dissenting.
I cannot assent to certain propositions upon which it is attempted to found the rights of the appellant, and I shall now state my grounds of objection.
. Whatever rights or remedies the appellant possesses depend for their validity upon a private sale made by the county treasurer to him. It is not questioned that the treasurer had no warrant from the county clerk for commanding the collection of the taxes, when, as such treasurer, he sold the land and issued to appellant a certificate evidencing such sale. In the opinion to which I take exceptions it is sought to sustain the rights of the appellant to collect the taxes as assignee under said sale on the theory, first, that the warrant is not essential to clothe a treasurer with jurisdiction to sell real estate for the non-payment of taxes which are delinquent and a lien thereon — the county treasurer’s power to sell not being derived, as it is said, from the warrant, but from *693sections 109 and 113 of the revenue law (Compiled Statutes, ch. 77, art. 1); 'second, even though the warrant is essential to a valid sale, nevertheless it is insisted that a sale without the warrant operates to transfer, by an equitable Assignment, the rights of the county to the purchaser; third, from these propositions it results, as claimed, that the purchaser can maintain an equitable action for the foreclosure of the lien to which he has been subrogated by a-sale made by the county treasurer without the authority of a warrant empowering him to collect taxes.
In the case of Reynolds v. Fisher, 43 Neb. 172, it was said: “The warrant provided for in. this section is the treasurer’s authority for enforcing the collection of any and each particular tax of the list to which it is attached, when it becomes necessary to resort to any of the proceedings provided by law. To collect the tax, then, the warrant must be in the hands of the collector, and, in this state, attached to the tax list, as his authorization to institute such proceedings. If he proceeds without it, he becomes a trespasser. An officer of the law who makes a levy must be empowered to do so by the proper writ in his possession. So with the treasurer. The warrant required by the law to be attached to the tax list is the source of the right to use the means of collection provided by the statutes.” There does not seem to me to be any grounds on which to 'assume that this language is applicable alone to the seizure and sale of personal property, but such is the assumption in the opinion to which I object. This limitation is justified in that opinion on the theory that taxes on personal property-become a lien on the personal property of the person assessed from the time the tax books are received by the collector, whereas the lien on real property comes into existence on the first day of April in each year, irrespective of the time of delivery of the tax list to the treasurer.' In the case at bar there was no warrant attached to the tax list. To constitute a tax list, within the pur*694view of tlie statute, the warrant is indispensable, for section 83, chapter 77, Compiled Statutes, is in this language: “The tax list shall be completed and delivered to the county treasurer on or before the first day of October annually, and before its delivery the county clerk shall attach a warrant \mder the seal of the county, which warrant shall be signed by said clerk, and shall, in general terms, command the said treasurer to collect the taxes therein mentioned according to law; but no informality therein, and no delay in delivering the same after the time above specified, shall affect the validity of any taxes or sales or other proceedings for the collection of taxes as provided for in this act.” If the warrant is essential to constitute the tax list which justifies the treasurer in collecting taxes, no argument can be founded on the assumption that a sale can take place without such warrant being attached. I am not unmindful that in Iowa the tax list without a warrant has been held the treasurer’s sufficient authority for selling real property. In the opinion herein dissented from the proposition relied on is thus stated: “The taxes are a lien upon the real estate from the first day of April in the year in which they are assessed. One of the statutory methods of enforcing and satisfying this lien is by a sale of the property; and to effect this sale no seizure of the property is necessary, and authority to make the sale is conferred by express provisions of the statute. In support of these views see Parker v. Sexton, 29 Ia. 421; Sully v. Kuehl, 30 Ia. 275; Johnson v. Chase, 30 Ia. 308; Hurley v. Powell, 31 Ia. 64; Rhodes v. Sexton, 33 Ia. 540. Our conclusion therefore is that to invest the treasurer with jurisdiction to seize personal property for the satisfaction or enforcement of a tax lien thereon the warrant provided by section 83 of the revenue law must be attached to the tax list, but that the presence of such a warrant attached to the tax list is not essential to invest the treasurer with jurisdiction to sell real estate for the non-payment of taxes which are due and a lien thereon; *695that tlie treasurer’s authority and jurisdiction to make such a sale is derived from the express provisions of sections 109 and 113 of the revenue act.” Of the sections thus invoked section 109 prescribes when and where the county treasurer shall offer at public sale the lands on which the taxes for the previpus year shall not have been paid, how the sale may be adjourned, if necessary, the notice by publication which must precede the sale, and what such notice shall contain. That I may be strictly accurate it is necessary that I should say that this section also provides for defraying the expenses of advertising, though this is immaterial to our present inquiry. Section 113 of chapter 77, Compiled Statutes, provides that after the tax sale shall have closed and the treasurer has made his return thereof to the county clerk, the county treasurer shall sell at private sale, at his office, the-unsold lands, to any person who shall pay the amount of taxes, penalty, and costs, and shall issue certificates showing such sale. These certificates are to be issued in duplicate, but it is unnecessary further to describe the provisions of this section, for they merely refer to the recitations which must be embodied in the aforesaid duplicate certificates.
