ELLIS, J. (Dissenting). —

I agree to the conclusion reached by Mr. Justice BROWN. From the standpoint of equity, which we have been taught was the outgrowth of the struggles of conscience to provide relief in meritorious cases, which would not or could not be obtained through the inflexible rules of law, or which by reason of its universality was inefficient to administer the particular relief, the provisions of Chapter 15038, Acts of 1931, cannot be adequately denounced.

In the first place, the title of the Act is indicative of the superficially meticulous care with which it is written. It has at least three objects, not to say three distinct subjects; taxes, penalties for non-payment, and enforcement by suit in chancery. It is an effort to enlarge the chancery jurisdiction of the Circuit Court. It imposes penalties for the non-payment of the amounts apparently due upon the face of the tax certificates although such certificates carry the penalties and costs incurred for the failure to pay the tax assessed before the sale. It purports to vest the Circuit Court with jurisdiction which it did not possess at common law, nor under the Constitution. It undertakes to prescribe the "practice, pleading and procedure" in the suits which it purports to authorize.

The purposes of the Act as indicated by its title are manifold even if by a liberal construction it may be translated into one subject and matter properly connected therewith. It is exceedingly doubtful, however, if not impossible, for the court to "fold its (the statute's) fault in cleanly coined excuses." It confers a special privilege upon municipal corporations, it creates exceptions to general statutes, it is in derogation of common rights, it is of a penal nature, it gives power to subordinate local authorities. A liberal construction would, if acted upon, produce absurd results, as so ably pointed out by Mr. Justice BROWN. According to the rules of statutory construction the Act should be strictly construed. See Russell v. Sebastain, 233 U.S. 195, 57 L.Ed. 912, 34 Sup. Ct. Rep. 517; Tracy v. Borough of Keansburg, ( 99 N.J.L. 35) 122 Atl. Rep. 536; People v. State Board of Tax Comm'rs, 174 N.Y. 417, 67 N.E. Rep. 691, 63 L. R. A. 884; text 895, Tampa Jacksonville Ry. Co. v. Catts, 79 Fla. 235, 85 Sou. Rep. 364; Frazier Son v. Leas, 127 Md. 572, 96 Atl. Rep. 764; Ekern v. McGovern, 154 Wis. 157, 142 N.W. Rep. 595; 46 L. R A. (N. S.) 796; McDonnell v. Murnan Shipbuilding Corporation, 210 Ala. 611, 98 Sou. Rep. 887; Atlantic Coast Line R. Co. v. State, 73 Fla. 609, 74 Sou. Rep. 595; 59 C. J. 1110, 1124, 1131.

Authorities could be extended in this citation very greatly. The general doctrine is so well recognized, however, by the bench and bar not only of this jurisdiction, but all others, in this country as to render any further references to the authorities a work of supererogation. The only question is whether the criticism is inept.

Now the title of the Act for purposes of its interpretation or construction constitutes part of the Act. See Ex Parte Knight, 52 Fla. 144, 41 Sou. Rep. 786, 120 Am. St. Rep. 191; State ex rel. Attorney General v. Green, 36 Fla. 154, 18 Sou. Rep. 334; Art. 3, Sec. XVI Const.

The clearest and most cogent reason which has been given by this Court for the existence of the above cited constitutional provision was given by Mr. Chief Justice MABRY in State ex rel. Attorney General v. Green supra. Quoting in part from Judge COOLEY, he said the reason consists " 'First, to prevent hodge-podge or "log-rolling" legislation; second, to prevent surprise or fraud upon the Legislature by means of provisions in bills of which the titles give no intimation, and which might therefore be overlooked and carelessly and unintentionally adopted; and, third, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon, by petition or otherwise, if they shall so desire.' "

Assuming then that the criticism of the Act as above made is not inept, and applying the rule of strict construction to the title, the first element of doubt arises in determining whether the subject of the Act relates to taxes or special assessments. The symbol and or is used by those who have or assume to have a super accurate conception of the meaning of English terms to convey the idea that the one or the other or both substantives are embraced within the symbol. If therefore the one or the other name may be taken in strict construction of the title, I submit that it is proper to accept that alternative which will restrict the attempted delegated power to a narrower field of operation, where the power attempted to be delegated is subject to the criticisms made herein of the purposes of the Act. In this view the subject of the Act as expressed in the title would be an Act relating to "Special Assessments," and would therefore be inapplicable to the case at bar.

