Stutsman County Dak v. Wallace/Opinion of the Court
Appellees recovered judgment for the amounts paid, and 30 per cent. per annum interest thereon. Interest at this rate was that which purchasers at tax-sales received upon redemption, and section 78 of chapter 28 of the Political Code of the Territory of Dakota provided that the purchaser who came within its terms should be saved harmless by being paid the principal and interest to which he would have been entitled if the land had been rightfully sold. Unless the recovery was justified under the statute, this judgment must be reversed.

Stutsman county is one of the counties North Dakota, which was admitted into the Union after this cause was docketed in this court. In Tyler v. Cass Co., (N. D.) 48 N. W. Rep. 232, (not yet published in the official reports,) where the state of facts was substantially such as is disclosed by this record, the supreme court of the state decided that no recovery could be had by the purchaser at a tax-sale whose title failed, either at common law or under the section in question, which in 1885 had been amended in a point not material here, and become section 1629 of the Compiled Laws of Dakota of 1887.

It is well settled that, upon the construction of the constitution and laws of a state, this court, as a general rule, follows the decisions of her highest court, unless they conflict with or impair the efficacy of some provision of the federal constitution or of a federal statute or a rule of general commercial law. Norton v. Shelby Co., 118 U.S. 425, 439, 6 Sup. Ct. Rep. 1121; Gormley v. Clark, 134 U.S. 338, 348, 10 Sup. Ct. Rep. 554.

Our mandate in this case must be issued to the state supreme court, which will, in its turn, direct the state court succeeding to the district court of the territory to proceed in conformity to our judgment. 25 St. 683.

The parties are citizens of North Dakota. The litigation proceeded upon the recognition and allowance of the exemption of the lands from taxation under the laws of the United States, and no federal questions were involved. Tyler v. Cass Co., supra. The case belongs to the class upon which the local decisions are ordinarily given controlling effect, and the adjudication of the highest tribunal of the state in the case cited should be considered in the light of this rule, though the appeal is from the supreme court of the territory, which reached the opposite conclusion.

The supreme court of the state held that lands which were part of the original grant to the Northern Pacific Railroad Company, and had been surveyed at the expense of the United States, and earned by the company, after the passage of the act of congress of July 15, 1870, but no part of the survey fees had been repaid to the United States, although they had been disposed of by the company and conveyed to third parties, who were in possession, were not in fact taxable; yet that, since land was a subject of taxation in Dakota territory, prima facie they were taxable; that the assessor, being a judicial officer, where property is exempt from taxation by class, and not by specific description, has full jurisdiction, and it is his duty to decide in each instance whether or not a particular piece of property falls within any of the exempted classes, and in this respect the source of the law that establishes the exemption is immaterial; that an erroneous decision of an assessor in the matter of exemptions does not deprive the tax proceedings of jurisdiction, but until such erroneous decision is modified or set aside by the proper tribunal all officers with subsequent functions may safely act thereon; that the rule of caveat emptor applied to the plaintiff; and that there was no right of recovery at common law. It was further held that, under the law in force when the tax sale in question in the case was made, the treasurer, in the matter of the collection of the taxes, was purely a ministerial officer; and when he received the duplicate tax-list, with the warrant of the county commissioners attached, if such process was fair on its face, and contained nothing that would apprise the treasurer of any defects or infirmities, and it did not appear that the treasurer had any knowledge of any defect or infirmities, such treasurer was fully protected from personal liability in collecting the taxes upon all property contained in his list, so long as he acted strictly within the statute; that the law furnished his authority for selling the property for delinquent taxes; that the warrant, with the tax-list attached, gave him the subjects upon which to exercise such authority; that the statute which required the treasurer to 'sell all lands liable for taxes of any description for the preceding year or years' meant all lands liable to taxation as shown by the process in his hands, and he could not refuse to sell lands on his list, nor could he sell lands not on his list; that the sale of the lands in that case was neither the mistake nor the wrongful act of the treasurer, within the meaning of section 1629, Comp. St.; and that the plaintiff had no right of action under that section; and, further, that section 84 of chapter 132 of the Laws of North Dakota for 1890 had no application to a sale of lands made before the enactment of said chapter.

