Respondents' counsel says the paragraph of our opinion under which marginal notes 2-4 appear, wholly misstates his position. He explains that he does not contend a real estate lien cannot be foreclosed in equity, even on service by publication when the defendant owner is a nonresident, absconding or unknown — this under a rule of necessity. But he maintains that such a proceeding must be addressed to personal defendants; and that they must be served with personal process if they reside or can be found in *Page 136 the state. In other words, he concedes there may be such a suit quasi in rem, but denies that it is maintainable purely in rem.
He further asserts a tax deed or judicial decree in such a case would only convey a prima facie title, if any at all, thereby requiring a further suit addressed to personal defendants, to quiet the title. On these points he stresses King v. Mullins,171 U.S. 404, 432, 43 L. Ed. 214, 225, 18 S. Ct. 925, 936; State ex rel. Gott v. Fidelity Deposit Co., 317 Mo. 1078, 1090(f),298 S.W. 83, 88(9); and refers to many other decisions from this and other jurisdictions cited in his original brief, which he says we ignored in the opinion.
Counsel has seen fit to raise thirty odd constitutional questions in this case, challenging the validity of nearly all the 52 sections of the "Land Tax Collection Act." There are more than 290 citations of authority in the briefs on both sides. Tax laws in all jurisdictions are of statutory creation, and differ widely. We attempted to cover all of respondents' assignments in the opinion, as fully as was possible considering the great number of points presented, and are unwilling to reopen the case, or to discuss extensively the questions already disposed of. However, a word about the two decisions, supra, again invoked by appellants.
The King-Mullins case, supra, was a collateral attack on a tax title to land in West [112] Virginia, which had been forfeited to the State for nondeclaration for tax assessment and nonpayment of delinquent taxes. Under state statutes the land was thereafter sold by the State for the benefit of the school fund in a court proceeding to which all known claimants were made parties and brought in by personal service if found in the county, or by publication if not. The tax title was upheld because of that proceeding. But we do not construe the decision as holding it was essential to due process that the proceeding be in personam and based on personal service as far as possible, though it so happened in that case. At any rate, all the United States Supreme Court decisions to the contrary, cited in marginal note 6 of our opinion, were later cases except one; and of these, the Longyear case was in equity. Counsel ignores these decisions in his motion and suggestions, save the Leigh case, which he says contains obiter dicta. We do not think so. It has been cited and followed several times by the same court.
As to the Gott case from this state. It involved the conclusiveness of a statutory judgment of a probate court granting letters of administration. The decision held a judgment in rem is binding on the whole world as to the res — that being, in the present case, the delinquent land and every interest in the title thereto. True, the opinion further said such a judgment is not res judicata as to its inducing conclusions of fact, when the same facts are later in issue in a collateral action, except as to those who had made themselves parties to the original proceeding in a personal sense. But the decision limited that *Page 137 statement to subsequent actions not affecting the res. Here, a subsequent collateral action assailing a tax title plainly would affect the res. Its very purpose would be to set aside the title conveyed at the tax foreclosure sale. In principle the Gott case, 317 Mo. l.c. 1091(i), 298 S.W. l.c. 89(i), held this could not be done. It ruled the judgment of a probate court appointing an administrator would later be collaterally unassailable when the issue was on his legal status, as in ejectment where the title to land was founded on his administrator's deed.
Respondents are mistaken in contending the prosecution of pure actions in rem is unprecedented in Missouri and would deny due process. Aside from the early tax collection statutes cited in marginal note 7 of the opinion, we had similar statutes in steamboat days authorizing a procedure resembling that in Admiralty, and directed solely against the boat. R.S. 1835, sec. 3, p. 102; Sec. 5094, R.S. 1899. Interesting cases thereunder may be found in 40 Mo. Rep. and earlier volumes. These statutes ran through successive revisions until repealed by Laws Mo. 1909, p. 128. We still have a few statutes of like nature, as in Chapter 132, entitled "Lost and Unclaimed Property", and Chapter 136, entitled "Salvage." It may be asserted these procedures are justified only by necessity. But the same can be affirmed of proceedings for the collection of taxes. In fact, the King-Mullins case cited by respondents declares it is a matter of "imperative necessity." It is a reproach on the law to say judgments for the foreclosure of taxes are only "prima facie" valid; or are only of slight or negligible validity, and that another suit must be brought to validate them. Why the lost motion, delay and duplicated expense? We have reread the designated pages of respondents' brief as requested. All the Missouri cases there cited deal with taxing statutes since 1877, requiring the action to be under the Code as in other cases. The learned trial court doubtless relied on those decisions, culminating in Black v. Banks, supra, 327 Mo. l.c. 345, 37 S.W.2d l.c. 596(1), which we overruled or limited in our opinion.
[33] One further word about the holding in the opinion with respect to court orders in the nature of a writ of assistance. Respondents contend again that the Legislature constitutionally cannot authorize the issuance of the writ against persons in possession unless they were named as parties to the suit and personally served with summons. Respondents' view is that otherwise the possessory rights of such persons would not and could not be affected by the action.
In an ultimate or indirect sense a proceeding in rem makes all who have an interest in the title to the property parties to the proceeding — not personally, but insofar as they are bound by the judgment as respects the res. To the extent that their claims to the right of possession are based on their interests in the title, the former would stand or fall with the latter. We think such parties cannot resist the writ *Page 138 merely because they have not been made personal defendants. Whether that would apply to mere tenants or others similarly interested, we are not deciding. We stated in the opinion that we would not attempt to [113] apply the provision in Sec. 27 of the Act to specific situations. Neither is it our province to strike down the Act merely because of the possible harshness of some of its provisions in some circumstances. That is a legislative function. The question with us is only one of legislative power.
The motion for rehearing is overruled. All concur.