(dissenting.) In my opinion., under a fair construction of the tax law, (Gen. St. 1878, c. 11,) and especially of section 73, we are not required to hold that the district court is invested with jurisdiction to enforce a tax which, having been paid, is not delinquent, even if it be competent (which I doubt) for the legislature to confer, or the court to exercise, any such jurisdiction, (especially upon mere constructive notice.) I think the gross injustice which will certainly result ought to make this court slow to sustain any such assumed jurisdiction, unless absolutely compelled so to do by the explicit language of the statute. I therefore dissent from the opinion of my brethren in this case, although in so doing I. am obliged to re*6cant what I now deem to be the erroneous dictum, of County of Chisago v. St. Paul & Duluth R. Co., cited in the majority opinion.
The following are the prevailing and dissenting opinions upon the reargument, and were filed December 24, 1886.
Gileillan, C. J.After the decision in this case, when first submitted, an application was made in the name of the appellant for leave to reargue the questions involved, and, the case having been brought within the rule established by this court for applications of the kind, such leave was granted. On the reargument the counsel for divers corporations interested in the questions — indeed, all who applied to be heard on the side of appellant — were permitted to take part in the argument. Consequently the questions were more fully argued than in any other case involving the same questions that has come before the court. The construction of the statutes contended for by the appellant would radically change the character of the proceedings established by statute for the collection of taxes upon real estate, as heretofore understood by the courts, the legislature, and, we think, the people; and for that reason, as well as because of the great importance of the questions, we deem it proper to enter in this opinion more at large than we do in ordinary cases into a discussion of the various provisions of the statute. That the courts have always regarded the statute now in force as intending to give to tax sales the sanction of a previous judicial determination of the right to make such sales is apparent from the fact that in many cases the matter of the nature of the proceedings to enforce collection of taxes against real estate has been directly or indirectly before this court, and in no case prior to this one has the court, or any judge of it, intimated any doubt that the judgment directing the land to be sold for the tax mentioned in it is entitled to the same force and effect as judgments in ordinary actions, and that it conclusively determines the right to sell the land as directed by it.
The legislative construction is apparent from the course of legislation. In section 119 of the original act, (Laws 1874, c. 1,) pay*7ment and exemption were provided for as defences to be made in the proceedings. This provision has remained through all changes in the law. By section 125 it was provided that a sale might be set aside on proof “that the court rendering the judgment pursuant to which the sale was made, had not jurisdiction to render the judgment.” This latter provision was struck out in 1875. Laws 1875, e. 5, § 30, amending section 125 of the act of 1874. In 1877, (Laws 1877, c. 6, § 22,) this section was again amended, not by restoring the provision in the original act, but by inserting a provision that the sale might be set aside “if it shall appear that the taxes for which such sale was made had, prior to such sale, been paid, or that such lands were not subject to taxation.” In the revision of 1878, (Laws 1878, c. 1; Gen. St. 1878, e. 11,) the above-quoted provision from the act of 1874 was restored, (section 85,) the above-quoted provision from the act of 1877 was struck out, and a provision inserted (section 80) giving the court power to open or vacate the judgment at any time before the expiration of the period for redemption, and allow a defence to be interposed on the ground that the tax has been paid, or that the land is not subject to taxation. There was then also inserted in the law, for the first time,- by section 76, this clause: “And the same presumption in favor of the regularity and validity of the said judgment shall be deemed to exist as in respect to judgments in civil actions in said court.”
We must presume that the legislature meant something by these various alterations; that in striking out the clause quoted from the act of 1874, it intended that the sale should not be avoided on the grounds therein stated, — that is, that the judgment should not be thus collaterally assailed; that in inserting the clause quoted from the act of 1877, it intended that the sale should be avoided for the reasons stated in it, and understood it could not be avoided without that clause; and that in the revision of 1878, by striking out that clause, it intended that those reasons should no longer be ground for avoiding the judgment and sale, except as provided in section 80; and that it understood the judgment to be a judicial determination of whatever is involved in, and is necessary to justify, what it directs, to wit, a sale of the land.
*8The decision in County of Chisago v. St. Paul & Duluth R. Co., 27 Minn. 109, (6 N. W. Rep. 454,) in which it was directly decided that the proceeding is one to try and determine the validity of the tax appearing on the list filed, and that the question does not go to the jurisdiction of the court, was filed in August, 1880. The legislature (it has not been slow to make what it deemed proper changes in the tax law) has made no move to change the general law in that particular. It must be presumed that its acquiescence in the construction of the law by that decision was because it considered it to be in accordance with the legislative intention, — with its own construction of the law.
In 1881 it passed an act (Laws 1881, c. 135) to enforce the payment of taxes which became delinquent in and prior to the year 1879. It provided that the same proceedings for judgment and sale should be had as in the general tax law; but it reserved no right of redemption after sale, no right to apply for a vacation of the judgment after its rendition, on the ground of exemption or payment, as in section 80 of the general law, and it had other features harsher than are in the general law. The list was to be a sort of omnibus list. It might have on it the taxes for many years. It was therefore more liable than the list under the general law to have on it land for years when it was exempt, and taxes that had been paid. Obviously, for these reasons, there was inserted a provision that the judgment and sale should be void on proof at any time that the land was exempt or the taxes paid. This provision was entirely superfluous, except on the theory that without it the judgment would be conclusive upon those facts, and the insertion of it shows the legislature understood such would otherwise be the effect of the judgment.