This abstract of these sections, upon comparison, serves to show the differences between the statutes of this state and those of Iowa, of which a synopsis is given in the opinion to which I shall now refer. Parker v. Sexton, supra, very properly was first in the citation of Iowa cases on this subject, for the others cited came after and followed in its wake. In the quotation which I shall now-make from this case it will be noted that there is no distinction, or room for distinction, between the power to sell-real and to sell personal property; and if its reasoning is to prevail in this state, it necessarily follows that Reynolds v. Fisher, supra, must be overruled. Again, in the statutory provisions of Iowa which we shall find noted in the opinión in Parker v. Sexlon, supra, there are special features which have been seized. upon to justify *696dispensing with the necessity of a warrant, and these features have no place in our statute. I note these matters in advance, for, perhaps, some special excuse should be offered for quoting as freely as I shall, as follows: “The next question made is upon the fact * * * that the tax warrant is not attested by the official seal of the board, instead of the seal of the district court, and it is claimed that this informality renders the sale of the land void. A careful analysis of our revenue statute will show the error of this claim. Revision section 748: ‘An entry shall be made upon the tax list showing what it is and for what county and year it is, and the clerk of the county board of supervisors shall attach thereto a warrant, under his hand and the official seal of said board, in general terms requiring the treasurer to collect the taxes therein levied, according to law, and no informality in the above requirements shall render any proceedings for the collection of taxes illegal. The clerk of the county board of supervisors shall cause the. tax book to be delivered to the treasurer of the county by the first Monday of November and his receipt taken therefor, and such list or book shall be full and sufficient authority for the collector to collect taxes therein contained,’ Now, it will be observed that by the provisions of this section the tax warrant requires the treasurer to collect, and is his authority for the collection of, the taxes in the tax list contained; but it does not authorize him to collect taxes therein named by distress and sale of personal property; nor to sell real estate; nor does it exempt him from personal liability for illegal or erroneous taxes collected by him. In short, the tax list and warrant, as provided by this section, becomes simply the authority of the treasurer to collect or receive the taxes — mothing more. And if there were no other provisions in our revenue law respecting the enforcement of the collection of taxes, this section would not authorize the seizure or sale of either personal or real property. It was directly held by this court in Ham v. Miller, 20 Ia. 450, that the express power *697given to a city in its charter to ‘provide for the assessment of all taxable property’ and ‘to collect taxes,’ etc., did not include the power to sell or convey real property in case of non-payment; and this adjudication was reaffirmed in Merriam v. Moody, 25 Ia. 163, and it was therein stated that all the adjudged cases, without exception, were to the same effect; so that if there was nothing more in our revenue Jaw giving authority therefor than the tax list and Avarrant as provided in this section 718, there would be no power to either seize or sell property for the non-payment of taxes. It is clear, then, upon general principles, that the power to sell does not come from the tax warrant. It is further provided by section 751 that the treasurer, after making entries upon the tax list of the delinquent taxes for the previous years, ‘shall proceed to collect the taxes, and the list and warrant shall be his authority and justification against any illegality in the proceedings prior to receiving the list,’ etc. This, without giving him any additional authority, simply exempts him from a personal liability to which he might otherwise be subject. And the idea that the tax Avarrant confers no other authority than merely to collect or receiAre the taxes finds further support in section 756: ‘No demand of taxes shall be necessary, but it is the duty of every person subject to taxation to attend at the office of the treasurer (unless otherwise provided) at some time during the time mentioned in a previous section of this act and pay his or her taxes;. and if any one neglects to pay them before the first day of February following the levy of the tax, the treasurer is directed to make the same by distress and sale of his or her personal property, excepting such as is exempt from taxation, and the tax list alone shall be sufficient Avarrant for such distress.’ So that the tax warrant is fully exhausted and its object accomplished when it clothes the treasurer Avith the authority to collect the taxes; for Avhen it comes to enforcing the payment by distress and sale of personal property the tax list alone is the authority — the tax warrant has no *698connection with it. And for the sale of real property for the payment of the taxes there is an express and independent statutory command and authority found in section 763: 'On the first Monday of October in the year I860, and in each year thereafter, the county treasurer is required to offer at public sale, at the court house or at the office of the county treasurer, all lands, town lots, or other real property on which taxes of any description for the preceding year or years shall have been delinquent and remain due and unpaid; and such sale shall be made for and in payment of the total amount of taxes, interest, and costs due and unpaid on such real property.’ Section 764 directs the manner of advertisement or notice of sale, etc., and it is then provided by section 7G5, that 'the county treasurer shall attend at the court house in his county, or at his own office as hereinbefore provided, on the day of sale, and then and there, at the hour of 10 o’clock in the forenoon, proceed to offer for sale, separately, each tract or parcel of real property advertised for sale on which the taxes and costs shall not have been paid.’ The mandate and authority for the sale of real estate for taxes are very clearly and specifically given by these provisions themselves, and that, too, without any reference to or aid from the tax warrant. The latter is simply an authority to collect or receive the taxes; the power to sell real estate is derived directly from the statute. We conclude, therefore, that whether the tax -warrant in this case Avas attached by the clerk under the direction of the board or properly attested and sealed are questions not at all connected with the validity of the sale and cannot affect the result.”
It is Avorthy of special note that in the above quotation of the language reproduced from section 756 there were italicized the words “the tax list alone” in the clause “and the tax list alone shall be sufficient Avarrant for such distress.” This was a' provision referring to payment of taxes by distress and sale of personal property, and I cannot reconcile this construction with Avhat *699is conceded to be the import of the opinion in Reynolds v. Fisher, supra. The Iowa statute, as shown by the above quotation, requires that- before the tax list is intrusted to the county treasurer there shall be attached to it by the clerk a warrant requiring the treasurer to col-. lect the taxes therein levied, according to law. In Corbin v. Hill, 21 Ia. 70, the opinion was prepared by Cole, J., whose language in Parker v. Sexton, supra, we have freely quoted. In Corbin v. Hill, supra, he said: “'The tax warrant has the force of an execution and is the authority for the collection of many thousands of dollars and for the sale of the property and homesteads of individuals, and it is but the merest justice that the records shall show the legal authority for the person or officer issuing such process to so issue it.” The author of this opinion, at its close, without giving his reasons, dissented therefrom, and in Parker v. Sexton, supra, disclaimed its authority as applied to the necessity of a tax warrant. The proposition that the warrant has the force of an execution and is the treasurer’s authority does" not rest alone on the above case, but is recognized in every other case I have. been able to find involving that question, as the following citations serve to demonstrate: *700the sheriff to sell for a tax does not appear; and as his sale can operate to transfer title only by force of his authority, unless that be shown, his deed passes no estate.”
In Gossett v. Kent, 19 Ark. 602, a bill in chancery had been filed for the cancellation of a tax deed because of certain irregularities in the proceedings leading up thereto, and in respect to the question under consideration English, C. J., for the court, said: “The county court,, after correcting any errors that may be made to appear in the assessment list returned by the assessor, causes to be stated thereon the state and county tax to be collected from the persons and property embraced in the list; and distinguished into the two classes above indicated. (Sec. 35.) The process of assessment, thus completed by the action of the county court, becomes, it is said, in the nature of a judgment. (Blackwell, Tax Titles 199.) The tax book, which is but a copy of the assessment list thus perfected, is then delivered to the collector (secs. 35, 36), attached to which is a process in the nature of an execution. (Sec. 40.)” It was held in this case that the liability of the land to sale was to be determined by the conditions existing when the warrant and tax list went into the hands of the sheriff, and not by a circumstance which afterward arose — in this case the departure of the owner of the property into another state.
