(dissenting).
In stating the reasons for my disagreement with the opinion written by Mr. Justice Bottomly I first desire to point out a misstatement contained in the second paragraph of that opinion wherein it is said,- "The State of Montana and the state board of equalization here appeal from the judgment entered *51against them in the district court of Flathead County on October 14, 1952.”
Neither the State of Montana nor the state board of equalization was a party to the action. No judgment was entered against either of them. They were strangers to the action.
Plaintiff filed a motion to dismiss the attempted appeal. One of the grounds of the motion was that neither the State of Montana nor the state board of equalization was a party to the action in the district court nor were they interveners at the time the judgment was entered and hence neither of them was entitled to take an appeal. The propriety of this motion is not discussed in the opinion of Mr. Justice Bottomly. I think this motion must be sustaihed.
Under our statutes only parties to an action may take an appeal. R.C.M. 1947, section 93-8002. In 39 Am. Jur., Parties, section 55, page 928, it is said: “Persons who are not parties of record to a suit have no standing therein which will enable them to take part in or control the proceedings. ’ ’
In 4 C.J.S., Appeal and Error, section 186, page 364, the author states: “As a rule one whose application to intervene, or to be admitted as a party defendant, in a suit has béen rejected by the court cannot appeal from the final judgment rendered in the suit.” Among other cases cited in support of the text is that of State ex rel. Red Lodge-Rosebud Irr. Dist. v. District Court, 75 Mont. 132, 242 Pac. 431.
Here the application of the State of Montana and the state board of equalization to intervene had been rejected by the court by the striking of their complaint in intervention.
Likewise on the assumption that the appeal is properly before us I do not agree with the opinion of Mr. Justice Bottomly.
Neither the action of the board of county commissioners in entering into the stipulation in question, nor the judgment of the court runs counter to section 39, Article V, or section 6 of Article XII of the Montana Constitution. Section 39, so far as material here, declares that no obligation or liability held or owned by the state shall be remitted, released, postponed or in *52any way diminished by the legislative assembly, nor shall it be extinguished, except by payment into the proper treasury, and section 6 of Article XII prohibits the release or discharge of property from its proportionate share of state taxes. These sections of the Constitution have reference to obligations, liabilities and taxes that have been fixed and determined in amount and not such as are involved in pending litigation to determine the amount. City of Louisville v. Louisville Ry. Co., 111 Ky. 1, 63 S.W. 14 and State ex rel. Wilson v. Young, 44 Wyo. 6, 7 Pac. (2d) 216, 81 A.L.R. 114.
The case of State of Nevada v. California Min. Co., 15 Nev. 234, so strongly relied on in the opinion of Mr. Justice Bottomly, is wholly different from this ease. There the tax obligation had become fixed and determined. The tax was delinquent. The time had passed to obtain any relief from the tax. Here the taxpayer was pursuing the very remedy pointed out to it by this court in State ex rel. Goza v. District Court, 125 Mont. 296, 234 Pac. (2d) 463 to question the amount of the tax.
To now say that plaintiff cannot pursue the remedy which this court held was available to it is to, in effect, overrule that case and to repeal the statute, section 84-4502.
The opinion of Mr. Justice Bottomly likewise is in error in holding that the board of county commissioners in authorizing the compromise of the action attempted to act as a board of equalization. The hoard acted as a board of county commissioners. It was considering a claim against the county. The county’s interest was vastly superior to that of the state. The authority of the board is found in R.C.M. 1947, section 16-1017, which gives it “jurisdiction and power under such limitations and restrictions as are prescribed by law: To direct and control the prosecution and defense of all suits to which the county is a party.”
The board in this case acted not as a board of equalization but as the executive board of the county with powers expressly conferred upon it by statute. Morse v. Granite County, 44 Mont. 78, 119 Pac. 286; State ex rel. School District No. 4 v. McGraw, *5374 Mont. 152, 240 Pac. 812; Weir v. Silver Bow County, 113 Mont. 237, 124 Pac. (2d) 1003. Cases are legion that the board of county commissioners has authority to compromise claims against the county. They are listed in the annotations in 105 A.L.R. 170 and 15 A.L.R. (2d) 1362.
Likewise the suggestion made in the opinion of Mr. Justice Bottomly that the result reached by the court would have been proper had the court heard evidence but that the court could not act on the stipulation is unsound. The stipulation was presented to and considered by the court and nothing further could have been added by oral testimony. There was full compliance with E.C.M. 1947, section 84-403.
