The petitioners vigorously *Page 318 assert that we have misconstrued chapter 269, N.D. Session Laws 1941, in holding that appearance before local boards of review or before the county commissioners when acting as local boards of review with respect to unorganized territory is a condition precedent to the right to apply to boards of county commissioners for relief under that chapter. After further considering this point, we are still agreed that the statute is susceptible of no other construction than the one we have given to it.
Under § 1, the county auditor is required to give notice in the manner therein prescribed "to the effect that proceedings for the equalization of taxes will be taken by the several local Equalization Boards on the second Monday in June and that each taxpayer has a right, on or before July 10th, to make application to the Board of County Commissioners for a review of the assessment made by the assessor and equalized by such localboard." (Italics supplied.)
Section 2 provides, "That after the local boards of review have performed the duties prescribed by § 2133 of the Compiled Laws of North Dakota for the year 1913 applications may be made to the board of county commissioners:"
Section 21 requires that applicants for relief "shall appear before the boards of review of the local taxing districts or before the board of county commissioners while acting in the capacity of a local board of review or of equalization and unless such taxpayer shall avail himself of the rights and remedies conferred by this Act he shall be deemed to have waived and forfeited any and all rights and remedies which he may have in law or in equity for a review or reduction of any valuations of his taxable property on the ground that such valuations are unjustly excessive or that they exceed the full and true value of his property in money."
The petitioners argue that under the provisions of § 21 they may petition the Board of County Commissioners for relief without first seeking relief before local boards of review. They assert that they are given the alternative of appearing before the local boards first or ignoring the local boards and petitioning the Boards of County Commissioners in the first instance. The language of § 21 is sufficiently ambiguous to lend some support to the petitioners' argument were it not for the other portions of the act above quoted. When the entire act is taken *Page 319 into consideration, we have no doubt but that the legislature intended that anyone seeking relief under chapter 269 must first appear before that board of review to which his appeal for relief might be made under § 2133 or § 2138, N.D. Comp. Laws 1913. In other words, he must start with the lowest rung of the procedural ladder. Failing to do that, he may take no other steps.
The petitioners also contend that the decision should be modified at least as to property located in unorganized territory and with respect to which the boards of county commissioners act as local boards of review. This contention is disposed of in the main opinion by our determination that the legislature intended to and did create a uniform act. We will not presume that the legislature in dealing with relief from assessments for general taxes sought to confer special privileges with respect to property located in unorganized territory.
Grave questions concerning the constitutionality of chapter 269 have been suggested. These questions, however, were not pressed either on oral argument or in the briefs of the respondents. Since we hold that this act does not afford relief to the petitioners under its terms, the controversy here presented is disposed of by statutory construction and we do not determine the questions of constitutionality.
"A court will not assume to pass upon a constitutional question unless the question is properly before it and this does not occur unless the constitutional question must be decided in order to determine the controversy before the court." State ex rel. Stutsman v. Light, 68 N.D. 513, 281 N.W. 777.
See also Magnuson v. Breher, 69 N.D. 197, 284 N.W. 853; State ex rel. Strutz v. Huber, 69 N.D. 788, 291 N.W. 126. Rehearing denied.
BURR, Ch. J., and BURKE, NUESSLE, and CHRISTIANSON, JJ., concur. *Page 320