Hannel v. Smith, 15 O. 134, was an action of ejectment brought by the holder of a tax deed. The tax sale had been conducted under the authority of the following statutory provision: “The auditor of state, at the time he transmits the county duplicate for the year 1831 to the several county auditors, shall also transmit to each county auditor a list of the forfeited lands lying in such county, which list shall set forth the name or names of the person or persons to whom such lands stand charged with taxes, the amount due thereon for each year, including the year 1831, and for what years, and shall certify and sign said list and affix thereto the seal of his office.” The certificate which it was contended fulfilled the above requirements was as follows:
*701“Auditor of State’s Office,
“Columbus, Ohio, June 5, 1843.
“Audi!or of Hamilton County-: You will carefully examine tlie foregoing list and strike from it all such, lands as you may' know to be erroneously forfeited, taking care that none escape the. duplicate of taxation. You will then proceed to advertise and sell the remainder, according io the original act for the sale of forfeited lands and the amendatory act passed February 15, 1842, etc.
“John Brougi-i,
“Auditor of State.
“By J. B. Thomas.”
In the discussion of this certificate it was said in the opinion of the court delivered by Hitchcock, J.: “It is apparent from this document that it was annexed to a list, called a list of forfeited land, but it was not such a verification of that list as the law required. * * * This instrument is not only without the signature of the auditor, but it is not verified by his official seal, nor is it therein certified that the list to which it is attached is correct. It is defective, and would no more authorize the county1' auditor to sell the land contained in the list than a letter written by a clerk of a court and directed to a sheriff, informing him that a judgment had been rendered in a certain case, would authorize that sheriff to levy upon and sell the lands' of a judgment debtor.”
In State v. Woodside, 8 Ired. [N. Car.] 104, it was said: “To enable the sheriff to enforce by distress the collection of the taxes, from the individual who has given in his property as required by law, he must be provided with a copy of the returns in the office of the clerk, duly certified by the clerk, that the taxpayer-may see the amount which he is bound to pay; otherwise he may refuse to pay and the sheriff cannot distrain his property. The certified copy is his warrant of distress to collect the taxes (Slade v. Governor, 3 Dev. [N. Car.] 365; Kelly v. Craig, 5 Ired. [N. Car.] 131), and it is the duty of the sheriff to apply to the clerk in proper time for such a copy.”
*702In Hilbish v. Hower, 58 Pa. St. 93, it was said, on the authority of Pearce v. Torrence, 2 Grant [Pa.] 82, and Stephens v. Wilkins, 6 Barr [Pa.] 260, that the authority of a collector of taxes to collect is his warrant, and that without a warrant the collector becomes a trespasser as soon as he meddles until the property of a taxpayer. This case involved the validity of a seizure and sale of personal property, but the above principles were stated without qualification or limitation.
In Van Rensselaer v. Witbeck, 3 Seld. [N. Y.] 517, it was held that, as the warrant to the collector consists in part of the assessment roll, of which the property certificate is a necessary element, the want of the latter is a defect apparent upon its face and renders the process no protection to the officer.
. The case of Donald v. McKinnon, 17 Fla. 746, was ejectment, wherein plaintiff claimed title through a tax sale as well as under a judicial sale. To invalidate the tax deed there was an offer on the trial to show by one Gamble, the tax collector of the revenue, that there was no warrant attached to the assessment roll under which the tax sale was had. This evidence was excluded. In the discussion of the admissibility of this evidence the court said: “The law requires that to the assessment roll delivered to the collector of revenue a warrant under the hand of the assessor should be annexed in the following form, to-wit [giving the form, etc.]. Without this warrant ‘delivered by the officer of the law designated for that purpose, the collector has no.authority to proceed to enforce the payment of taxes.’ This being omitted, the performance of all other acts, such as due advertisement, will lay no foundation for the sale of land. (Kelly v. Craig, 5 Ired. [N. Car.] 131; Van Rensselaer v. Witbeck, 7 N. Y. 517; Homer v. Cilley, 14 N. H. 85; Hilliard, Taxation 396; Cooley, Taxation 292; Blackwell, Taxation 167.) The warrant in this proceeding fills the place and performs the functions of a summons. It is the writ to the officer by which he is authorized for public pur*703poses to collect the tax, or, in the event of its non-payment, to subject the property to sale. For this reason we think the court erred in rejecting the proposed testimony of Gamble, the person who at the time of the sale was the collector-of revenue and who proposed to produce the assessment roll.” If the warrant is equivalent to, and fulfills the purpose of, an execution, as.seems to be quite uniformly held, the mere fact that the tax is a lien on real property, and may be satisfied by a sale thereof, no more authorizes a treasurer to sell without a warrant than would the fact that under the provisions of sections-476 and 477, Code of Civil Procedure, lands are subject to be sold, and are under the lien of a judgment, authorize a sheriff, without an execution, to sell such lands. I have found no case going even as far as those from Iowa,. and, as already intimated, I do not assent to the proposition that even they sustain the construction attempted to be placed upon our statute.
