Page:North Dakota Reports (vol. 1).pdf/419

 cases of Association v. Lightner, 47 Mo. 393 and Insurance Co. v. Charles, id. 462, and Walden v. Dudley, 49 Mo. 419—cited by respondent to show that the collector is not protected where property is exempt—do not go to the extent claimed.

In case of 47 Mo. 393, it is said: ‘But the collector is an executive officer, and has always been protected by his precept, unless it appears upon its face to have been issued against property wholly exempt from taxation.” And in the case on page 462, same volume, it is said: “If the tax-list shows jurisdiction, he (the collector) is protected.” And in the case in 49 Mo. this language is used: “Were the property expressly and unconditionally exempt, and by plain description, the collector would be bound to know it.” An examination of these authorities shows beyond question that they held the collector protected in all cases unless his warrant showed upon its face that property had been assessed which was absolutely exempt by law, and in such a case the process is not “fair on its face.” If, therefore, it should be admitted that the assessor in this case was without jurisdiction, still the treasurer would be protected; for there is no pretense that there was anything on the face of the warrant, either in its recitals or omissions, that apprised the treasurer of any defects in jurisdiction, or that the treasurer had any such knowledge outside of his warrant.

But it is insisted that the warrant is not the treasurer’s authority; that it is not the process under which he acts; that he acts under the law. With our construction of the law, perhaps, the point is not very material in this case. It is no doubt correct, as the supreme court of Ohio held, under a statute similar to ours, (see Loomis v. Spencer, supra,) that the treasurer's authority comes both from the law and his warrant. He could not sell in a summary manner if the statute did not so provide. The law furnishes him the instrumentalities; the warrant furnishes him the subjects upon which the law’s instrumentalities are to be exercised. The supreme court of Iowa, in Parker v. Sexton, 29 Iowa, 421, held that the warrant was not the treasurer’s authority to sell. The question before the court was whether or not a sale made by a treasurer under a defective warrant was a valid sale, (the warrant was without seal;) and that