Mattocks v. the McLain Land and Inv. Co.

Opinion of the court by McAteb, J.: It has heretofore been held in this court in Frazier v Prince, 8 Okla. 253, that “a sale of real estate by the county treasurer without having previously received the warrant of the clerk directing the collection of taxes for which the real estate was sold, is without authority of law, and a tax deed for such real estate issued to the purchaser thereof, by the treasurer, is absolutely void.” Section 5631 of the Statutes of 1893, authorizing the sheriff to collect taxes, provides that “the county clerk shall attach to the lists, his warrant under his hand and official seal, in general terms requiring the treasurer to collect the taxes therein- levied according to law ****** It is stated by Judge Cooley in his work on Taxation. 292, that “before the treasurer is authorized to proceed in the collection of taxes, he must have his warrant for the purpose, in due form of law * * * * * *Whatever the statute provides for, in this regard, the collector must have, and he is a tresspasser if he proceeds to' compulsory action without it. "Upon this point the decisions are numerous and uniform *****. “There must also be a law authorizing the issue of a warrant, and some person authorized to issue it, and it must. conform to the law authorizing it, and be issued by the proper person- designated by law, or it is no protection to *436 a collector. No question is made anywhere of the correctness of this doctrine. Whatever may be the requisites of the warrant under the statute, care must be taken that they be observed/’’ Since, therefore, there is no authority whatever to the county treasurer for the collection of taxes except 'upon the warrant issued under the law to him by the county clerk, and since the law provides that the warrant shall be issued by the county clerk under his hand and official seal, and since the county clerk is an officer having an official seal, he cannot undertake to discharge this most important duty of his office without attaching it to his warrant. The serious, important and official character of an act is corroborated not only by the signature of his hand but by the attachment of his official seal, and he may not act, and has no power to act in these matters without attaching the official seal of his office. The law requires it. It is 'mandatory upon the officer and must be obeyed * * * * and a warrant is void without it. And the proceédings taken under a warrant not so executed are illegal and void. (Cooley on Taxation, p. 292; Black on Tax Titles, sec. 201.) It is well established that when an authority is exercised by an officer having an official seal, and when the law directs that it shall be exercised by the use of an official seal, and makes no other provision for the exercise of that authority, then the attempted exercise of the authority, without the use of the official seal, is void. The use of the official seal is the only mode provided for by the law for showing the authenticity of an official act. *437 (Meskimen v. Day, 35 Kan. 46; Lessees of Boal v. King, 6 Ohio, 11; Dexter v. Cochran, 17 Kan. 450; Kelley v. McBlain, 46 Kan. 764.) The property in question was purchased by Bigger, and by him assigned without acknowledgment. The statute authorizing such an assignment provides in sec. 5657, Statutes of 1893, that * * * * * which certificates shall be assignable, and such assignment must be acknowledged before some officer having power to take acknowledgments of deeds * * * * * This provision of the statute is also mandatory. The assignment was attempted to be made without the acknowledgment required by law, and was invalid, and did not entitle the assignee to the tax deed set up as a defense in this action. Either of these irregularities was fatal to the validity of the tax deed. The judgment of the court below is affirmed. Irwin, J., who presided in the court below, not sitting; all the other Justices concurring.