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Show MONDAY, AUGUST 9. 1971 THE DAILY RECORD PACE Five Continued from page 4 authority regarding the manner of assessing the taxea or ol the procedure followed in aelling the land. They do claim, that the aale ia invalid however, because it was conducted by a person not qualified to conduct a aale in that hia appointment was not in writing nor had he filed a bond or aubacribed to an oath of office. That claim merita careful attention, for if in fact one not authorised to conduct the May sale undertakes to do so, there would be no legal aale at all. xng fied and in office are legally such, even though a contest is pending. , . . In the case of Tanner v. Edwards, 31 Utah 80, 83, 86 P. 765 1 1 906), this court in holding that a de facto officer had no right to maintain an action for emoluments of office said: Our statute requires the sale to be conducted by the county auditor. 3 Admittedly the county auditor did not attend the aale. He assigned hia deputy auditor to conduct it. This same deputy had conducted all such sales for the past four years and was entirely familiar with the proper procedure to be followed in connection therewith. Section 17-16-- U. C. A. 1953, reads: "Whenever the is used in any law conferring powers or 8, of any principal officer duties or liabilities it includes deputies. " official name imposing -7, Every county, . . . officer, . . . , may, by and with the consent of the board of county commissioners, appoint as many deputies and assistants as may be necessary for the prompt and faithful discharge of the duties of his office; The appointment of a deputy must be made in writing and filed in the office of the county clerk. Until such appointment is so made and filed and until such deputy shall have taken the oath of office, no one shall be or act as such The defendants make a further claim of invalidity of the tax sale because the deputy in his deposition Baid he was unaware of any account kept by ... deputy. This court has held that the statutory requirements imposing the tsx and the sale of land for nonpayment thereof are to be strictly construed.-Howeverwe have never before held that a tax sale conducted by a de facto officer or deputy who performs the duties of his office exactly as a de jure officer or deputy would, is invalid where all other requirements of the law have been met. I think the law is to the contrary and would hold that the tax sale in this case is not invalid because of any claimed irregularities in the appointment or qualification of the deputy auditor who made this sale. , The defendants do not contend that the deputy failed in any way to conduct the sale according to law. They simply assert that because there was no written oath on file with the county clerk, he was not a deputy auditor. U. C. A. 1953, as their authority for claimThey rely on Section the not was one in fact. That section provides: deputy ing 17-16- . . . His act is only valid when it concerns the public, and this upon the principle that the public is presumed to be unaware of his want of title. If he performs the services or duties, no matter how faithfully, he can maintain no action to recover the emoluments. . . . the auditor known as "a delinquent tax control account. The deputy further said he was not familiar with all of the accounts kept in the auditor's office and that there might be such an account. 11 ... There was no record in the office of the county clerk of any appointin ment writing by the auditor or of any oath in writing signed by the deputy, and under the law he might not be a de jure deputy and might not be entitled to draw a salary. However, it would appear that for some eight years he has been paid his salary, and no question had ever before been raised by anyone as to his official capacity. The deputy testified that an oral oath in due form was administered to him in connection with his duties as a deputy under the predecessor of the present auditor and that he did not remember if he subscribed his name to a written oath when he first began vorkinf some eight years prior to the time in question. He also testified that he was covered by a blanket bond which covered other employees in'addition A copy of the record of the tax sale and a copy of the auditor's endorsements made thereon duly certified by the recorder under seal of his office is prima facie evidence of the regularity of all proceedings preliminary thereto. Since a copy of the auditor's deed was attached to the complaint and was alleged to be in compliance with the laws of the State of Utah, the burden of showing invalidity of the tax sale would be upon the defendants. The deposition of the deputy does not warrant a finding that the account was not kept. Section Under the circumstances enumerated, it is necessary todetertaine whether the deputy was one de facto, and, if so, whether the sales conducted under his direction have any validity. Jur. , Public Officers, Section 469, to 43 Am. U.C.A. 1953, reads as follows: The treasurer shall each year upon completion of the tax sale record notify the auditor thereof and shall also certify to him a record of the delinquent tax for the previous year upon all property not sold because it is still held by the county under preliminary sale for the delinquent taxes for some preceding year. Each item of such record shall refer to the year of original sale and to the book, page and line, or property serial number of the entry in the original tax sale record to which such item relates. to himself. The law is stated in 59-10-- 60, be ... failure deputy may be an officer de facto and not de