Whitford v. Lynch

The opinion of the court was delivered by Brewer, J.:

The main question presented in this case is as to the power of a deputy county clerk to execute a tax deed. The defendant in error proved title from the government. The plaintiff in error proved possession in himself for a series of years, and offered tax deeds which had been recorded more than two years prior to the commencement of the suit; but the district court refused to receive them in evidence. These tax deeds seem to be in substantial conformity to the forms laid down in the statute. Counsel for plaintiff in error alleges in his brief that the only objection made to them was that they were executed and acknowledged by the deputy county clerk. If other objections were made or do exist we are not advised of them, for counsel for defendant in error have filed no brief, and made no appearance in this court.

1. Tax deeds may deputy comitj oleik' *183 2. no limitation deputy.01 of

*182 Could a dePuty county clerk, then, under the laws of 1862, execute and acknowledge a valid tax deed, or must the act be performed by the clerk himself? The act was one purely ministerial. It called for no discretion, imposed no choice. Certain specified conditions having been complied with, it became his duty to act, a duty which could be enforced by mandamus. Now, it is a general rule that a ministerial officer may act by deputy. Com. Dig., Officer, D, 1. And every act which the principal may do, may be done by his deputy. True, there are some limitations on this rule, as where the duty to be performed is *183 of the individual and not of the officer, or where there is a personal trust imposed. But the act of executing a tax deed •comes within none of the exceptions. In Blackwell on Tax Titles, p. 375, it is said that “the power of a deputy to sell and convey lands depends upon the power of his principal to make a deputy. The general rule is, that every ministerial office may be performed by deputy. The power of appointing a deputy is therefore implied in all such cases. Whatever power may be exercised by the principal may be performed by the deputy, and is equally valid in the one case as in the ether.” See also Haines v. Lindsey, 4 Ohio, 88; Jacobs v. Measures, 13 Gray, 74 ; K. P. Ply. Co. v. Amrine, 7 Kas., 178 , But we are not left in this state to any mere implication as to the power of a county clerk to appoint a deputy. Such power is expressly given. It is even made a duty. •“ Every such clerk shall appoint a deputy,” is the language of the statute. In the absence or disability of the clerk, the •deputy “shall perform all the duties of such clerk.” He may also appoint more than one deputy. Comp. Laws, p. 418, ch. 52, §44. (Gen. Stat., ch. 25, §41.). This section concerning the power and duty of a county clerk to appoint •deputies was in force at the time the amendment to the tax law authorizing conveyances by the county clerk was passed. Many other duties were by the tax law, and its amendments, imposed upon the county clerk. In fact, a large portion of the machinery of tax collection is in his hands. These duties are obviously ministerial, and properly performable by deputy. Now if the legislature intended that any specific duty should be performed only by the clerk himself, they. would naturally have used some language of limitation. But there is none. It would be an arbitrary assumption on our part, not justified by the language employed, or the nature of the duty to be performed, to hold that the clerk alone could execute a tax deed, while a deputy could perform all the other varied duties of the office in regard to the collection of taxes. Eor these reasons we think the district court erred in rejecting the tax deeds; and the *184 judgment must be reversed and the case remanded for further proceedings.

All the Justices concurring.