The majority opinion adds to existing inconsistencies in the construction of tax titles, and accentuates confusion.
In Commercial National Bank, Trustee, v. Cole Building Co., ante, p. 212, 138 S.W.2d 794, it was held, in effect, that where confirmation has been had under the provisions of act 119 of 1935, the former owner of the forfeited property could not attack the decree collaterally, even though it might be possible to show that the taxes had been paid prior to sale by the collector.
The majority opinion in the instant case correctly holds that the proceeding constitutes a collateral attack. In the Cole Case we said: "The Court had jurisdiction to render this decree [confirming the sale under provisions of act 119 of 1935] and it is impervious to the collateral attack now made upon it if the power existed to sell the land."
In the case at bar the taxpayer defaulted, and insofar as the record discloses sale to the state was valid. Appellee undertook to redeem from the county clerk after *Page 545 the property had been certified to the state. At that time the land commissioner alone had authority to sell the property, or to certify redemption.
In the majority opinion it is said: "It is true that the lots here involved were certified to the state in 1934, and that appellee Jackson, in redeeming same, did not literally comply with said act 18 by making application to the state land commissioner instead of the county clerk, but it is also true that he did redeem from the forfeiture and sale to the state, paid the sum of money necessary to redeem, and that said sum was distributed as the law directs, the state getting its part of the taxes."
But did Jackson redeem? He did not comply with the law, nor did the money he paid to the county clerk reach the state in the regular course of distribution, as the law directs.
It seems that the county clerk paid the county collector the money Jackson paid in his effort to redeem. The collector, in turn, remitted to the state 8.7 mills for distribution to the several state agencies participating in the millage tax.1
Money paid into the state land office in purchase of forfeited property constitutes, first, a fund from which expenses of the land office are paid. The residue belongs to the permanent school fund. Act 55 of 1933 provides that this fund ". . . shall remain inviolate and intact, and the interest thereon only shall be expended for the maintenance of the public schools of the state."
The General Assembly expressly provided that after lands had been forfeited redemption could be effectuated by application to the state land office after the clerk had cleared his records by certifying delinquencies. No other method was available to the taxpayer. Schuman *Page 546 proceeded under the law. The majority opinion holds, in effect, that the law was merely a gesture.
Of more far-reaching effect in destroying accepted principles, however, is the holding that Jackson could interpose and successfully plead his so-called redemption in a collateral proceeding. There is no logical distinction between the instant case and the Cole Building Company Case.
1 The millage tax is apportioned as follows: Charities fund, 1.20; common school fund, 3.00; confederate pension fund, 2.00; sinking fund, .20; vocational education fund, .20; University of Arkansas, 1.00; State Teachers College, .20; Negro A.M. College, .12; First District A.M. College, .15; Polytechnic College, .15; Third District A.M. College, .15; Fourth District A.M. College, .15; School Supervision Fund, .18.