Bailey v. Fisher , 38 Iowa 229 ( 1874 )

Beck, J.

— The facts of the case are as follows: The land in controversy is situated in Fairview township, Jones county, and was sold for the taxes of 1867, to defendant, and a deed duly made therefor. As the law then stood, in addition to township assessors, there was chosen by each incorporated town at its municipal election, an assessor who listed all property within its limits. The township assessors were elected at the general election for state and county officers. Acts of 9th Gen. Ass., Ch. 173, § 2; Acts 10th Gen. Ass., Ch. 26, § 2. The incorporated town of Anamosa is in Fairview township. At the general election of 1866, one Arnold was elected assessor of Fairview township, and one Dott, at the same election, and not a municipal election, was chosen assessor of Anamosa, and gave bond and took the oath of office as required by law. It appeal’s that both of these assessors were voted for by all the electors of the township, including those who lived within the limits of the town of Anamosa. The Wapsipinicon river divides the township. Anamosa is in that part of the territory lying north of the river. The land in controversy is a considerable distance from the town. From 1863, until after the assessment of the taxes in question, it was the custom of the assessor of Anamosa to list the lands north of the river and lying without the down. The other part of the township was assessed by the township assessor: No question seems to have been raised during this time as to the regularity of such assessments, which were made under a misapq>rehension of the law. The plaintiff is a non-resident of the state.

The only question we are called upon to decide is this: Was the assessment of the land in 1867, by Dott, the assessor of Anamosa, valid? _

, assessment. While the election of Dott was irregular, he may be regarded as the assessor dc facto of the town of Anamosa, and all his acts as such within the limits of his official powers are yalic^ g0 far as they involve the interests of third persons and the public.

Dott, as the assessor of Anamosa, listed lands of the township, including the tract in controversy. He did not assess them as the township assessor, and it is not claimed that he acted as such. We- then have the simple case of one officer performing an act which the law requires of another, without claiming or assuming his functions. The question does not arise whether Dott was defacto assessor of Eairview township. He did not act as such, nor assume the duties of that office. He simply performed acts in his official capacity as assessor of Anamosa, which the law required another officer to do. The discussion upon the point made by defendant’s counsel, that Dott was the assessor de facto, and his acts are therefore valid, does not apply to the facts of the case. Had Dott made the assessment as the assessor of Fair view township, the argument of counsel- on this point would be applicable to the case. But the distinction between such a case and the one before us is obvious.

2. ——: facto. It is not claimed that where an officer de jure or de facto assumes duties not imposed upon him by law, and which pertain,' under the law, to another officer, that, in such a case, his acts are valid on the ground that he is an officer de facto. We have seen no authority supporting such a rule. Yet this is the precise case before us.,

In order to support the acts of one on the ground that he is a de facto officer, they must be done under color of the office, the duties of which must have been assumed and discharged by the person claiming to fill the office. This we think is essential to give one the character of an officer de facto, and render 1ns acts vaUd. These views, we think, are not contested by appellant’s counsel, and are certainly in accord with all the authorities to which we have been referred.

The fact that Dott made the assessment under a custom extending his powers and duties in a manner, and to subjects unauthorized by law, which was acquiesced in by the officer charged with such duties cannot make his- act valid. Customs of this kind cannot abrogate the law. Neither-can it be pretended that - a mistaken idea as to the extent of the powers and duties of an officer, though honestly entertained by himself and the. people, will validate acts done in excess of his authority.

We are of the opinion tliat the assessment of Dott was a nullity, and that the tax sale for this reason is void.

The judgment of the District Court in overruling the motion to dissolve the injunction is therefore

Affirmed.