Notwithstanding the clause quoted from section 76, enacted after the case of Eastman v. Linn, 26 Minn. 215, (2 N. W. Rep. 693,) arose, we think the tax judgment may, in a,collateral action, be assailed for want of jurisdiction. The provision was enacted by the act which re-enacted the clause quoted from section 125 of the act of 1874. The two provisions must stand and be construed together, if possible, and be held to modify each other, if necessary, in order to avoid rejecting either. Bo construing them, section 76 attaches *9to the judgment the same presumption of regularity and validity as in respect to judgments in civil actions in the district court, to wit, a conclusive presumption, except that, as provided in section 85, want of jurisdiction may be proved.
No one could deny that the legislature has power to provide a judicial proceeding or action in which shall be conclusively determined, before any sale, that the land is or is not legally chargeable with any taxes appearing against it in the books of the proper officers, and to provide on what the jurisdiction of the court shall depend, and how it shall attach, and in what, manner the court shall proceed, if the whole proceeding provided for come within the meaning of the term, “due process of law,” as used in the constitution. The legislature has apparently attempted to do this. At least, it has provided, commencing with section 70 of the tax law, (Gen. St. 1878, c. 11,) for a proceeding to be commenced in the district court, to be upon a prescribed notice, to be conducted on pleadings and proofs, and which may be taken to the supreme court for review, and which is to result in what is called a “judgment;” a sale to be had only if the so-called “judgment” so direct, and the land to be discharged of the claim for the tax if the so-called “judgment” so determine.
The character of this proceeding, its nature, scope, purpose, and effect, what the court is to try and determine, and how it shall get jurisdiction so to try and determine, depend on the intention of the legislature, as expressed in the statute. The intention is to be got at by considering the sections of the statute which provide for and regulate the proceeding. There are a great many sections which have no reference to the proceeding in court, but merely prescribe duties of ministerial or administrative officers, — such as assessors, auditors, treasurers, and boards of equalization. The counsel on the side of appellant argue that section 69 is controlling as to the jurisdiction of the court, and as to what is before it for decision. “That,” says one of the briefs, “Í3 the dominant section.” But that section makes no reference whatever to the proceeding in court, its purpose, scope, or character. It assumes only to prescribe certain duties to the county auditor and treasurer. It does not even assume to define a “delinquent tax.” It makes no mention of two essential elements of de*10linquency. When we are inquiring as to the character of a proceeding in court, provided for by other sections, to go to such a section as 69, and especially to let it control the evident import of such other sections, would violate the most obvious rules of interpretation.
Down to and including section 69 there is nothing from which it might be conjectured that there is to be any action of a court. For aught that thus far appears, the sale is to be made in the same manner as before the act of 1874. Section 70 provides that the auditor shall file, on or before the 15th day of June, a list of the delinquent taxes, verified by him, in the office of the clerk of the court; and continues : “The filing of such list shall have the force and effect of filing a complaint in an action by the county against each piece or parcel of land therein described, to enforce payment of the taxes and penalties therein appearing against it, and shall be deemed the institution of such action. ” This is the only section which assumes to state expressly the purpose, scope, and character of the proceeding. It is to this section, and those which illustrate its meaning by regulating the proceeding provided by it, and not to those devoted exclusively to other purposes, that we are to look in order to determine what the proceeding is. The language of the section is unambiguous. Its force and meaning cannot be avoided, except by ignoring the section altogether. The filing of the list is the institution of an action against each piece or parcel of land described in it, and the list is a complaint against each piece or parcel, for the taxes and penalties appearing in the list against such piece or parcel. It tenders an issue as to the validity of the taxes appearing on it as effectually as though it contained formal allegations of every fact necessary to make such taxes valid. The action is one in rem, against the land, and not against any person. Only a judgment in favor of or against the land — none for or against any person — can be rendered. It is an untenable proposition that the action may, by appearance and answer, become one in personam,; for the same judgment — for or against the land — is to be rendered whether upon default, or after answer and trial.
Section 71 provides for notice “to all persons, companies, or corporations who have or claim any estate, right, title, or interest in, claim *11to, or lien upon, any of the several pieces or parcels of land in the list hereto attached described,” (such list being a copy of the filed list.) It requires them to file an answer, setting forth any objection or de-fence they may have “to the taxes and penalties, or any part thereof, upon any piece or parcel of land described in said list,” in which they may have or claim any estate or interest, etc.; and it gives them notice that, in default of so answering, “judgment will be entered against such piece or parcel of land for the taxes on said list appearing against it,” etc.
