tion. The assessment roll and the tax-list, based thereon, with the warrant of the county board, is the rule of action for the treasurer, the command of his superiors and his shield when attacked for obeying it. He has no more right to question the decision of the assessor than has a sheriff, with execution, to question whether or not the court erred in rendering judgment. And the direction of the treasurer, in the statute, to sell all lands “liable to taxation” is to be construed with those other provisions of the statute, which require him to execute the warrant, and were intended to mean “apparently liable,” liable as they appeared on the list. A ministerial officer is protected by process “fair upon its face.” Cooley on Torts, 460, 464; Cooley on Taxation, (2d Ed.) 800; Savacoal v. Boughton, 5 Wend. 170; Chegarry v. Jenkins, 5 N. Y. 376; Sprague v. Birchard, 1 Wis. 457; Wall v. Trumble, 16 Mich. 228; Loomis v. Spencer, 1 Ohio St. 153; Little v. Merrill, 10 -Pick. 547; Erskine v. Hohnback, 14 Wall 613; Freeman on Executions, § 101. There can be no recovery here apart from the statute, as for money had and received.
Section 84, chap. 132, laws of 1890, does not affect this case. That act will not be construed to operate retrospectively: Cooley Const. Lim. p. 461;Giles v. Giles, 23 Minn. 348. Said § 84, by its teams applies only to sales made under the act of 1890. Even if that section applied, the legislature cannot create an obligation where none existed before. Cooley Const. Lim. 460; Hasbronck v. Milwaukee, 13 Wis. 37.
Messrs. Stone & Newman for the respondent: The money paid by a purchaser of land at tax-sale may, without a statutory provision to that effect, be recovered back, when the county had no jurisdiction to assess or tax the land. Chapman v. City of Brooklyn, 40 N. Y. 372; Bank of Commonwealth v. Mayor of New York, 43 N. Y. 184; Newman v. Supervisors of Livingston county, 45 N. Y. 676; Schwinger v. Hickok, 53 N. Y. 280; Norton v. Supervisors, 13 Wis. 684 (star p. 612); Cortlin v. Davenport, 9 Iowa, 239. And under the principles of these cases it has been repeatedly held that taxes illegally imposed and collected may be recovered back from the municipality into whose treasury they have been paid. Dorr v. Boston, 6 Gray, 131;
