Hamer v. Weber County 11 Utah 1, 37 P. 741

Smith, J.:

This was a proceeding in mandamus, commenced by the plaintiff in the court below against the defendants, Weber county and Joseph P. Ledwidge, who was at the time of the filing of the complaint, and still is, the duly elected, qualified, and acting county clerk of Weber county, Utah. The plaintiff was, at all times mentioned, tax collector of Weber county. The petition alleges, in substance, that on *7the 18th, 19th, and 20th days of December the plaintiff, in. accordance with the law, offered for sale at public auction*, for delinquent taxes, sundry pieces and parcels of rea® estate; and that at such sale no person bid for the same- or any part thereof; and that the plaintiff struck off the-property offered for sale to the probate judge of Weber" county, and issued certificates of sale in due form; and3 afterwards, on the 26th day of December, 1893, plaintiff' tendered to defendant Joseph P. Ledwidge, as clerk of said county, such «certificates of sale, numbering in the aggregate 905, each representing a different piece or parcel of real estate, and then and there demanded of the clerk of said county credit upon his account for the amount of taxes and costs due thereon, and represented by such certificates of sale to the amount of $15,853.57. That the-defendant, as such clerk, then and there accepted the certificates of sale, but then and there refused, and still refuses, to credit the plaintiff with the amount of taxes due-, thereon and the costs to the date of sale, or any part, thereof. The prayer is that the defendant Ledwidge be-required to credit the plaintiff with the sum of $15,853.57-Defendant answered, and denied that any sum or anything at all was due the plaintiff on the said tax certificates or otherwise by reason of the taxes or costs due thereon to the date of the sale, or for any reason at all. The answer then affirmatively alleges that no claim for the amount of the taxes and costs had been presented by the plaintiff to the county court of Weber county for allowance; and, secondly, that the tax sale certificates, tendered to the defendant Ledwidge each contained not. less than 12 folios of matter, and it is alleged that the certificates should not contain to exceed two folios each. For a third defense, it is alleged that the plaintiff, as collector, failed to seek out or levy upon, all the taxable property of the owners of said real estate in said. *8certificates described, or any of them, to satisfy and pay the taxes mentioned in said certificates, or any of them. For a fourth defense, it is alleged that the county court, on October 17, 1893, fixed the compensation of the collector (plaintiff) at $3,000 for the year 1893. After the case was thus at issue, findings of fact were agreed and stipulated by the respective parties. The findings of fact, without setting them out at length, show, in substance, that the plaintiff made 905 sales of real estate for delinquent taxes, for which there were no bidders, and they were struck off to the probate judge; that the amount of taxes represented by such sales are as follows: Territorial taxes, $4,892.10; county taxes, $3,913.68; school district taxes, $806.23. It was also found that he paid, for publishing the delinquent list, $452.50, and, for filing 905 tax sale certificates with the county recorder, $452.50.

The tax collector claimed $5,336.56 for costs and fees for making such sales. These costs are claimed to amount to $7 in each case, including the cost of publication and filing with the recorder. Six dollars of the charge consists of 25 cents per folio for each certificate of sale and 25 cents per folio for each duplicate certificate of sale, there being 12 folios in each. It was also found that the certificates contained 12 folios each. It was also found that the collector has presented no claim to the county court for his fees or costs, or the amount of taxes represented by such certificates; that no part of it has ever-been allowed by the county court. It is further found that the compensation of the county collector was fixed for the year at -the sum of $3,000; and, in addition thereto, he was to receive all costs and fees allowed him by law,- including costs and fees allowed him by law on tax sales, and for making tax-sale certificates made to the probate judge. It was further found that 65 out of the 905 tax sales which were made to the probate judge were sales of *9property belonging to persons who had personal property assessed to them. There is no finding as to whether these parties owned any personal property at the time the taxes became delinquent or not. The amount of costs represented by these 65 certificates is $444.25. The amount of taxes represented by them is $1.,689.88. As to the other 840 sales, it is found that the owners had no personal property. It is further found that the plaintiff gave bond in the sum of $82,000 for the faithful discharge of the duties of his office before entering upon said office, which said bond was duly approved by the county court of said county. The court, upon these facts, found that it was the duty of the respondent Ledwidge to. credit the plaintiff with the sum of $4,041.90, territorial taxes; $3,233.54, county taxes; $646.69, special school tax; and the sum of $452.50 for publishing the delinquent list; and the sum of $420, for filing certificates with the county recorder,— making the aggregate of $8,804.63.. These credits are the aggregate amount of taxes represented by jfhe 840 certificates of sale made to the probate judge, and the costs of the publication of the delinquent list, and 50 cents each* for filing the 840 certificates. The court disallowed entirely the claim for credit for the 65 certificates of sale of property belonging to the persons who were assessed for personal property, and also refused to allow any costs or fees for making out certificates of sale, but found, as a conclusion of law, that this claim should be presented to the county court for .allowance. From this judgment, disallowing and refusing to compel the defendant to credit the plaintiff with the full amount claimed, plaintiff appeals.

