On Motion for Rehearing.
The town of Pleasanton insists that this court should pass upon the validity of section 6, c. 13, Gen. Laws 2d Called Sess. 38th Leg. p. 31, art. 7689a, in which it is sought by legislative enactment to restrict defendants in suits for collection of delinquent taxes to the defenses: (1) That the defendant was not the owner of the land at the time suit was filed, (2) that the taxes sued for have been paid, or (3) are in excess of the limit allowed by the law, in which case such defense shall apply only to such excess. It is urged by counsel, and with reason, it is true, that, as the question of the validity of this act is so interwoven with the cause of action here asserted and contested that the decision thereof will- ultimately control the disposition of the case, the question ought to be determined at this juncture, so that the parties may thereafter proceed with assurance. We have said, and now reaffirm, that although the question is fairly raised on this appeal, its decision is not essential to the disi>osition of the appeal, and we hesitate to go out of our way to pass upon a question of such importance as the validity of a statute admittedly far-reaching in its purpose and effect.
If the statute has the effect of depriving the property owner of defenses vouchsafed to him under the due process or other provisions of the state or federal Constitutions, then, of course, to that extent the legislative act is void and ineffectual. For instance, if a town or city should levy and assess and endeavor to collect taxes upon property situated without the corporate limits of the municipality, then clearly the property owner could plead and prove that fact as a defense in a suit brought against him to enforce collection of the taxes, notwithstanding the statute in question precludes such defense.
So, also, would such statute be ineffectual to cut off an injured property owner from showing that a tax is materially out of proportion to the value of the property taxed, or that it was not equal and uniform with the taxes assessed against like property of others, because these defenses are guaranteed to the citizen in article 8, § 1, of the state Constitution, in which it is provided, that “taxation shall be * * * uniform,” and that all property “shall be taxed in proportion to its value.”
Nor can the injured property owner be cut off by statute from showing, in such suit, that the taxable value of his property has not been ascertained by the authority or in the manner provided by law, because this right also is vouchsafed to him in the Constitution, in section 1 of article 8, which provides that the taxable value of property “shall be ascertained as may be provided by law.” It was in obedience to this provision that the Legislature provided the present method, embraced in title 22, of the Revised Statutes, for ascertaining the taxable values of property, and the constitutional guaranty follows the method thus prescribed. It is the duty of the constituted authorities to pursue that method in ascertaining the taxable value of property, and the owner may invoke these statutory provisions to defeat a suit to force him to pay taxes not ascertained as thus provided, notwithstanding a subsequent statute which would deny him such defense. We have stated rules which we think are obvious and elemental. They ought not to be difficult to apply in this case.
Appellee complains that we held in the original opinion that the levy in 1917 was not made by proper ordinance. We did not intend to so hold, although the language used in the opinion in that connection was inapt and sometimes misleading, for, in saying that the town council had not complied with the statute in levying taxes “as to all the years,” in controversy, we meant to say “as to some of the years,” which may or may not mean the' same thing, according to the way it is read.
Appellee’s motion for rehearing will be overruled.