Whitfield, C. J.,
delivered the opinion of the court.
The provisions of the act of 1894 (laws 1894, p. 29) are materially different from and far broader in their scope than the provisions of the act of February 22, 1890 (laws 1890, p. 25), and this difference makes wholly inapplicable to the point-under consideration here, the former decisions of this court construing said act of 1890. Under that act, section 2, the revenue agent could only sue in the case provided in section 2, to wit: he could sue only “if it should appear that for any reason there had been a failure to enforce the law and collect all revenues due;” for there must have been a default on the part of the regular officer, and that must have been made to appear. No provision was made to make the officers parties [810]*810except in suits directly against them. In the code of 1892 it was provided, §1191, that the revenue agent could not sue ‘ *' until the expiration of the fiscal year in which the taxes ought to have been paid,” and in §1190 it was provided, “after the expiration of the fiscal year in which the taxes become due and payable, the revenue agent may assess and collect all past-due taxes, whether the same be caused by default of the assessor, tax collector, or taxpayer.”
The act of 1891, section 3, in order to satisfy the objections pointed out in the Tonella case, 70 Miss., 710, provided, in section 3, that “after the expiration of the fiscal year in which taxes became due, if the revenue agent should discover that any property had escaped taxation by reason of not having been assessed, he should notify the tax collector, ’ ’ who should make the assessment, instead of mailing it himself, as had been unconstitutionally provided by §1192 of the code of 1892. Section 1192 corresponds with section 3 of the act of 1891, both relating to the assessment of property which has escaped taxation, and the legislature did the significant thing of removing the inhibition against suit by the revenue agent “until after the expiration of the fiscal year,” from §1191 of the code, which relates to suit, and corresponds to section 2 of the act of 1891, and placing it in section 3 of the act of 1891, corresponding with § 1192 of the code of 1892. The result manifestly is that .there is no limitation of time now provided as to when the revenue agent may begin suit, except that he must sue at a time when the taxes are £ £ past due and unpaid. ’ ’ Taxes are past due the sixteenth day of December, the date when this suit was brought. There is nothing in the objection, therefore, that suit was prematurely brought. It may be observed, in passing, that the suits recently determined in this court, and affirmed by the United States supreme court, were all for current taxes, and were brought, as to procedure, just as these suits were brought, and no objections were urged, or could have been properly urged, as to the right of the revenue [811]*811agent to sue when and as he did. The revenue agent having begun his suit before the sheriff began his procedure, and that suit being necessary, to determine whether the exemption was valid, every reason of law and of public policy maintains the right of the revenue agent to conduct these suits to conclusion, and collect the taxes without interference from- the sheriff.
The law nowhere authorizes a sheriff to sue for taxes. It merely provides a summary remedy by sale of property where the property is liable for taxes. See §3850 of the code. It does expressly authorize the revenue agent to sue for all ‘ ‘ past-due and unpaid taxes.” Besides, the sheriff is a merely ministerial officer, both as sheriff and as tax collector. It could not be expected of him to construe a statute expressly granting an exemption and determining judicially, as a court would, whether an exemption ivas unconstitutional or not, it never having been contemplated that a mere ministerial tax collector should undertake the tremendous responsibility involved in such exercise of judicial functions. He might well plead, as a good and sufficient excuse for not selling the property of this railroad, that he found an express statute granting an exemption upon conditions, which conditions had been complied with by making the required affidavits. Whether that express statute violated the supreme law of the land — the state constitution — conformity to which is essential to the validity of every legislative act, was a solemn judicial question for the courts to determine in a suit which he could not, and which the revenue agent could, institute for that very purpose. Cooley on Tax. (2d ed.), 710; Wiley v. Sinkley, 179 U. S., 66; Mayson v. Mo., 179 U. S., 333; Mechem on Public Officers, sec. 523.
The judicial ascertainment of that very question was the identical object of these suits brought by the revenue agent, of which this suit was one, and yyhat is known as the main case, recently unanimously affirmed by the United States supreme court, had been finally decided by this court June 20, 1898, as to the exemption, and had been appealed to the United States [812]*812supreme court, and was there pending at the time the sheriff instituted these proceedings. Not only so, but the old sheriff, the predecessor of the appellee, was a party to that suit. It was pre-eminently proper and legally necessary that the sheriff should wait until the supreme court of the United States had finally determined whether the exemption was valid before he should proceed by way of sale. • The judgment of the supreme court of the United States (Yazoo, etc., R. R. Co. v. Adams, 180 U. S., 1) denying the validity of the exemption affirmed the judgment of this court in Yazoo, etc., R. R. Co. v. Wirt Adams, 77 Miss., 194, and thus, for the first time, definitely declared the property of the railroad was liable to taxation. It is undoubtedly the duty of tax collectors, in the future, to make the taxes legally due hereafter by sale, if not paid when due, but they have no sort of concern with the collection of these taxes involved in the suits brought by the revenue agent, the very object of which was to determine whether the railroad company was liable or not.
