ON MOTION FOR REHEARING. (Filed April 18, 1941.) On motion for rehearing plaintiff takes the position that it should be given the right to amend its complaint should it choose to do so, so as to allege facts sufficient to constitute a cause of action under the views announced by the court in its opinion. Defendants, in objecting to the rehearing, seek to have the[5, 6] opinion clarified in one particular. They contend that the broad language used in the opinion might be construed as holding that section 2270, Revised Codes, is unconstitutional in its entirety. We did not intend that the opinion should have this far-reaching effect. For the sake of clarity, we now state that section 2270 is declared invalid only to the extent that it purports to authorize the district court to act as an assessing tribunal. That was the only question presented to us by plaintiff's complaint in the form in which it is now drawn. Since plaintiff desires, however, to have the right to amend its complaint to show arbitrary action on the part of the assessing boards, we think it should be given that right within a reasonable time to be fixed by the trial court. The opinion heretofore promulgated is modified as above indicated. Since the trial court was correct in its decision on all points of law involved, and since we are merely reversing the judgment of dismissal to allow appellant the right to amend its complaint — a point not raised in the trial court — appellant will be taxed with the costs of this appeal.
MR. CHIEF JUSTICE JOHNSON and MR. JUSTICE ERICKSON concur.