Section 1629 of the Compiled Laws is identical with section 78, c. 28, of the Dakota Political Code, except that in lieu of the words, 'the amount of principal and interest to which he would have been entitled had the land been rightfully sold,' the words, 'the amount of principal, and interest at the rate of twelve per cent. per annum from the date of sale,' have been substituted. Comp. Laws 1887, p. 362. Section 78 is as follows:

'When, by mistake or wrongful act of the treasurer, land has been sold on which no tax was due at the time, the county is to save the purchaser harmless by paying him the amount of principal and interest to which he would have been entitled had the land been rightfully sold; and the treasurer and his sureties shall be liable for the amount to the county on his bond, or the purchaser may recover the same directly from the treasurer.'

The county is thus made liable in the first instance, 'when, by mistake or wrongful act of the treasurer, land has been sold on which no tax was due at the time,' while a personal liability to the purchaser is directly imposed upon the treasurer, who, with his sureties, is also made liable for the amount to the county on his bond. This statutory provision is not the same as that of the act of North Dakota of 1890, and many similar state statutes, making counties generally liable to the purchaser at tax-sales, when the sales are declared void. Nor is it the same as had previously existed. The law for the organization of the territory of Dakota was passed March 2, 1861, and on the 15th of May, 1862, an act of its first legislative assembly was approved, which formed chapter 69 of its Laws, entitled 'Revenue.' Laws Dak. 1862, p. 419.

Section 58 read thus: 'When, by mistake or unlawful act of the treasurer, land has been sold on which no tax was due at the time, or whenever land is sold unlawfully, in consequence of any other mistake or irregularity rendering the sale void, the county shall hold the purchaser harmless by paying him the amount of principal and interest and costs to which he would have been entitled had the land been rightfully sold; and the treasurer and his sureties will be liable to the county for the amount of his official bond: provided, that the treasurer or his sureties shall be liable only for his own or his deputy's acts.'

The treasurer was the collector of taxes, and directed to sell; but he was not made liable if the sale were unlawful through mistakes or irregularities chargeable to others, but only for his own acts. When, in section 78 of chapter 28 of the Code of 1877, the words, 'or whenever land is sold unlawfully, in consequence of any other mistake or irregularity rendering the sale void,' were dropped out, the proviso was also exscinded as no longer necessary.

Under it as recast the county is not ultimately to respond. The liability falls upon the treasurer in either event, but does not arise save where the treasurer is himself in fault in selling the land. The wrong arising from selling land for taxes on which no tax is due is not necessarily the result of the mistake or wrongful act of the treasurer; and upon the facts in this record, if he were protected by his warrant and acted strictly within the statute, he could not be held, nor, of course, could the county, under that section.

We agree with the learned state supreme court that the treasurer acted in the sale as a ministerial officer, and that, while the law furnished authority for selling property for delinquent taxes, the warrant furnished the subjects upon which to exercise the authority.

In Erskine v. Hohnbach, 14 Wall. 613, 616, Mr. Justice FIELD, speaking for the court, said: 'Whatever may have been the conflict at one time, in the adjudged cases, as to the extent of protection afforded to ministerial officers acting in obedience to process, or orders issued to them by tribunals or officers invested by law with authority to pass upon and determine particular facts and render judgment thereon, it is well settled now that if the officer or tribunal possess jurisdiction over the subject-matter upon which judgment is passed, with power to issue an order or process for the enforcement of such judgment, and the order or process issued thereon to the ministerial officer is regular on its face, showing no departure from the law, or defect of jurisdiction over the person or property affected, then and in such cases the order or process will give full and entire protection to the ministerial officer in its regular enforcement against any prosecution which the party aggrieved thereby may institute against him, although serious errors may have been committed by the officer or tribunal in reaching the conclusion or judgment upon which the order or process is issued.'

Things may be void as to all persons and for all purposes, or as to some persons and for some purposes, and although the assessor may have been without jurisdiction over the particular property, yet as he had general jurisdiction to list property for taxation, and there is no pretense been committed by the officer or tribunal of the warrant to apprise the treasurer of the lack of jurisdiction, he cannot be held, in executing the warrant, as guilty of a wrongful act, within the intent and meaning of this statute.

