(concurring).
I believe, as does Mr. Justice LATIMER, that section 104 — 2—5.10, Chapter 19, Laws of Utah, 1943, as amended by Chapter 8, Laws of Utah 1947, is inoperative because the act is indefinite, uncertain, inconsistent, muddled and confused and does not lend itself to intelligible or workable interpretation within the bounds of construction. We cannot go beyond construction of an act of the Legislature. We cannot be the architects of a new act.
I am also inclined to the view of Mr. Justice WADE that the act as amended is unconstitutional in that there is no basis as far as barring actions is concerned for differentiating on the one hand between tax sales made under the conditions of Section 80 — 10—68 (6), U. C. A. 1943, and on the other hand those made under Section 80 — 10—68, R. S. U. 1933 and under Section 80 — 10—36, U. C. A. 1943, and under predecessor statutes to these sections. It would seem that if actions involving real property struck off to the county under Section 80 — 10—68 (6) are to be barred after four years, actions for the recovery or possession of real estate where the procedure *474involved a conveyance to the county prior to September 1, 1939, by auditor’s deed under the provisions of Section 80 —10—66 R. S. U. 1933, should, for what would appear to be exactly the same reasons, be barred.
Nor does there occur to me any purpose to be accomplished by the act in differentiating on the one hand between actions brought that involve only instances when property was struck off and sold to the county under Section 80 — 10—68 (6), U. C. A. 1943 and on the other hand, defenses or counterclaims in actions where the procedure involved a sale to a person holding a mortgage on lien under Section 80 — 10—36, U. C. A. 1943 and its predecessor sections in the 1917 compilation and 1933 revision' or defenses or counterclaims in actions where the procedure involved a sale made under the provisions of Section 80— 10 — 68(2), (3), (4), (5), U. C. A. 1943 and its predecessor statutes in the 1917 compilation and 1933 revision.
There may be some purpose in this differentiation which I do not see just as Mr. Justice WADE is also unable to see. It appears to me that property sold to a purchaser of a tax title under the provisions of either Section 80 —10—36, U. C. A. 1943 or its predecessor provisions or under Section 80 — 10—68 (2), (3), (4), (5), U. C. A. 1943 and its predecessor provisions, whether sold to the purchaser direct from the county or first conveyed by the County Auditor to the county and then from the county to the purchaser or whether sold under the provisions of Section 80 — 10—68 (6), U. C. A. 1943, are all in the same boat as far as the bringers of actions for the recovery or possession of property and as far as defenses and counterclaims set up by defending litigants are concerned. Counterclaimants may be in the same legal position as bringers of actions except that they wait to be sued to set up their actions. If, therefore, certain actions for recovery or possession are not barred in four years because they were acquired under certain types of tax pro*475cedure, why should counterclaims which may involve exactly the same situations be barred because the property was acquired under the provisions of slightly different statutes ?
But at all events the Section 104 — 2—5.10, Chapter 19, Laws of Utah 1943, as amended by Chapter 8, Laws of Utah 1947, is as stated by Mr. Justice LATIMER so confusing and so elusive of any intelligent and workable interpretation as to be inoperative. In consequence, I concur with what is said by Mr. Justice WADE and Mr. Justice LATIMER and on the basis of the opinions of both, that the plaintiff cannot prevail in this case.
The result being in this case what it is, defendant Sheffield is let in to his defenses and the plaintiffs will fail in their action to quiet title in themselves. Thus we are confronted in a suit to quiet title brought by the purchaser of a tax title with the situation where said purchaser has paid out money which has benefited the tax debtor owner.
Where the tax debtor owner brings the action to quiet title, there will usually be no difficulty. Where he brings the action, he asks for a judgment quieting title, and thus judgment may be granted on condition of his repaying the money paid out by the purchasers of the tax title for the benefit of the tax debtor owner. But even here, the owner may decide that he would rather forego his decree than pay the money and in such a case the purchaser of the tax title would be helpless when it came to obtaining recoupment.
But where the tax debtor owner is called on to defend an action to quiet title brought by the purchaser of the tax title, the situation is still worse. The owner may assume a purely defensive attitude, refuse to ask for affirmative relief and plead only that the plaintiff has no right to have the title quieted in him because he does not have title, and *476in the proof demolish plaintiff’s title by uncovering substantial infirmities in the tax procedure which would reveal that the county never obtained title from the tax debtor owner and consequently could not convey title to the tax title purchaser.
Perhaps in our early cases we have protected the tax debtor owner to a degree not warranted by public policy, although this court may have been influenced by the statutes which seemingly required certain rigid tax procedure to effectuate a good tax title in the county.