Again in reference to the method of enforcing the so-called lien the title states that the Act provides a "Supplemental, Additional, Optional and Alternative" method. The terms "Supplemental" and "Additional" have the same meaning. They convey the idea of "addition to supply what is wanted." Webster's International Dictionary. The term "Supplemental" was not used in the restricted legal sense as applicable to bills in chancery, indeed such a meaning would be absurd because the method prescribed by law for the enforcement or collection of taxes whether ad valorem or special assessments has no defects. Whatever defects may exist in a particular ad valorem assessment or special assessment is the result not of any imperfection in the law but in the negligent or inefficient administration of it by the officials who have charge of such administration.

It is hardly to be assumed that the Legislature conceded the universal existence of negligence and inefficiency on the part of city officials and proceeded to provide a method for the enforcement of the payment of taxes by way of "supplemental" proceedings to cure the universal errors appearing in all assessments caused by the incompetence of city officials. If such was the purpose of the Act and notice of the same had been given in the title it is reasonable to imagine a vigorous protest arising from the scandalized city officials against such impeachment of their qualifications as public servants, if not also from their constituents which selected such officials. I take it therefore that the term "supplemental" was not used in the narrow sense given to it in chancery proceedings. The terms "optional" and "alternative" are also worthy of some attention that an adequate notion may be obtained of the thought produced in the composite mind of the Legislature which found expression in this remarkable piece of legislation, if it may be designated by that term.

Alternative means in the title two methods offered to the city or town's choice, one or the other of which must be accepted; the choice of one excludes the choice of the other. Optional has the meaning of choice without compulsion and expresses more fully the liberty of choice. See Webster's International Dictionary. So the meaning of the four words is that a method is to be provided for the enforcement of taxes which is in addition to that already provided, which may be chosen or not as the city or town may elect.

What then, is the other method to which the one attempted to be provided by the Act is additional or to which it may be preferred? The answer is not to be found in the provisions of the Act.

The term "tax certificates" shows that the method provided by law, namely, the sale of the property for the unpaid tax, has already been exhausted. There is no provision of law that a "tax certificate," the certificate issued to a purchaser at a tax sale, where the land is put up for sale to pay the tax assessed and levied against it, is a continuation of the original tax lien. If a lien exists it must be by virtue of some statutory provision. It is not a continuation of the original tax lien, because that lien was extinguished by the sale of the land. The tax certificate carries a new debt, at least a debt in a larger sum augmented by the expense of the sale and bears a usurious interest which in grace has been called a penalty. If a tax certificate lien exists it must be either because the tax lien in favor of the city, which accrued upon the assessment and levy of taxes, is the thing that is sold at tax sale and the original tax lien is continued with added penalties into the certificate, or it must exist by virtue of a statute.

It is true the contrary has been held by this Court but the point was never discussed and rests upon no authority.

The Act under consideration seems to recognize the distinction because in the first section it deals with "The lien of any and all taxes, tax certificates and special assessments." If the lien of "taxes' 'is identical with that of "tax certificates" then the language employed in the act is tautologous, pleonastic, which may be the better word.

The method of enforcement provided by the Act is a "Suit in Chancery in the Nature of a Proceeding in Rem Against the Lands Upon Which Such Taxes and/or Special Assessments Constitute Liens." There is no mention in the title of Tax Certificates. A tax certificate is merely a certificate issued by the tax collector that the land described in the certificate has been sold under the law for the payment of the tax assessed against the land. In this State the method provided by law for the enforcement of the collection of taxes, the enforcement of the tax lien, is by sale of the land. When the land is sold the tax lien is extinguished. At the sale, the purchaser, whether State, County, City or individual, acquires a right superior to all others to a title to the land; a title which carries with it the right to possession and use of the property sold. The vesting of the title is subject to the right of redemption by the owner which right expires in due time. If the State or the taxing agency is the purchaser the title vests eo instanti upon the expiration of the time allowed for redemption. If an individual is the purchaser he becomes entitled to a deed from the taxing agency or State upon complying with certain conditions.

