(concurring specially.) In view of the importance of the questions involved, of the dissent upon one of the points discussed, §nd of the opinion in Bode v. Investment Co., 1 N. D. 121, 45 N. W. Rep. 197, in which I concurred, I deem it my duty to express my views in a separate opinion. Our safest guides are the landmarks of principle. The de*153cisions, it must be confessed, are in an unsatisfactory state. Palling back upon tbe very elements of tbe law, we find it is tbe undoubted constitutional right of tbe citizen to insist that at some step of tbe tax proceedings be shall be beard. This right to a bearing is fundamental and indestructable. "Without it taxation is confiscation. Tbe amount of tbe tax demanded of the citizen is an arbitrary exaction if be has bad no legal right to be beard. It is true that tbe bearing, to constitute “ due process of law,” need not be tbe samé in tax proceedings as in ordinary proceedings in courts of justice. Such a rule would cause intolerable delays. It cannot be doubted that our law providing for a bearing before tbe boards of equalization, and designating tbe time when such a bearing may be bad, if desired, by tbe taxpayer, is not vulnerable to tbe constitutional objection that tbe property of tbe citizen is taken without “due process of law.” Hagar v. Reclamation Disk, 111 U. S. 701, 4 Sup. Ct. Rep. 663; Davidson v. New Orleans, 96 U. S. 97; Trustees v. City of Davenport, 65 Iowa 633, 22 N. W. Rep. 904; Kelly v. City of Pittsburgh, 104 U. S. 78 ; Lent v. Tillson, 72 Cal. 404, 14 Pac. Rep. 71; Railroad Co. v. Commonwealth, 115 U. S. 321, 6 Sup. Ct. Rep, 57; State v. Tax Cases, 92 U. S. 575-610. But it is equally well settled, and it stands upon adamant, that there shall be a bearing of some kind before some person or body. Hagar v. Reclamation Disk, 111 U. S. 701, 4 Sup. Ct. Rep. 663; Stuart v. Palmer, 74 N. Y. 192; Thomas v. Gain, 35 Mich. 164; San Mateo v. Railroad Co., 13 Fed. Rep. 722-751; Santa Clara v. Railroad Co., 18 Fed. Rep. 385; Davidson v. New Orleans, 96 U. S. 97; Mulligan v. Smith, 59 Cal. 206; Kuntz v. Sumption, 117 Ind. 1, 19 N. E. Rep, 474; Railroad Co. v. Seneca Co. (Ohio), 1 West. Rep. 94; Trustees v. City of Davenport, 65 Iowa 633, 22 N W. Rep. 904; Boorman v. City of Santa Barbara, 65 Cal. 313, 4 Pac. Rep. 31; Cooley, Taxation, 265-267 ; Investment Co. v. Parrish, 24 Fed. Rep. 197-204; Butler v. Supervisors, 26 Mich. 22; Hutson v. Protection Disk, Cal., 16 Pac. Rep. 549. Of course, if the tax is of such a nature that a bearing would be of no avail to tbe taxpayer — as taxes for licenses, etc. — no bearing need be provided for. Indeed, tbe grant of a bearing would be idle. Tbe dis*154tinction between this class of taxation and taxation where values are to be determined is clearly stated in Hagar v. Reclamation Disk, 111 U. S. 701, 4 Sup. Ct. Rep. 663. Its importance in the examination of the authorities on this question of notice is so great as to justify a quotation of that part of the opinion in which it is expressed: “Of the different kinds of taxes which the state may impose there is a vast number of which, from their nature, no notice can be given to the taxpayer, nor would notice be of any possible advantage to him, such as poll taxes, license taxes (not dependent upon the extent of his business), and generally, specific taxes on things or persons or occupations. In such cases the legislature, in authorizing the tax, fixes its amount, and that is the end of the matter. If the tax be not paid, the property of the delinquent may be sold, and he be thus deprived of his property. Yet there can be no question that the proceeding is due process of law, as there is no inquiry into the weight of evidence or other element of a judicial nature, and nothing could be changed by hearing the taxpayer. No right of his is therefore invaded. Thus, if the tax on animals be a fixed sum per head, or on articles a fixed sum per yard or bushel or gallon, there is nothing the owner can do which can affect the amount to be collected from him. So, if a person wishes a license to do business of a particular kind or at a particular place, such as keeping a hotel or restaurant, or selling liquors, cigars or clothes, he has only to pay the amount required by the law and go into the business. There is no need in such cases for .notice or hearing. So, also, if taxes are imposed in the shape of licenses for privileges, such as those on foreign corporations for doing business in the state, or on domestic corporations for franchises, if the parties desire the privilege, they have only to pay the amount required. In such cases there is no necessity for notice or hearing. The amount of the tax would, not be changed by it. But where