months from the failure of an owner of real property to pay the taxes thereon as they mature, it is incumbent upon the tax collector, when so demanded by any person who offers to pay such taxes, penalty, and interest, to issue to him a delinquency certificate against the land described therein: Section 3693, L. O. L. Such written evidence has the force and effect of a judgment against the premises and an execution and sale thereof: Section 3694, subd. 4, L. O. L. At any time after three years and prior to the expiration of six years from the delinquency the holder of the certificate thereof may cause a summons to be served upon the owner of the real property, notifying him that application will be made to the Circuit Court of the county in which the land is situated to foreclose the tax lien thereon: Section 3695, L. O. L.

"Summons shall be served and returned in the same manner as summons in a civil action is served in the Circuit Court": Section 3696, L. O. L.

It will be kept in mind that paragraph 12 shows the plaintiff was and is a resident of Hillsboro, Oregon, but that in the suit to foreclose the tax liens evidenced by the delinquent certificates the summons was attempted to be served upon him only by publication. The stipulations fail to disclose why such constructive service of process was resorted to, or to show what effort, if any, was made to ascertain the residence of the plaintiff. The method of securing jurisdiction of the person by a constructive service of process is not in conformity with the principles of the common law, but is given by statute, which enactment being in derogation of the ancient rule is to be construed strictly: Heatherly v. Hadley, 4 Or. 1; Odell v. Campbell, 9 Or.

298; Willamette Real Estate Co. v. Hendrix, 28 Or. 485 (42 Pac. 514, 52 Am. St. Rep. 800); Mertens v. Northern State Bank, 68 Or. 273 (135 Pac. 885). In Northcut v. Lemery, 8 Or. 316, 322, Mr. Chief Justice KELLY, in referring to a decree given by a tribunal of superior power to hear and determine causes of the class and kind there involved, remarks:

"The court which rendered it, although one of general jurisdiction, was then exercising a special power conferred upon it by statute, and not according to the course of the common law. And in such cases, even a court of general jurisdiction must strictly comply with the requirements of the statute in its proceedings, and this compliance must affirmatively appear from the record itself; and unless it does so appear, no presumption will be indulged to sustain the validity of its judgments or decrees.'

To the same effect see Odell v. Campbell, 9 Or. 298; Furgeson v. Jones, 17 Or. 204 (20 Pac. 842, 11 Am. St. Rep. 808, 3 L. R. A. 620); Willamette Real Estate Co. v. Hendrix, 28 Or. 485 (42 Pac. 514, 52 Am. St. Rep. 800); Knapp v. Wallace, 50 Or. 348 (92 Pac. 1054, 126 Am. St. Rep. 742); Fishburn v. Londershausen, 50 Or. 363 (92 Pac. 1060, 15 Ann. Cas. 975, 14 L. R. A. (N. S.) 1234); Smith v. Whiting, 55 Or. 393 (106 Pac. 791); De Vall v. De Vall, 57 Or. 128 (109 Pac. 755, 110 Pac. 705).

The stipulation not having assigned any reason why the summons was attempted to be served by publication did not state facts sufficient to uphold the decree rendered.

6, 7. This suit is tantamount to a bill to redeem, in order to obtain which relief under the statute now in force, the tax, interest, penalty, etc., should have been tendered as a condition precedent to granting such redress: Section 3725, L. O. L. To entitle a party to

equitable relief he should be required to do equity. Every owner of land owes a common legal duty to the public to pay the taxes annually levied upon his realty in order to maintain the state government, to uphold the county administration, and to support the general schools; and such obligation requires him to pay, at least, such part of those burdens as should have been equally and ratably imposed upon his realty. The plaintiff's counsel, however, invoking the rule adopted in Hughes v. Linn County, 37 Or. 111 (60 Pac. 843), maintain that it was unnecessary for their client, as the present owner of the land, to comply with the requirements of the section of the statute last referred to by tendering with his complaint any part of the taxes that were levied against the premises of his predecessors in interest as a condition precedent to the right to maintain this suit. That decision was rendered April 16, 1900, and prior to the enactment of the statute declaring taxes to be a lien upon real property against which they were levied: Gen. Laws Or. 1901, p. 248, § 17. It was thereafter held in Title Trust Co. v. Aylsworth, 40 Or. 20 (66 Pac. 276), that where an assessment of lands sold for taxes was void, the owner of the realty was under no obligation to tender, as required by law, any sum for the benefit of the holder of the tax title based on such assessment before being heard to contest such title. The same conclusion was reached in Moores v. Clackamas County, 40 Or. 536 (67 Pac. 662). These cases proceed upon the theory that if the attempt to levy a tax upon a particular piece of real property is ineffectual for that purpose, the burden thus undertaken to be imposed is void; and that in a suit to remove the cloud so cast upon the title to the Iand it is unnecessary to comply with the requirements

of the statute by tendering any part of the tax. This course of procedure permits counsel for the plaintiff to place his own construction in advance of the trial upon the alleged invalidity of the tax, and, in effect, amounts to a practical repeal of the section of the statute referred to, for if the rule is to obtain a suit in the nature of a bill to remove a cloud from the title to realty will invariably be resorted to instead of a suit to enjoin the collection of a tax. In Welch v. Clatsop County, 24 Or. 452 (33 Pac. 934), which case was decided before taxes were declared to be a lien upon realty (Gen. Laws Or. 1901, p. 248, § 17), it was ruled that in a suit to enjoin the collection of taxes, a court of equity would not interfere in the absence of a tender by the plaintiff of the amount of the burden, unless the tax was undertaken to be assessed against property that was exempt therefrom, or that the burden was imposed by persons without authority, or that they had proceeded fraudulently. To the same effect see: Alliance Trust Co. v. Multnomah County, 38 Or. 433 (63 Pac. 498); Lapp v. Marshfield, 72 Or. 573 (144 Pac. 83). At page 578 of the opinion in the latter case Mr. Chief Justice McBRIDE announces the correct legal principle when he says:

"The case of Welch v. Clatsop County, 24 Or. 452 (33 Pac. 934), lays down a salutary rule to be applied to cases of this kind by requiring the party claiming relief against an illegal or irregular tax to tender what is fairly and equitably due before equity will relieve him."

In all suits hereafter instituted for equitable relief from the imposition of a general tax upon specific real property the rule last referred to will be applied, and if it be finally determined that any part of the money

so tendered should be returned to the plaintiff, a decree to that effect can be made. By reason of the failure personally to serve the summons upon the plaintiff or to set forth the reason for not having done so in the suit to foreclose the delinquency certificate as to tax lot No. 4, and in consequence of issuing a deficiency certificate for only a part of tax lot No. 3 when the delinquency related to the whole thereof, the decree of foreclosure rendered in that suit is set aside, the decree given therein is reversed, and the cause is remanded with direction to the trial court that if within 60 days from the entry therein of our mandate the plaintiff deposit in the lower court the entire taxes now asserted against his land, the penalties resulting from the failure to pay such legal obligations, and the interest on such taxes, the relief prayed for in the suit will be granted; otherwise such burdens will remain liens upon the premises, and this suit will be dismissed.

REVERSED AND REMANDED.