A suit in equity may only be maintained for the foreclosure of a tax lien on land when such proceeding is directly authorized by statute, but not when the statutory remedy by advertisement and sale of the property is intended to be exclusive, or is available and adequate. A sale of the land under the statute is an administrative method of enforcement. A suit in equity for foreclosure of the lien is judicial. This doctrine is universally recognized by the authorities.

In Virginia a court of equity has no jurisdiction to enforce a lien on real estate given by a statute for taxes assessed thereon, since such lien is purely legal in its character and can be enforced only in the mode provided by the law of its creation. See Marye v. Diggs, 98 Va. 749, 37 S.E. Rep. 315, 51 L. R. A. 902. See 61 C J. Secs. 1514-1685, title "Sale of Land for Delinquent Taxes."

I realize that this Court has advanced theories different from those expressed above concerning the nature and character of the so-called "Tax Certificates," but it is not the function of courts to make law, although it has been said by some authors that they sometimes do and articles have appeared in legal publication on "Court Made Law."

However that may be, the Act in question carries a title which does not give the constitutionally requisite notice of its subject and the matter properly connected therewith. The matter of enforcing "Tax Certificates" is foreign to the subject expressed in the title. The attempt to confer jurisdiction upon a court of equity to enforce a tax lien is an effort to transmute a purely legal lien into a kind of equitable lien. Such a power does not exist in the Legislature in view of the constitutional jurisdiction of our courts of equity and has no foundation in authority.

The theory that a so-called "tax certificate" is a continuation of the original State or City lien for taxes is unwarranted by authority and utterly groundless in reason. It is not true when an individual purchases land at tax sale and obtains a certificate because the debt due to the State or City for the tax levied has been paid by him. The debt being extinguished the lien is extinguished because there can be no lien without a debt, just as there can be no mortgage lien without a debt. Nelson v. Stockton Mtg. Co., 100 Fla. (p. 2) 1191, 130 Sou. Rep. 74, where the principle was applied.

In cases where the State or the City becomes the purchaser if the original tax lien is continued the State or City has just what it had before the sale, namely, a "lien for taxes." But a lien for taxes may not be enforced in equity because it is a purely legal or statutory lien and the enforcement of legal or statutory liens does not constitute a basis of equity jurisdiction, provision being made by statute for the enforcement of such liens by administrative process of which the State or City has already availed itself by sale of the land. A sale by order of court could accomplish no more. Statutes which provide for the foreclosure of such so-called tax certificates therefore upon the theory mentioned is merely an effort to transmute a purely legal, statutory or administrative process into a judicial process.

In the case of a purchase of the land at tax sale by an individual the doctrine of subrogation does not apply, because that which the individual purchaser at a tax sale acquires is an equitable interest in the land so nearly akin to an interest in real estate that it descends to the heir and not to the executor or administrator upon the death of the purchaser. See Eaton v. The Supervisors of Manitowoc County, 44 Wis. 489, text 492.

While the "Tax Certificates," which is a receipt only required by law to be issued by the Tax Collector to the purchaser of the payment of taxes, does not pass title to the land, it is in fact legal evidence on which the purchaser is entitled to a deed or the redemption money and is prima facie evidence of the facts recited therein, Keller v. Hawk, 19 Okla. 407, 91 Pac. Rep. 778. But a lien is no interest in or right in real estate.

Now the Act under consideration provides for the enforcement of taxes imposed by any incorporated city or town by suit in chancery after the expiration of two years from the date of a "tax certificate," or after any "tax" becomes delinquent by cities whose charter does not require or provide for issuing "tax certificates." A tax certificate is merely a receipt for taxes paid by sale of the land and the tax collector is not required to make out and deliver such receipt unless the statute requires it. Therefore land may be sold for the taxes levied and assessed and purchasers may appear and buy the land at the sale, yet the statute may not require the issuing of a certificate or receipt to the purchaser. The record made by the Tax Collector is sufficient evidence of the purchaser's rights. So there is no significance in the provision that suit may be brought for the "tax" where the charter does not provide for the issuing of "tax certificates," non constat but the land was sold and the "tax lien" extinguished.

