delivered a dissenting opinion.
I cannot agree with the opinion which has been delivered by my learned brethren in this case. It appears that when the sheriff had sold three of the lots he had secured sufficient money to pay the taxes, costs, and charges assessed against the owners in respect of all the lots. I think, then, that he had no power to proceed further with the sale without the consent of the tax-debtors. I think this for two reasons : 1. I do not think that the terms of the back-tax law, fairly construed, and taken in connection with the other provisions of the law relating to the collection of taxes, authorize this. 2. If the law does authorize it, then I think that in so far as it authorizes it, it is unconstitutional.
1. With reference to the first question, we have decided that a tax under the existing laws of this state is not merely a charge in rem (Gritchell v. Kreidler, No. 2318 Mo. App. 1 but a personal charge or impost against owners of property in respect of their property. In re Life Assn, of America, ante, p. 40. When the tax is assessed in respect of real property, the state asserts a lien in its favor against the propertjf; but this lien is not the impost itself; it is but an additional security for the collection of the impost. On the contrary, it is made the duty of the collector to collect “all taxes” —not only those assessed in respect of personalty, but also those asssesed in respect of realty — by distraining the personalty of the tax-debtor. Rev. Stats., sect. 6754. Obviously, he can exercise this power of distraint upon money, as well as upon other personalty of the tax-debtor. Under the direction of the court, it can be exercised upon money in custodia legis, as well as upon any other money. He is the *239plaintiff in this judgment, and, as such, he has the same control over the writ of fieri facias that the plaintiff in any other judgment has. When, proceeding to sell the property of the tax-debtor,' lot by lot, according to the subdivisions in which it has been assessed, the sheriff has realized sufficient money to pay all the taxes, costs, and charges for which the judgment has been rendered, it is, in my opinion, his duty, in the absence of a contrary direction from the tax-debtor, to direct that the sale be discontinued, and to ask the court to apply the money which has thus been raised, to the payment of the taxes, costs, and charges upon all the lots, — in other words,'to the satisfaction of the whole judgment; and it is the duty of the court to make such an order. Such a course satisfies fully the provisions of the law. It gives efficient operation to the collector’s power of distraint; it gives the state its revenue; and it prevents a sacrifice of the remaining property of the tax-debtor.
2. But if the statute, as framed, does not admit of such a proceeding, — if, after the sheriff has sold enough of the debtor’s property to pay all the taxes, costs, and charges, for'which the judgment has been rendered, — the law still obliges the sheriff to proceed with the sale, no matter at how great a sacrifice of the property of the tax-debtor, till every lot has been sold against which the tax is a lien, — then I am of opinion that in so far as it has this operation, it is unconstitutional and void. It may not be possible to point to any provision in the constitution of this state which prohibits such a proceeding in terms. The framers of the constitution could not have foreseen that the legislature would ever attempt to authorize a proceeding by which the officers of the state could sell to A. an unlimited amount of property belonging to B., for a price however small, under the pretence of collecting the state’s revenue, when the state’s officer already had in his hands enough money of the propperty-owner to satisfy its demand for revenue. A general provision was placed in that instrument denunciatory of *240such acts of oppression, namely : ‘‘ That all constitutional government is intended to promote the general welfare of the people; that all persons have a natural right to life, liberty, and the enjoyment of the gains of their own industry ; that to give security to these things is the principal office of government; and that when government does not confer this security, it fails of its chief design.” Bill of Rights, sect. 4. Without the aid of this provision, a law which should have this operation would, in my opinion, be void. For, to adopt the language of the supreme court of the United States, in a celebrated case, — “ It must be conceded that there are rights in every free government beyond the control of the state. A government which recognizes no such rights, which holds the lives, the liberty, and the property of its citizens subject at all times to the absolute disposal and unlimited control of even the most democratic depository of power, is after all but a despotism. It is true it is a despotism of the many, of the majority, if you choose to call it so, but it is none the less a despotism. It may well be doubted if a man is to hold all that he is accustomed to call his own, all in which he has placed his happiness, and the security of which is essential to that happiness, under the unlimited dominion of others, whether it is not wiser that this power should be exercised by one man than by many. The theory of our governments, state and national, is opposed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of these governments are all of limited and defined powers. There are limitations on such power which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name. No court, for instance, would hesitate to declare void a statute which enacted that A. and B., who were husband and wife to each other, should be so no longer, but that A. should thereafter be the husband of C., *241and B. the wife of. D. Or which should enact that the homestead now owned by A. should no longer be his, but should henceforth be the property of B.” Loan Assn. v. Topeka, 20 Wall. 655, 662, 663. Among these limitations of power, the court held was a limitation of the right of taxation, so that it can only be used in aid of a public object, — an object which is within the purposes for which governments are established.