The first question which we deem proper to discuss is whether or not the plaintiff should be credited with the amount of taxes represented by the 65 certificates of sale in cases where the owners had personal property assessed to them. There is no finding that these persons had per*10sonal property out of which the taxes might have been made at the date when the taxes became delinquent. It is found that the plaintiff made no search for personal taxable property of such delinquent taxpayers prior to-making sale of the real estate for their delinquent taxes, but he did examine the assessment roll, and did not at any time or at all seize or levy upon the personal property of the owner of such real estate to satisfy or pay the taxes mentioned in said certificates, or any of them. It was held in Little v. Gibbs, 8 Utah, 265, 30 Pac. 986, that a tax collector who had paid the taxes of a delinquent taxpayer had a right of action in his own name against the delinquent for the recovery of the taxes. In this case the tax collector has not paid the taxes. It may be conceded that he has failed to make a valid sale of the real estate to satisfy the amount demanded for the delinquent taxes. It would seem clear, under the provisions of our statute, that a lien for taxes still exists. The striking off of property at a tax sale to the county, or to the probate judge on behalf of the county, does not constitute the payment of the delinquent taxes at all. Section 2012 of the Compiled Laws of Utah, as amended (page 50, Sess. Laws 1890), provides that the taxes shall attach to and constitute a lien on the property assessed, if real estate, from the 31st day of August of each year, and, if personal property, from the day of the assessment. If the taxpayer is owner both of real estate and personal property, the tax on the personal property shall also be a lien on the real estate. In each and every case the lien shall be paramount to all other liens whatsoever, and it shall not be removed therefrom until the tax is paid, or until the title vests thereto, under a sale thereof, by virtue of proceedings to enforce paymént of the tax. '

It is evident that the taxes of these 65 delinquents have not been paid, and that they constitute a lien upon the *11real estate of the delinquents for the entire amount of taxes due. The question is, in whose favor is this lien, under the facts found in this case? As already stated, this court has held in Little v. Gibbs that, if the collector paid the taxes himself, he may enforce the lien in his-own right. He has not paid them. He has made a sale, voidable at the election of the delinquent taxpayer. Of course, the sale is valid if not objected to by the delinquent taxpayer. If he sees fit to ratify it, it is clear that he may do so; but, if he seeks to avoid it, does it not follow, by virtue of the statute just quoted, that the lien for taxes still exists against the property, and that that lien is in favor of the nominal purchaser at the tax sale, and may be enforced at any time? It is never barred by the statute of limitation, and is paramount to any other lien whatever against the property. We are of opinion that, this is what the legislature intended by the section just quoted. Such being the case, the lien for these taxes is vested in the county, the nominal purchaser at the tax sale, and the collector is entitled to credit for the amount thereof. If the delinquent taxpayer never makes objection to the sale, the county obtains the title to the property sold, if the statute allows it to take a deed. It is sufficient for this case to say that the county will either obtain the property by the sale, or will obtain and has obtained a lien for the full amount of the tax due, both territorial, county, and school district, which is a paramount lien against the property of the delinquent taxpayers. Such being the case, it seems clear that the amount of these taxes should be credited to the plaintiff, in addition to the credits allowed him in the court below; the amount, as above stated, being $1,689.88. Under the findings of fact, we do not think that the plaintiff is entitled to costs for making these sales, or that the county has any valid lien upon the property for such costs; and therefore the *12plaintiff is not entitled to credit for the amount claimed for making these 65 sales, to wit, $444.25.

