(dissenting.) Prior to the act in question, it had been the settled law of this State for many years that “neither conveyances, nor color of title, nor payment of taxes, nor all combined can give title to land under the statute of limitations. There must be proof of adverse possession for the requisite time.” Calloway v. Cossart, 45 Ark. 81. It was evidently to change the status of wild and uninclosed land in this respect that the act was passed. The first clause says “that such lands shall be deemed and held to be in possession of the person who pays taxes thereon, if he have color of title thereto.” Had the act stopped there, then the rule in Calloway v. Cossart would stand changed, and seven years of such possession under the general act, or five under the judicial sales act, or two under the tax deed act, would have given title under the statutes of limitations. But the act does not stop there, and meaning must be given to all the statute, not merely a part thereof. “But no person shall be entitled to invoke the benefit of this act unless he and those under whom he claims shall have paid such taxes for at least seven years in succession.” The benefit of the act is in making payment of taxes possession of wild and uninclosed lands, in order to invoke the statute of limitations. The act is for the “protection of those who pay taxes,” and its first clause declares that the person who, under color of title, pays taxes “shall be ■ deemed and held to, be in possession.” Therefore it is clear that the benefit of the act is in making payment of taxes of such land equivalent to possession or possession itself. Then the act provides that this benefit shall not be invoked until the person (or those under whom he claims) shall have paid such taxes for at least seven successive years. When the person pays for seven years, then he invokes the benefit of the act, and is then ■ — and not until then — in possession.
To change the rule in Calloway v Cossart, so as to make each* payment possession, and seven payments ownership, would be a radical change from existing law; while changing the act only to the extent of seven years’ payment starting the'running of the statute is a reasonable change, and a fair one. Before this act a century of taxpaying did not start the statutes of limitations, and now, under the construction of the majority, one payment puts into possession, and gives possessory rights to the person paying against any person except the true owner, and seven payments divests. ownership and invests it in him1 who has thus paid the taxes.
In Colorado there is a statute which provides that whenever a person having color of title shall pay taxes on vacant and unoccupied land for five years, “then he shall be the lawful owner of such vacant and unoccupied land.”
The opinion of the majority construes this statute, which says that after such payment he shall be deemed in possession, to be of the same effect as one which declares such payments shall make the person paying the lawful owner, when the act only says he shall be in possession. The act further provides that not less than three of the payments must be subsequent to the passage of the act. The majority construe that clause as intending to give the owner a reasonable time after its passage to avoid the consequences of the act, and thereby save any vested right.
It' is thought that a more reasonable construction is that such- clause was intended to bring the beneficence — real or supposed — of the act into operation earlier, and thereby putting into possession the person who has already paid for four years, i'f he shall pay for three more, -thus completing the seven payments which make possession, so as to start the statute of limitations running in his favor.
Opinion delivered April 15, 1905. J. T. Coston, amicus curiae. The act in question should not be construed by itself. 40 Ark. 452; 60 Ark.'129; 45 Ark. 391; 3 How. 551; 38 S. W. 84; 11 Wheat, 386; 21 How. 464; 51 S. W. 158; 44 Cent. Dig. 2859. The date of the enactments will be looked into, and the one last in time will prevail. 40 Ark. 452; 16 Fed. 752; 60 Ala. 213, 249. The history of the passage of an act may be looked into to determine the legislative intent. 5 Ark. 613. What is possession? 40 Ark. 371; no Ala. 474; 49 Ark. 274; 43 Ark. 486; Black, Inter. Daws, 85. The statute is unconstitutional. 42 Ark. 91; 38 Miss. 424; 13 Mich. 329. The statute is not to be construed retrospectively. Black, Inter. Daws, 259; 1 Wood, Dim. 41; 7 Cent. Dig. 135, Constructive possession follows the title. 60 S. W. 651; 49 Ark. 266; 43 Ark. 469; 63 Ark. 600; 31 Ark. 337; 60 Ark. 129. /. W. House and Charles T. Coleman, amici curiae. The correct rule of construction is that where the will of the Degislature is clearly expressed, the courts should adhere to the literal expression of the enactment. 24 Ark. 487; 6 Ark. 9. H. F. Role son, amicus curiae. When no exception is made in the statute, none can be supplied by the courts. 53 Ark. 418. Possession follows the title, in the absence of any actual possession adverse to it. 57 Ark. 523; 27 Ark. 217. A proviso in a statute is strictly construed, and takes no case out of the enacting clause that does not come fairly within its terms. 15 Pet. 445; Black, Inter. Laws, 270; 24 How. Pr. 247. The act shoidd not be construed retrospectively. 1 Wood, Lim. 41; 6 Ark. 485; Black, Inter. Laws, 254; 31 Ch. Div. 403; 1 Bl. Comm. 86; 29 Pa. St. 113; 55 N. J. L. 394; 22 N. W. 614; 14 Minn. 526. The court, in the construction of the act, should take into consideration all acts in pari materia, and especially those passed at the same term. 6 Ark. 9; 3 Ark. 556; Black, Inter. Law, 204; Endlich, Inter. Stat. § 53. Mr. Justice Riddick concurs this construction.