The second proposition to which I cannot yield assent is that upon the theory of an equitable assignment, independently of the authority of a warrant, appellant was subrogated to the rights of the county with respect to maintaining an action for the recovery of the taxes which he had paid. The cases cited to show that where a sale which failed to confer title nevertheless operated to subrogate the purchaser to the lights of the county were abortive sales, by reason of some defect in the procedure and not from lack of jurisdiction. It may be urged that the failure to attach the assessor’s oath to his assessment is not a mere irregularity, but as directly impairs the jurisdiction as does the failure to accompany the-tax books with a warrant to the treasurer. To my mind there is, between these a clear distinction as to the office of these instruments. The warrant is the treasurer’s sole authority to act, while the oath of the assessor is merely evidence of the correctness of the assessment. The assessment is essential to enable the board of supervisors to levy the taxes to be collected. It is a matter *704of evidence upon which that board exercises its judgment for the purpose indicated. After the assessment has been acted upon, the inquiry as to whether or not there was due proof of the correctness of the assessment when the board acted upon it becomes, not an inquiry into a jurisdictional, but into an evidential fact. The attack upon a sale subsequently made draws into question, in a sort of collateral way, the sufficiency of the proofs upon which the board acted. As to the warrant by virtue of which the treasurer conducts the sale the inquiry is as to a jurisdictional fact, which, as I understand it, is always open to question. In all of the cases cited there is not to be found one which upholds the doctrine that where the treasurer was entirely without jurisdiction his acts, nevertheless, operated to confer rights upon the purchaser. If one may assert rights with respect to taxes merely because he has voluntarily paid them to one who has no authority to coerce payment, this will be the only direction in which the law encourages and rewards this sort of intermeddling, and I see no justification for such a departure from a universally accepted principle.
Upon the proposition that when a special remedy is given by statute there can be no resort to the courts unless this course be expressly authorized, T have not felt called upon to invoke the decisions of the tribunals of states other than this. The doctrine was enforced in a tax case, Richards v. County Commissioners, Clay County, 40 Neb. 45, wherein it was said of section 89, chapter 77,' Compiled Statutes: “It will be observed that the section quoted authorizes actions in three cases only: First, where no personal property of the delinquent can be found, the treasurer or town collector, when directed so to do by the commissioners or supervisors, may commence an action in the district court of the county where the tax is levied; secondly, if any person having personal property assessed shall, in the opinion of the treasurer or town collector, be about to remove out of the county, *705or in any other manner seek to put his personal property out of the reach of the treasurer or collector, the treasurer and collector shall collect such taxes by distress or attachment, as the case may require; and, thirdly, if any person owing taxes remove, the treasurer and town collector shall forward such tax claim to the treasurer or tax collector at the adopted .residence or place of abode of such taxpayer, where the taxes may be collected by distress or civil action. In the last case the treasurer or tax collector to whom such claim is forwarded is authorized to institute the action in the name of the commissioners or supervisors of the county from which such tax claim ivas forwarded. No other provisions for suit are found. This case is not within any of these classes.” In the case just quoted from the attempt was to attach property subject to taxes in Clay county after its removal to York county, under the authority of the general statutory provisions governing such proceedings, but this right was denied for the reasons above indicated. This doctrine, that where special remedies are given for the enforcement of rights, no resort can be had to general provisions or the protection of those rights, has been repeatedly enforced in the jurisprudence of this state. (See authorities cited in Richards v. County Commissioners, Clay County, supra, Keith v. Tilford, 12 Neb. 271, Reynolds v. Fisher, supra, and German-American Fire Ins. Co. v. City of Minden, 51 Neb. 870, with the cases therein referred to.)
In the outset I stated the propositions in which I could not concur, and have given reasons which, I think, justify my dissent. It would be alike useless to recapitulate these propositions and the arguments to sustain them. To me they are sufficiently convincing to prevent my concurrence in the opinion which is to determine this appeal; hence I do not feel called upon-to express my views Avith reference to other propositions than those which should be determinative of this case.
Harrison, C. J., and Iravne, C., concur in this opinion.