The next question is as to the fees for making out certificates of sale. One of the defenses is that the certificates are more lengthy than is necessary, and that a certificate that contains two folios is sufficient, and that, by reason of the length of the certificates, the charges therefor are extortionate. The statute fixing the fees of the collector is found in the Session Laws of 1890 (page 50), and is as follows, omitting the formal parts: For each certificate of sale, per folio, 25 cents; for publishing the name and amount of tax due from each delinquent, $1; for filing certificate of sale with the county recorder, 50 cents. Section 2031 of the Compiled Laws of Utah provides: “When real estate is sold for taxes, the collector shall issue a certificate to the purchaser, reciting/5 etc. “ A duplicate of such certificate shall be filed by the collector in the office of the recorder of the county; provided, that if at such sale no person bid and pay the collector the Amount of tax required to be paid as aforesaid on any real estate, the collector shall make to the probate judge and his' successors in office, for and in behalf of such county, a certificate similar to that given to other purchasers, and such sale to the county shall have the same effect as if made to an individual. And the clerk of the •county court shall credit the collector with the amount of the tax due thereon, and costs to date of sale/5

There appears to be no controversy but that the collector is entitled to 25 cents per folio for each certificate of sale. The difficulty arises in the fact that in these 840 tax sales made to the probate judge, which the court below found to be valid, he also made out a duplicate certificate, and filed the same in the office of the county recorder, and he •claims 25 cents per folio for each of these duplicates. 'The court below declined to allow him anything for making *13out the certificates of sale. We thinks under the stipulation of facts, the court should have directed the clerk to-credit him with the amount of fees due him for making-out the certificates of sale, and that there was the same authority in the court to make this allowance that there was to allow him for the delinquent taxes, or for publishing the delinquent list, or for filing the certificates with' the county recorder. If there was any necessity at all for the county court to pass upon the questions, we think it was waived by the stipulation of facts; but certainly there was the same necessity for the county court to ascertain the fact that the delinquent tax list had been published as-there was for it to ascertain the amount due for each certificate. In other words, if there was anything for the county court to pass upon in relation to the plaintiffs claim, it would seem that it, of necessity, extended to his-entire claim, and not to any particular part of it. And yet the court below did allow him about $8,000 of delinquent taxes, and the costs of publishing the delinquent list, $452.50, and the costs of filing 840 tax-sale certificates with the county recorder, at 50 cents each. We are of the opinion that, under the stipulation of facts in this case on which the case was submitted, it was the duty of the court to have ascertained the amount due the plaintiff, and to have directed the defendant to credit him with that amount. As we have said, in addition to the credits allowed him, he was entitled to a credit for the remainder of the unpaid taxes. It is found as a fact that the certificates of sale were each 12 folios in length. Under the statute, the fee for making these was $3 each. A lengthy discussion is had in the appellant’s brief to show that the term “each certificate of sale” includes a duplicate certificate. We do not so understand the statute. It may well be doubted whether the statute just quoted requires any duplicate certificate of sale where the property is-*14knocked off to the probate judge for the want of a bidder. The reason for requiring it does not appear to us to exist, and the statute certainly, in terms, does not require it. But, without deciding the question whether it is required or not, we are of the opinion that the statute does not authorize any charge for making out these duplicate certificates, and that the charge is confined to one certificate for each sale, and that this is the only meaning that can be attached to the words “ each certificate of sale," in the law fixing the fees of the collector. We think the plaintiff is entitled to 25 cents per folio for the certificate of each sale that he makes, and that he is not entitled to a like sum for a duplicate of such certificate.