a tax is levied on property, not specifically, but according to its value, to be ascertained by assessors appointed for that purpose, upon such evidence as they may obtain, a different principle comes in. The officers, in estimating the value, act judicially, and in most of the states provision is made for the correction of errors *155committed by them through boards of review or equalization, sitting at designated periods provided by law, to hear complaints respecting the justice of the assessments, The law, in prescribing the time when such complaints will be heard, gives all the notice required; and the proceeding by which the valuation is determined, though it may be followed, if the tax be not paid, by a sale of the delinquent’s property, is due process of law.” See, also, as stating this distinction, Santa Clara Co. v. Railroad Co., 18 Fed. Rep. 409, and Scott v. Toledo, 36 Fed. Rep. 385. This distinction renders sound the language of Justice Miller in McMillen v. Anderson, 95 U. S. 37, in'which there is an intimation that no notice or hearing of any kind is necessary in case of a licensed tax. But the decision in that case stands upon the ground that the taxpayer had a right under the statute to contest the validity of the tax in a court of justice, and enjoin its «enforcement. There can be no room for doubt as to the right of the citizen to a hearing where his share of the public burden is not a fixed sum, but depends upon the ratio which the value of his property bears to the value of all the assessed property within the taxing district. Deny him this right, and caprice, prejudice, or malice will hold unchecked’ sway in the adjustment and apportionment of this burden.
Did the failure of the board of equalization to meet at the time prescibed by law destroy the tax? "Where there is a legal tax, mere irregularities will not justify the tax payer in enjoining the enforcement of the tax, or in appealing to equity for relief from the cloud overshadowing or threatening to overspread his title, unless he pay this lawful tax grounded upon the compliance with the law in those provisions which are matters of substance. But at the threshold looms up the inquiry, is there a legal tax? Our statute, in place of payment or tender requires the court to render judgment for the tax. Bode v. Investment Co., 1 N. D. 121, 45 N. W. Rep. 197; § 1643, Comp. Laws. This, however, does not obviate the necessity of this preliminary interrogatory. There must be a legal tax. A tax, without a lawful levy or a lawful assessment is an impossibilty. To say that the court must render judgment for a tax which has no legal existence is worse than nonsense. There seems, to be *156somewhat of a disposition on the part of some of the courts to entertain loose notions touching the question whether there is a legal tax to be paid or tendered as a condition precedent to relief in equity. Where the legislature has prescribed certain proceedings as preliminary to a valid assessment and a valid levy, the citizen, so far as they affect his constitutional rights at least, has a valuable interest in them. If these steps are disregarded, I am at a loss to know on what principle the court will indulge the presumption that what is in mere legal effect a mere arbitrary exaction is exactly commensurate with the debt the citizen owes to the public. If there was no consummated legal assessment in this case then there is no tax for which judgment should be rendered. Is it essential to thfe validity of an assessment that the statutory opportunity for a hearing should have been accorded to the taxpayer? On principle I am clear that it is. Until such an opportunity is given, the tax proceedings, as to the assessment, are in their incipiency. Preliminary steps have been taken to make a valid assessment, but they have not been consummated. The sovereign, through its agent, the assessor,. has apprised the citizen by the assessment and its proper return to the proper office that in the apportionment of the levy his property will be valued at a certain sum. So far he has had no hearing. The law provides for this at a later date. Is the arbitrary valuation of the assessor, without the chance of contesting its accuracy, a complete assessment? If so, then the allegation of the plaintiff is a final judgment against the defendant without any hearing or opportunity to to be heard. The assessment is no more than the statement of the case of the public against the citizen as to the valuation of his property as the basis of taxation. Final judgment can be pronounced — the assessment can be regarded as final and complete — only after an opportunity for hearing has been accorded. Then, and only then, is there a- legal