Page:North Dakota Reports (vol. 1).pdf/424

 assessment and sale, the supreme-court of Minnesota had held other portions of the same grant, under identical conditions, to be taxable. Cass Co. v. Morrison, 28 Minn. 257, 9 N. W. Rep. 761. After the sale of the lands to plaintiff, the supreme court of the United States, in deciding the appeal from the supreme court of the Territory of Dakota, held the lands not taxable. Railroad Co. v. Rockne, supra. But to hold that the county treasurers are liable under this statute for all tax-sales of lands within said grant prior to the decision in the Rockne case requires us to say that because the county treasurers, in a matter wherein they acted in a purely official capacity, followed not only their warrants, but also the decision of the supreme court of the territory and of the supreme court of the state of Minnesota—the only courts that had passed upon the question at that time—therefore they incurred liabilities which must inevitably bank-rupt them and their bondsmen. In our judgment, any statute that would permit, much less compel such a result would be a stigma upon legislation.

Another point is made in the case. As has been stated, chapter 132 of the Laws of North Dakota for 1890, approved March 11, 1890, provides generally for a recovery by the purchaser of the purchase money paid for invalid tax-sale certificates. Section 84 reads as follows: “When a sale of land, as provided in this act, is declared void by judgment of court, the judgment declaring it void shall state for what reason such sale is declared void. In all cases where such sale has been, or hereinafter shall be, so declared void, or any certificate or deed issued under such sale shall be set aside or cancelled for any reason, or in case of mistake or wrongful act of the treasurer or auditor, land has been sold upon which no tax was due at the time, the money paid by the purchaser at the sale, or by the assignee of the state upon taking the assignment, and all subsequent taxes penalties and costs paid by such purchaser or assignee, shall, with interest at the rate of 10 per cent. per annum from the date of such payment, be returned to the purchaser or assignee, or the party holding his right, out of the county treasury, on the order of the county auditor; and so much of said money as has been paid into the state treasury shall be charged to the state by the