dissenting. I am unable to agree with my associates in the disposition made of this case. I differ from them, however, only upon the question of the right to appeal from the action of the county board when sitting as a board of equalization. True, such action may be somewhat in the nature of a “decision,” and it is further true that the statute defining the powers and duties of the county board declares that, “from all decisions of the board lipón matters properly before it, an appeal may be taken to the district court by the person aggrieved.” Revised Codes 1895, § 1927. But it is conceded by the courts whose decisions are cited and referred to with approval in the majority opinion, that this statutory provision cannot be construed literally without inviting the most serious consequences to public business. In the very cases cited and those referred to in the cases cited, it is held that many “decisions” of the county board cannot be reviewed by an appeal under this statute, and that among the decisions of the board expressly enumerated as nonappealable are those which are political and those which are administrative in their nature. It will at once be observed *644that this rule of construction will exclude from the operation of the statute a very large majority of the decisions which a county board in the exercise of its functions is called upon to make. The duties of the board are statutory, and such duties, with a few exceptions, are enumerated in articles 7 and 8 of the Political Code. See Revised Codes 1895, §§ 1892-1951. A glance at these sections discloses the character and kind of “decisions” which the board is called upon to make. Among them are the following, viz.: The division of counties into commissioner districts, also changing the boundaries of districts; to punish con-tempts; to cancel and destroy county warrants; to institute actions; to sell and purchase real estate for county purposes upon a majority vote therefor; to levy taxes; to construct and repair bridges; establish election precincts; equalize assessments; provide a fire-proof safe for the use of county officers; to submit to the people the question of an extraordinary expenditure of money; to provide a court room and jail; to erect county buildings and make building contracts; to settle accounts of county officers; to designate banks as county depositories, etc., etc.; also to approve the official bond of county officers. Id. § 342. Under the rule laid down in the cases cited in the majority opinion, it seems to be clear that any decision which the county board may lawfully make with respect to their duties above enumerated would be nonappealable decisions, such enumerated duties appearing to be neither administrative nor political in their nature, and clearly none of the same are strictly judicial. I am not at loggerheads with this restricted view of the appeal law. On the contrary it is my opinion that the statute should be, by construction, so narrowed in its scope in order to prevent partial suspension, if not a total paralysis, of the duties devolved by law upon boards of county commissioners. If all final decisions necessarily made with respect to the multitude of matters within the jurisdiction of county boards are removable by appeal to the district court by means of a simple notice and an undertaking for costs, and thereafter may in due course be transmitted to this court for final determination, the necessary result would bo that duties which are expressly devolved by law upon executive and administrative officers would in appeal cases be cast upon others, viz., judicial officers whose duties are wholly different in nature, and who are usually far less capable of performing such duties than the officers elected by the people *645to perform the same. But manifestly the worst effect of such a construction of the appeal law in question would be the delays incident to such appeals if allowed.
Fortunately the courts have, to some extent, foreseen the serious consequences which would inevitably follow from the practice of allowing appeals to be taken from all “decisions” in matters properly before the board of county commissioners. It must be conceded, however, that a literal interpretation of the statute would permit all such decisions to be reviewed in the district court upon the easy terms specified in the statute; but courts under established rules of construction may depart from the literal meaning of terms employed in a statute when this course will give effect to the legislative intent. This rule has been fully recognized in the ease cited in the majority opinion, and there referred to.
But I maintain that for obvious reasons, the salutary rule of construction should be applied in the case at bar, and insist that the same is broadly ignored by the majority of the court in deciding this case. In my opinion there are peculiar and cogent reasons which are opposed to allowing the assessment and collection of the public revenues to' be obstructed by the vexatious delays that would certainly follow if it be once settled by this court that appeals would lie to the courts with respect to decisions in matters of taxation made by the county board. True, such delays have not occurred in the past, but I explain this fact by the prevailing understanding of the profession that no such appeal will lie. Since this court has been organized, not a single tax case has come before us under this statute. It is quite probable, too, that this appeal would not have been attempted had the law not been somewhat changed hy the revisioners of the Codes. Under the original statute the board of county commissioners did not, in strictness, act as a board of equalization; but under the Revised Codes it does so act. See Revised Codes 1895, § 1218.
But I am unable to see how this change, which is nominal rather than real, can at all militate against the strength of the reasons which stand opposed to allowing an appeal from the decisions or conclusions which a board of equalization, however constituted, may make.