assessment. In the interim the proceedings with respect to the assessment are unfinished. The doctrine that the taxpayer must either tender or pay or must aver that the tax is unjust, although the right to a hearing has been denied by the failure of the proper board to assemble at the proper time and place for that purpose, is sub*157versive of the statute, and takes from the citizen his constitutional right to a hearing in the very tribunal which the legislature has prescribed. The right to be heard in the tribunal so designated is as much a part of his constitutional right as the right to be heard at all. It is the only tribunal in which the hearing can be lawfully had. The legislature with full and exclusive authority over the subject (no constitutional right being violated), have constituted it for that express purpose, to the exclusion of all other tribunals. If the citizen has no constitutional right to be heard there he has no constitutional right to be heard at all. But equity assumes that this arbitrary exaction is just, and literally forces the tax payer to litigate its justice in a different tribunal, taking from him the constitutional right to contest it before the only body to which the legislature has delegated such power, and casting upon him the, burden of showing that this arbitrary valuation is unfair. If he will not litigate it there, he must pay or tender the pretended tax, or under a statute like ours, judgment for this pretended tax will be rendered, or he must submit for all time to have the market value of his property impaired by a cloud upon his title. It seems to my mind anomalous to treat in equity the fiat of the assessor as everything in the constitution of a legal assessment and the right to be heard as nothing. The essence of a just and lawful assessment is not a mere valuation of property, but a valuation which has or could have been subjected to examination before a tribunal or officer upon due notice to the taxpayer. If the law had failed to provide any hearing, no one would seriously urge the legality of the tax, even in equity. But it cannot matter how this constitutional right is invaded. The opportunity for a hearing is as effectually denied when the proper tribunal fails to assemble as when there is no provision in the law for a hearing.
There is nothing in the suggestion that the plaintiff should have shown that he made an attempt to be heard. The law does not require that the citizen should perform an idle ceremony to protect a constitutional right. His appearance where and when the board should have assembled would not have secured him a hearing. He was as effectually debarred of a *158hearing as if the law had provided for none. Where there is no legal right to be heard under the law there is a conclusive presumption that the assessment is unjust. The law stigmatizes as arbitrary every such proceeding. But not only is this presumption not conclusive where the proper tribunal denies a hearing, but there is no such presumption at all. On the contrary, the pendulum has swung almost as far to the other side. The presumption is now in favor of the justice of this arbitrary assessment. Why, no one can explain, or even discover. The language of Judge Cooley in his great treatise on Taxation is very applicable in view of this claim that the taxpayer must litigate the question of the justice of the assessment in a tribunal different from the one which the law has constituted for that express purpose: “All these provisions being of vital importance to the taxpayer, must be regarded as compulsory, and a compliance with them as conditions precedent to any further step to charge him with a tax.’ When they fix a certain time for the meeting of a board of review and the board fails to meet, or a certain time for the return and filing of the assessment for inspection before the meeting of the board, and it is not filed, whereby opportunity for inspection is lost, the tax proceedings must be regarded as having failed to become effectual, because of the failure of the officers properly to follow them up, as required .•by law. No argument can be admissible, in such a case, which proposes the acceptance of something else as a substitute for the securities the statute has provided. To substitute anything would require legislation, and even legislation for that purpose would be of doubtful validity if it failed to provide what would fully accomplish the same purpose. Such regulations for the protection of individual rights are reasonable and they are demanded by justice and general convenience. On general principle they must be regarded as mandatory and a strict observance of their provisions held to be essential.” Cooley, Tax’n, p. 267.
