(dissenting in part). The following conclusions announced in the above opinion do not meet my approval: (1) That *384a sheriff’s certificate issued under chapter 67, p. 76, Laws 1897, is prima facie evidence of a valid judgment, (2) that it becomes conclusive evidence of a valid sale unless attacked in three years, (3) that a sale under a void judgment becomes valid unless attacked in three years, and (4) that the sale by the sheriff without a certified copy of the judgment was a mere irregularity.
As to the remaining questions I agree with the conclusions stated in the syllabus. My views upon the first three questions are set forth in a dissenting opinion in Nind v. Myers, and in Beggs v. Paine (filed herewith), 109 N. W. 322, and need not be repeated
As to the fourth question, I am of opinion that the sale by the sheriff without the certified copy of the judgment was a sale without authority of law and was void, and was not a mere irregularity, as the majority hold. It cannot be said .that a sale without authority of law is not a sale without jurisdiction. Section 1341, Rev. Codes 1899 (section 11, c. 67, p. 82, Laws 1897) required the clerk of the district court, after the entry of the judgment, to deliver to the sheriff “a certified copy of such judgment written on the left-hand page of a book to be prepared by the treasurer.” This certified copy of the judgment is the sheriff’s authority to sell. It is his precept, and performs the same office as an execution on an ordinary judgment. The subsequent proceedings are required to be recorded upon it, and the copy is returned to the clerk of the district court. Section 1346. In my opinion, the case is not different from that in which a sheriff seizes and sells property without an execution. There being no authority of law for him to proceed in that way, his act is void. The execution is the authority for his act and without it he is without authority. The same principle should be applied when an officer attempts to sell lands for taxes. If he does not have the precept, he is without authority, „ and the sale is void. The following cases sustain this view: Atkins v. Hinman, 2 Gilman (Ill.) 437-448; Williams v. Underhill, 58 Ill. 137, 138; Eagan v. Connelly, 107 Ill. 458-465; Little v. Herndon, 10 Wall. (U. S.) 26, 19 L. Ed. 878; People v. Doe. 31 Cal. 220; Gilbreath v. Dilday, 152 Ill. 207, 38 N. E. 572. The sheriff’s authority was special. It existed only to the extent and under the circumstances stated in the statutes. If he acted without the authority of the statute, his acts are not justified or sustained by it.
*385(109 N. W. 357.)It is well settled that “the power to sell lands for taxes is a naked power, and the validity of a title derived from such a sale depends upon a strict compliance with the directions of the statute. The officer intrusted with the power of sale exercises a naked statutory and special authority, depending upon the letter of the law for its support. He must act in conformity with the law from which his power is derived; and a purchaser at such a sale is bound to know whether he has so acted. It is therefore a condition precedent to the passing of titles at such sales that all proceedings of the officers who have anything to do with the assessment and collection of the taxes or with the advertisement and sale of the property shall be in compliance with the statute authorizing the sale.” Woodbridge v. State, 43 N. J. Law, 262, 270, and cases cited; also, Hopper v. Ex’rs, 16 N. J. Eq. 382; and the opinion of Chief Justice Marshall in the leading case of Williams v. Peyton, 4 Wheat. (U. S.) 77, 4 L. Ed. 518, and Early v. Doe, 16 How. (U. S.) 609, 14 L. Ed. 1079.
In my opinion there is shown an absence of authority in the-sheriff to make the sale in question. And it is quite clear that authority to sell is not supplied by the curative or limitation provision of section 1345, to which the majority opinion refers. Such statutes, when applicable, cure irregularities and omissions in proceedings which are being taken by authority. But there is no ground for claiming.-that they give the officer authority in addition to that contained in the statute, under which he assumes to act. This must be so, for if the officer may choose his own method of procedure, or, as in this case, decide to sell without the certified copy, and thus without the authority of the statute, he is assuming to exercise legislative power which cannot be delegated. Plis authority to act is created by the legislature, and exists only upon the conditions named by the statute and he cannot create it himself. The fact that the legislature might have authorized him to sell upon different conditions proves nothing. It is a sufficient answer to this to say that it did not do so. The landowner can only be deprived of his property by due process of law, and he is not' deprived of his property by any law, when it is not taken under the authority of a law in existence, hut merely by a method of procedure which the legislature could have authorized if it had seen fit to do so.
For this reason I am of the opinion that the sale was made without jurisdiction, and should be held void.