This brings us to the remaining question, whether or not the certificates of sale are unnecessarily lengthy and the charges therefor extortionate. The form of certificate is set out in the record at length, and, while it is more lengthy than perhaps the writer of this opinion would use were he called upon to make a certificate of sale, yet it is clear that the form is not prescribed by statute; that it is left to the discretion of the collector to adopt such form as he may choose. In the absence of any showing (and there is none in this record) that the form was fraudulently .gotten up for the purpose of creating illegal charges against the county, we cannot presume that the collector was actuated by bad faith in using it. We think the same presumption is to be indulged in favor of the plaintiff that is indulged in regard to other public officers, and that is that he has acted in good faith, and with an honest intention to = execute the law. It was suggested in argument, and not' disputed, that exactly the same form is in use throughout the territory, and has been for many years. Whether this is true or not we do not know, but it would seem from a careful examination of the matter that the proportion of words in the certificate which might be *15•eliminated without impairing its sense is not great. Dif-ierent officers might use or compile different forms of certificates, but, as we have above stated, in the absence of .any showing that the officer has acted in bad faith, we do not feel that it is our duty to impute to him bad motives in such a matter as this. It was within the power of the •county court, perhaps, to' have regulated largely the compensation of the plaintiff with reference to the fees that might be' charged for making delinquent tax-sale oertifi-•cates. It is to be presumed that they exercised their dis•cretion, in view of all the facts before them, when they fixed the compensation of the plaintiff at $3,000, in addition to the fees which he might receive for tax sales made to the probate judge.

It results from this conclusion that the plaintiff is also entitled to credit for the sum of $2,520, being $3 each for •840 tax-sale certificates, in addition to the amount allowed him below. In concluding this opinion, we may say that we have entertained grave doubts as to whether this action -and the kindred one of Weber Co. v. Hamer, 37 Pac. 749, are properly brought by proceedings in mandamus. We •should have examined that question more at length were it not for the fact that the stipulation of facts indicates that it was the intention, of the court below to fix the .amount that the plaintiff was entitled to upon the showing made that the defendant should credit him with it, and upon appeal we are asked to do the same thing. We .have done so without considering particularly the question of procedure. We are of opinion that, in addition to the $8,804.63, with which the court below directed that the plaintiff be credited, he should be credited with $1,689.88, -additional delinquent taxes, and with $2,520, additional fees and costs; making a total credit of $13,014.51. It is .therefore ordered that the judgment be reversed, and the «cause remanded to the court below, with directions to *16enter judgment in that court in accordance with this conclusion, and. direct its mandate to the defendant Ledwidge, commanding him to credit the plaintiff with the sum of $13,014.51; and that the appellant recover the costs in this-court.

Mebeitt, C. J., concurs.

Baetch, J.

(dissenting)'.

I do not agree w'ith my brethren in reversing this case. It appears from the findings of fact, which were agreed to by all the parties to the suit, that the plaintiff was the-tax collector, and, as such, on the 18th, 19th, and 20th of December, 1893, offered for sale, at public auction, .certain separate parcels of real estate, for non-payment of territorial, county, and school district taxes for the year 1893. That for 905 of these separate parcels of land there-•were no bidders, and he thereupon made out certificates-of sale to the probate judge of said county, for and in behalf of the county, and afterwards delivered the certificates to defendant Ledwidge, as clerk of the county court, and demanded of said clerk credit for the taxes due and costs to date of sale, amounting to $15,853.57; and the clerk accepted the certificates, but refused to give the credit demanded, the county also refusing to give the same. That the costs of each sale were $7, as folloAvs: £CFor publishing the name and amount of taxes due from each delinquent, together with a description of the property, 50 cents; for filing each certificate of sale with the county recorder, 50 cents; 25 cents per folio for each certificate of sale filed with the county recorder; and 25 cents per folio for each certificate of sale deposited with the county clerk/-’' —the one certificate being a duplicate of the other, and each containing not less than 12 folios, exclusive of the description of the real estate. That no claim for the *17amount represented by these certificates, nor for costs, was ever presented to the county court for allowance. That the county court fixed his salary at $3,000 for the year 1893, with the mutual understanding that, in addition thereto, he should be entitled to all costs and fees allowed him by law,' including those allowed him by law on tax sales and such certificates made to the probate judge. That, prior to the sale of the real estate for taxes, the collector examined the assessment roll, and found that the owners of but 65 out of the 905 parcels sold were also assessed with personal property, and that the collector made no search for personal taxable property of such delinquent taxpayers prior to the sale, nor did he ever seize or levy upon personal taxable property of- the owners of the real estate described in the certificates.