The language of the court in the Railroad Tax Cases, 13 Fed. Rep, 722-750, is very pertinent, and it is also a complete answer to the possible suggestion that the fact the taxpayer is required to furnish the assessor a list of his property consti*159tutes a hearing in the constitutional sense. “The presentation to the state board by the corporation o£ a statement of its property and of its value, which it is required to furnish, is not equivalent to a notice of the assessment made, and of an opportunity to be heard thereon. It is a preliminary proceeding, and until the assessment the corporation cannot know whether it will have good cause of complaint. No hearing upon the statement presented is allowed and when the assessment is made the matter is closed. No opportunity to correct any errors committed is provided. The presentation of the statement can no more supersede the necessity of allowing a subsequent hearing of the owners than the filing of a complaint in court can dispense with the right of the suitor and his contestant to be heard thereon. There being, then, no provision of law giving to the company notice of the action of the state board and an opportunity to be heard respecting it, is the assessment valid? Would the taking of the company’s property in the enforcement of the tax levied according to the assessment be depriving it of its property without due process of law? It seems to us that there can be but one answer to these questions. There is something repugnant to all notions of justice in the doctrine that any board of men can be clothed with the power of finally determining the value of another’s property, according to which it may be taxed, without offering to him an opportunity of being heard respecting the correctness of their action. * * * We cannot assent to any such doctrine. It conflicts with the great principle which lies at the foundation of all just government— that no one shall be deprived of his life, his liberty or his property without an opportunity of being heard against the proceeding.”
This opinion so far has not taken notice of the fact that the board did not fail to meet at all, but only failed to meet at the time prescribed by statute. The board is required to begin its session on the first Monday of July in each year, and to hold a session of not less than two days. Comp. Laws, § 1584. The board did not meet on the first Monday, nor did it assemble on thé first Tuesday. It failed to organize until the 8th of July. I can see no difference, so far as the, question of “due process *160of law” is concerned, whether there is a failure to meet at the time fixed by law or an omission to meet at all. It must not.be lost sight of in this discussion that a mere opportunity for a hearing is not sufficient to constitute “due process of law.’’ There must be legal notice of such opportunity for a hearing, It would be mockery to assert that the citizen had been protected because there had been afforded a general opportunity for a hearing, of which he had no legal notice. “It is not customary to provide that the taxpayer shall be heard before assessment is made, but a hearing is given afterwards, either before. the assessors themselves or before. some court or board of review; and of the meeting of that court or board the taxpayer must in some manner be informed, either by personal notice, which is reasonably certain to reach him, or — which is equivalent — by some general law which fixes the time and place of meeting, and of which he must take notice. Said Justice Field in the Railroad Tax Cases, 13 Fed. Rep. 722-751: “Notice is absolutely essential to the validity of the proceedings in any case. It may be given by personal citation, and in some eases it may be given by statute; but given it must be in some form.” All the adjudications speak the same language. It is undoubtedly well settled that when the statute, as in this state, fixes the.time-of the hearing, every citizen is deemed to have sufficient notice' of that fact to constitute the proceedings “due process of law” if the opportunity for hearing is not denied. In the Railroad Tax Cases the court said: “Notice to him will be deemed sufficient if the time and place of hearing