The fortieth section of chapter 28 shows that the warrant required the treasurer to collect the taxes therein levied according to law, and that the duplicate tax-list, with the warrant of the county commissioners attached, was full and sufficient authority for the collection by the treasurer of all taxes therein contained. It was his duty to proceed, and he cannot be held to have been bound by the extrinsic fact that the costs of survey had not been paid, and that, therefore, these particular lands were not taxable.

We think the conclusion inadmissible that the legislature intended that the treasurer should be held responsible for the mistakes or wrongful acts of other officers, when acting in strict compliance with the exigency of the process committed to him.

It has been ruled that, where an officer knows of facts aliunde his process which render the proceedings void, he is not protected; but that question does not arise here, as no such knowledge on the part of the treasurer is found; nor is there any basis for the contention that the treasurer 56, 62, and 73 of chapter 28 of the

It was earnestly argued that inasmuch as, by section 62, the treasurer is directed to sell all lands 'which shall be liable for taxes,' there is just as much a question of law or fact presented for his decision as is presented to a sheriff when he is directed to sell the property of a defendant on execution, or required to determine the exemption of property from execution; but this ignores the fact that the warrant commanded him to collect the taxes from the specific property against which they were levied, and that he had no discretion to use, no judgment to exercise, and no duty to perform except to sell the particular property for delinquency. Buck v. Colbath, 3 Wall. 334, 343.

Comparing sections 36, 39, and 54 of chapter 69 of the Laws of 1862 with sections 56, 62, and 73 of chapter 28 of the Code of 1877, (these will be found in the margin,) it is contended that the legislature, in changing the language requiring the county treasurer to sell 'all lands on which taxes of any description for the preceding year or years shall have been delinquent and remain due,' so as to read, 'all lands, town lots, or other real property which shall be liable for taxes of any description for the preceding year or years, and which shall remain due and unpaid,' and adding the words, 'and no taxable property shall be exempt from levy and sale for taxes,' must be assumed to have intended to impose upon the treasurer the duty of determining in each instance whether or not the property was taxable, and that this view is confirmed by the amplification of the clause requiring the treasurer to execute a deed to the purchaser. We do not think so. If, as the state supreme court remarks, the treasurer must disregard his warrant, and sell no property not liable for taxes, even though the same appeared on his list, it would be equally true that he must sell all lands that were liable for taxes, although the same did not appear on his list.

Under section 37 of chapter 28 of the Code of 1877, as under section 1593 of the Compiled Laws, the clerk was directed to prepare a list which should contain all the taxable lands in the county, with the names of the persons or parties in whose name each subdivision was listed, and also a duplicate of the tax-list when completed, and, retaining one, to deliver the other to the treasurer, and to these lists the warrants are attached. The clerk makes the list from the assessment roll after the taxes are levied, and can no more change it than the treasurer can; and the order is to sell lands shown to be liable by being upon the list.

By section 56 it was provided that taxes due from any person upon personal property should be a lien upon any real property owned by such person, or to which he may acquire a title; and hence the argument that the amendment of section 39 of chapter 69 of the Laws of 1862 by section 62 of chapter 28 of the Code of 1877 was objectless, except upon the basis of appellee's contention, is completely answered by the supreme court in pointing out that, in order to give effect to the provision relative to the lien on realty of taxes on personalty, it was necessary to direct all lands to be sold that were 'liable for taxes of any description.'

The language of section 73 of chapter 28 of the Code of 1877, that a tax-deed shall run 'in the name of the territory,' and 'shall vest in the grantee an absolute title in fee-simple in such land,' whatever weight may be attached to it in a different connection, contributes nothing to sustain the position that, where such title fails, recovery can be justified under section 78.

It is said that section 78 had its origin in a statute of Iowa, was thence taken into the statutes of Nebraska, and by the territory of Dakota from Nebraska, and several decisions of the highest courts of Iowa and Nebraska are referred to as giving the provision a construction differing from that of which we approve. We do not find that any decision of that tenor had been announced prior to the adoption of the provision by the legislature of Dakota, and the rule that the known and settled construction of a statute of one state will be regarded as accompanying its adoption by another is inapplicable. And the terms of the statutes of Iowa and Nebraska considered in the cases cited were so different from that involved here as to deprive the decisions of the weight which might justly be ascribed to them if they had argued and disposed of the precise question before us.

The judgment is reversed, and the cause remanded to the supreme court of the state of North Dakota for further proceedings in conformity to law. 

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