jure, to qualify, as by failing to take the qualifying for oath and oath of office, without invalidating his official acts as to third persons. And an act in the name of a clerk-banother person who was not a deputy, but who was in sole charge of the office, transacting the business, with the recognition of the clerk and the deputy, is that of an officer de facto. . . . Emphasis added. A The auditor shall thereupon audit the books and records of the treasurer and shall have a final settlement with him. In making such settlement he shall credit the treasurer upon the account provided for in section with the amount of taxes for the previous year which are found to be still unpaid and shall theif charge the treasurer upon the books of the county in an account which shall be called the delinquent tax control account with the full amount of delinquent taxes, penalty and costs found due the county for the previous year. y The question of the effect of the failure to file a bond or take an oath of office is well answered in an annotation found in L. R. A. 1918B at pages 1125 and 1126. It is there stated: It is a reasonable doctrine, and one supported by almost all the authorities, that the mere fact that one elected or appointed to an office, who discharges the duties of the office and is recognized as having a right thereto, fails to give a sufficient bond, or to execute or file the bond within the allowed time, or even fails to a give any bond whatever, does not prevent his being omitted. de facto officer. Citations The same rule has been held to apply where one elected or appointed to an office failed to take the oath of office. Citations omitted. $ And even though one appointed or elected to an office failed either to give bond or to take an oath, it has been held that he was an officer de facto. In other words, the omission of both the bond and the oath does not prevent the application of the rule that one is an officer de facto who discharges the duties of the office under color and recognition of right thereto. Citations omitted. We have a statute5 which makes it a crime for any person to exercise the function of a public office without having taken and filed the oath of office or without having executed and filed the required bond. The next section following the one cited, however, reads: The next preceding section shall not be construed to affect the validity of acts done by a person exercising the functions of a public office in fact where other persons than himself are interested in maintaining the validity of such acts. 59-8- -8 In the absence of proof to the contrary, we presume the auditor performed the duties imposed upon him by law, and it would seem that whether an account was maintained under the title "delinquent tax control account" would best be known to the auditor. If such an account was set up, it would be to serve as an internal check upon the county treasurer and in no way would be of any benefit to the defendants. If they had timely paid their taxes, a sale of their land would be invalid even though the treasurer did not report the collection. These defendants make no contention that they paid their delinquent taxes or that they were in any manner prejudiced by the auditor's keeping or failing to keep the named account. The main opinion seems to hold that if one is not a de jure deputy, he is not a de facto deputy. Mr. Hibler was designated by the de jure auditor to cry the sale as he had done for. four years last past. The auditor signed the deeds on behalf of the county, and the fact that Mr. Hibler was also a tax accountant is of absolutely no consequence. He was the one acting under the direction of the auditor to cry the sale and was a de facto deputy. An Indiana statute required the county treasurer to conduct the sale of tax delinquent sales. In the case of Hypes v. Nelson, 114 N. E. 459 (1916), ' the sale was actually conducted by an auctioneer under the direction of the county treasurer. The landowner there, as in the instant case, contended that the sale was invalid. The appellate court said: The contention of the appellant cannot be upheld. The findings of fact show a substantial if not a strict compliance with the requirements of the statute. . Aside from statute, the general law is set out in 43 Am. Officers, Section 495, which reads: Jur., Public The general rule is that the acts of a de facto officer are valid as to third persons and the public until his title to office iB adjudged insufficient, and such officer's authority into by third may not be collaterally attacked or inquired rule is that.-therof effect the The practical persons affected. is no difference between the acts of de facto and de public and third persons are conjure officers So far as the cerned. The principle is placed on the high ground of public those having official business policy, and for the protectiona of of public justice. Third failure to transact, and to prevent cannot always investipersons, from the nature of thetocase, hold an Important office. gate the right of one assuming officials apparently quali that assume to a They have right The prevailing opinion creates great havuw .. ith titles of la,, purchased it tax sales during the last four years, and I cannot be a party to such mischief. therefore dissent. 1. Section 2. Section 3. Section 59-10-- 64, 59-10-- 56, U.C.A. 1953. U.C.A. 1953. U.C.A. 1953. e 1 Hibler was in sole charge of the sale and was acting with the consent and under the direction of the County Auditor in the instant case. 4, 1, 5. Section 6. Mecham v. U.C.A. 1953. 76-28-- 392 (1970). Mel-O-To- ne Enterprises, Inc., 23 Utah 2d 403, 464 P. 2d |