce the assessment, appraisement, notice of sale, nor any other matter or thing as evidence to sustain such conveyance and the title thereby acquired. Provided, however, that the party controverting such deed and the title thereby conveyed, may, for the purpose of invalidating or defeating the same, show either one of the following facts only: First. That the land conveyed by such deed was not subject to taxation at the time of the assessment thereof, under which assessment such sale was made. Second. That the taxes due thereon had been paid according to law before the sale. Third. That such land had been duly redeemed according to law before the execution of such deed. Fourth. That such land was the property of a feme covert, an insane person, a minor, or a person in confinement, at the time the land was sold and the deed executed.” Acts 1871, p. 107, sec. 125. Thé court held that so much of this statute was void as made the tax deed conclusive evidence, because, if valid, it would deprive the citizen of the right to protect his property by showing that it had been illegally taken from him, and would deny to him the protection of the law. To avoid the force of this objection, the statute presented for consideration in this case was obviously enacted. It provides : “In all controversies and suits involving title to real property, claimed and held under and by virtue of a deed executed substantially as aforesaid by the clerk of the county court, the party claiming adverse to that conveyed by such deed shall be required to prove, in order to defeat the said title, either that the said real property was not subject to taxation for the year (or years) named in the deed, or that the taxes had been paid before the sale, that the property had been redeemed from the sale according to the provisions of this act, and that such redemption was had or made for the use and benefit of persons having the right of redemption, under the laws of this state; or that there had been an entire omission to list or assess the property, or to levy the taxes, or to give notice of the sale, or to sell the property.” Sand. & H. Dig. sec. 6625. In Cairo & Fulton Railroad Co. v. Parks, no statute like the last mentioned was considered. The questions presented in the two cases are different; and that presented in this was not considered or decided in the other case.
In Radcliffe v. Scruggs, sup. the statute considered was as follows: “All actions to test the validity of any proceeding in the appraisement, assessment or levying ■of taxes upon any land or lot, or part thereof, and all proceedings whereby is sought to be shown any irregularity of any officer, or defect or neglect thereof, having any duty to perform under the provisions of this chapter, in the assessment, appraisement, levying of taxes, or in the sale of land or lots delinquent for taxes, or proceedings whereby it is sought to avoid any sale under the provisions of this chapter, for irregularity or neglect of any kind, by any officer having any duty or thing to perform under the provisions of this chapter, shall be commenced within two years from date of sale, and not afterwards.” Act April 8,1869, sec. 138. This statute did not undertake to make any requirement of the statutes directory or immaterial,, or to limit the defense against a tax sale, but simply to prescribe the time in which certain actions should be brought. It is unlike the one under consideration. The court held that its effect, if the actions were not brought within the prescribed time, was to cut off all except meritorious defenses.
Townsend v. Martin, supra, was an action of ejectment based on a commissioner’s deed to land forfeited to the state on account of the non-payment of taxes. It was held that section 6625 of Sandels & Hill’s Digest, “which provides in substance that one who attacks a tax title claimed under a county clerk’s deed shall not be allowed to prove any defect in the tax proceeding not mentioned in that section, is limited in its operation to deeds made by the clerk, and does not embrace deeds made by the commissioner of state lands.” As it does not relate to commissioner’s deeds, no question as to its constitutionality arose in the case, and what was said upon that subject was .clearly uncalled for and extrajudicial. A better illustration of an obiter dictum could hardly be found. I so considered it at the time the opinion in the case was delivered, and for that reason filed no dissent.
After this review of cases, I think I can truthfully say that this court has never, by any decision binding upon it, held section 6625, or any other statute to the same effect, to be void. Is it constitutional ?
Four things are essential to the exercise of the taxing power. They are, first, the listing and assessing of the property; second, the levying of the tax upon the property, according to its value, a rate not exceeding the limits fixed by the constitution; third, a power or authority conferred upon the collector to sell the property for the payment of the taxes levied upon it; and, fourth, the sale of the property by the collector under the power. The listing is.necessary in order to describe and identify the property ; the assessing, in order to ascertain its value ; the levy, in order to fix the proportion or rate of the tax; the power or authority, in order to authorize some person to receive the taxes and to sell in default of payment; and the sale, in order to contract the property to one who will pay the taxes due upon it. As said in McCready v. Sexton, 29 Iowa, 356: “The legislature may prescribe the time or manner in which these essential and jurisdictional acts shall be done, but it cannot, either constitutionally or in the nature of things, provide for passing the title to the property for the non-payment of taxes without them. As to the time or manner in which they shall be done, the discretion of the legislature is absolute and supreme, and cannot be judicially controlled or interfered with. Having the right to prescribe the manner, it may also rightfully provide that a failure to comply with its directions as to the. manner shall not defeat the end; or that no person shall question the legality of the manner. * * * ^ other words, the legislature, being supreme, may prescribe the time and manner of doing the act, and may make that, or any other * * * manner which the persons doing it may adopt; legal and sufficient.” Allen v. Armstrong, 16 Iowa, 508; Parker v. Sexton, 29 Iowa, 421; Smith v. Cleveland, 17 Wis. 563 ; People v. Seymour, 16 Cal. 332; Gwynne v. Neiswanger, 18 Ohio, 400; Callanan v. Hurley, 93 U. S. 387; DeTreville v. Smalls, 98 U. S. 517; Keeley v. Sanders, 99 U. S. 441; Sherry v. McKinley, id. 497; Williams v. Supervisors of Albany, 122 U. S. 154; Thompson v. Brackenridge, 14 S. & R. 346; Virden v. Bowers, 55 Miss. 1, 18; Abbott v. Lindenbower, 42 Mo. 163; Hurley v. Woodruff, 30 Iowa, 260; Powers v. Fuller, id. 476; Bulkley v. Callanan, 32 Iowa, 461; Huey v. Van Wie, 23 Wis. 618.
The opinion of the court in this case as to the validity of section 6625 is based upon the assumption that it is beyond the power of the legislature to take from the owner of property a “meritorious defense” against a defective tax sale. But this statute does not deprive the owner of a meritorious defense, when it denies to him the right to set up defects or irregularities as a defense against a tax sale. Having the right to prescribe the manner in which acts essential to the exercise of the taxing power shall be done, the legislature had the right to make any manner adopted by the officers legal and sufficient. It did so, to some extent, by the enactment of the statute before us. After the execution of the tax deed in substantial compliance with the law, all omissions to follow the manner prescribed by the statute became immaterial — the statute prescribing the manner became directory. Hence the legislature did n<?t take from the owner of the property sold any meritorious defense he had by réason of the noncompliance with the statutes prescribing the manner of the tax proceedings; for.he had none after the execution of the tax deed.
The statute before us made a listing and assessing, the levy of taxes, a notice of the sale, and a sale necessary to vest a valid tax title. The power to receive taxes and sell was necessarily implied, for there could be no sale without it. Requiring these essential acts to be done in order to vest a valid title, the statute, there being no objection to it in other respects, is constitutional.
In this case, it seems, there were a listing and assessing, a levy of taxes, the power to sell, the taxes being unpaid, a notice of sale, and a sale. The only-alleged defect is, the land was sold for thirty-five cents more costs than was due on it. Under the statute the tax deed conveyed a good title to the land. The former owner was entitled to the thirty-five cents for excessive costs collected.
The decree of the circuit court should, in my opinion, be affirmed.
T. W. M. Boone, Special Judge, concurs with me in this opinion.