be designated by statute,” And in Hagar v. Reclamation Dist., 111 U. S. 701, 4 Sup. Ct. Rep. 663, the court observed “that the law in prescribing the' time when such complaints will be heard gives all the notice required.” See, also, Railroad Co. v. Washington Co., 3 Neb. 30-42; Black, Tax Titles, § 30; Cooley, Taxation, p. 266. But what notice had the plaintiff of this late meeting of the board of equalization? He had no personal notice; nor would that, in my judgment, have been sufficient, for the only notice which-the law recognizes as legal is that which the law itself prescribes. Certainly he has no notice by virtue of the statute, for that informed him that the board would meet, upon only *161two days — i. e., the first Monday and the first Tuesday of July — unless its session was continued by adjournment. It distinctly informed him that the board would not meet for the first time to his surprise and disadvantage at some future day. If it did not so inform him, then he must be on the alert for an indefinite time, momentarily expecting the board to assemble without authority of law. and in direct defiance of its mandates. This is true of the rest of the community. A doctrine which would keep the people constantly on the watch at the place where the meeting is required to be held, with the danger of losing a hearing if they should for a moment slack their vigilance, would be intolerable. The principle which underlies the decision in Kuntz v. Sumption, 117 Ind. 1, 19 N. E. Rep. 474, is controlling. That principle is that the citizen has no notice that the board of equalization will act without the line of their authority. The board in that case increased the amount of an assessment. Their action was held to be without jurisdiction, for the reason that the law provided for no notice to the taxpayer, no notice of such action, and that the fact that he may have been notified and may have appeared before the board was entirely immaterial. The law is to be tested by what the citizen may of right demand under its provisions. Said the court: “ The statute does not provide for notice to taxpayers whose taxes it is proposed to increase; and this infirmity destroys it in so far as it affects such citizens. It is not enough that in fact the taxpayer does have some notice or information,for -the law must provide for notice, or else no legal notice can be given. A man may be subpoenaed as a witness in an action pending against him, but, unless he is summoned or notified as a party under some law authorizing a summons or a notice, the proceedings are utterly void. A man may be served with a written notice that a petition for a ditch is pending; but if there is no law authorizing notice it will be unavailing. A notice not authorized by law is, in legal contemplation, no notice.” See, also, Stuart v. Palmer, 74 N. Y. 188. The opportunity for a hearing which the law gave, and of which plaintiff had legal notice, was never afforded to him by the board. The alleged opportunity for a hearing was one of which he had no legal or *162'actual notice; and, as the law provided for no notice of such a .belated opportunity for a hearing, actual notice would not have made it hi^ duty to be present at a pretended meeting of the board when it had no power to organize as a board of equalization. Even assuming actual notice, and that this would be sufficient, yet there was no opportunity for hearing, because the board of equalization never met at all. It assumed to meet at a ■time when its powers to initiate a session had expired. To hold that the provision of the law as to the time when the board •should assemble to hear complaints is merely directory strikes at the very substance of the citizen’s constitutional right to a hearing. He is denied a hearing if the board at its own pleasure or caprice may assemble at any other time without notice of its meeting, for to require him and all other citizens to dance ■daily attendance at the place fixed by law for the meeting, until, after the lapse of a month or two, the board should see fit .to convene, would be a doctrine grotesque in its absurdity, monstrous in its injustice, and subversive alike of the spirit, and of the letter of the law.
