(concurring). The regularity of the proceedings prior to the entry upon the lien docket of the. assessment is not questioned. The defect was in recording the assessment in the name of B. F. Dowell instead of Fannie Dowell, who is the owner. Under the charter.,, when the assessment is recorded as required, it becomes, from that time a lien upon the property. It is admitted that all the subsequent proceedings for the sale of the lotaj were vitiated by this defect, and of no legal force or effect! *253But it is contended that the city has the power, after the sale and the payment of the purchase-money to it, to refund the money to the purchaser, and to reassess the property by making a correct entry thereof, conformable to the facts, by which the lien shall bo created and a valid assessment made. It is conceded that there is no legislative sanction or authority in the charter to do this; but it is claimed that the right results from the fact that the power to create the lien by making a correct entry has never been exercised, and therefore the city may disregard the previous void proceedings for the sale of the lots, return the money to the purchaser, and cause the original assessment to be properly recorded, and the lots again sold. If this can be done at this stage of the proceedings, in the absence of any legislative direction or authority, it ■ must be because the making of such erroneous entry was simply a formal defect, or to say the least, a mere irregularity which may be waived or corrected. It certainly cannot be done if the making of a correct entry is essential to create the lien, or the making of a defective one is fatal to it, and vitiates all subsequent proceedings, which the argument admits; for it is an elementary principle in proceedings of this character, the power conferred being purely statutory, that every essential requirement leading to the ultimate act must be in strict conformity with the statute. A step or matter so indispensable that .without its proper performance no valid assessment can be made, or lien created, cannot be regarded as a mere directory requirement, or irregularity, which may be dispensed with or corrected without some positive legislative authority. But to avoid this embarrassment,'it is said that the power of the city or its auditor to create the lien 'has never been exercised, and that, therefore, the city is not deprived of its power in the premises. Even if this argument was available (which is not admitted or de*254eided), it cannot be applied to tbe facts here. It overlooks the distinction between the failure to exercise a power and the defective exercise of the power. The case herd is not the failure of the auditor to exercise his power, and make an entry in the lien docket, but in the exercise of the power he has made an incorrect and defective entry, which has failed to create the lien, and vitiated all the subsequent proceedings. It was rather a defective execution of the power than a failure to exercise the power. If the sale had been made without the semblance of an entry upon the lien docket whatever, it might then be said the power conferred was never exercised for the creation of a lien.
The true inquiry, then, is whether the auditor had the power to make a second entry for the purpose of correcting the error of the first, upon which the void sale was made; or having once made his entry, was his power in this respect entirely exhausted, or at an end? and did the one now made, or could it, create a lien? By the charter, after the doing of certain things therein prescribed, and the amount of the liability to be charged against the property benefited is ascertained, the charter requires the auditor to make an entry of the same in the lien docket, in the manner therein prescribed, and thereafter such liability or amount becomes a lien against the property. It thus appears that the power of the auditor to make the entry by which the lien is created is derived solely from the statute or charter, and not otherwise. Without such power conferred, his entry would create no lien or charge against the property. There is no suggestion, in express words, or by implication, in the charter, that he can make any other or more entries than the one prescribed. But if the auditor, upon his own motion, or under direction of the council, may ignore the first entry, and make a second, then *255what is the limit, and how often may he make such entries or exercise such power to make good his mistakes or errors? The fact that the statute gives him no such power, and the rule of strict construction universally recognized and applied by the courts in this class of proceedings, ought to be sufficient to settle this question without recourse to judicial precedent. The fact, too, that his authority is delegated by law, and his duties in the premises are purely ministerial, and involve the exercise of no judicial function, would exclude his power of amendment, upon common-law principles, without the aid of some statute. In stating the general principle applicable to such officers, Mr. Blackwell says:
, “ The acts of ministerial officers are to be tested by the law which authorized them. When the act is completed, their power is functus officio; and if in the record, return, or other evidence of their acts they have failed to conform to the requisitions of the law of the land, or to state the facts as they actually transpired, the error cannot be obviated by amendment, because their power over the subject is exhausted. By the record, as originally made, their acts must stand or fall.” (Blackwell ■on Tax Titles, 357.)
Nor must it be overlooked that the matter here is not ■in fieri. The auditor had exercised his power — had made his entry — and under color of that act as thus performed and done the subsequent proceedings were had, the property sold, the deed executed to the purchaser, and the money in payment thereof passed into .the treasury of the city. It is true, the purchaser got no title because of the defect, but the city, nevertheless, got its tax, although upon a void assessment. Can the city now, upon this state of facts, refund the money to the .purchaser, in order to enable it to reassess the property in the name of the appellant, and thus create a lien *256against it for the purpose of again subjecting it to sale in case of delinquency? This question has already been answered, but let us examine the matter in another light. How do the parties stand? The city has got the amount of the assessment in its treasury as the purchase price of the land sold under the void assessment. The purchaser, it is admitted, got nothing; but that is his fault or neglect, and not the appellant’s, for to him the doctrine of caveat emptor applies. He had full notice of the defect in the assessment or proceedings, or could have obtained it. He is a mere volunteer, and cannot recover back what he voluntarily paid out. “ The general rule is beyond dispute that the purchaser at a tax sale assumes all risk, and except as he may be vested by force of statutory provisions with the lien which the state or municipality held against the property of the delinquent tax debtor, he is without remedy if he fails to obtain a good title under his purchase. The doctrine of caveat emptor applies to such sales in its fullest force.” (Wood, C. J., in City of Logansport v. Humphrey, 84 Ind. 469; Lynde v. Inhabitants of Melrose, 10 Allen, 49; Packard v. New Limerick, 34 Me. 266; Hamilton v. Valiant, 30 Md. 139.) • The city does not warrant such titles, nor can it bind itself by an agreement to warrant the title of a purchaser at such sale, unless such power is conferred by the charter or' statute. (City of Logansport v. Humphrey, supra.) If a municipality cannot warrant tax titles to purchasers without legislative authority, how can it return the money to such purchasers without like authority, when his payment has been voluntary? The money is now in the treasury, and is the property of the city. Unless there is statutory power to return it, the money must remain in the treasury, and what liability exists out of which, by a corrected entry on the lien docket, a lien can bo created against the property *257of the appellant ? To do either there is a want of statute authority, and without this the authorities cited by the chief justice abundantly show it cannot be done. Indeed, it may be laid down as a general principle of universal application to this class of cases that it is only where there is proper legislative authority ¿ a municipality may make a valid reassessment of property for local improvements, in view of an assessment which is insufficient, irregular, or defective. (Howell v. Buffalo, 37 N. Y. 267; In re Van Antwerp, 56 Id. 261; Brown v. Mayor. of New York, 63 Id. 239; Emporia v. Bates, 16 Kan. 495; State v. Newark, 34 N. J. L. 236; Edwards v. Jersey City, 40 Id. 176; Whittaker v. Janesville, 33 Wis. 76; Brevoort v. Detroit, 24 Mich. 322; Mills v. Charleton, 29 Wis. 400; Hubbard v. Garfield, 102 Mass. 72; Tweed v. Metcalf, 4 Mich. 590; Chicago v. Ward, 36 Ill. 9; Meuser v. Risdon, 36 Cal. 239; Schenley v. Commonwealth, 36 Pa. St. 29.) I feel constrained, therefore, upon the state of facts presented by this record, to concur in the opinion of the chief justice.