Under this state of facts, the first question raised is whether the 65 tax sales, where the owners of the real estate sold had taxable personal property, are void. The court so held, and counsel for appellant insist that this was error. The statutory provision relating to this question, after providing for the publication of a list of delinquent taxes, reads as follows: “On the third Monday of December of each year, the collector shall expose for sale sufficient of such delinquent's real estate: Provided, that the personal taxable property of such delinquent has been first exhausted by a levy and sale, and for that purpose the tax on the real estate is made a lien on the personal property to pay the taxes and costs/’’ etc. Sess. Laws 1892, p. 29. This is an amendment to section 11 of the act approved March 13, 1890, which is a new section, numbered 2030a, added to section 2030 of the Compiled Laws of Utah of 1888. All of these sections contain similar provisions regarding the application of the personal property to a delinquent’s taxes and costs. From an ex-*18animation of these several sections, it is evident the legislature intended that the personal taxable property of the delinquent should be exhausted before the collector had power to sell the real estate for the payment of his taxes. This is a condition precedent to the sale of the real estate, and the tax on the real estate is made a lien on the personal property for that express purpose. This provision of law is designed for the security of the taxpayer, and is therefore mandatory, and cannot be disregarded by the collector. A collector has but a naked power to sell land •'for taxes. It is not coupled with an interest. His authority is wholly statutory, and is derived from no rule •of the common law. He is simply the agent of the law to sell; otherwise he has no authority, having no interest in the property. As such agent, he must strictly comply .with the conditions imposed by law, or the sale will be void, for he is constituted such agent only by certain preliminary requirements, which must precede his action, and are the conditions upon which his authority to effect the sale is founded. If he fails to observe or comply with any one of these preliminary steps, such failure will be fatal .to his action, for his power to sell is founded, not upon one, but upon all, of these requisites.

In the case at bar, the officer attempted to sell the 65 parcels of real estate without first exhausting the personal •taxable property of the several owners. The exhausting .of the personal property being a condition precedent, under our statute, to his power to sell the real estate, and he having failed to observe it, his power to sell never was created, and his action was without authority. Black, in his treatise on the Law of Tax Titles (section 255), states the law as follows: “ Such a direction is mandatory, and its due observance is strictly a condition precedent to the authority to proceed further. It may therefore be stated *19as a principle generally applicable to those states .[referring to states baying statutes similar to ours] that a title to real estate by virtue of a tax sale, when its owner had personal property subject to sale, within the jurisdiction, and of sufficient value to discharge the tax, but which was not sought out or demanded by the collecting officer, is invalid and worthless.” See, also, Id. §§ 155, 198. Cooley, in his work on Taxation (page 470), says: “It is therefore accepted as an axiom, when tax sales are under consideration, that a fundamental condition to their validity is that there should have been a substantial compliance with the law in all the proceedings of which the sale was the culmination. This would be the general rule in all cases in which a man is to be divested of his freehold by adversary proceedings, but special reasons make it peculiarly applicable to the case of tax sales.” See, also, Id. §§ 342, 472. It is quite clear that the sales under consideration cannot be upheld by authority. 2 Dill. Mun. Corp. § 820; 3 Washb. Real. Prop. p. 234, chap. 3, subd. 12; French v. Edwards, 13 Wall. 506; Houghton Co. v. Auditor General, 41 Mich. 28, 1 N. W. 890; Scofield v. City of Lansing, 17 Mich. 437; O’Byrne v. City of Philadelphia, 93 Pa. St. 225; Seymour v. Peters, 67 Mich. 415, 35 N. W. 62; Wilhelm v. Russell, 8 Neb. 120; Wartensleben v. Haithcock (Ala.), 1 South. 38. It is not necessary to determine in this case whether the county has a lien for the taxes on these parcels of land, thus attempted to be sold by the collector. . It is evident, however, that the sales, being void, passed no lien to the county, and that, if the county has a lien, it has it by virtue of section 2012, Comp. Laws Utah 1888, as amended by the act approved March 13, 1890. Neither the certificates of sale nor any deeds which the county might eventually receive thereunder, could create for or pass to it any lien, because the sales were made without authority *20of law, and therefore conferred no rights which the county can enforce.