The Act is most drastic in its provisions. A city may levy and assess taxes, when they become delinquent there may be no sale. The city may wait two years and then turn the tax roll over to the attorney to proceed as in his judgment he should proceed. Sec. 3, Chap. 15038, supra. It is provided that there may be included in the suit "all claims and demands of said city or town against said lands or any part thereof for taxes, tax certificates and/or special assessments or installments thereof which may be due and payable to such city or town at the time of the institution of such suit." (Italics mine). A proceeding in violation of the doctrine that a tax sale may be made only for the tax levied in the year for which the tax is levied, in violation of the doctrine that two different causes of action may not be combined in one suit. It opens an opportunity for abuse of power in unlawful discriminations in favor of some individuals against whom no action may be taken and against others against whom action is taken. It imposes penalties in the form of additional expenses, costs and attorney's fees; in a few words, it provides a means by which local political organizations may manipulate power by punishing the unfriendly and rewarding the "faithful" to the perpetuation of the existing local political power.

The practical working of the statute, that is to say, how it may be used to annoy and oppress the people by infringing upon their common rights, has been ably presented by Mr. Justice BROWN, in whose opinion I fully concur. The drastic provisions of the statute, the penalties imposed, the extraordinary and oppressive use which it undertakes to enable municipalities to make of its provisions through the forum of a court of equity are so offensive to conscience that its own terms condemn it as an attempted exercise of unlawful power.

BROWN, J. (Dissenting). —

This suit, and the statute under which it was brought, are novelties in Florida jurisprudence. Here we have a suit against 10,000 or more lots or parcels of land, estimated to be owned by some 3,000 or more separate and unrelated individuals and corporations, not a single one of whom are made parties defendant, and yet whose rights, titles and interests in such respective lots are proposed to be adjudicated and disposed of, finally and forever, without service of process, in this one fell swoop of wholesale judicial action — an application of the modern industrial idea of mass-production to judicial proceedings. True, the mere fact that this statute is a novel one in this State does not condemn its validity, but it does justify its careful scrutiny. The mere reading of the statute (Chapter 15038) gives one reasonably versed in the traditions and principles of Florida jurisprudence a distinct shock. It has been a time-honored construction of the due process clauses of the State and Federal Constitutions by the courts of this State that, however liberal may be the application of those principles to the mere administrative action, such as the assessment and levy of taxes and the conducting of tax sales, the validity of which may be reviewed in the courts, yet when it comes to judicial proceedings, in which the citizen's rights of life, liberty and property are to be adjudicated and determined finally and conclusively, the citizen must be personally served with process, if he reside within the State, and constructive service by publication of notice in a newspaper can only be resorted to where the citizen defendant is either a non-resident of the State or his place of residence is unknown. Tibbetts v. Olsen, 108 So.2d 679, 91 Fla. 824; 12 C. J. 1231. Certainly, the mailing of a notice by an attorney for the city of an intention to file suit, or the publication of a notice by the clerk, not addressed to the owners, but merely describing the lands, is not the equivalent to juridical process issued by a court through a court officer to appear and answer a suit already begun, and served by some duly authorized officer of the court on the known resident owners, or constructive service by publication in the usual way to nonresident or unknown owners. Constructive service is predicated upon necessity. McDaniel v. McElvy, 91 Fla. 770, 108 So.2d 120.

But the appellant contends that this statute provides for a proceeding purely in rem, an action against the land itself, and that therefore personal service of process is not required, even as against those owners who live in this State, or even in the very county where the proceedings are had. This argument is plausible, but specious.

