(concurring specially). I concur in the conclusion reached by Mr. Justice Eobinson, but as I do not care to express any opinion upon some of the matters discussed by him, I deem it desirable to set forth the reasons why I believe the judgment appealed from should be affirmed.
The plaintiff brings this action to cancel certain tax sale certificates against certain parcels of. land in Burleigh county. The complaint contains all the material allegations required in a complaint in a statutory action to quiet title. The only departure from such complaint is that in the instant case the complaint not only alleges that the defendants claim a certain estate, or interest in, or lien or encumbrance upon, the property, but further alleges the nature of the alleged interest or lien so claimed and states the reasons why such alleged interest or lien is null and void.
The complaint alleges, in substance, that the plaintiff is, and at all times mentioned in the complaint has been, the owner of certain lands in Burleigh county; that during the years 1901 to 1905, inclusive, the plaintiff was the owner of a system- of waterworks, consisting of mains, hydrants, etc., located and operated in the city of Bismarck, and that there was connected with the water mains of the plaintiff a line of water mains extending to the state penitentiary, and another line to the state eapitol, both belonging to the state of North Dakota; that said two lines, consisting of 3 miles of water mains, were assessed as plaintiff’s property, and included, by the taxing officers during all of said years, in and added to the valuation of plaintiff’s property; *196that the aggregate amount of taxes so assessed, levied, and extended against the plaintiff for said years amounted to $4,416.79, of which sum more than $1,416.79 represented the taxes levied upon the valuation of the 3 miles of water mains belonging to the state of North Dakota; that upon discovering the erroneous inclusion of said 3 miles of water mains in the assessment and valuation of plaintiff’s property it promptly made application to the board of county commissioners of Burleigh county for an abatement and cancelation of that portion of the tax charged against it for and on account of the water mains belonging to the state of North Dakota; that the board of county commissioners rejected the application; that the plaintiff thereupon appealed to the district court of Burleigh county from such decision, and while such appeal was pending and undetermined, the pláintiff and the county commissioners of Burleigh county, on December 6, 1906, entered into an agreement compromising said matter, whereby plaintiff agreed to pay the sum of $3,000 (the amount levied upon a valuation of the property which plaintiff actually owned), and the county commissioners agreed to abate the taxes; viz., $1,416.79, assessed and levied against plaintiff by reason of the erroneous inclusion of the water mains belonging to the state of North Dakota; that plaintiff thereupon paid said sum, which was accepted by the county in satisfaction of all taxes for the years 1901 to 1905, inclusive; that plaintiff thereupon, dismissed its appeal, but that notwithstanding such settlement, the taxing officials of the defendant county caused said $1,416.79, with penalties and interest, to be extended as a purported lien against the real property of the plaintiff, and that thereafter the defendant, through its taxing officials, caused such real property to be listed and advertised for sale, and sold at the annual tax sale held on December 14, 1915, at which sale, there being no other bidders, said real property was bid in by the county for said purported taxes. The plaintiff therefore demands judgment that the said purported tax certificates be annulled, and that plaintiff’s title to the land be quieted as against any claims under such tax sale certificate.
The defendant interposed a general demurrer to this complaint. The trial court overruled the demurrer. The defendant elected to stand upon its demurrer and judgment was entered in favor of the plaintiff *197as prayed for in the complaint. The appeal is taken from the judgment.
It should be borne in mind that in determination of this cause Ave are limited to a consideration of the facts as stated in plaintiff’s complaint. For it is a universal rule that a demurrer admits all the allegations of fact in the pleading Avhich are issuable, relevant, and material, and well pleaded. 6 Standard Ene. Proc. 943. Want of verity of the facts alleged cannot be availed of, nor may the court consider whether they can be sustained by proof. 6 Standard Ene. Proc. 949. In other words, the demurrer, for the purpose of the demurrer, admits the truth of the facts in the pleading, but questions their legal sufficiency. While admission by demurrer is only for the purposes of the demurrer, and does not conclude the party demurring on a subsequent trial on the merits, it nevertheless dispenses with proof in a case where the demurrer is overruled and the demurrant elects to stand upon the demurrer. 6 Standard Ene. Proc. 955, et seq. In the instant case, therefore, the sole question presented for our determination is whether the facts alleged in the complaint entitle plaintiff to a cancelation of the tax sale certificates. It is an admitted fact upon this appeal that the taxing officials in assessing plaintiff’s property included certain property belonging to the state of North Dakota; and that the inclusion of such property resulted in the levying of a tax against plaintiff’s property in the sum of at least $1,416.79 in excess of that which should and would have been levied provided such state property had not been included.
It is also admitted that plaintiff paid.every cent of the taxes, which were based upon the valuation of its own property, and that the taxes which defendant sought to collect by the sale of plaintiff’s real estate were based wholly upon the valuation of the water mains belonging to the state of North Dakota.
The defendant relies mainly upon the proposition that the plaintiff has pursued an improper remedy. It is asserted that it should have made application to the board of equalization for a correction of the erroneous assessment; that this remedy is exclusive, and that the; courts have no power or right to correct an error committed by taxing-officers or boards unless relief is first soiight before such board.
*198In support of this contention, defendant’s counsel has cited numerous cases in support of the doctrine that equity will not interfere by injunction with the enforcement or collection of a tax where legal remedies are or have been available. This doctrine has recently been affirmed by this court (Bismarck Water Supply Co. v. Barnes, 30 N. D. 555, L.R.A.1916A, 965, 153 N. W. 454), and meets with my entire approval, but has no application in the case at bar.
Section 2201 of the Compiled Laws of 1913 provides: “In any action or proceeding for the collection or annulment of taxes levied or assessed against any person or property in this state and in any action or proceedings to determine adverse claims to real estate, no tax shall be set aside for any irregularity or defect in form, or illegality in assessing, laying or levying such tax if the person against whom or the property upon which such tax is levied, assessed or laid is in fact liable to taxation, unless it be made to appear to the court that such irregularity resulted to the prejudice of the party objecting, or that the taxes against such person or property have been partially, unfairly or unequally assessed, and in such cases the court may reduce the amount of such taxes and give judgment accordingly; the court shall also have power to amend and correct all irregularities or defects in the form or manner of assessment.”
This statute clearly confers upon the courts the power and authority to correct any wrong which may result from an unfair or unequal assessment when such tax comes in question in an action instituted for the collection or annulment thereof, or in an action to determine adverse claims. The statute is so plain and specific in its terms as to admit of little or no room for construction. In the case at bar it is unquestioned that if the plaintiff is required to pay the tax involved in this action, it must pay a tax levied against it by taxing officers who based their action upon, and in effect assessed to the plaintiff, property belonging to the state of North Dakota. The statute above quoted clearly applies to this action and invests the court with power to correct the error thus committed.
Whether the county commissioners had the power to make the compromise alleged in the complaint under the decisions of this court in First Nat. Bank v. Lewis, 18 N. D. 390, 121 N. W. 836; Minot v. *199Amundson, 22 N. D. 236, 133 N. W. 551; is a question which need not be determined and upon which I express no opinion.
The judgment appealed from is right and must be affirmed.