A rehearing was had in this case upon all points involved in the decision. We have given further consideration to both the briefs and oral arguments with reference to all matters and adhere to our former decision.
A new point was presented by the petitioner and appellant upon the rehearing which merits discussion here. He now contends that in event he is not entitled to relief under chapter 225, N.D. Session Laws 1939, his petition to the board of county commissioners of Hettinger county upon which these proceedings were instituted is sufficiently broad to entitle him to abatement or compromise of his taxes under the provisions of §§ 1 and 5 of chapter 276, N.D. Session Laws 1931, and that the evidence presented in these proceedings shows that he is entitled to such an abatement or compromise. Under these sections the board of county commissioners is authorized, subject to the approval of the tax commissioner, to abate in whole or in part assessments determined to be invalid in certain cases, among them being: "When the board of county commissioners is satisfied beyond a doubt that the assessment of the real or personal property described in the application for abatement is invalid, inequitable or unjustly excessive, the board may, if such application is filed on or before the first day of November in the year in which such taxes become delinquent, abate any part thereof in excess of a just, fair and equitable assessment."
The appellant contends that he is entitled to relief as to his 1938 assessments under this provision. Section 5 of the same act reads, "Whenever taxes on any real estate remain unpaid and such property has not been sold to any purchaser other than the county, and the board *Page 15 of county commissioners may, subject to the approval of the state tax commissioner, by reason of depreciation in the value of such property or for other valid cause, compromise with the owner of such property by abating a portion of such delinquent taxes on payment of the remainder." The appellant contends that under this provision he is entitled to relief as to all of his delinquent taxes.
This proceeding was instituted by a petition which the appellant filed with the board of county commissioners of Hettinger county. In this petition he sets forth, "That this petition is made pursuant to Senate Bill No. 41 enacted by the Legislative Assembly of North Dakota in the year 1939, and all of the essential and material parts, elements, and factors of said Senate Bill No. 41, are made a part of this petition with the same force and effect as if the entire said Senate Bill No. 41 was fully set out in this petition."
In the prayer of his petition the appellant seeks relief of the nature provided for by chapter 225, and closes with this supplication, "and that your petitioner be granted all of the relief that he is entitled to under all the laws of the state of North Dakota and Senate Bill No. 41." Senate Bill No. 41 is chapter 225, N.D. Session Laws 1939. The board of county commissioners heard the petition and rendered a written decision in which it is said that the petitioner filed a petition "praying that said board fix the basic, full and true value in money of certain property therein described, under the purported authority of chapter 225, Laws of North Dakota for 1939, and the matter having duly come on for hearing. . . ."
The county commissioners regarded the proceeding as one coming under chapter 225. The petitioner appealed to the district court from the decision of the board of county commissioners. It appears from the record that the proceeding was tried in the district court upon the theory that relief was sought under chapter 225, N.D. Session Laws 1939. This case was briefed and argued in this court solely upon the theory that relief was sought under this chapter. It was not until upon reargument that the appellant sought to invoke chapter 276, N.D. Session Laws 1931.
Were the appellant permitted to change the theory of his case upon rehearing in this court we would nevertheless be compelled to deny him relief. The right of appeal under chapter 276, N.D. Session Laws *Page 16 1931, is a limited right. Section 7 of that act provides, "The same right of appeal to the district court from the decision of the board of county commissioners abating, refunding orcompromising any tax shall exist as in cases under § 3298 of the Compiled Laws of North Dakota for the year 1913 and acts amendatory thereof. The right to proceed, under provisions of law in such case made and provided, to recover taxes paid under protest shall not be qualified or limited by this act." (Italics supplied.)
Section 3298, Compiled Laws of North Dakota, provides for appeals from decisions of boards of county commissioners to the district court "by any person aggrieved." When that section is read in conjunction with § 7 it appears that appeals may be taken from decisions of the county commissioners abating, refunding or compromising any tax and that such an appeal may be taken by any party aggrieved by such decision. In this case there is no decision of the board of county commissioners abating, refunding or compromising any tax. There is, therefore, no right of appeal. The decision in this case if considered under the provisions of chapter 276, N.D. Session Laws 1931, denied to the plaintiff any abatement or refund. Such a decision is not appealable. Should appellant's petition to the board of county commissioners of Hettinger county be construed to come within the provisions of that chapter, the decision against him by the county board was final. It was only by proceeding under chapter 225, N.D. Session Laws 1939, that the plaintiff had the right to appeal to the district court and subsequently to this court as he did. Since he is entitled to no relief under chapter 225, the decision heretofore rendered must stand.
NUESSLE, Ch. J., and CHRISTIANSON, BURR, and BURKE, JJ., concur. *Page 17