He "who spake as never man spake" said on one occasion, in substance, that we should not judge by "the appearance," but that we should "judge righteous judgment." This principle underlies the judicial rule of construction, which says that the courts will look through the form to the substance. Now, on its face, this statute in some respects appears to provide for a proceeding in rem — a proceeding solely against the land, but in reality it does not stop there. Under the guise of a proceeding in rem, it seeks to adjudicate and take away the property right of the owner, in and to the land, vested in him as an individual, a person, and to forever foreclose and bar his right to redeem it; and all this without naming the owner in the suit, or serving him with judicial process, even though he lived in the very county where the proceeding is instituted. Suppose the Legislature should by a statute attempt to provide this sort of procedure for the foreclosure of mortgages; could it be contended for a moment that such an Act would afford due process of law? Certainly not. Nor does it stand the test of the Constitution merely because a municipality is the party plaintiff. It might possibly stand the test if this Act omitted the use and exercise of the judicial power and made all that is done under it administrative rather than judicial in its nature, incidences and effects, and thus subject to review by the courts, in which courts due process, such as is appropriate to courts of justice, would be afforded the owner and all other parties having a substantial interest in the subject matter. West Va. Hotel Corporation v. Foster, 101 Fla. 1147, 132 So.2d 842. This statute attempts to make the courts proceed on the same rather meager and informal basis, as to notice and an opportunity to be heard, as might be valid if exercised by an administrative board or official, whose decisions are final, but subject to judicial review, and yet gives to the adjudication of all questions in the proceeding the sanctity and finality which characterizes the usual judicial action of the courts. This cannot be done. The judicial process cannot be perverted in any such way. The courts are the last bulwark, the final protection, of the life, liberty and property of the citizen, and the courts will never act unless due process of law is afforded. The courts will not try without personal service, when that is possible or without appropriate constructive service when personal service is not possible, and will never condemn without a fair opportunity to be heard. If the courts of this land ever depart from that principle, they will lose that confidence and respect which they have hitherto enjoyed, the preservation of which is absolutely essential to the maintenance of our form of government.

If this statute under which this suit was brought, is carefully analyzed, it will be found that it attempts, under the guise of a suit in rem, to adjudicate and finally dispose of questions of property and personal rights which can only be adjudicated and finally disposed of in a suit in personam, or a suit quasi in rem and quasi in personam, in which due process of law, appropriate to courts of justice, must be afforded, but which due process of law is denied by this Act. Blevins v. Smith (Mo.) 16 S.W. 213, 12 L. R. A. 441. It is no reply to this to say that the tax is alien on the land and constitutes no personal liability against the owner The fact remains that the owner retains a valuable right — a right to pay the tax and redeem, and thus save his property, and a right to be heard before his title is divested by a court, which rights are personal to him, and cannot be taken away without due process.

Nor is the proceeding authorized by this statute merely a step in an administrative program for the levy and collection of taxes. All steps in such a program are administrative and subject to judicial review. The statute constitutes a cunningly devised scheme to reduce the courts to the grade of mere administrative functions and yet retain the solemn and final consequences which characterize judicial action, without affording that firm basis of due process of law which the Constitution requires as the primary basis for judicial action.

Our recent case of Milton v. City of Marianna involved a statute which required the suit to be filed against the owners of the property a different kind of statute from the one involved here.

The bill in this case was clearly multifarious, and would have been subject to dismissal on that ground alone. The Legislature may authorize the courts to entertain a multifarious bill, but it cannot compel the courts to do so. To attempt such compulsion would be to invade the domain of judicial power. I believe it was Edmund Burke who said, "You cannot indict a whole nation." Neither can you sue thousands of different pieces of land owned by thousands of different and unrelated persons and corporations in one suit without violating the well settled rule against multifariousness, as well as the conception of "cases in equity" which existed at the time our Constitution vested Circuit Courts with jurisdiction of "cases at law" and "in equity." The framers of our Constitution never envisaged such a piece of judicial machinery as this statute attempts to create, as constituting a "case in equity." Indeed, far-reaching as this statute is, it does not in terms positively require the Circuit Court to entertain such a suit as this. True it is, the statute says: "There may be included in any such suit all or any part of the lands upon which tax certificates have been outstanding or taxes have remained delinquent," etc. In other words, the statute authorizes the complainant city to embrace in one suit either all, or part of the lands, upon which taxes are delinquent, but it does not compel the complainant to embrace all of such lands in one suit, nor does it compel the court to permit it to be done. If the Chancellor should become convinced that the inclusion of over ten thousand separate parcels of land belonging to over three thousand different persons would make it difficult or inconvenient for the court to deal justly with each parcel and with the numerous persons owning or having interests in the various parcels, the court would have the right, on motion, or sua sponte, to dismiss such a bill of complaint on the ground of multifariousness. Indeed, it would appear that this statute attempts to construct somewhat of a judicial juggernaut, which, like the fabled Hindu car, would leave many suffering victims in its wake; and which would also tend to defeat its prime purpose by reason of placing on the block for forced sale at one time such numerous pieces of real estate as would tend to "glut the market" and diminish the price of each piece to such an extent as to render the cash revenues thus produced inadequate to meet the needs of the city or its creditors. This probable result might well be considered by a court in connection with this question of multifariousness.