Whether the taxes were ££a debt,” under § 8747 of the code of 1892, recoverable by proper action, depended on the validity, of the exemption, and whether the exemption was valid could only be determined by a suit, which suit the revenue agent, and not the tax collector, could bring. Moreover, if this tax collector ever had any right to collect these taxes, his conduct has completely estopped him in this case. He did not sell on the first Monday of March, 1900, although this court had denied the exemption June 20, 1898. He was not waiting for the supreme court of the United States, for he got his order in June, 1900, before its decision was rendered. His predecessor accepted from the railroad payment in affidavits, and gave receipts in full, treating the exemption as valid, and in his answer to the injunction suit in the federal court for the taxes of 1898,’ stated that he had not proceeded, and did not intend to proceed, to collect these taxes, but would leave the whole matter to the revenue agent. This very tax collector did collect the levee [813]*813taxes, but did not collect the state and county taxes, although both were required to be collected in the same manner and at the same time. Laws 1896, ch. 156, secs. 7 to 10, inclusive.
Whatever rights the new tax collector may have special to himself, he had no right to insist that the revenue agent did not properly bring this suit when and as he did.
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Whitfield, C. J.,
delivered the opinion of the court.
The provisions of the act of 1894 (laws 1894, p. 29) are materially different from and far broader in their scope than the provisions of the act of February 22, 1890 (laws 1890, p. 25), and this difference makes wholly inapplicable to the point-under consideration here, the former decisions of this court construing said act of 1890. Under that act, section 2, the revenue agent could only sue in the case provided in section 2, to wit: he could sue only “if it should appear that for any reason there had been a failure to enforce the law and collect all revenues due;” for there must have been a default on the part of the regular officer, and that must have been made to appear. No provision was made to make the officers parties [810]*810except in suits directly against them. In the code of 1892 it was provided, §1191, that the revenue agent could not sue ‘ *' until the expiration of the fiscal year in which the taxes ought to have been paid,” and in §1190 it was provided, “after the expiration of the fiscal year in which the taxes become due and payable, the revenue agent may assess and collect all past-due taxes, whether the same be caused by default of the assessor, tax collector, or taxpayer.”
The act of 1891, section 3, in order to satisfy the objections pointed out in the Tonella case, 70 Miss., 710, provided, in section 3, that “after the expiration of the fiscal year in which taxes became due, if the revenue agent should discover that any property had escaped taxation by reason of not having been assessed, he should notify the tax collector, ’ ’ who should make the assessment, instead of mailing it himself, as had been unconstitutionally provided by §1192 of the code of 1892. Section 1192 corresponds with section 3 of the act of 1891, both relating to the assessment of property which has escaped taxation, and the legislature did the significant thing of removing the inhibition against suit by the revenue agent “until after the expiration of the fiscal year,” from §1191 of the code, which relates to suit, and corresponds to section 2 of the act of 1891, and placing it in section 3 of the act of 1891, corresponding with § 1192 of the code of 1892. The result manifestly is that .there is no limitation of time now provided as to when the revenue agent may begin suit, except that he must sue at a time when the taxes are £ £ past due and unpaid. ’ ’ Taxes are past due the sixteenth day of December, the date when this suit was brought. There is nothing in the objection, therefore, that suit was prematurely brought. It may be observed, in passing, that the suits recently determined in this court, and affirmed by the United States supreme court, were all for current taxes, and were brought, as to procedure, just as these suits were brought, and no objections were urged, or could have been properly urged, as to the right of the revenue [811]*811agent to sue when and as he did. The revenue agent having begun his suit before the sheriff began his procedure, and that suit being necessary, to determine whether the exemption was valid, every reason of law and of public policy maintains the right of the revenue agent to conduct these suits to conclusion, and collect the taxes without interference from- the sheriff.
