
    BOARD OF COUNTY COMMISSIONERS FOR ALBANY COUNTY v. CHAPLIN ET AL.
    Publication on Notice on Tax Sale — Onnicial Newspaper on County — StAtutoby Constbuction.
    1. In publishing notice in a newspaper in the county of the sale of real property for delinquent taxes, the treasurer is not restricted to the newspaper designated by the county board as the “official newspaper” of the county, but may publish it in any newspaper in his county; and the county is liable for the expense thereof. (Clark, X, dissenting.)
    2. The special statutory provision for such publication (R. S., Sec. 3822) excepts it out of the general provisions of the statutes. (Clark, X, dissenting.)
    [Commenced in District Court April 14, 1893
    Decided July 25, 1894.]
    ERROR to District Court for Albany County. Hon.- John W. Blaee, Judge.
    
      Action by Chaplin & McRae, publishers of the “Laramie Weekly Republican,” a newspaper in Albany County,- to recover from the county pay for publishing a notice for the sale of lands for delinquent taxes. Judgment for plaintiffs. The county brought error. The material,facts are stated in the opinion.
    
      W. H. Bramel and W. E. Gorthell, for plaintiff in error.
    Power to make contracts is conferred upon counties. (R. S., sec. 1791.) The powers are exercised by a board of commissioners. (1793.) It is necessary that they have control of expenditures. (Roberts v. People, 9 Colo., 458; Sexton v. Cook, 114 Ill., 177; Shanklin v. Madison Co., 21 0., 583.) The board and not the treasurer is the proper authority to designate the newspaper for publication of the tax sale notice. (People y. Board, 73 N. Y., 604; Maxwell y. Supervisors, 56 Cal., 114; Times Pub. Co. v. Alameda Co., 64 id., 469; State v. Supervisors, 24 Neb., 106; Merrlman v. Knight, 43 Minn., 493; Pairchild v. City, 46 id., 540; Payne v. Washington Co., 25 Fla., 798; Wren v. County, 24 Kan., 304; Robson v. Smith, 32 Pae., 32; Re Smith, 52 N. Y., 526; Re Bunnister, 76 N. Y., 174; Re Aster, 50.id., 363; Re Douglas,46 id., 42; Re Phillips, 60 id., 16.)
    
      M. O. Jahren and Broton & Arnold, for defendants in error.
    The different officers of a county are its agents only under authority conferred by statute. The county itself is a creature of statute, and the different officers, including the Board of County Commissioners, only exist by virtue of the law, and each officer draws the warrant of his authority only from the statute. Within the scope of their statutory authority each officer is supreme, amenable -only to the law which called the office into being. The Board of County Commissioners have only power to represent the county in “cases where no other provision is made by law.” (Sub-Division 5, see. 1801, Revised Statutes.)
    Nor can this enumerated list of powers be enlarged by implication.
    
      It is not only the right, but the duty of the treasurer to give the notice, untrammeled by the Board of County Commissioners in the selection of a newspaper,' he alone being responsible on his official bond for any error or irregularity in connection with the advertisement, and neither by provision nor by implication has the Board of County Commissioners any control over the matter. (Randall v. Yuba Co., 14 Cal., 219; Bartliolemew v. County Pa. St., (22 Atl., 1122.) The statutes under which the decisions cited by plaintiff in error were rendered differed essentially from ours. As to power of treasurer see also Pub. Co. v. Whitney, 97 Cal., 283.
   Conaway, Justice.

On the 4th day of February, 1893, the treasurer of the county of Albany delivered to the defendants in error the “notice for the sale of lands and improvements for taxes,” and requested its publication in the Laramie Weekly Republican, a newspaper published by defendants in error in the county of Albany. The notice was so published weekly for five successive weeks, the first publication being made on the ninth day of February, 1893. On the third day of January, 1893, plaintiff in error had declared the Laramie Boomerang to be the official paper of Albany county. This order was published in the Boomerang on the fifth day of the same month.

On the ninth day of February, 1893, plaintiff in error “instructed” the county treasurer “to cause the tax sale and all printing of the county to be published in the Laramie Boomerang, the same having been designated as the official paper of the county pursuant to law.” The notice of the tax sale was not published in the Laramie Boomerang.

Plaintiff in error refused to pay defendants in error for this publication. Defendants in error thereupon gave notice' of appeal, brought their action in the district court and recovered judgment.

It is assigned as error that this judgment is contrary to law.

