Page:North Dakota Reports (vol. 1).pdf/412

 leged “that said lands were wrongfully placed upon said tax-list by said defendant’s commissioners and said defendant’s assessor.” It is evident is these cases that the sale occurred through the mistake of the assessor, unless, indeed, it is the duty of the treasurer to ascertain for himself, in each instance, whether or not the land is subject to taxation—a point to be considered further on. The statutes of Iowa and Nebraska differ so radically with each other and with ours that it is evident that the decisions under one statute establish no precedent to be followed in the construction of the others. There is another class of statutes making counties liable generally to refund to tax-sale purchasers when the tax-sale is invalid, irrespective of any liability over on the part of any officer through whose mistake or wrongful act the sale was made. Such statutes are found in Kansas, Minnesota, Iowa, Wisconsin, Pennsylvania, New York, and in North Dakota since the passage of chapter 132, Laws 1890, and perhaps other states. The common object of these statutes is doubtless to encourage bidding at tax sales by removing all risk of loss to the purchaser. But it is evident, upon statement, the the decisions under these statutes cannot control this case. We must resort to the statute itself and the ordinary rules of construction. The appellant claims that the county treasurer is a ministerial officer, and that in performing his functions he is protected by his warrant, so long as that warrant bears no inherent evidence of infirmity; that he is bound, under the law, to follow that warrant, and that in the performance of that legal duty he can commit no “wrongful act,” within the meaning of the statute; that the county is not liable, under the statute, in any case, unless the county treasurer is primarily liable, and that no liability attaches to the treasurer under the agreed statement.

The respondent contends that the tax-warrant is neither authority nor protection to the treasurer; that his authority to collect taxes must be found directly in the law, and that outside of the law he has no protection; that the law directs him to sell lands that are “liable for taxes,” and that this liability must be determined by himself at his peril, without regard to his warrant; and that, if he sells lands not liable for taxes, he thereby