determining whether such property is or is not exempt from execution; neither does such determination any more render him a judicial officer, than the determination required of the sheriff confers judicial functions upon him.
It is a simple requirement, with which he is furnished ample means for complying, and which the compensation received by him, under the law, would make eminently proper should be placed upon him rather than any other officer, and which complied with furnishes an additional check upon the wrongful sales of government lands for taxes, and which compliance, as we shall see, furnishes his only defense to any action which can be maintained for the prevention or redress of the injury done by such wrongful sale.
Bartholomew, J. This action was commenced by the presentation by plaintiff of a claim to the board of county commissioners of the defendant county, by which plaintiff sought to recover certain money paid by him as the purchase price of tax-sale certificates on certain real estate sold by defendant’s treasurer for delinquent taxes at the annual tax-sale on October 6, 1885. The board of county commissioners refused to allow the claim, and plaintiff appealed under the statute to the district court. In that court the case was tried upon an agreed statement of facts without a jury. From this statement it appears that the real estate in question was a part of the original grant by the United States to the Northern Pacific Railroad Company; that said company had, prior to the levy and sale hereinafter mentioned, disposed of said lands to private parties by deeds and contracts, and such parties were in possession; that no patents had issued for said land; that the railroad company earned said lands after the passage of the act of congress of date July 15, 1870, pertaining to survey fees; that said lands were originally surveyed at the expense of the United States government, and after the passage of said act of congress, and no part of the cost and expenses of said survey had, at the time of said tax-sale, been repaid by said railroad company to the United States, as provided by the last-mentioned act of congress; that in 1884, and prior thereto, the taxing officers of the defendant county proceeded to assess said lards and levy taxes thereon, all of