Counsel for plaintiff in error say in their brief:

“The ease presents a single proposition of law, to-wit: When the hoard of county commissioners of a county acting under section 1817 Revised Statutes of Wyoming have designated which shall be the official paper of the county, has the county treasurer the right to publish the tax sale notice in another paper so as to charge the county with the expense of such publication?” Taking the word “right” as equivalent to power this may be considered as a correct statement of the question. The power of the county treasurer in the premises is conferred by section 3822 of the Revised Statutes, in these words: “The treasurer shall give notice of the sale of real property for delinquent taxes, by publication thereof, once a week for four weeks, in a newspaper in his county, if ■ there he one, the first insertion of which notice shall he at least four weeks before the day of sale, and by a written notice posted on the door of the court house, or building commonly used therefor, for four weeks, before the sale, and if there he no newspaper published in the county, the like no-, tice shall be given by posting one written notice in each of the five most public places in the county in which any land to he sold is situated, and one on the court house door, or door of the county building. Such notice shall contain a notification that all lands on which the taxes of - have not been paid will he sold, and the time and place of such sale, with a list of the lands. Ten per cent, upon the amount of taxes due shall he added when the lands are advertised.”

The county treasurer did just what this statute requires him to do. This is not questioned. But it ..is urged that the authority and duty of the county treasurer'in the collection of delinquent taxes under this statute is materially restricted hy other statutes upon other subjects. Counsel for plaintiff in error seem to rely upon the general power of the hoard of county commissioners to contract for the county and to manage its business. This general power is derived from sections 1791, 1793 and 1801 of the Revised Statutes. Section 1791 provides that each organized county in the territory shall he a body corporate and politic, and as such be empowered, among other things, “to make' all contracts and do all' other acts in relation to tRe property and concerns of the' county necessary to the exercise of its corporate or administrative power.” Section 1793 provides that: “The powers of a county' as a body politic and corporate shall be exercised by a board of county commissioners.” These sections are parts of -an act of the Legislature of 1869, approved on December 10th of; that year. But section 3822 was enacted by the same Legislature and approved the same day, and it makes special provision that the county treasurer shall give notice of the sale of real property for delinquent taxes b'y publication thereof, -etc. So the Legislature did not include the publication of this notice in the “acts in relation to the property and concerns of the county necessary to the exereise of its corporate or administrative powers,” which ácts were to be done by the county itself as a body politic and corporate through its board Of commissioners. Or, if the'power of the county conferred by section 1791 is sufficiently'broad to include the publication of-this notice in its scope,' then the Legislature by-section -3822 exeepted'it out of that general grant of power,-which-it is always competent for the Legislature to do. • The special provision made by section 3822'for the 'publication1 excepts it out of the general provisions of the statutes. This is á general rulé of law, independent of statutory provisions, and it is also fully recognized by our statute. Rev. Stat., Sec. 1801, subdivision -5: Plaintiff in error must have acted upon one or the other of these views of the law, for it made no' attempt to contract for the'publication of the notice of tax sale, nor any direct attempt to-cause -it to be published in any particular paper. Plaintiff in error merely instructed the treasurer to publish the notice in the Boomerang, recognizing that the publication should be made by the treasurer; .and-this instruction is without warrant of law. It seems clear that under'these statutes alone the authority of'the couhty Treasurer to cause the notice of'the sale of real property'for-delinquent taxes' to be. published in any newspaper published in his county is- unquestionable. ' But on- December iff; 1877, an act was approved "entitled'-“An'act concerning the publication of the'county commissioner’s-procéedings' and for -other purposes.” Neither in the title nor in .the body of the act .is any reference made to the county treasurer or to any of his duties, nor to the collection of delinquent taxes or the' proceedings-for that purpose. It would seem that none of these' matters were in the contemplation of the Legislature in passing, the act. The act requires some publications' to be made that were not formerly required, but says nothing of the publication of the notices of tax sale. It requires the territorial superintendent of public instruction to cause a notice of the meeting of the annual teachers’ institute to be published in one paper' in each county; the clerk of the district court to furnish a copy of the grand jury’s report to a newspaper in the' county'for publication, and the board of county commissioners' of the several counties to cause to be published in some newspaper-published in their county the commissioner’s proceedings,;the delinquent tax list, and a notice of all general and special elections. - The section requiring .the publication .of the delinquent tax-list was repealed by the first State Legislature, r .,

Section six of' the act appears in the' revised- statutes- as follows: “See. 1817. ■ When there is more: than, one paper published in any county the board of county commissioners shall designate which shall be the official paper of- the county.,”

There are two more sections in the act specifying prices and kind of type to be used in county and legal advertising.- ■

There is nowhere in our statutes any provision requiring any publication to be made in the- newspaper designated as the official newspaper of a county. In order to sustain the contention of plaintiff in error the court must supply a próvision requiring the county treasurer to publish.the notice of. the sale of real property for delinquent taxes in the-official paper •of hi's county. We must go further and make'.this .judicial legislation mandatory, as though it .read-that-he-should make the publication in the official paper of- the', county, and not in any other. We must go .further, in-this case,- and make it mandatory to the extent that if the treasurer .should make the publication in another paper.and not-'in the official paper the county should not pay for. such publication" though it accepted and retained the resulting' benefit-in dhe collection of its delinquent taxes with ten per cent, added. This is utterly inequitable and unreasonable, and it is a result not to be sought by forced construction. And if the courts may, in effect, supply such provisions, where shall they stop?