There are considerations too numerous to mention which, in my judgment, should constrain the courts of this state to hold that the *646action of boards of equalization ought to be added to the already long list of “decisions” which under the cases cited are nonappealable under this statute. I maintain that the appeal is not only inadequate as a remedy, but that it is wholly unnecessary to the protection of taxpayers against the consequences of illegal taxation. Other remedies of the taxpayer are ample. If an illegal tax culminates in a lieu upon or a sale of real estate, a court of equity will cancel the lien or vacate the sale and the muniments of title resulting from the sale; and, on the other hand, if a tax upon personal property is unlawful, the taxpayer, when compelled by distraint of his property to pay the same, an action at law can be maintained to recover back such taxes, with costs. This remedy was open to this plaintiff. Besides these familiar remedies, others are added by statute whereby the taxpayer is fully protected by the courts against unlawful taxation, without resort to the dubious right in question.
I claim, further, that such appeals are inadequate as. a means of arresting the illegal action of either the board of equalization, or the other county officers who have duties to perform in connection with the levying the taxes, extending the same upon the tax lists or collecting the tax so extended. After property values are equalized by the county and state boards, the next step under the statute is to extend the tax upon the list as against the values so equalized, and this is followed by delivering the list to the county treasurer for collection. Once in the.hands of the county treasurer the taxes on the list are required to be collected by that officer, and there is no power short of a decree of a court which will excuse the treasurer for the noncollection of such taxes. The collection of taxes is not among the duties of county boards, nor can such board lawfully prevent such collection by its unaided action. And just here attention is called to the fact that an appeal from the action of the board of equalization is a useless expenditure of energy, and wholly abortive as a means of preventing any step required by law to be taken by the taxing officers, after the board has completed its work and has equalized the taxes and adjourned sine die. If an illegal tax is laid by means of the unauthorized action of the board, such illegal tax must nevertheless, under the statute, so far as the tax is affected by the alleged right of appeal, be extended upon the tax list by the auditor and be thereafter collected by the treasurer. The appeal *647does not stay the proceedings either of the board, or of other officers who have duties to perform in laying the taxes for the public revenues. No provision is made in the statute either for a stay or a stay bond; but, on the contrary, the statute requires only a simple bond for costs in the district court. Bevised Codes 1895, § 1927. It is therefore entirely clear that the alleged right of appeal is inadequate as a means of preventing the placing of an illegal tax upon the tax list, or as a means of preventing the treasurer, who is not a party to such appeal, from collecting the illegal tax. The impotency of such appeal as a remedy is made manifest in this case.
The obnoxious resolution of the board of equalization was adopted in the month of July, 1896, and the appeal therefrom was perfected within thirty days thereafter. Since then, the appeal has been pending in the district court and in this court until the present time, — December, 1898. Meanwhile, what have the taxing officers of Traill county been doing in the way of discharging their imperative duties under the law with respect to collecting the public revenue ? This question is readily answered from the record, which shows that the alleged illegal tax has in due course found its way to the tax list, which at last advices was in the hands of the county treasurer for collection, where it was placed in due course under the law in the year 1896. .If the treasurer has ex gratia foreborne to collect this tax, it has been solely an act of forbearance on his part, and cannot be attributed to any restraint placed upon his action by virtue of this appeal. Not only does the appeal not operate as a stay of official action in general, but the treasurer, not being a party to it, cannot be affected by such appeal. Nor did the appeal operate practically or at all to restrain the county auditor from extending the tax against the plaintiff’s property in accordance with the value fixed in the obnoxious resolution of the hoard.
Again, it must not be overlooked in this connection, as further illustrating the abortive character of this alleged remedy by appeal, that the good or bad effect of the resolution of the board remains intact despite the appeal. The trial court, assuming the powers of a court of equity, decreed that the resolution should be “reversed,” but did not attempt the impossible by further decreeing that the board should in 1897 reassemble and pass another and different resolution, fixing the value of plaintiff’s. property as a basis for a tax to be levied for *648the year 1896. The court below went no further than to “reverse” the resolution appealed from, and thereby declared in effect that all taxes based upon the same were illegal; but this conclusion, as has been seen, produced no effect upon events already concluded. It did not arrest any official action based upon the resolution. True the trial court further decreed that the part of the tax found by that court to be leg’al should be paid “immediately,” and that the county treasurer should be enjoined from collecting the part found to be illegal by the trial court. But this result we have seen could have been reached by other proceedings, in which the action of the board would not be involved. Besides it is apparent that the judgment in the appeal case is not binding upon the treasurer, for the simple reason that he had not been heard in the case, not being a party thereto.
