The foregoing decision of this court was filed in this case on December 31st, 1938. The case was decided by a divided court. The majority opinion written by the Chief Justice was concurred in by Judges Nuessle and Sathre. Judges Morris and Burr dissented. On January 1st, 1939, there was a change in the membership of the court. On that day Judge Sathre retired from office and was succeeded by Judge Burke. On January 19th, 1939, the defendant filed a petition for rehearing. The grounds of the petition are that the construction placed upon §§ 2108, Comp. Laws 1913, chap. 198, Laws 1925, and chap. 280, Laws 1931, and the decision of this court in Marshall Wells Co. v. Foster County, 59 N.D. 599,231 N.W. 542, is incorrect. The only other ground urged is that neither the majority nor the dissenting opinion considered the question whether fraud on the part of a taxpayer in making his return will vitiate the assessment irrespective of statute. The question whether an assessment is vitiated by the fraudulent representations of a taxpayer as to the value of his property, irrespective of statutory provisions is, as we deem it, not involved in the case.
The members of the court are all agreed that any authority the county auditor had to make an assessment arose solely by virtue of the statute, and that if the statute did not authorize an assessment to be made by the county auditor, then there is nothing upon which any right of recovery in behalf of the plaintiff county can be predicated at all. In short, all members of the court, both those who signed the majority opinion and those who signed the dissenting opinion, are agreed that the complaint does not state facts sufficient to constitute a cause of action, unless the statute under which the county auditor purported to make an assessment authorized him so to do.
So far as concerns the construction of the several statutes and the decision of this court in Marshall Wells Co. v. Foster County, the petition for rehearing is a reargument of the questions which gave *Page 190 rise to the litigation and that were fully considered on the former appeal. While the members of the court disagreed as to the construction to be placed upon these statutory provisions, they are all agreed that the petition for rehearing filed in this case does not present any cause for which a rehearing ought to be granted. Rule 16, Rules of Practice. The petition for rehearing is, in reality, a reargument of questions determined by the former opinion. The mere fact that there has been a change in the membership of the court does not afford any reason for a rehearing. Carol v. New York L. Ins. Co. 49 N.D. 813, 814, 193 N.W. 471. 4 C.J.S. p. 2029, § 1412.
The members of the court are all agreed that the questions presented in the petition for rehearing were all considered and disposed of adversely to the plaintiff by the former decision, and that in making such decision the majority of the court as then constituted had before them and considered all material questions actually involved, and that it is not shown that they overlooked any controlling decision or statute.
The petition for rehearing is therefore denied.
NUESSLE, Ch. J., and CHRISTIANSON, BURR, and MORRIS, JJ., concur.