Section. 72 provides for publication of the notice, and section 73 that, “when the last publication shall have been made, the notice shall be deemed to have been served, and the court to have acquired full and complete jurisdiction to enforce against each piece or parcel of land, in said published list described, the taxes, accrued penalties, and costs upon it, then delinquent, so as to bind every estate, right, title, interest, claim, or lien, in law or equity, in, to, or on such piece or parcel of land, of every person, company, or corporation.” And then, as if to guard against any failure of jurisdiction in respect to any piece of land or tax within the complaint (the list filed) and the notice, (the list published,) the section continues: “And such jurisdiction shall not be in any way affected by any error in making the list filed with the clerk, nor by any error, irregularity, or omission in the assessment or levy of the taxes, or in any other proceedings prior to filing said list, nor by any mistake in copying the list for publication, nor by any mistake in publishing such list, nor by any mistake in the amount of tax in such published list appearing against any piece or parcel of land therein described. ”
Section 75 provides how an answer shall be made, which “need not be in any particular form, but shall clearly refer to the piece or parcel of land intended, and set forth, in ordinary and concise language, the facts constituting the defence or objection to such tax or penalty,” of course referring to the tax or penalty appearing on the' list.
Section 79 provides that no omission prior to filing of the list shall be a defence, unless it shall have resulted to the prejudice of the-party answering, in which case the court may reduce the amount of *12taxes on the piece or parcel of land, and give judgment accordingly; and that “it shall always be a defence in such proceedings, when made to appear by ansioer and proofs, that the taxes have been paid, or that the property is not subject to taxation.”
Section 77 provides for a trial, when answers are filed: “The court shall proceed without delay, and summarily hear and determine the objections or defences made by the several answers, and shall dispose of all such answers, and direct judgment accordingly, at the same term; and in the trial thereof shall disregard all technicalities and matters of form, not affecting the substantial merits.” Section 78 provides that if the taxes and penalties — those on the list — be sustained, in whole or in part, against any piece or parcel of land, judgment shall be rendered against it for the amount as to which the taxes and penalties shall be sustained, and direct the piece or parcel to be sold, unless the amount is paid; and that, if the court shall sustain the defences or objections as to any pieces or parcels, the judgment shall be that they “are discharged from the taxes in said list set down against such pieces or parcels, and from all penalties.”
Great stress is laid in one of the briefs on the words “then delinquent,” in section 73, and it is argued from them that delinquency in fact, aside from whatever the court may determine in the proceeding, is a prerequisite to the power or jurisdiction to try or determine anything, — to entertain the proceeding at all. Of course, the legislature ■did not contemplate that any but taxes legally chargeable against the land should be enforced. But how is that to be ascertained and determined ? In the action provided for enforcing the taxes, or in some other independent action or proceeding? That action is declared to be one to enforce the taxes and penalties appearing on the list filed. Parties interested are cited to answer, setting forth any objection or ■defence to the taxes and penalties appearing on that list. Provision is made as to how such objections or defences shall be presented; the effect that certain objections or defences, among them exemption and payment, shall have; for a trial of “the objections or defences made by the several answers,” and how it shall be conducted; for judgment on the merits, according to the facts as found on such trial, — giving its form in case the tax be sustained, and its form in *13ease the objection or defence be sustained, the judgment in the latter case discharging the land from the taxes “in said list set down” against it.
It is difficult to see how any one can, after reading the sections we have referred to, make any question that the action is one to try and determine whether the several tracts described in the list filed are legally chargeable with the taxes and penalties therein set down against them, to enforce such taxes and penalties if determined to be legally chargeable, and discharge the land from them if the contrary be determined, and the judgment either way is declared to be final, except that it may be reviewed by the supreme court. Section 80. If the legislature had intended that the court can have no jurisdiction unless the tax is delinquent, then we would naturally expect a provision for a dismissal of the proceeding in case the court find it not delinquent, instead of for judgment on the merits, according to the finding. There is no ease to be found, there never was a case under any system of jurisprudence, in which a court was required or permitted to decide the merits upon a finding against the facts essential to its jurisdiction. Power to try and render judgment on the merits is jurisdiction. Whenever that power is given, jurisdiction is conferred, no matter what terms the statute employs. When the statute gives the court authority, upon the filing of the list and publication of the notice, to receive answers setting forth “any objection or defence,”— among such objections or defences exemption or payment of the taxes or penalties in the list filed; to hear and determine such objections and defences, and direct judgment accordingly, directing the land to be sold to satisfy the amount found due, if the tax be sustained, and discharging the land from the tax and all penalties, if the objection or defence be sustained, it gives the court jurisdiction over the matter of the taxes set down in the list for the purpose of rendering judgment upon them for or against the land. The action is by the state, in the name of the county, against each tract of land described in the list; in which action the state presents, as its claim or cause of action against each tract, the tax and penalty in the list set down against it. That is the matter presented for the court to pass on, and which, if the statute means anything, the judgment does pass *14on. If we make delinquency in fact a prerequisite to the power of the court to act at all, without which it cannot pass on anything, and if it cannot determine the matter of delinquency, what can there be for it to try? Why provide for answers, objections, and defences, for a trial and judgment? To constitute a legally delinquent tax on land three things are necessary: First, that the land is subject to taxation; second, that a tax authorized by law has been levied on it in the manner provided by law; third, that the tax remains unpaid after the time appointed by law for its payment. To make out a tax delinquent, each of these things must be shown, — each is as essential as either of the others. If the jurisdiction of the court depends on delinquency, the absence of either of these elements will defeat it.