The law nowhere authorizes a sheriff to sue for taxes. It merely provides a summary remedy by sale of property where the property is liable for taxes. See §3850 of the code. It does expressly authorize the revenue agent to sue for all ‘ ‘ past-due and unpaid taxes.” Besides, the sheriff is a merely ministerial officer, both as sheriff and as tax collector. It could not be expected of him to construe a statute expressly granting an exemption and determining judicially, as a court would, whether an exemption ivas unconstitutional or not, it never having been contemplated that a mere ministerial tax collector should undertake the tremendous responsibility involved in such exercise of judicial functions. He might well plead, as a good and sufficient excuse for not selling the property of this railroad, that he found an express statute granting an exemption upon conditions, which conditions had been complied with by making the required affidavits. Whether that express statute violated the supreme law of the land — the state constitution — conformity to which is essential to the validity of every legislative act, was a solemn judicial question for the courts to determine in a suit which he could not, and which the revenue agent could, institute for that very purpose. Cooley on Tax. (2d ed.), 710; Wiley v. Sinkley, 179 U. S., 66; Mayson v. Mo., 179 U. S., 333; Mechem on Public Officers, sec. 523.
The judicial ascertainment of that very question was the identical object of these suits brought by the revenue agent, of which this suit was one, and yyhat is known as the main case, recently unanimously affirmed by the United States supreme court, had been finally decided by this court June 20, 1898, as to the exemption, and had been appealed to the United States [812]*812supreme court, and was there pending at the time the sheriff instituted these proceedings. Not only so, but the old sheriff, the predecessor of the appellee, was a party to that suit. It was pre-eminently proper and legally necessary that the sheriff should wait until the supreme court of the United States had finally determined whether the exemption was valid before he should proceed by way of sale. • The judgment of the supreme court of the United States (Yazoo, etc., R. R. Co. v. Adams, 180 U. S., 1) denying the validity of the exemption affirmed the judgment of this court in Yazoo, etc., R. R. Co. v. Wirt Adams, 77 Miss., 194, and thus, for the first time, definitely declared the property of the railroad was liable to taxation. It is undoubtedly the duty of tax collectors, in the future, to make the taxes legally due hereafter by sale, if not paid when due, but they have no sort of concern with the collection of these taxes involved in the suits brought by the revenue agent, the very object of which was to determine whether the railroad company was liable or not.
Whether the taxes were ££a debt,” under § 8747 of the code of 1892, recoverable by proper action, depended on the validity, of the exemption, and whether the exemption was valid could only be determined by a suit, which suit the revenue agent, and not the tax collector, could bring. Moreover, if this tax collector ever had any right to collect these taxes, his conduct has completely estopped him in this case. He did not sell on the first Monday of March, 1900, although this court had denied the exemption June 20, 1898. He was not waiting for the supreme court of the United States, for he got his order in June, 1900, before its decision was rendered. His predecessor accepted from the railroad payment in affidavits, and gave receipts in full, treating the exemption as valid, and in his answer to the injunction suit in the federal court for the taxes of 1898,’ stated that he had not proceeded, and did not intend to proceed, to collect these taxes, but would leave the whole matter to the revenue agent. This very tax collector did collect the levee [813]*813taxes, but did not collect the state and county taxes, although both were required to be collected in the same manner and at the same time. Laws 1896, ch. 156, secs. 7 to 10, inclusive.
Whatever rights the new tax collector may have special to himself, he had no right to insist that the revenue agent did not properly bring this suit when and as he did. If he says,on the one hand, that ignorance of the law would not excuse him, and that he was bound, therefore, to know that the statute granting this exemption was unconstitutional and void, he thereby conclusively admits himself guilty of wilful and deliberate default in not selling on the first Monday of March, 1900. If, on 'the other hand, he takes the correct view, that he, a mere ministerial officer, was justified in acting on the face of the statute, manifestly he has no standing in his effort to interfere with the revenue agent, who went into the courts to have the validity of the exemption determined — a thing he could not do. It is to be observed that this sheriff does not deny that he had notice of the suit instituted by the revenue agent; indeed, such denial would have been futile, because he must have known from his predecessor, and his acts in accepting the affidavits, as well as from the fact that a most determined effort was made to have these suits compromised by the legislature at its last session, a fact known all over the •state, that such suit had been brought.
The order of the board of supervisors would be no protection to this tax collector if it had been his duty to sell, for the obvious reason that, in such case, he should have sold on the first Monday in March, 1900, and furnishes no excuse, in that view, for not having done so. He would, on that showing, fall precisely within the principle of Brougher v. Conley, 62 Miss., 361. The argument that the act of 1894 is unconstitutional is utterly untenable.
After the revenue agent, in the prompt and faithful discharge of his duty, had brought these suits, had conducted them through the inferior courts, this court, and the United States [814]*814supreme court, to a successful termination, after contests unparalleled for the matchless skill manifested by the able attorney representing the defense, it was far too late for the appellee to resort to this method of ‘ ‘ reaping where he had not sown. ’ ’
The decree is reversed, cause remanded, toith instructions to the court beloio to reinstate the injunction and make it perpet/ual.