Page:North Dakota Reports (vol. 1).pdf/422

 holding from the assessor facts which would show his property exempt from taxation; or the mistake of the assessor in adjudging that to be taxable which was not, or the wrongful act of the assessor in purposely listing property that he knew to be exempt; or whether it be the mistake of the clerk in copying the assessor’s roll, or the wrongful act of the clerk in purposely falsifying that roll; or whether it be the mistake of the treasurer in failing to give credit for taxes paid, or in applying the credit to the wrong description; or the wrongful act of the treasurer in purposely selling lands on which he knew the taxes to have been paid—alike, in each case, the treasurer’s bond is the guaranty against the financial loss.

We do not think the statute is so elastic. The first and most important thing in the section is a limitation. Before the rule is reached, the limitation is announced. The use of the limitation discloses the legislative understanding that it was necessary, in order to exclude cases that would otherwise come within the statute. If the legislature intended to throw upon the treasurer that universal responsibility for which respondent contends, then this limitation is worse than surplusage; it is misleading, confusing, and contradictory. We cannot charge that reproach upon the legislature. If the statute read, "When land has been sold on which no tax was due," etc., then it would be entirely perspicuous, and respondent’s position would be unassailable; but with the limitation introduced, the position is entirely untenable. It is true that, whenever land is sold for taxes on which no tax was due, there exists a legal wrong. But whose wrong? We have seen that the treasurer has no discretion; he must follow his warrant. It cannot be that, where the law commands a thing to be done under pain of punishment, to do that particular thing is a wrongful act, which in turn must be followed by punishment. The wrong is the wrong of the assessor who assessed property that was not subject to assessment, and not of the mere minister who could not question his instruction.

There was a statement on argument that the treasurer made a mistake of fact in supposing that the survey fees had been paid when they had not, and that the sale was the result of such