But there was also a public policy expressed by those sections of the tax laws which dealt with the sale by the county of property which by tax default had gotten off the tax rolls and into the hands of the county, to the effect that parties be encouraged to purchase such property from the county in order that it might again reside in private hands and thus yield public revenue for the maintenance of government.
In a sense, these two public policies are at war. The application of the rule of strictissimi juris to tax procedure does protect the tax debtor owner; in fact, it not only protects him but allows him to default in his taxes year after year, therefore refraining from making his required contribution to state and local government knowing that the probabilities lie heavily in favor of some shrewd sharpshooter attorney versed on tax law being able to uncover the invalidity of a title acquired by a purchaser from the county. It is the rare case, indeed, where a search of the tax procedure will not disclose somewhere along the line one or more infirmities of commission or omission in the tax procedure. And almost every type of such infirmity has been held to be an infirmity which transcends the level of an informality in an act relating to assessment or collection of taxes, see Sec. 80— 11 — 7, U. C. A. 1943, or if lying in a field of tax procedure *477outside of assessment or collections, of such a nature as to invalidate the country’s title. The whole subject matter is not unconnected with our cycle of periodic depressions at which time both the legislature and the courts, influenced by the wholesale manner in which poverty stricken property owners unable to meet taxes were suffering from the consequences of delinquencies, by legislation and decision leaned heavily toward rescue of the distressed property owners. Nor was it alone because of political considerations. Underneath was the realization that in America the welfare of the country is directly tied to a base of large groups of home-owning citizens as distinquished from a landless proletariat and its usual concomitant, swollen land holdings of the comparative few.
But even the fact that it was made difficult for a defaulting taxpayer to lose title to his property even over the years, unless through adverse possession (because there was no statute of limitations such as was by the legislature attempted and considered in this case), might not have discouraged tax title purchasers so long as there was an opportunity to gain good title by an action to quiet title or in lieu thereof obtain repayment of all the money which such purchasers had invested in the property, at least to the extent to which the tax debtor owner had been benefited, together with a generous rate of interest. And in the remote past, I think this has been possible. But when the statutes were amended to require a sale only to the county or to lien holders in order to permit them to protect their liens — thus preventing the general public from purchasing at tax delinquent sales (not, however, tax titles from the county) — the only way a non lien holder could invest in tax delinquent property was to purchase tax titles from the county. And the only incentive for doing this was that eventually he might acquire good title against the tax debtor owner by succeeding in a suit to quiet title in himself or, if he failed in that, recoup himself *478for money paid out with interest. But this latter might depend on whether tax debtor owner would be compelled to put himself in such position in the quiet title action whereby he could by the court be made to pay the money paid to the county by the tax title purchaser at least to the extent he (the tax debtor owner) benefited by it. As before stated, where the tax debtor owner brought the suit to quiet title, the court under Burton v. Hoover, 93 Utah 498, 74 P. 2d 652, would have had no difficulty in requiring him to pay the tax title purchaser (if the latter were made a defendant, which he usually was) the money paid by said latter to the county, at least to the extent which the tax debtor owner benefited by the payment because such tax debtor owner’s taxes had been paid and his property thus freed from lien for them.
The difficulty arose when the tax title purchaser was the plaintiff in the suit to quiet title. Here, as before noted, the tax debtor owner (defendant) could deny the tax title purchaser’s (plaintiff’s) allegation that he, the tax title purchaser, had title, admit the allegation of the tax title purchaser that he, the tax debtor owner, claimed an interest, deny that the said interest was inferior to that of the title purchaser’s interest, assert that it was on the other hand superior to his (the tax title purchaser’s) interest and as to pleadings stop there.
As to proof, all he had to do was to show up the infirmity in the title of the tax title purchaser by revealing the infirmity in the tax procedure and stop there as was done in this case. The court, on the theory that an action to quiet title was more than an action to try the strength of the plaintiff’s title, but was an action to adjudicate the title of all parties to the action (which, of course, under the statute it is) could compel the tax debtor owner (defendant in the case we are considering) to plead the nature and extent of his, the defendant’s, title and adjudicate the respective rights and claims of both parties. The court *479might go so far as to strike the pleading of the defendant if he was ordered to amend to plead the nature and extent of his claim -or title and if he refused to do so the court could give judgment for the plaintiff (the tax title purchaser in the case we are considering) and quiet title in the plaintiff against the defendant. In this way, the plaintiff would get a decree that he had title and was owner as against the defendant, and the defendant would lose his ownership. But the chances are that the plaintiff would not be so fortunate as to have as a litigant a defendant who would oblige by not amending as required, and if he did amend, would stop there after barely complying with the court’s order to amend. He would not go further and ask that title be quieted in him. Then he would come into court, show the infirmity in the plaintiff’s title, demolish it and walk away.
