(dissenting). I feel -compelled to dissent from the foregoing opinion. If the taxing officers of the state take advantage of the construction placed upon this law by the majority of this court, it will, of necessity, in not a few cases, lead to most *505intolerable and unconscionable results. In the words of the court in Bridewell v. Morton, 46 Ark. 73:
‘‘This construction * * * would be a restraint upon the free exchange and alienation of personal property that ought not to be drawn from the statute, when the meaning is not clearly manifested.”
I believe that the Nebraska court, in the quotation found in the majority decision, has given a statement of the law of taxation perfectly consistent with the theory of taxation adopted in our Constitution. Certainly under our theory of taxation, every article of nonexempt property should pay its share of -the public burden, but that is far different from saying that one piece of property should pay a portion of the public burden that has been levied against another piece of property. Inasmuch as each piece of personal property should bear its proportionate share of the public burdens, its said share may well be made a lien on such piece of property, and a lien superior to all other liens thereon whether they be prior or subsequent in date. Under our theory of taxation, not only should each piece of property contribute its share towards the public burdens, but, owing to the transient nature of personal property, the owner thereof should himself be charged with the payment of the taxes thereon, and therefore it is right and proper to make each particular item of one’s personal property not only liable for .the taxes upon such -property, but to make the owner's interest in any particular piece liable for the unpaid taxes upon all his other personal property; and I believe that all personal property taxes might well be a lien, upon all of the owner’s property, superior to all liens placed thereon or transfers thereof made, subsequent to the time when such taxes are declared to become a lien. The real question presented to this court is whether the statute in 'question should be construed as though it read, “All taxes assessed upon personal property within this state shall, from and after December first in each year, be a lien on all the personal property of the person against whom taxes are assessed, first or superior to all other liens thereon either prior or subsequent in date,” or as though it read, “All taxes assessed upon personal property within this state shall, from and after December first in each year, be a lien on all the personal property of the person *506against whom taxes are assessed first or superior to- all liens acquired- thereon after said December first.”
Under the construction of this law given in the majority decision, if A. owns a horse at the time fixed for assessment, and it is assessed to him, and -he afterwards, either before or after December 1st of the same year, sells such horse to B., who chances to be the owner of a large amount df personal property which has been assessed to him, and A. takes back a chattel mortgage to secure a part of the purchase -price, and then B., prior to- the time taxes become delinquent, becomes bankrupt and has left no property from which his taxes could be collected except the horse in question, then this horse, though the taxes on him have been paid, could, be taken and sold to- pay B.’s taxes and A. deprived of his security. I do not believe that robbery should be committed by the state any more than by an individual, and I cannot bring myself to believe that the lawmakers of this state intended to enact a law which might bring such unconscionable wrongs upon the people of this state. The above is but one of many illustrations that one could give of the utterly intolerable and unconscionable results that might flow from such a law.
In the latter part of the majority -opinion- are cited several cases which are claimed to support the conclusion reached in such opinion. When -carefully analyzed it will be found that not one of them is an authority for the majority -opinion. The main case relied upon seems to be that of Minnesota v. Central Trust Co., 94 Fed. 244, 36 C. C. A. 214. It must be conceded that there are statements contained in spch decision which, if they were not in the nature of obiter dictum,' would be authority for the majority opinion; but a careful examination reveals that no such question was presented in that case as is presented in the case before us. In order to determine just what was before the federal -court, it is well to note just what was before the lower court. On page 246 the federal court states:
“It is contended in behalf of appellee, .and so- the lower court appears to have -held, that the lien created by the mortgage irt favor of the Central Trust Company, from the time when that instrument was .recorded, to-wit, February 23, 1889, was and is paramount, so far as the personal property -conveyed by the mort*507gage is concerned, to any lien thereon which the state can assert under a subsequent assessment of such personal property for taxation. * * * ”,
Analyzing this statement closely it is seen that what the lower court decided was that the lien of the mortgage was superior to a subsequent tax lien based on an assessment of the identical property covered by the mortgage. I concede that such holding was wrong; there can be no question but that the tax upon property can be made a lien thereon superior to any other lien prior or subsequent -against the identical property taxed, and the federal court, in reversing the lower court, did what there is ample authority to support. It appearing, therefore, that the real question before that court was not the question presented upon this appeal, all statements in such opinion, which go farther than was necessary to decide the particular -question before that court, should ■be treated as but obiter dictum.
The majority opinion states that “A similar conclusion is reached in Michigan under a statute somewhat similar to ours,’.’ and cites Crawford v. Koch, 169 Mich. 372, 135 N. W. 339. An examination of that case reveals that the holding therein has not the remotest bearing upon the question now before us. There was a statute in Michigan providing that personal property should be assessed against the person in possession thereof, regardless of whether such person was the owner or not. The property in question in the Michigan case was ten pianos. These pianos had been in the possession of one S'., and were in his possession at the time when they were assessed for taxation, though the pianos belonged to another party. The taxes were assessed and levied against S. and, under such statute, became a lien against these pianos. Not only that, but the other personal taxes of S. became a lien upon these pianos, as well as upon any other property in S.’s possession. After such taxes had become a lien upon the personal property in S.’s possession, the true owner of such property who, by placing the pianos in S.’s possession, had allowed them to become subject to such tax lien, sold the pianos to the plaintiff Crawford. Thereafter they were seized and taken -out of Crawford’s possession by the officers, under the alleged tax lien, and Crawford brought this action to recover 'the possession of such *508pianos. It will thus be seen that the question presented was the validity of a statute under which property could be assessed in the name of one not the owner thereof, but who was in the posses-sin thereof, and under which statute any personal property in one’s possession became subject to a lien for all the personal property taxes of such persojn. There is absolutely no question of priority of liens and, as before stated, the decision has no bearing upon the question before us at this time.