It is argued that, the land being subject to taxation, and the tax being unpaid, the court may try the second of these requirements. There is no warrant in the statute for any such distinction. The same section (79) which provides for a defence on the ground that the officers levying the tax have not proceeded according to law, and in what case and to what extent it shall be a defence, provides also for the de-fence of exemption or payment. The section (77) which provides a trial for one defence also provides a trial for the others, and provides (as to all alike) for “judgment accordingly.” Whatever the defence may be, judgment on the merits must be rendered. To make any distinction in the various objections to the tax, as affecting the jurisdiction or power of the court to determine them, requires a remodel-ling of the statute, which the legislature only can attempt.
The statute most pointedly provides for a trial and judgment on a tax which cannot be called legally delinquent at the time the action is commenced. Delinquency necessarily includes present obligation to pay. It is the neglect of that obligation. A tax on the list may be made up in part of items of tax which there is no authority to levy, or the tax may be too much, by reason of the officer’s proceeding irregularly. In either of these eases there can be no obligation to pay —no actual delinquency in the tax on the list — until the true amount is determined. The amount may be determined in this statutory proceeding. County of St. Louis v. Nettleton, 22 Minn. 356.
If the jurisdiction of the court depends on a previously existing de*15linquent tax, if all its proceedings may be overturned by subsequent proof that there was no such delinquent tax, then, as it seems to us, the legislature has with great care and elaborateness provided for an action in which nothing can be tried, to result in a judgment by which nothing will be decided. It is said that it was intended that the judgment should be prima facie valid. But if the legislature desired only something which should be prima facie evidence of the right to sell the land, why did it not merely retain the simpler provision in the law prior to the act of 1874, by which the deed executed by the auditor was prima jacie evidence of a good title in the grantee ? Gen. St. 1866, c. 11, § 140. If the court has authority to try and determine the questions of exemption and payment, then those matters are within its jurisdiction, however it may determine them. If, on the other hand, its jurisdiction depends on the facts that the land is liable to taxation, and the tax is unpaid, and if its decision of those jurisdictional facts is not binding, then, so far as those facts are concerned, its judgments, whether rendered on default or upon answer and trial, amount to nothing. They bind neither the state nor the parties interested in the land. If it is defeated on those grounds it can bring another action. If they are defeated they may disregard the judgment, or the sale pursuant to it. The decisions of the district courts, and of this court, rendered in the action under the statute, by which the status as to taxability of millions of acres of lands has been determined, are of no force as judgments. They leave the question of the taxability of those lands still open.
The counsel for one of the parties heard on the side of the appellant concedes this result; but the counsel for another of the parties endeavors to evade it by the proposition that, by appearing and answering, a party gives the court jurisdiction over his interest in the land, so that the judgment will bind him. But while a party may consent to jurisdiction so far as his person is concerned, may waive anything intended for his benefit, — such as notice, or service of process, to bring him into court, — he cannot, by consent or by anything that he does, give jurisdiction over the subject-matter. If cases only of a certain class, to wit, those where the land is subject to taxation and the taxes are unpaid, are committed by the statute to the juris*16diction of the court, no one but the legislature can enlarge the class, or extend the jurisdiction to any other cases.
The main defect in the tax law prior to 1874 was not in the details by which taxes were assessed, but in the mode of enforcing their payment. All the proceedings down to and including the sale and execution of the deed were the acts of merely ministerial officers. There was no way for the state to test its right to sell, nor by the purchaser after the sale, except in an action between him and the former owner, which action the purchaser might not for years be in position to bring. All the risks were cast on the purchasers; and the courts everywhere had adopted and adhered to rules of decision in respect to the acts of ministerial officers, requiring such strict compliance with the terms of the statute as made it practically impossible that any sale should stand. Blackwell, in his work on Tax Titles, (p. 71,) says of such sales: “Out of a thousand cases in court not twenty have been sustained.” The supreme court of California in O'Grady v. Barnhisel, 23 Cal. 287, 292, said: “It had become proverbial that a tax title was no title at all, and a sale for taxes was as near a mockery as any proceeding having the appearance of legal sanction could be.” As a consequence, the attempt to enforce payment by sale without judgment became, practically, a mockery. No one would bid. Owners, if so disposed, defied the attempt of the government to collect its revenues. The tax laws had no efficiency, for they had no terror for those disposed to evade payment. The essential difference between the former and the present laws is in the mode of enforcing payment. The change can be explained only by assuming that the legislature intended to substitute for the former mode one by which the sale should be made under the sanction of a judicial decree establishing the right to sell, on which bidders could safely rely. There existed at that time, and still exists, a condition of things which made it peculiarly expedient that the right to tax and to sell should be settled before a sale, and which, it is fair to assume, influenced the legislature in providing for a judgment before sale. There were in the state millions of acres of land temporarily exempt from ordinary taxation. Most of them were lands granted by the state to various railroad corporations, with a provision in the grants *17that they should be exempt from such taxation until “sold” or “sold and conveyed” by the corporations. Unfortunately no time was fixed in any of these grants beyond which, if the lands were not sold, the exemption should cease. But it was not supposed to be perpetual. It was expected that more or less of them would every year pass into private hands, and become subject to taxation, like other real estate, and that it would then be the duty of the officers administering the tax laws to levy taxes on them, and to sell them for the taxes, if not paid.