An official paper of a county is a thing unknown to the common law. Our statutes do not define- it or prescribe what use shall Ije made of it. And this is a legislative and not a judicial function. What use, if any, the Legislature intended should be made of the official paper of a county is a profound secret. Such papers are of recent date. Their functions are not established either at common law or by custom. They are purely statutory. The general functions and duties of most county officers are quite well established by common law and custom. But it is not within the scope of judicial authority to assign these official functions and duties to • the officers respectively. This is the business4 of the Legislatures and not of the courts. So far as we are aware, no court or judge or law writer has attempted to define what an official newspaper of á county may be. The American and English ■Cyclopedia of Law furnishes a definition, rather in the nature of a description, of an official newspaper. It reads: “Official newspapers are those designated by State or municipal legislative bodies, or agents empowered by them, in which the public acts, resolves, advertisements and notices are required to be published.” Then it would seem that an official newspaper of a county must be one in which the public acts, resolves, ■advertisements and notices of the county are required to be published. Ho such requirements and no such paper is known to the laws of Wyoming. Requiring these things, or any of. them, to be published in any paper is a legislative act. It is not within the scope of judicial authority. Our Legislature has not done this, and the courts have not authority to do it. And it must be observed that the public acts, resolves, advertisements or notices of the county are not the acts, resolves, advertisements or notices of the county treasurer or of any other county official or officers, except the board of county commissioners. Rev., Stat., sec. 1793. The county is defined by statute to be a body corporate and .politic, and its powers as such are exercised by its hoard of commissioners. The acts, resolves, advertisements and notices of the treasurer, sheriff, clerk, or other county officer, are clearly to he distinguished from the acts, resolves, advertisements and notices of the county itself.

But it is urged that it is necessary for the courts to specify and provide something to he published in the paper designated as the official paper of the county, in order to give effect to section 1817 of the Revised Statutes. As to this it must be said that the hoard of county commissioners of Albany county have already given to that section its full effect. It'simply provides that where more than one paper is published in a county the board shall designate which shall be the official paper of the county.- • The board of commissioners of Albany county have done so, and in so doing have fully exercised and exhausted their power in the matter. But if the courts should undertake to supply material for the paper designated as the official newspaper of the county, why extend the judicial drag net so as to reach the acts, resolves, advertisements or notices of the county treasurer,- or other county officers, who are not authorized to exercise the powers of the county as a body politic and corporate? Why not confine the supply of material to the acts, resolves, advertisements and notices of the county itself? Indeed, why not confine it to the very publications which the act of 1877 requires the- county commissioners to cause to be made? Among all these speculations, and many others, are we wandering without a guide when we attempt to supply material for the official newspaper of a county. It is not for county commissioners or courts to ■go beyond the statute.

If the courts attempt to supply material for the official papers of the counties in the absence of statutes specifying the material, they sail upon unknown seas. It is as if the Legislature should. create; a new court unknown to the law, but should give it no jurisdiction, and this court .should be called upon to define its jurisdiction; or as-if any new office should be created without.-assigning to it any duty, and this court should be called upon to define its duties; or as if the laws for the maintenance of jails remaining in force, all laws for imprisoning any one in them should be repealed. This court could not supply jurisdiction to thé new court, duties for the new officers, or prisoners for the jails, the statute having failed to do so. Neither can this court supply material for the official paper of a county; the statute having failed to do so.

In addition to this there is the overpowering equitable consideration that the county has accepted and is enjoying the benefit of the publication; that it took no legal measures to prevent it, hut refuses to pay for it. It is not a question which of two newspapers shall be paid. The publication was made in but one. It is not a question whether the county shall pay twice. It is whether the county shall pay once.

It would seem that section 3822 of the Revised Statutes' is the law'prescribing the dqties of the-county treasurer in giving notice of the sale of realty for delinquent taxes, that for the performance of these duties in the manner therein specified he and he alone is officially responsible. That section is not .affected by other legislation, and in following its provisions the defendant in error has simply discharged his official duty.

The judgment of the district court is affirmed.

GROesbeck, C. J., concurs.

ClaRK, J., dissents.  