As has been before stated, a loose notion appears to prevail in some jurisdictions upon this subject of the validity of a tax in equity. It cannot be doubted that where there is a valid ■tax no mere irregularities in subsequent procedure will destroy it, and of course equity should insist upon or demand its payment where the citizen appeals to equity for relief. But there must be a valid tax. Equity has no power to levy a tax or make an assessment, and there is no other than the statutory procedure recognized by the law by which the share of the public burden to be borne by any citizen can be determined. It is illogical for a court of equity to decree the payment of what it terms the suitor’s fair proportion of the taxes to be collected, where the proceedings by which alone that fair share can be determined are defective in those statutory requirements in which are bound up the constitutional rights of the citizen. There can be no tax in law or in equity where there are omissions of such a nature in the proceedings to create a tax, if the constitution is to continue to shield the citizen in the enjoyment of his property against arbitrary exactions under the *163guise of taxation. In this age of vast encroachments upon what had long been regarded as the domain of constitutional right, it is well to uphold and enforce the guaranties of the fundamental law in the full vigor of their manifest, spirit. It h'as been urged that this ruling will extensively affect and impede the collection of taxes throughout the state. The answer is that we cannot make laws and we dare not fritter away the sacred rights of the citizen because of an exigency. Legal principles cannot be put aside, constitutional rights must not be impaired because public officials have neglected to follow the law in those particulars affecting the substantial rights of the citizen. We dare not make a fissure in the dike, however small; to meet an exigency, however great, lest the opening in time widen to an enormous breach, and constitutional rights be overwhelmed, confounded and swept away. And here it is well to answer the argument that the rights of the public should not be at the mercy of the board of equalization. This argument, when legitimately extended would warrant the taking of property and life, without due process of law. It would uphold an assessment never made, a tax never levied, because it is in the power of the officers charged with the performance of these duties, wholly to neglect them. The truth is, that, in this sense, the public is constantly at the mercy of its servants in a multitude of cases. Protection to human life is in this sense at the mercy of courts, of jurors, and of prosecuting attorneys. Failure of duty on their part might encourage and enormously increase the number of homicides ; but who would urge this as a legal reason why the accused should be condemned and executed without a trial. Omission of duty is not the equivalent of its full discharge where the citizen can point to the constitution as a guaranty that that duty shall be performed before his property shall be taken. But the people are not at the mercy of their servants. Experience has shown that the sanction of the criminallaw, the force of public opinion and the general disposition of men to obey the law and discharge their duties are sufficient protection against the evils of official dereliction of duty. How stands the question upon authority? The case of Mills v. Gleason, 11 Wis. 193, is cited. The opinion shows that it does not sustain the *164position that the failure of the board of equalization to meet is of no moment in equity unless the citizen avers the injustice of the tax. The court said: “It is also objected that the assessors did not meet for the purpose of hearing objections as required by the charter. We are unable to say from the evidence that this objection is true in point of fact. It appears from the evidence on both sides that the assessors did meet and the most that can be said is that it does not appear that they were all present at any one time. We shall not determine what would be the effect of an entire omission of this meeting by the assessors.” In the case of Land Company v. City of Crete, 11 Neb. 344, 7 N. W. Rep. 859, the opinion merely states the conclusion of the court on this point without any attempt to justify that conclusion by reasoning or fortify it by authority. The case of Cowell v. Doub, 12 Cal. 273, is not in point-The assessment was, after it had been irregularly made, confirmed by an áct of the legislature; and it was of the hearing accorded to the taxpayer by this act of which it was insisted he did not have the statutory notice. But there was nothing in the case to show that the original assessment, before it was confirmed, was not sufficiently legal to sustain a tax in equity. There was nothing to warrant the conclusion that a full opportunity for a hearing had not been accorded the taxpayer under the original proceedings. The irregularities may, for aught the report of the case discloses, have been in matters which do not affect the substantial rights of the citizen. Surely, if the tax was so valid before the passage of the confirming act that it. could not be assailed in equity without payment or tender, the enactment of that statute did not detract from such validity. Mining Co. v. Auditor General, 37 Mich. 391, is not directly in point. The court expressly held that the taxpayer was not deprived of a hearing. The facts and an extract from the opinion will show this conclusively. The assessment was made by a supervisor of a township in the year 1874. In making the assessment he took the original assessment roll for the year 1873, and made in it certain changes of valuation. This was all done before the time he wag required to have his roll ready