The present bill was filed while the overdue tax law was in force, to subject certain lands therein described to the payment of taxes'for the year 1875. It was alleged that the lands had escaped assessment for that'year..
The railway company intervened, setting up its ownership of the lands, and resisted the prayer of the bill, upon the grounds of exemption by its charter and because a patent for *327the lands had not then issued from the United States, etc. These defenses need not be more particularly stated, as they ■have been all abandoned in this court except the following : That it was not the fault of the company, its agents, servants, ■or' attorneys, that these lands were not assessed by the assessor ■of Hot Spring county; but that the said assessor failed and ■neglected to perform his duty in the premises, for which this defendant is in nowise to blame ; and it therefore says that no penalty or costs in this proceeding in the matter of assessing •said lands can attach to or be levied upon or collected from said lands; and it says that if it is held that the said lands can "be assessed, then this defendant is willing to pay such taxes as may be found due in accordance with law.”
The cause having been heard on the pleadings and depositions the court ordered the county assessor to assess the lands, ■approved his assessment, and* declared the taxes for the year in question, ascertained according to the rates levied for that year, a lien upon the lands. A commissioner was appointed to advertise and make sale of. the lands, upon default in payment ■of taxes and costs by a given day, and certain fees were allowed to the clerk, printer, commissioner and attorneys for the plaintiff. These fees are not alleged to be excessive in amount, and the only controversy is whether they are properly chargeable ■on the lands.
The argument is, that' until an assessment was had the •owner was not in default, no taxes being due; and that until after default, no penalty, nor costs, could be visited upon him. The reasoning is sound, upon the question of penalties. But upon inspection of the decree, we fail to discover that anything in the nature of a penalty, or augmentation of the taxes, for not ■paying sooner, is denounced against the lands or the owner of them. Then, as to costs, it is urged that it has always been ■the policy of our revenue laws to make the assessment at the ■expense of the county in which the land lies, and never to ■charge the costs thereof against the lands, even where the *328owner is delinquent; and that if the county officers had done their duty in the present instance, by placing these lands upon the tax books, the railroad company could have paid its legitimate taxes without being burdened with fees to officers of the court.
But the omission of taxing officers to assess certain property in previous years can not control the power of the legislature. Vicksburg, etc., R. Co. v. Dennis, 116 U. S., 665.
The Act of March 12, 1881, secs. 1 and 8, provides for two-distinct classes of cases: First, where land has been assessed, but by reason of the invalidity of the assessment, or other cause,, has escaped the payment of taxes; and, second, where the land, though legally liable to taxation, has for any reason not been assessed. The amount of the taxes is to be ascertained, and the state’s lien therefor is to be enforced, in a court of equity, due provision being made for the owner to come in and defend., And if it is adjudged that taxes are due, the costs of the proceeding are saddled upon the land.
It is further contended that all the court should have done-in this case was to cause the lands to be properly assessed and certified to the clerk of the county court, to the end that the assessment should be carried to the tax books for the current year, and the back taxes collected in the same manner as other-taxes. Counsel for the state seems to concede that such is the proper construction of Section 8, which provides : “If the lands-shall not be on the assessment list for the current fiscal.year, the order shall also require the assessor to assess the lands for such current year, which assessment shall stand as the valid assessment of such lands until-the next regular county assessment shall have been made; . . . and when such assessment shall have been made to the satisfaction of the court, the court shall order the same to be entered on its records, and a copy thereof to be certified to the clerk of the county court, who-shall forthwith place said assessment on the assessment and tax books of the county.”
*329We understand this provision to relate only to the case where the lands have not been assessed for the current fiscal year. There is nothing in the record to indicate that this state of facts exists here. On the contrary, as the taxes of 1875 are alone in controversy, the fair inference is, that the lands-have been assessed and the taxes paid for each subsequent year.
But suppose that at the date of bill filed, or decree rendered, the lands did not appear on the assessor’s list, the court was not required to stay its hand, but its plain duty, under Section p, was to proceed to a final decree and to the execution of that decree. After the institution of the suit, and a judicial ascertainment that taxes were in arrears, the court would not loose its hold until those taxes were paid, or the lands sold. The purpose in requiring the assessment to be certified to the clerk, was to' get the lands upon the tax books with a view to taxation for the current and future years, and not to suspend the pending proceeding for the collection of back taxes.
The last objection that we shall notice is, that the decree is defective in this, that while the assessor’s return shows the valuation placed upon each tract, no levy of taxes is extended thereon, and the owner cannot ascertain the amount of taxes due from the decree, and the commissioner is left to his own judgment to fix the several sums. This objection appears to be well founded. We have looked through the record without being able even to determine what rates of taxation were levied in 1875 for state, county and school purposes. This is a matter about which no uncertainty should exist.
The decree is reversed and cause remanded, with directions, that it be referred to the clerk, or some other proper person, to extend the taxes upon each tract, according to the assessor’s, valuation, upon the basis of the rates levied for the year 1875, and to enter a decree of condemnation in accordance therewith;.