But aside from this question, I am persuaded that due process in suits in chancery to foreclose tax liens can only be afforded: (1) Where there is actual service of summons upon all known interested parties, who reside and can be found within the jurisdiction, and the usually recognized adequate forms of constructive or substituted service is had upon all others; or possibly, (2) where the statute creating the remedy itself fixes a definite time for the institution of such judicial proceedings and provides for notice to all interested parties, fairly apprising them of the nature of the suit or demand and giving them reasonable time for appearance, to be effected by appropriate publication fairly made in the locality where the lands are situated. This statute does not comply with either of these principles.

The Nebraska statute, construed in Leigh v. Green, 193 U.S. 79, 48 Law Ed. 623, cited in the majority opinion, was quite different from the statute here under review. One of the points' of difference is that the Nebraska statute provided that service of process must be the same as in similar cases in the district court, but that "where the owner of the land is known, the action may be brought against the land itself." Nor does Hagar v. Reclamation District, 111 U.S. 71, 28 Law Ed. 569, appear to be in point, though there is some general language in the opinion which militates against the views above expressed. That case seems to have been concerned mainly with the validity of a special assessment of lands for a local improvement as provided for by a California statute — a part of the administrative tax program of the district — and the general observations might be construed as limited by the facts of that case. The 8th and 9th headnotes in that case read as follows:

"8. Where life and liberty of the title and possession of property are involved, due process of law requires that there be a regular course of judicial proceedings and that the party to be affected shall have notice and an opportunity to be heard; but where the taking of property is in the enforcement of a tax, whether notice to him is necessary depends upon the character of the tax, and the manner in which its amount is determinable.

"9. Where a tax is levied on property, not specifically but according to its value, to be ascertained by assessors, the law in prescribing the time when complaints will be heard, gives all the notice required, and the proceeding though it may be followed, if the tax be not paid, by a sale of the delinquent's property, is due process of law; so where the assessment may be reviewed by proceedings in the courts."

The case of Davidson v. City of New Orleans, 96 U.S. 97, 24 Law Ed. 616, does not support the statute here in question. The exact holding in that case is very well summed up in the 4th headnote, which is:

"4. In the present case, we hold that when such a burden or the fixing of a tax or assessment by the statute of the State is required to be submitted to a court of justice before it becomes effectual, with notice to the owners and the right on their part to appear and contest the assessment, this is due process of law within the meaning of the Constitution."

Nor is the case of Winona St. Peter Land Co. v. Minnesota, 159 U.S. 526, 40 Law Ed. 247, opposed to the views above expressed. As the writer understands it, this was a case in which it was sought to review the assessment of omitted taxes for back years. This was a mere case of a general tax program, and did not involve the perfecting of any title. Under the Minnesota statute, as in some other states, instead of issuing tax deed the original sale is through a court proceeding, which therefore becomes a part of the general collection scheme and is equivalent to the issuance of a deed under our plan, and therefore does not require a personal notice. Moreover, such program is in accordance with a set plan to which citizens had become generally accustomed, and is carried out on fixed dates, while in our case the proceeding in question is merely an optional and irregular one, which may or may not be brought, and the taxpayer has no means of knowing when it is actually brought except through proper notice or by continually watching the court dockets, which would be an unreasonable burden. It is true a citizen is expected to know that property will be sold for taxes if not paid, but he is only expected to be diligent in looking for such a sale when it is pursuant to a fixed program. This feature is commented upon as a very important one in the opinion of the court in the cited case in the following language:

"That the notice is not personal but by publication is not sufficient to vitiate it. Where, as here, the statute prescribed the court in which and the time at which the various steps in the collection proceedings shall be taken, a notice by publication to all parties interested to appear and defend is suitable and one that sufficiently answers the demand of due process of law."

See also in this general connection Seaboard-All-Florida Ry. Co. v. Leavitt, 141 So.2d 886, 889; opinion of Judge Loging in Tyler v. Judges of Court of Registration, 51 L. R. A. 436; Webster v. Reid, 11 Howard 437, 13 L.Ed. 761; Pennoyer v. Neff, 95 U.S. 714, 24 Law Ed. 565.