Of course, on the theory that a mere stranger cannot attack the title of the plaintiff, but must at least show some interest in himself, the defendant might be compelled to show the strength of his title and reveal that he was the tax debtor owner. In such a case, if the court found that he was, it would quiet the title in turn on condition that he pay to the plaintiff (the tax title purchaser) the money the latter was out to the extent that the defendant benefited. But if the defendant did not pay, the finding would repose in the records of the clerk’s office but there would be no decree. The plaintiff could not obtain a decree because it was shown that the defendant was really the title holder; neither could he obtain recoupment for the money he paid for the invalid tax title or such part as the defendant should pay because the taxes in respect to which he had defaulted had by the tax title purchaser in effect been paid, at least the lien for taxes discharged.
Mr. Justice WADE has these difficulties in mind. He suggests that the Legislature could provide that the tax title purchaser be given a lien on the tax debtor owner’s *480property for the taxes paid for his benefit. Such a lien, coupled with a proper statute of limitation, would really accomplish what the Legislature appeared to want to do by its peculiarly and confusedly worded acts considered in this case. Without such statute of limitations, long-ago buyers of tax titles and/or holders of ancient tax certificates might come to life with a large claim for accumulated interest at the statutory generous rate provided by the tax laws for buyers of tax certificates or at the legal rate, but in any event of such size by the automatic accumulation of time as to saddle the tax debtor owner’s property, now perhaps passed from him into more innocent hands with a lien, for a large amount.
I think we must throw this whole problem in the lap of the legislature, together with our suggestions and admonitions, and ask them to try again but with an eye on the total problem. Perhaps the whole tax sale procedure should be revamped in toto. There have been amendments made to parts of the procedure in the past, but without consideration as to how they affect the whole or other parts thereof.
But before I close, I should call attention that this court may have to acknowledge some responsibility for the muddled situations and in this stricture I include myself.
Taxpayers are not prejudiced by many of the omissions or misfeasances of tax officials. Certainly, it is a rare taxpayer who is prejudiced by the failure of either the assessor or the auditor to affix their respective oaths or certificates as required by Sections 80 — 7—9 and 80 — 5— 30, U. C. A. 1943. See Telonis v. Staley et al., 104 Utah 505, 106 P. 2d 163, on rehearing 104 Utah 537, 144 P. 2d 513. In fact, it is rare that a taxpayer even knows of these requirements. It is the attorney who, in scouting through the tax record for infirmities, discovers these omissions, most time years afterward.
*481I cite the omission of this certificate of the auditor, the omission of which was held in the Telonis’ case to be fatal, simply as an example and compare the certificate and oath which must be attached by the auditor under Sec. 80 — 7—9 with that required by Sec. 80 — 5—30 of the assessor. A penalty of stoppage of salary is visited upon the assessor for failure to attach the affidavit required by Sec. 80 — 5—30, but the section expressly provides that “a failure to make or subscribe such affidavit, or any affidavit, will not in any manner affect the validity of the assessment.” Yet, from the duties required of the two officers, it would seem that the duty to honestly, correctly and diligently assess according to law would be more or just as vital to the taxpayer as the duty of the auditor to record and transmit honestly and correctly alterations in the assessment roll authorized by the board of equalization.
Our decisions have been based on the theory that tax officials are agents with very limited powers and unless these powers are strictly followed there is a departure from the agency which invalidates the acts of the officials. But acts required of tax officials vary in nature. The omissions or misdoings in some cases may be very prejudicial to the taxpayer. Others sink to the level of office administrative duties, such as entries in books. Between these types, there are duties, the failure to fully or correctly discharge which may or may not be prejudicial to the taxpayer.
Acts fundamental to the laying of an ad valorem tax are:
(1) Correct, conscientious and fair assessments;
(2) Opportunities to correct inequities in assessments;
(3) The levy, which is largely mathematical;
(4) Opportunities to redeem or reclaim the property at one or more points along the line;
(5) Adequate notification of assessment, meetings of *482equalization boards, the levy or amount of tax due, date of delinquency, May sales and other dates when the taxpayer may rescue his property; all of them go according to a statutory time table of which the taxpayer may have to take notice.
I do not pretend that the above is a complete list of the salient operations in the tax procedure structure, but it suffices for the argument.
Were strict compliance required in these matters, whilst in other matters where there was a claimed lapse, the taxpayer might be required to show an actual prejudice due to the dereliction, it might result in a sensible, workable and sufficiently protective system. This, with some relaxation of the “buyer beware” principle applied to purchase of tax titles, would seem sufficiently to protect the taxpayer’s interest and at the same time serve the interest of the public in obtaining from each taxpayer the fulfillment of his duty to pay taxes on pain of suffering another to take over in his place and thus protect the urgency of public revenues.