It is insisted that the right conferred by section 2030a,. above quoted, is a personal right, and that only the taxpayer can complain. If this be conceded, how can it avail the appellant P The moment the county should attempt to dispose of lands it had acquired through a void sale the-owner would assert his right. In that event the county would stand on the same footing as an individual, and with no better rights by virtue of the sale. Where a person, at a void tax sale, purchases land, the payment of the tax thereon is the same as a voluntary payment, made without the request of the owner; and he has no lien for the money so paid, unless given him by statute, for at common law the rule of caveat emptor applies. The county, having acquired no lien or other rights by virtue of the sales in question, is under no obligation to credit the collector with the costs of void sales. Black, Tax Titles, §§ 463, 464; Cooley, Tax'n, pp. 476, 509, 510; Harper v. Rowe, 53 Cal. 233.

It is further contended by counsel for appellant that it. was lawful for him to charge 25 cents per folio for the duplicate certificate of each of the remaining 840 tax sales, and that the court erred in holding such charge illegal. It is the duty of the collector, when he sells .real estate for taxes to issue a certificate of sale to the purchaser, and file a duplicate of such certificate in the office of the county recorder. When there is no bidder at any sale who. will pay him the amount of the delinquent's tax, he is required to make such certificate to the probate judge, for and in behalf of the county, and then such sale to the county shall have the same effect as if made to an individual. Comp. Laws Utah 1888, § 2031. For these services the legislature has provided fees, as follows: “For each certificate of sale, per folio, twenty-five (25) cents. *21For publishing tbe name and amount of taxes due from each delinquent, fifty (50) cents. For filing certificate for tax sale with the county recorder, fifty (50) cent?.” Sess. Laws 1892, p. 30, § 2030a.

It will be observed that there is no provision here for fees for the making of a duplicate certificate except 50 •cents for filing it with the recorder, and. there is no implied obligation on the part of a county to make compensation to its officers. The right must be expressly conferred by law; and, when a statute creates a liability where none otherwise exists, it will be strictly construed, and the -courts will not aid it in favor of the officer. Nor will they enlarge such liability, or extend it beyond the provisions as expressed in the statute. Nor is the statute under consideration at all ambiguous or uncertain in its provisions. It expressly provides a folio fee for “each certificate,” and is silent as to the duplicate, except that it provides for filing it. It is clear that the legislature intended that the duty of making the duplicate certificate .should be performed without additional compensation. The collector, having taken upon himself the discharge of the duties of his office, is presumed to have accepted it with a knowledge of the provisions of law relating to it. He therefore assumed the duty of making such duplicate certificate, knowing that there was no provision of law which would entitle him to the fees in question. The .statute does not use the plural, but the singular, form of the word “ certificate,” and the folio fee allowed in each tax sale can apply to but one certificate. Suth. St. Const. § 371; Cooley, Tax'n, p. 266; Rowe v. Kern Co., 72 Cal. 353; 14 Pac. 11; Green v. Holway, 101 Mass. 243; City of Alton v. Aetna Ins. Co., 82 Ill. 45; Boyd v. Hood, 57 Pa. St. 98; Wroughton v. Turtle, 11 Mees. & W. 561. Counsel for appellant has cited the cases of McKinstry v. U. S., 40 Fed. 813; and Clough v. U. S., 47 Fed. 795, in *22support of the proposition that a statute which fixes the compensation of officers should receive a liberal construction. These cases appear to support the proposition, but they have been overruled in U. S. v. Clough, 5 C. C. A. 140, 55 Fed. 373, and are therefore no longer authority on that point. This last c^se supports the rule of strict, construction.