The appeal law, § 1931, provides in terms that “the district court may enter a final judgment,” but this cannot be construed as conferring authority to enter a judgment without a hearing and against strangers to the record. But the same section also confers upon the district court authority to send the same back to the board, with an order how to proceed, and “require such board to comply therewith by mandamus or by attachment for contempt.” If this section can be applied to the case at bar at all, the only proper course to pursue (after the district court had entered its judgment reversing the obnoxious order) was to send the case back to the board, and direct it to annul or reverse the order appealed from. There would, it is true, be insurmountable obstacles to this course of procedure. Not only had the board of equalization adjourned sine die for the year 1896, without power to reassemble as such board, but, as we have seen, other taxing officers not parties to the record had in the interval taken action based upon the resolution in question, and taxes based thereon had been levied, extended, and delivered to the treasurer for collection long before the district court entered its judgment. I allude to these considerations, however, only for the purpose of further illustrating the thought that the legislature could not have contemplated an appeal from the action of a board of equalization when it enacted the statute embraced in § 1941, Revised Codes 1895.
But there is another consideration which is very persuasive to my mind at least, against this alleged right of appeal. It is this: Boards *649of equalization are chosen by the people to correct errors and irregularities which may arise in valuing property for purposes of taxation, and the- law expressly devolves these duties upon such board and boards of review. The members of the hoard are drawn from all parts of the county, and hence are familiar with property values in all parts of the county, and are therefore in a position to discharge their duties intelligently and with a wise reference to the interests of both the public and the taxpayer. These tribunals are required to assemble annually at a fixed time and place, and there adjust values in accordance with law and the principle of equity and justice. To this tribunal the taxpayer, whether citizen or not, has a legal right to resort, and there ho may state his grievances and find his remedy without expense and without let or hindrance from any source, and if he is denied a hearing, that fact alone will invalidate any tax that may be imposed without a hearing. Inasmuch as an ad valorem tax can only be laid upon a value ascertained by some board or officer, it follows that such board or officer should have the final right to determine values. But grant a right of appeal, and what follows ? Simply this: A court will supersede the duly constituted authority, and substitute his own estimates of values, absolute ■ and relative, for that of the board chosen by the people for that purpose. I do not hesitate to say that in my judgment the courts are far less able and fitted for this work than are the county boards. Courts can only act upon evidence, while boards are not limited to evidence, but can and should act both upon evidence and their own knowledge of facts and values. This court said in Wells County v. McHenry, 7 N. D. 246, 74 N. W. 241: “We doubt the expediency of any legislation which should vest all the powers of boards of equalization in the ordinary judicial tribunals. Local boards are better qualified to exercise such functions. And the imposition of such burden upon the courts would seriously impair their efficiency in the discharge of those duties which are germane to the judicial branch of the government.” Final authority to fix values for taxation must rest somewhere, and I am confident that it is intended to be left with the assessors and the various boards of review and equalization. Their conclusions are not supposed to be absolutely accurate or absolutely just in all eases. Yet experience has shown that the results reached by these officials are generally sound and just. If these officers do, however1, act *650illegally, corruptly, or without jurisdiction, there is a remedy to be found in the courts for such abuse, and this without resorting to the alleged right of appeal.
I will add but a single consideration to these already advanced. If the decisions of the county board, while sitting as a board of equalization, are reviewable under this statute, I can see no escape from the conclusion that a decision of the county board, in levying the annual taxes for all purposes, is likewise appealable under the same statute. But if such an appeal would not arrest the collection of the taxes as levied, and I think it would not have that effect, the same would be an idle and worse than useless proceeding; but if it did stay the collection of the tax, sueh a result would be nothing less than a public calamity.
These considerations and many others which could be added, have convinced me that the legislature did not intend to include .tax proceedings in providing for appeals from the “decisions” of county boards. Such appeals, if ever allowed, can only be justified under a statute which clearly confers the right, and our statute, in my judgment, does not do so.
(This case should have been reported in one of the earlier volumes, but was, through the inadvertence of the printer, mislaid and omitted.)