The difficulty in the way of those officers determining when to act, and that any determination by them would necessarily be but a haphazard conjecture, had been illustrated in the case of First Division, etc., R. Co. v. Parcher, 14 Minn. 224, (297,) decided in 1869, which involved the status, as to taxation, of the entire land grant of the company. That case arose upon an action by the railroad company. There was no proceeding prior to the act of 1874 which the state could take to bring to a test the right to tax such lands. As instances of what the legislature might, and undoubtedly did, anticipate as certain to occur, we refer to those cases which have come to this court involving the taxability of great masses of those lands: State v. Winona & St. Peter R. Co., 21 Minn. 315, involving the entire land grant of the company, its taxability depending on a constitutional question; State v. Same, Id. 472, involving about 600,000 acres, the question being whether a certain transaction, which left the legal title in the company, was, in effect, a sale and conveyance, within the meaning of the exemption clause in the grant; County of Nobles v. Sioux City & St. Paul R. Co., 26 Minn. 294, (3 N. W. Rep. 701,) involving the lands in the grant from St. James to the Iowa line, a distance of 74 miles; St. Paul & Sioux City R. Co. v. McDonald, 34 Minn. 182, (25 N. W. Rep. 57,) involving 400,000 acres; St. Paul & Chicago Ry. Co. v. McDonald, 34 Minn. 195, (25 N. W. Rep. 453,) involving all the lands remaining of the grant for the line from St. Paul to Winona. The absurdity of leaving the matter of taxing and selling such lands to merely ministerial officers appears especially in these last two cases, from the facts that no proceedings were taken for several years, nor until the nature of the transactions claimed by *18the state to make the lands taxable, previously known in full only to the parties to them, was in part disclosed upon an investigation by a committee of the legislature, and that, when fully ascertained by a judicial examination, the district court and this court differed widely as to the effect that the transaction might have on the exemptions. The case of County of Cass v. Morrison, 28 Minn. 257, (9 N. W. Rep. 761,) involved the status, as to taxation, of all the lands in this state in the grant by the United States to the Northern Pacific Railroad Company, between two and three million acres, if there were lands sufficient to fill the grant. Another class of lands exempt from ordinary taxation are such as, no matter how acquired, are part of a railroad, and which, though owned by a railroad company, become taxable in the ordinary way whenever they cease to be a part of the railroad. That such instances may be of frequent occurrence, and the difficulty of determining upon them, will appear from the eases of County of Ramsey v. Chicago, Mil. & St. Paul Ry. Co., 33 Minn. 537, (24 N. W. Rep. 313,) and County of Hennepin v. St. Paul, M. & M. Ry. Co., 33 Minn. 534, (24 N. W. Rep. 196.)
It is impossible to doubt that, in considering the tax laws in 1874, the legislature foresaw that what had happened in the past would happen in the future; that, growing out sometimes of Iona fide transactions, sometimes of devices resorted to to preserve these exemptions in favor of parties not entitled to them, there would be continually arising controversies between the state and the railroad companies as to the continuance of the exemptions; that to proceed and levy taxes upon the lands, and offer them for sale with no other assurance of the right to tax and sell than the acts and judgment of merely ministerial officers, the bidder for such tract to take his chances in a probably tedious and expensive litigation with one of these great corporations, would be futile; and that in providing for a new and more efficient mode of enforcing payment of taxes, giving to the sale the appearance of judicial sanction, it intended the judgment to have more effect upon the status of these lands, as to the right to tax them, than the acts of ministerial officers had under the previous law; that it intended the judgment to determine the lands to be subject to taxation, or not subject to it; to provide — what did not exist before — a *19mode by which the state could, not depending on the pleasure of the parties interested, bring the matter of its right to tax and sell the lands to a conclusive determination before selling. There were also other large classes of exempt property as to which it was expedient, as the contentions with respect to their right to exemption that have come before this court will show, that some mode for testing the right to exemption before a sale should be provided. There were public hospitals, academies, universities, seminaries of learning, churches, church property used for religious purposes, houses of worship, insti- ■ tutions of purely public charity, etc.
Several of the states have provided, by statute, proceedings in their character judicial, and resembling more or less that existing here, for the enforcement of taxes. We shall refer to them only so far as there have been decisions of the courts on questions arising in respect to those proceedings similar to the questions presented in this case.
In Tennessee, California, Illinois, and in Pennsylvania in respect to municipal taxes, the proceeding to enforce is an application for judgment by petition, report of the collector, or a list of the taxes filed in the court, and a judgment on such application, after which comes the sale.