It is further contended that the court erred in deciding that each of the 840 certificates is longer than necessary, and that the costs charged in each case are one dollar in excess of what should have been charged. It appears from the agreed findings of fact that each certificate contains 12 folios of matter, exclusive of the description of the-land. Section 2031, Comp. Laws Utah 1888, provides as follows: “When real estate is sold for taxes, the collector shall issue a certificate to the purchaser, reciting substantially the facts of the non-payment of the tax, levy upon, advertisement and sale of said real estate.” It will be-observed that there are but four facts which shall be substantially recited in the certificate, — the non-payment of tax, the levy, the advertisement, and the sale. The statute provides no form, and the collector is therefore entitled to exercise a reasonable discretion in creating and adopting such a form as will enable him to comply with the statute. This discretion, however, will not permit him to insert unnecessary words and sentences into the form, or to recite facts therein not required by the terms of the-statute, and charge fees for the same. While the collector will not be held to the strictest rules of propriety in the use of language, yet unnecessary repetition should be-avoided, and the form should be reasonably concise. In the case at bar, as appears from the record, the form contains 12. folios, and yet the statute requires the reciting of but four facts in the certificate. An examination of it shows it to be of unreasonable and unnecessary length, *23and an infringement upon the rights of the taxpayer, who> is to pay for the superfluous verbiage at the rate of 25 cents per folio. This is such an abuse of discretion as; will authorize a court to interfere, as unwarranted under the law. Such a padding of the form, apparently for the-purpose of increasing the number of folios, cannot be upheld upon any principle of justice to the taxpayer. Where; the legislature leaves the manner of exercising a power tos the discretion of an officer, it does not mean that he shall exercise such discretion arbitrarily to the injury of any subject. It is clear that, under the agreed statement of facts, the court properly reduced the number of folios to be allowed the collector in each case, and rightfully made a corresponding reduction in the amount claimed, and it seems equally clear that, in justice to the parties concerned,, the amount thus allowed is still excessive. 5 Am. & Eng. Enc. Law, pp. 681, 682; Van Duzee v. U. S., 59 Fed. 440; Olsen v. Bagley (decided at this term) 10 Utah, 492 (37 Pac. 739). The authorities cited by appellant on thi& point do not appear to be applicable to the case at bar,: for here there is a clear abuse of discretion.

Counsel for appellant further contend that it was the duty of the county clerk to credit the collector with his costs on the assessment roll, without previous allowance by the county-court. There are various statutory provisions respecting the duty of the clerk and county court. Section 187, p. 298,. 1 Comp. Laws Utah 1888, provides: “The county courts in their respective counties have jurisdiction and power under-such limitations and restrictions as are prescribed by law.”' And, under subdivision 12 of this section, such courts have power “to examine and audit, at least once a year, the accounts of all officers having (¿ie care, management, collection or disbursement of moneys belonging to the county- or appropriated by law or otherwise for its use and benefit,” and, under subdivision 13, “to examine, settle and *24allow, all accounts legally chargeable against the county and order warrants to be drawn on the county treasurer therefor.” Section 196 provides how claims must be itemized and verified before such court can allow them. Section 197 provides that “no account must be passed upon by the court unless made out as prescribed in the preceding section, and filed by the clerk.” Section 208 reads: “Accounts for county charges of every description must be presented to the county court to be audited as prescribed in this act.” Under these provisions of the law, it would seem that the county court has the exclusive power to pass upon ' all claims of every description, which may be chargeable against the county; but counsel for appellant insist that by a provision of section 2031, supra, the county clerk has the right, and that it is his duty, to credit the collector with his costs, and thus pass on his claim without authority from such court.