If this novel proceeding had worked out fairly and justly such result might be some argument in its favor. If it had resulted better than the old system, a further argument might be brought forward, but it suffers badly by comparison.

Taking the complainant's own figures that there are 1,531 persons and corporations interested as owners and encumbrancers of record, we find only 41 (Transcript p. 160) who appeared in this case. Of the 1,531 persons and corporations whose interests are to be affected by the suit, the huge number of 1,490 failed to appear. In other words, this novelty resulted in less than three per cent. (3%) of appearance, indicating a wholly ineffective method of notice to those whose property is to be affected by the litigation.

If the 1,531 parties in interest, or a substantial portion thereof, had all received notice of the suit and appeared, in the cause, this case would be a monument in litigation. Many diverse interests must of necessity exist, including claims of persons whose interests are given special protection by the law of this State. Persons in interest whose homesteads are involved could insist that the action as to them was premature, as our Legislature has provided that a tax certificate cannot be foreclosed upon a homestead until after the lapse of four years. Sec. 1003 (1) C. G. L. 1932, supplement. A Federal receiver, such as the one appointed for the City National Bank in Miami, could insist upon a severance in order to have his case tried in the United States courts. The interests of minors and persons under disability are entitled to be protected by the appointment of a guardian ad litem.

The Act assumes that the purchaser at the tax sale acquired only a lien upon the land which can only ripen into title by foreclosure proceedings. If this be true, I submit that the nature of this suit is such as to involve personal rights and property rights of the owners of the land, which tends to preclude the theory that it is an action purely in rem for the enforcement of the collection of the tax. While the tax may not be a personal obligation of the owner and it is contended that the tax certificates sought to be foreclosed in this suit constitute only a lien upon the land, the fact remains that then, on that theory, the title and the right of possession did not pass to the purchaser or purchasers at the municipal tax sale, and such purchaser would have no right to seize the property or deal with it as his own. Nor has the lower court seized the property. So it cannot be said that this was a suit to dispose of property in custodia legis. Pennoyer v. Nehf, supra.

The bill of complaint asks for relief against persons as opposed to relief asked for against lands alone, and the complainant prays that jurisdiction shall be taken by the court "of all parties interested in or having any lien upon any parcel of land described herein." that persons or corporations appearing and defending be required to make answer according to Chancery practice; that an accounting be taken and in default of payment, that the lands be sold; that "any person or persons interested in any lands included in this suit may redeem such lands at any time prior to the sale thereof;" that "all parties interested therein or having any lien thereon" be forever barred and foreclosed of all their right, and that the purchaser at the sale be given full and complete possession, which last relief could only be granted by a writ of assistance against an occupant.

It seems from an examination of Chapter 15038, Laws of 1931, that the Legislature attempted to authorize a suit in chancery, partly personal in nature, without conforming to chancery requirements of naming and serving interested parties, although jurisdiction over them was contemplated. It is provided in Section 4 of the Act (Chapter 15038) as follows:

"Jurisdiction of any said lands and of all of said parties interested therein, or having any lien thereon, shall be obtained by publication of a notice to be issued as of course by the Clerk of the Circuit Court in which such bill is filed, on request of complainant."

The Act also provides in Section 5 thereof, as follows:

"Each and every person and/or corporation interested in or having any lien upon any parcel of land described in the bill of complaint shall be deemed a party to said cause."

The Act itself (Section 2), in addition to the specific provisions above quoted as to parties, does not provide, even if such a thing were possible, that the suit shall be an action in rem, but only one "in the nature of a proceeding in rem."

The Act also provides in Section 3 thereof, as follows:

"The practice, pleading and procedure in any such suit shall be in substantial accordance with the practice, pleading and procedure for the foreclosure of mortgages of real estate, except as herein otherwise provided."

In view of these provisions as well as of the provisions and prayer for relief contained in the bill of complaint, I submit that this suit cannot, as contended by appellant, be considered as strictly an action in rem.

This case has been very ably briefed and argued by counsel for the respective parties, and the writer would attempt to analyze and differentiate other cases cited by counsel if time and space permitted. Enough has been said, however, to indicate the principles and the reasoning underlying the conclusion which I have reached, that the Act under which this proceeding was brought does not afford due process of law and is therefore unconstitutional and void, and that the decree of the court below, so holding, should be affirmed.

ELLIS, J., concurs.