In Arkansas the proceedings go on to a sale through the action of merely ministerial officers, but the statute gives the purchaser the right to apply to the court for a decree confirming the sale, upon a notice, published for six weeks, requiring all persons interested to show cause why the sale should not be confirmed. In Iowa, as the statute existed at one time, there was a proceeding similar to that in Arkansas. It is a mistake to consider these actions in Arkansas and Iowa as ordinary suits to quiet title, depending on and controlled by the ordinary equity jurisdiction of the court. The court could not have entertained such an action, proceeding in that manner, but for the statute. Its jurisdiction depended on the statute. The action was statutory, — a proceeding in rem against the land. Wallace v. Brown, 22 Ark. 118, (76 Am. Dec. 421.) The same questions were involved in them as are involved in the application for judgment under our statute, as we construe it, including the validity of the tax, *20its non-payment, and the right to sell the land for its payment. The only essential difference between our proceedings and those is that by ours it is an action before sale, and in the name of the county; in those states after sale, and in the name of the purchaser.
In Wallace v. Brown, supra, where the judgment or decree in question was rendered on default, (there being no actual service of notice,) the court held it could not be assailed by proving that the tax had been previously paid, the court saying: “The existence or validity of the debt or demand upon which the suit is founded, at the time of rendering the judgment or decree, is not the criterion of jurisdiction.”
In Worthen v. Ratcliffe, 42 Ark. 330, 344, the court said: “Every question with respect to the assessment of the land in controversy, or the non-payment of taxes, or the regularity of the proceedings of the sheriff and collector, is concluded by that decree, provided the court which rendered it had jurisdiction of the petition, and provided the decree was not obtained by a fraudulent misrepresentation or concealment of facts.” This was recognized as the rule in respect to such Arkansas decrees, by the supreme court of the United States, in Parker v. Overman, 18 How. 137, 142, and Thomas v. Lawson, 21 How. 331, 341.
In Gaylord v. Scarff, 6 Iowa, 179, 186, the court held to the same effect, saying: “As the non-payment is the essential fact on which the power to sell rests, the decree necessarily includes within it the finding of that fact, and, in the absence of fraud, must be conclusive.”
In Cadmus v. Jackson, 52 Pa. St. 295, 304, there was in question the validity of a sale under a judgment for a municipal tax; the claim being that the tax had been previously paid, and that all judicial process founded on paid taxes is null. The court said: “This answer cannot prevail, because there is the judgment for the taxes in full force, and it cannot be collaterally impeached.”
In Mayo v. Foley, 40 Cal. 281, the question being upon the effect of a tax judgment, the court said: “The legality of the assessment in the first instance, and the fact of the delinquency in its payment, were the very questions made in the suit which resulted in the decree itself, *21and it was directly determined and adjudged therein that these taxes were legally levied, and were due and unpaid.”
In State v. Sargent, 12 Mo. App. 228, it was held that the tax judgment (in that instance rendered on constructive notice only) was conclusive.
In Knoll v. Woelken, 13 Mo. App. 275, of a tax judgment the court said: “That this particular tax was void, and would not authorize the judgment rendered, was matter of defence to be set up in that action, but did not go to the question of jurisdiction at all.”
With respect to the proceedings to enforce taxes in Tennessee, the court, in Thatcher v. Powell, 6 Wheat. 119, 127, said: “This act gives the power only on a report to be made by the sheriff, [the collector of taxes.] This report gives the court jurisdiction, and without it the court is as powerless as if the act had never passed.”
In Spellman v. Curtenius, 12 Ill. 409; Pickett v. Hartsock, 15 Ill. 279; and Morrill v. Swartz, 39 Ill. 108, the court held the collectors report of delinquent taxes filed in the court to be the foundation of the proceeding; in the last case saying: “This report is what gives the court its jurisdiction.”
The holding that the jurisdiction of the court depends on the filing of the report, and not on the validity of the tax, is further emphasized by the decision in Gage v. Parker, 103 Ill. 528, 536, holding conclusive a judgment for a local assessment rendered in proceedings similar to those for the collection of the general taxes, the court saying: “If the assessment was illegal, from the fact.that it was based upon an insufficient ordinance, it was the duty of the complainant in the bill to appear before the county court when the application was made to confirm the assessment, and there make the objection.”
We have made these references to decisions upon the tax laws of other states for the purpose of showing that, though such laws as to the mode of enforcing payment are very similar to ours, in no instance has it been supposed that the. jurisdiction of the court depended in any respect on a valid, unpaid tax, but that such jurisdiction has its inception in the filing in the court of the petition, report, or list, which first brings the. matter before the court. For the same purpose we may refer to Dousman v. City of St. Paul, 23 *22Minn. 394, 399, which was the case of a judgment for a local assessment, rendered upon proceedings in court similar to those under the general law for the collection of taxes, commenced in the same manner. The objection to the judgment was that the proceedings, prior to the delivery to the city treasurer of the warrant to collect, were void; but the court said: “If this claim of the plaintiff be well founded, it does not affect the validity of the judgment.”