The provision referred to reads: “And the clerk of the county court shall credit the collector with the amount of the tax due thereon, and costs to date of sale.” If the position of counsel be correct, then the collector's claim for costs will become an exception to any other claim against the county. An examination of the various provisions reveals no such intent on the part of the legislature; nor does it reveal any conflict between the several provisions of-law. When these several provisions are read together, they mean simply that the county court shall audit and pass upon the claim of the tax collector for fees and costs, the same as any other claim; and then, when so audited and passed upon, the county clerk shall credit him with the amount allowed by the court. The clerk simply acts under the direction of the court. He cannot act in the capacity of clerk without acting under the orders of his superiors in any matter requiring judgment or discretion, judicial in its nature. There is no *25statute authorizing the clerk to settle with the collector. Nor can the collector determine for himself, without the .action of the court, what his fees and charges shall be, independent of a statute. Nor is it clear under the law, as contended by counsel for appellant, that the claims of the collector, arising because of the collection of delinquent taxes, were intended by the legislature to be a direct charge upon the county tax, to ,be credited to him the same as money, and the money, to the amount of the claim, to be withheld as part of his compensation. The cases which counsel cite to support this proposition do not appear to apply to the case at bar. Most of them are cases arising under statutes which provide that the collector may retain a certain per centum of the tax collected as a commission in lieu of other compensation. Those •cases hold that he may retain his commission out of the tax. In this case, as shown by the agreed statement of facts, the collector was paid a stipulated salary by The county court, which was $3,000, for the year 1893, “with the mutual understanding” between him and the county court that he was entitled, in addition thereto, to certain •costs and fees, including costs and fees for sales and certificates made to the probate judge. Under section 2021, Comp. Laws Utah 1888, the county court had the right to fix the collector’s compensation. Whether this “mutual understanding ” is binding on the county it is not necessary to determine; nor is it necessary to determine whether any •of the charges made, pursuant to such “ understanding,” for the 840 certificates of sale issued to the probate judge constitute a valid claim, or what effect the illegal fees charged by the collector in each one of the 840 sales would have upon the rights of the county, should it at any time attempt to dispose of the real estate under the certificates of sale made to the probate judge, because both the *26“mutual understanding” and the certificates are treated as binding and valid in tbe agreed findings of fact.

The question is, can the collector, receiving a fixed salary, withhold any money, which he receives in his official capacity, from the county treasurer, in payment of claims due him from the county? Section 2036, Comp. Laws Utah 1888, so far as material here, reads as follows: “ The clerk of the county court in each county shall keep an account with the collector, debiting him with the amount of tax assessed and crediting him with the amounts paid; and the collector is hereby required to pay to the county treasurer, once a month, or oftener if required by the county court, all county funds collected by him, and shall take the treasurer’s receipt therefor, specifying the amounts paid in kind.” This is a clear statement of the duties of the collector, and leaves no room for doubt. Under its provisions, the collector must pay, not only a part, but “all, the funds collected” to the treasurer, once a month, or oftener if required by the court; and he has no right to any offset, not even though his claim or demand be for unpaid salary. Having collected the money, it is his duty to pay it over promptly, as provided by law; and he has no right to pause and question the right of the county to receive it before paying a demand due to himself. Nor has he a right to withhold any portion of it, as compensation in addition to his stipulated salary, in the absence of a statute expressly giving such right.

Cooley, in his work on taxation (page 704), thus states the law: “It has been seen that the law sometimes provides very summary proceedings for the enforcement of the duty to pay taxes, and that the legislative competency to do so has been very fully sustained. With much greater reason may the law provide summary remedies against those who, having accepted official positions under the revenue *27laws, neglect or refuse to perform tbe duties which pertain to them, or endeavor to substitute a performance of their own for something of a different nature which the law has required. This is particularly true of tax collectors. They have only to collect money, and pay it over to the proper custodian; and it is seldom that a question arises which can justify departure from the strict terms of their authority, or neglect in the prompt payment of what comes to their hands.” See, also, Id. pp. 705, 706. In City of New Orleans v. Finnerty, 21 Am. Rep. 569, the court said: “No officer of a government, state or municipal, is empowered to pay himself his salary, or plead in compensation a demand made against him for moneys collected by him in his official' capacity, by an amount due him on account of his salary. His duty is to ‘discharge the obligations of. his office according to the terms of his acceptance thereof, and to get his pay as other officers get theirs. In other words, he cannot pay himself.” Mechem, Pub. Off. § 873; Dill. Mun. Corp. § 230; San Francisco v. Ford, 52 Cal. 198; Evans v. City of Trenton, 24 N. J. Law, 764; Hatch v. City of Cincinnati, 17 Ohio St. 48; People v. Supervisors of New York, 1 Hill, 362; Griffin v. Clay County, 63 Iowa, 413, 19 N. W. 327; Sikes v. Hatfield, 13 Gray, 347; White v. Levant, 78 Me. 568, 7 Atl. 539; Haswell v. Mayor, etc., 81 N. Y. 255. I am of the opinion that in the case at bar it was the duty of the appellant to pay over all the money which he collected, and then present his claims to the county court for allowance, the same as any other officer or claimant. Hnder the findings of fact, which were agreed to by all the parties to this action, I see no reason for disturbing the judgment of the trial court.