for review. No other changes, with a single trifling exception, not in any man*165ner affecting the rights of the taxpayers, were made after the time fixed for a review of the assessment roll. After this time had expired, the supervisor then made up the formal assessment roll, which was an exact copy of the roil of 1873 as changed prior to the day fixed by law for review, with the unimportant exception referred to. Said the court at page 393: “For all the purposes of this review parties whose property was assessed could at the time fixed obtain as full and accurate information from the assessment roll of 1873, as altered, as they could had a copy of the same been made and then altered, or an entirely new assessment been made, without any reference whatever to the roll of 1873. The roll as changed and as exhibited at that time no longer stood for the roll of 1873 for that purpose, and as it then stood it was the roll for 1874; and the fact that it became necessary after the supervisor had reviewed and completed this roll, for him to make a literal copy thereof, to which his certificate should be attached, and which should afterwards be examined by the board of supervisors, equalized and certified to by their chairman, and which should thereafter be and remain the original roll for 1874, would not, in my opinion render such roll or the taxes after-wards assessed upon the basis thereof, illegal and void. It may frequently become necessary, on account of the imperfect manner in which the assessment' is first made and the changes and corrections made during the review thereof, that a new roll or copy should be made and used thereafter as the original roll, and I should hesitate to hold, where such a necessity existed in the opinion of the supervisor, and a legible and correct copy thereof had been made and adopted and used thereafter as the assessment roll, that third parties, with no other .foundation to stand upon, could with the aid of a court of equity, escape the payment of their just proportion of the public burdens.” It is apparent that the court considered that the taxpayer was not deprived of Ms hearing; that there was exhibited to him on the day' for review the assessment against him as it was afterwards transcribed; and that he could have had no greater opportunity to challenge its accuracy had it been transcribed before the day fixed for review. In Burt v. *166Auditor General, 39 Mich. 126, the substantial fights of the taxpayer were not at all involved. There was no pretense that the board of equalization did not assemble at the proper time. The only defects were the failure of the board of review to attach the proper certificate and the omission of the president of the board to sign the certificate of equalization. The case of Frost v. Flick, 1 Dak. 131, 46 N. W. Rep. 508, it is true, was cited in the prevailing opinion in Bode v. Investment Co., 1 N. D. 121, 45 N. W. Rep. 197, but this particular point was not then involved and the writer feels free to express his dissent from that case in so far as by its reasoning and its conclusion it conflicts with the views here expressed. The whole trend of the opinion seems to be that the general duty of the citizen to pay some taxes warrants a court of equity in presuming an apT portionment based upon an arbitrary assessment — for any assessment is arbitrary where the right to a reasonable hearing ,on reasonable notice is denied — represents his fair share of the taxes to be paid. But there is no mode of ascertaining that share except the statutory mode; and if in the assessment of his property he has no hearing, there is nothing to prevent such a disproportionate assessment against him as will ultimately result in a confiscation of his entire estate. What, then,becomes of the constitutional guarantee of equality in taxation? His duty is not to pay all the taxes, or to pay a penny more than his just share in view of the value of his property in connection with the value of all the property assessed. The statute has prescribed an exclusive mode of procedure by which that share shall be ascertained. There shall be notice and a hearing. These are the sacred and inalienable rights of the humblest. On what principle does any court build up a presumption that this fair share has been ascertained upon a denial of these rights which are the only safe guaranty that the assessment will be just? The presumption that any officer will do his duty cannot be allowed to obtain in such a case. This would render presumptively valid an assessment where there was no hearing provided for by the law a palpable absurdity. The decision of the Nebraska supreme court in Railroad Co. v. Washington Co., 3 Neb. 30-42, is more satisfactory than the *167naked statement of a conclusion in the case reported in 11 Neb., already referred to. It is true that the proceeding was not in equity, but the language of the court shows that the failure of the board of equalization to meet at the time prescribed by law is fatal to the tax'in equity as well as in law. “The time of meeting is definitely fixed by statute, and it seems-clear that it was the intention of the law-givers that this time fixed by statute, should operate as notice to all persons who might feel aggrieved. Therefore, this provision of the statute cannot be regarded as directory merely or simply as a matter of form, but as a matter of substance.”
On the question of description, I concur in the majority opin-. ion; and in answer to the statement in the petition for a rehearing, that the description adopted is the customary one, I would reply that 2 is not -|, nor 4 and no usage should be allowed to change their significance. It would be as reasonable to give effect to a custom that the points of the compass should in such, cases be represented by certain figures respectively.