We conclude, therefore, that the legislature intended the proceeding provided for in section 70, and the following sections, to be an action in behalf of the state against each tract of land described in the list filed, the jurisdiction depending on the filing of the list, and not on the right to recover the tax and penalty in the list appearing against each tract to be the claim or cause of action on the part of the state against such tract; the judgment to determine the existence and validity of such claim or cause of action, and that it should be final and conclusive, except as in the statute provided. Of course, the legislature did not intend that a tax appearing on the list shall be enforced if not legally chargeable upon the land; nor does it intend, when providing for private actions, that an unlawful claim of a plaintiff shall be enforced. The general intention in providing for the action to enforce the tax is the same as in the other case, — to provide a mode to ascertain if the claim presented is lawful, and, if so, to enforce it. In each of these cases instances may occur in which unjust claims will be enforced. This will always be so in legal proceedings while men in their acts and judgments are liable to error. No scheme for prescribing, regulating, ascertaining, or enforcing rights ever was or ever will be devised that has not at times, or will not at times, operate unjustly. There is no rule of law, — no statute in the statute book, — however indispensable, however beneficial generally, that is not subject to this defect. The statutes for registration of deeds, of limitations, for collection of debts from non-resident debtors, for administering estates of deceased persons, for closing up the affairs of insolvents, or forfeiting corporations, for ascertaining and making compensation for property taken for public use, may be mentioned as examples of this.
*23We will close our consideration of this part of the case by quoting from the opinion of the supreme court of the United States in De Treville v. Smalls, 98 U. S. 517, 525: “We are not unmindful of the numerous decisions of state courts which have construed away the plain meaning of statutes providing for the collection of taxes, disregarding the spirit, and often the letter, of the enactments, until, of late years, the astuteness of judicial refinement had rendered almost inoperative all legislative provisions for the sale of land for taxes.” “There is no possible excuse for not enforcing such statutes, according to their letter and spirit.”
We will now consider the objection that the mode of procedure provided by the statute is not “due process of law,” which is based on two propositions: First, that, in the absence of a prior lien for a valid, unpaid tax, there is no res or thing brought within the jurisdiction of the court; second, notice by publication is not sufficient.
As to the first of these propositions, the counsel on the side of appellant, though agreeing that the action is one in rem, do not agree as to the res or thing which is the object of the action; one making the proposition — novel, if not ingenious — that the lien for the tax is the res, — the thing, — which must be brought within the jurisdiction of the court, and if there is no lien, there is no res, — no thing which can be brought within the jurisdiction. We need not consider that proposition further than to state it. Another claims that there is no seizure provided by the statute, unless through a valid lien for the tax; and all claiming, what is undoubtedly true, that, in a proceeding in rem, to give the court jurisdiction over the thing proceeded against, there must be a seizure, or something which is equivalent to one. The propositions would be equally true of an action to foreclose a mortgage, a mechanic’s or other lien, or any other action where real estate is the object of the action, which, because of inability to make personal service of process, must proceed as a quasi action in rem.
Section 70 assumes that the filing of the list is the commencement of the action against the land, and, with the publication of the notice, gives the court jurisdiction over the land. No other act is regarded by the statute as equivalent to what is called “seizure;” no levy is *24made, no process to attach is issued. The purpose and necessity of seizure is to hold the property under the jurisdiction and control of the court, so that it shall abide the judgment. In respect to movable property, which may be within reach to-day, and beyond it to-morrow, this end can be secured only by taking the property into the custody of the court; and, as to such property, an actual taking is probably necessary. But in respect to immovable property, within the territorial jurisdiction of the court, and which must, of necessity, remain within its reach and under its control, an actual seizure is not necessary. Constructive seizure is sufficient. “The method of seizure must be such as is required by state statutes.” Waples, Proc. in Bern. § 49. To make a valid attachment of land, the officer (unless the statute so direct) need not go on the land, or near it, or see it, or do anything but return that he has attached it. Taylor v. Mixter, 11 Pick. 341; Perrin v. Leverett, 13 Mass. 128.
In Boswell v. Otis, 9 How. 336, 350, the court said: “The inquiry should be, have the requisites of the statute been complied with, so as to subject the property in controversy to the judgment of the court, and is such judgment limited to the property named in the bill?” The suit was for specific performance of a contract to convey real es-state, and, being authorized on publication and without personal service, it was held to be substantially an action in rem.
In Cooper v. Reynolds, 10 Wall. 308, 317, the court said: “While the general rule in regard to jurisdiction in rem requires the actual seizure and possession of the res by the officer of the court, such jurisdiction may be acquired by acts which are of equivalent import, and which stand for, and represent, the dominion of the court over the thing, and, in effect, subject it to the control of the court.”
And in Heidritter v. Elizabeth Oil-cloth Co., 112 U. 8. 294, (5 Sup. Ct. Rep. 135,) the court, after quoting the foregoing from Cooper v. Reynolds, continues: “This may be by the levy of a writ, or the mere bringing of a suit;” and “this, as we have seen, is ordinarily done by actual seizure, but may be done by the mere bringing of the suit in which the claim is sought to be enforced, which may, by law, be equivalent to a seizure, being the open and public exercise of dominion over it for the purposes of the suit.” The court must be under*25stood to speak of immovable property, and of a suit in which the bill, complaint, or petition by which it is commenced describes the property and discloses the relief sought with respect to it.
