Fox v. Cross

The opinion of the court was delivered by Johnston, J.: One of the objections taken to the tax deed under which the plaintiff in error claims, and probably the most serious one, is that the lot attempted to be conveyed was sold for that which was not a tax or charge against it. There was included in the amount for which the lot was sold a charge of ten cents for publishing the delinquent tax list and notice of sale, and it is claimed that this was in excess of the amount due upon the lot at the time it was sold. The last publication of the delinquent tax list and notice was made on the 31st day of August, 1877, but the affidavit of publication was not sworn to or transmitted to the county treasurer until the 22d day of September, 1877, twenty-two days after the [355] last publication was made, and eighteen days subsequent to the sale. The statute provides that— “ Every printer who shall publish such list and notice shall, immediately after the publication thereof, transmit to the treasurer of the proper county an affidavit of such publication, made by such person to whom the fact of publication shall be known; and no printer shall be paid for such publication who shall fail to transmit such affidavit within fourteen days after the last publication.” (Tax Law, §108.) Under this provision no liability arose against the county for publishing the notice of sale. It is not enough that the publication be made; but a prerequisite of the printer’s right of compensation and the liability of the county for the publication fee is that the affidavit shall be made and transmitted to the county treasurer within two weeks after the last publication. The law specially enjoins that the printer do this immediately; and the fee is not duly and legally earned unless the required proof of publication is made and transmitted within the time limited by statute. If the fee for advertising is not a liability against the county, it cannot become a charge- or lien against the land; and to purposely include an illegal charge in the amount for which the land was sold, as was. done here, vitiates the sale and deed. No statute of limitations has been invoked in this case, and! within the principles announced in Genthner v. Lewis, 24 Kas. 309, we must sustain this objection to Fox’s tax title. It is suggested that § 108 of the tax law is an amendment of the act fixing the fees and salaries of certain officers and persons, and is therefore violative of § 16, article 2, of the constitution; but this position cannot be maintained. (The State, ex rel., v. Cross, 38 Kas. 696; 17 Pac. Rep. 190.) It is unnecessary to examine the other questions raised, as the objection already considered is fatal to the tax title, and precludes a recovery under it. The judgment of the district court will be affirmed. All the Justices concurring.