As this power cannot be exercised except for the purpose of raising revenue for public purposes, neither can it be exercised except so far as is necessary to raise such revenue. When the state, through its officer, has sold so much of the debtor’s property as is necessary to satisfy its revenue and the costs of collecting it, its power is exhausted. If, thereafter, it sells more, it commits an act of wanton despotism,'such as cannot be tolerated in a free government, and such as the legislature cannot be presumed to have intended to authorize. I coincide with the doctrine upon this subject expressed by the court of appeals of Virginia, that the power of the legislature to provide for the sale of land for the payment of taxes is limited to that object, and that a law which requires that the whole of the tax-debtor’s land shall be sold in all cases, without regard to the fact that it may be divided without injury to it, and that the tax may be paid by the sale of a part of it, is unconstitutional. Martin v. Snowden, 18 Gratt. 100; Downey v. Nutt, 19 Gratt. 59. It has been said that, in the absence of any statute limiting the officer’s right to sell, to so much as would be requisite to pay the taxes and charges, a restriction to this extent would be intended by law. O’Brien v. Coulter, 2 Blackf. 21. Commenting upon this decision, Mr. Justice Cooley, in his work on Taxation, says : “ Whether this is so or not is, perhaps, not very material, as it is not for a moment to be supposed that any statute would be adopted without this or some equivalent provision for the owner’s benefit. And such a provision must be *242strictly obeyed. A sale of the whole when less would pay the tax, is void ; and a sale of the remainder after the tax had been satisfied by the sale of a part of it, would also be void, for the very plain reason that the power to sell would be exhausted the moment the tax is collected.” Cooley on Tax. 343. In support of this doctrine he cites many decisions, including two of the supreme court of the United States.
I think this just and salutary principle ought to have governed the sale in this case. I do not think the legislature of this state ever intended that it should be departed from in the sale of land for taxes. I think this is implied in the plainest terms in the language of the section of the statute under which the sheriff proceeded in making this sale. It provides that “the judgment shall state the amount of taxes and interest found to be due upon each tract or lot, and the year or years for which the same are due, up to the rendition thereof, and shall decree that the lien of the state shall be enforced, and that the real estate, or so'much thereof as may be necessary to satisfy such judgment, interest, and costs, be sold, and a special fieri facias shall be issued thereon, which shall be executed as in other cases of special judgment and execution.” Rev. Stats., sect. 6838. The provision of the Revised Statutes relating to the sale of land under execution in the case of private judgments, recites that “ when an execution shall be levied upon real estate, the officer levying the same shall divide such property, if susceptible of division, and sell so much thereof as will be sufficient to satisfy such execution, unless the defendant in the execution shall desire the whole of any tract or lot of land to be sold together, in which case it shall be sold accordingly.” Rev. Stats., sect. 2368. I am clear that it never was contemplated by the legislature of this state, in authorizing any sale of land under execution, that more should be sold than, reasonably subdivided, should be found necessary to satisfy the execution. And I think it clear, whether regard be had for obvious principles of right, or for the meaning of the statutes above *243quoted, that when, in any case, the sheriff has sold enough land to satisfy the execution in his hands, his power of sale is exhausted. If the writ in his hands is so framed as to require him to sell more, then, in so far as it contains such a requirement, it is void. If the judgment upon which the writ is based is couched in such terms as to require this, then, in so far as it requires it, it is void ; and if there is a statute which authorizes the rendition of a judgment in such terms, in so far as it authorizes the rendition of such a judgment, it is also void.
I am not insensible of the difficulties which surround this question, nor do I seek to undervalue the reasons which have induced my learned brethren, after the very earnest attention which they have given to the subject, to come to the conclusion expressed in the opinion of the court. But are not these reasons reasons of inconvenience merely? And must such considerations outweigh the most important rights ? In this case it seems that the lots which were sold after the sale of the first three were worth many times the value for which they were sold. In substance and effect, not a dollar of the money thus raised will go to swell the public revenue. The sale of the first three lots having provided sufficient money to pay the taxes, costs, and charges accruiug on account of the whole property, all the money raised by the sale of the remaining lots must, under the terms of the statute, be handed over to the tax-debtor. It presents, then, to my mind, the simple case of a proceeding by which an officer of the state capriciously sells the property of one citizen to another citizen and hands the entire proceeds of the sale over to the former. That the proceeds of the sale are not more than one-tenth of the real value of the property, is not the mere fact in which consists the outrage. It would be scarcely less an outrage upon private right, if the property sold for the full value or for double its value. The citizen has a right to say whether he will keep his property or suffer it to be sold. It may be sold, perhaps entirely appropriated for the purposes of the pub-*244lie revenue. It may be taken from him and given to another, to be used by that other for public purposes, upon paying him a just compensation for it. It may even be destroyed without paying him any compensation, when the public safety requires it, as .to check a hostile invasion, or a conflagration. In all these cases he undoubtedly holds it subject to the paramount rights of societjL But it cannot be taken from him and sold to another, although for its full value, and although he receive the proceeds of the sale, when such a sale is not necessary for the accomplishment of any purpose of government, or of public safety of utility.
I therefore think that we ought to reverse the judgment of the circuit court and remand the cause with directions to set aside the sale of all the lots except the first three. The collector could then proceed, under the power of distraint which he possesses, to appropriate the money in the sheriff’s hands to the payment of the tax; and, if necessary, the court could aid him in the exercise of this power.
The judgment in this ease was afterwards set aside. — Rep.