Against these authorities it is vain to contend that it was not competent for the legislature to provide, as in section 70 it has provided, that the commencement of the action by filing the list, and the publication of the notice, shall give the court jurisdiction over the land.
The necessity of notice, and the kind of notice that will be sufficient, are shown in the decisions we will cite, being, in actions in ram, more or less connected with the matter of seizure. To meet the definition of due “process of law” applied to judicial proceedings, there must be notice, of some kind, of the proceeding. The kind of notice is for the legislature (within certain limits) to prescribe.
In Matter of Empire City Bank, 18 N. Y. 199, 215, Mr. Justice Denio said: “Where the legislature has prescribed a kind of notice by which it is reasonably probable that the party proceeded against will be apprised of what is going on against him, and an opportunity is afforded him to defend, I am of opinion that the courts have not the power to pronounce the proceeding illegal.” This is undoubtedly correct, with the qualification that, where the action is a personal one, in order to justify a general judgment, — one that may be enforced against property of the defendant not subjected to the jurisdiction of the court in the action, — the notice must be personal.
Pennoyer v. Neff, 95 U. S. 714. In this case the line is clearly drawn between cases in which the notice must be personal and those in which it may be substituted or constructive, as by publication. The court said, (p. 727:) “Such service [substituted or constructive service] may answer in all actions which are substantially proceedings in rem. But where the entire object of the action is to determine the personal rights and obligations of the defendants, — that is, where the suit is merely in personam, — constructive service in this form, [by publication,] upon a non-resident, is ineffectual for any purpose;” and “substituted service by publication, or in any authorized form, may be sufficient to inform parties of the object of proceedings taken, where property is once brought under the control of the court by seizure, or some equivalent act.”
*26In Heidritter v. Elizabeth Oil-cloth Co., supra, was involved the-validity of a judgment and sale of land foreclosing a mechanic’s lien, in which there was no personal service on the owner defendant; the statute allowing, in such cases, service, as against non-residents, by posting and publication. The court quote our first quotation from Pennoyer v. Neff, and say: “The kind of service, and mode of service, could be material only with reference to the nature of the judgment. He [the defendant] could be bound personally only by his coming or being brought personally within the jurisdiction of the court. But the land might be bound without service of process upon the owner, in case where the only object of the proceeding was to-enforce a claim against it specifically, of a nature to bind the title.”
In Cooper v. Reynolds, supra, the court sustained a sale of real estate under a judgment in an action in personam, in which there was no personal service, but the land had been attached.
In Wallace v. Brown, 22 Ark. 118, (76 Am. Dec. 421,) the court sustained a decree confirming a tax sale taken upon default, and upon notice only by publication, the statute allowing such service.
In Pritchard v. Madren, 24 Kan. 486, the court sustained a judgment rendered on notice by publication, the statute allowing that mode of service.
In Gage v. Parker, 103 Ill. 528, the court sustained a judgment for a local assessment, the statute requiring service only by mailing to each owner known to the commissioners applying for the judgment, and by posting and publication.
Francis v. Grote, 14 Mo. App. 324, was a case of a tax judgment entered on notice by publication, as the statute provided. It was objected that the statute was unconstitutional because it did not provide for personal notice. The court said, (p. 330:) “It has never been held that any revenue law was unconstitutional on the ground that it made no provision for personal service on the owner of the land sold for taxes.”
In Dousman v. City of St. Paul, 23 Minn. 394, 400, a judgment for a local assessment, rendered on notice by publication only, was sustained; this court saying: “That jurisdiction of the plaintiff was *27acquired by constructive notice, without actual notice, is of no moment. The law authorizes constructive notice, and makes it sufficient.” “In eases of this kind, as in very many others, constructive notice answers all the purposes of actual notice. That the plaintiff failed to receive actual notice, on account of his non-residence or absence from the state, or because, on account of the defendant’s long delay, he was not expecting it, is not important. * * * The unfortunate consequences which would result from any other doctrine, as applicable to proceedings necessarily and usually summary in their nature, need not be particularly pointed out. ”
In McCarrol v. Weeks, 5 Hayw. (Tenn.) 246, where a tax judgment was assailed on the ground that the notice provided by statute was only constructive, the court said, (p. 254:) “Agreeably to the practice and necessities of government, where taxes are imposed on property, the proceedings to enforce payment must be in rem, and are analogous to such proceedings under the law of nations, where all persons are presumed to be parties. Many of the lands of our country are owned by persons abroad, on whom personal notice could not be served, and if it was requisite to serve notice on each resident, the public revenue would be swallowed up by the expenses attending its collection. No government of which we have any knowledge has adopted this method of proceeding.”
We will close our citation of authorities on this point, which might be extended to an almost indefinite length, by referring to another tax-judgment case, to which it was objected that there had been only constructive notice. In Eitel v. Foote, 39 Cal. 439, the court said: “The power of the legislature to provide for constructive service of process has so often been exercised, and the validity of such service has so frequently been recognized, both directly and indirectly, by the courts of this state, as well as those of most of the states of the Union, that it may be regarded as beyond the reach of- attack on constitutional grounds.”
We are of opinion that none of the objections made on behalf of the appellant are well taken, and that the former decision of the court should be adhered to.