Reference is also made to Burfiend v. Hamilton, 20 Mont. 343, 51 Pac. 161. This is a case wherein it was held that, where a license was required for the conducting of a certain occupation and such license is made a lien upon the property used in such occupation, such statute makes such license a lien upon such property superior to any mortgage lien against the same property. While it does not appear whether the mortgage involved antedated the license lien, yet, conceding that it did, it is a far different situation than is presented in this case. There are many liens against personal property which; owing to the nature of the lien, should take precedence over any mortgage on the same property, such as a tax lien for taxes upon the identical property, or, as held in some states, an agister’s lien upon live stock; such also would be a seed-grain lien, a thresher’s lien, or a blacksmith’s lien.
The case of Reynolds v. McMillan, 43 Neb. 183, 61 N. W. 699, is cited. The decision in this case rests upon that of Reynolds v. Fisher, 43 Neb. 172, 61 N. W. 695. An examination of this case reveals that their statute is like that of Minnesota, and that the court construed the same exactly as I believe our statute should be construed. It in no manner supports the views of the majority of this court.
The case of Mills v. Thurston County, 16 Wash. 378, 47 Pac. 759) is cited. The sole question in that case was whether or not, where a stock of goods had been assessed for taxes and a part of the same afterwards sold in the regular course of business and other goods intermingled with the remainder, and such stock of goods, including the new goods, sold to another party after the time when, under the- statute, it was declared the tax should be a lien upon the personal property of the owner, such stock of goods in the hands of said second party- — not. only the remainder of the goods taxed but *509the new goods mixed therewith — could be held for such taxes. The court held that all of said goods were liable for such taxes. It will thus be seen that, in this case, there was no question of the priority of tax liens over other liens, and the decision therein in no manner bears upon the question now -before us. So with the later case of Porter v. Yakima Co., 77 Wash. 299, 137 Pac. 466. It has absolutely no bearing upon the question now before us.
In, the case of Bridewell v. Morton, 46 Ark. 73, also cited in the majority opinion, the sole question was whether, where a party owned various classes of personal property and had been assessed therefor and the tax had become a lien against all of such property, and such party had afterwards sold a part thereof, such part, in the hands of the purchaser, could be holden for all of 'the former owner’s personal property tax. In this case the court held that it could not be so holden, but that each class of personal property could be holden for the tax against such class. It will thus be seen that this decision, if it has any bearing whatsoever upon the question now before us, would be an authority against the proposition that a threshing machine in the hands of one who purchased same from the party owning same at the time it was taxed could be holden for any tax of the former owner, excepting such tax a£ was levied against that class of property to which the threshing machine belonged; and certainly there is nothing in this decision in any manner touching the real question before us, to-wit, whether or not a tax lien is superior to prior liens against other personal property.
There is also cited Morey v. City of Duluth, 75 Minn. 221, 77 N. W. 829. All that is holden in this case is that a real estate tax for 'special improvements takes priority over a mortgage against the real estate exactly -the same as the ordinary real estate tax lien takes priority over other liens and incumbrances against such real estate.
Remembering that the right to a lien for taxes is to be found in the express provision of the statute, and that the provisions of such statute should not be enlarged by implication, it would seem that this statute should be construed to mean simply this: Taxes assessed upon personal property shall, from and after December 1st in each year, be a first or superior lien on all of the personal prop*510erty of the person as against any and all liens that may be created against such property after such date. The word “first” as used in our statute should be construed as meaning nothing more nor less than “superior”; and we should hold it was not intended to make this lien superior to liens already against such property, but simply to make it superior to any and all liens that may thereafter be placed upon such property. By so construing it, no unconscionable results will follow, and the statute will also- be practicable in its workings. While it is clear that the Legislature might make the tax upon any item of personal property a lien superior to all other liens, either prior or subsequent, upon such item of property, yet, unless the express words of the statute so provide, it should not be held that the statute makes it superior to those prior in date of time even as against the particular property assessed.
I am therefore of the opinion'that we should hold that this statute means nothing more nor less than that the tax assessed against any personal property does, upon the -ist day of December thereafter, become a lien agaifist not only the particular item taxed and still owned by such party, but against each and every piece of personal property then owned by such party, even though acquired after the date of assessment; that such lien should stand as a first or superior lien from the said ist day of December as against any and all liens thereafter created or sales thereafter made. If the legislators intended it to be a first- lien over all incumbrances and liens, whether prior or subsequent, they should have used unambiguous language.
M-cCOY, J. I concur in the views expressed by WHITING, J.