The court had before it a complaint charging that the property in question consisted of discarded machinery and equipment which had formerly been used by the Somers Lumber Company in saw mill operations; that those operations had been entirely discontinued; that the property was purchased as salvage and has no value except as salvage and “must be dismantled and removed from said premises within a year from the date of purchase.” The complaint further charged that upon competitive bidding, after advertising the property for sale pursuant to newspaper advertisements published widely along the line of the Great Northern Eailway Company, plaintiff’s bid of $80,000 was the highest and best bid offered for the property; that instead of assessing the property at a valuation of $80,000, which was the full cash value thereof, the assessor assessed it at a value of $334,260, which was alleged to be unconscionably excessive; that this assessment was reduced by the state board of equalization to the sum of $277,551; the complaint alleges that the order of the state board fixing the value at $277,551 was unlawful and arbitrary.
This court in the Goza case, supra, reaffirmed the holding in Johnson v. Johnson, 92 Mont. 512, 15 Pac. (2d) 842; International Business Machine Corp. v. Lewis and Clark County, 111 Mont. 384, 112 Pac. (2d) 477, and Corcoran v. State Board of Equalization, 116 Mont. 499, 154 Pac. (2d) 795, to the effect *54that the courts will interfere with an overvaluation placed upon property for assessment purposes when the overvaluation is so gross as to be inconsistent with any exercise of honest judgment. The majority opinion in the Goza case, with which this writer disagreed, expressly overruled the Corcoran case but only so far as it sanctioned remedy by mandamus. The county commissioners did not abuse their discretion as executive officers of the county in concluding that an assessment of property for three and one-half times the value placed upon it by bidders at a duly advertised sale was so grossly excessive as to preclude the exercise of honest judgment and discretion. Grays Harbor Const. Co. v. Grays Harbor County, 99 Wash. 184, 168 Pac. 1138 (cited with approval in the Corcoran case), and the fact that this discretion was exercised and declared by stipulation rather than by testimony is immaterial.
The real difficulty with this case is that both the board of county commissioners and the district court were confronted with contradictory statements in the Goza case which could not both be followed.
The majority opinion in that case states [125 Mont. 296, 234 Pac. (2d) 465], “An action brought under R.C.M. 1947, section 84-4502, was intended to permit recovery of any tax or part thereof which could not be lawfully exacted, and, in effect, is a proceeding to review the decisions of the county and state hoards of equalization.” Italics supplied.
From that language the court was fully warranted in believing that it could direct recovery of that part of the tax which it found to be excessive. However in another part of its opinion in the Goza case the court stated that the “court will not substitute its judgment for that of the taxing officials and an over-valuation, honestly made, will not be disturbed. * # * Otherwise the court would be converted into an assessing board and would be usurping powers lodged in the executive branch of the state government by the legislative department.”
The court could not award recovery of part of the tax nor review the decisions of the county and state boards of equaliza*55tion without first finding the actual value of the property for assessment purposes and this of necessity would require it to resolve itself into an assessing board contrary to the cases cited in the Goza case. The writer of this opinion in dissenting from the majority opinion in the Goza case stated: “It cannot be said that section 2269 [now R.C.M. 1947, section 84-4502] affords a remedy unless the court has the right to fix the- value of the property in case it finds it has been overvalued. But this would make of the court an assessing tribunal which it repeatedly has asserted may not be done.”
What the court should have done here, if satisfied that the assessment was arbitrary, or constructively fraudulent, as it had the right to conclude from the stipulation, was to refund the entire tax. The state board could then cause the property to be assessed as omitted property under R.C.M. 1947, section 84-711. But as before stated, neither the state board of equalization nor the State of Montana has a right to appeal from the judgment in question. Neither of them was a party to the action. If they can perfect an appeal because of a financial interest — here that interest being about $200 — then any school district in the county may do likewise. Our statutes do not permit this to be done. Whether any remedy exists for attacking the judgment at this time I express no opinion. Certainly an attempted appeal by a stranger to the proceedings does not lie.
I think the motion to dismiss the attempted appeal should be granted. But treating the appeal on the merits I would say that the judgment should be modified so as to allow plaintiff to recover all of the amount sued for with the right of reassessment as above indicated.
Then again if the state may question the validity of the judgment it can do so only to the extent of its interest therein which is the sum of about $200. As to about 95% of the judgment the state and the state board of equalization have no interest whatsoever. Oases are legion that one who is not injured or adversely affected by an act may not complain of it as being unconstitutional: Holt v. Custer County, 75 Mont. 328, 243 Pac. *56811; State v. Vettere, 77 Mont. 66, 249 Pac. 666; State ex rel. City of Wolf Point v. McFarlan, 78 Mont. 156, 252 Pac. 805; Durocher v. Myers, 84 Mont. 225, 274 Pac. 1062; State ex rel. Brooks v. Cook, 84 Mont. 478, 276 Pac. 958; Merchants’ National Bank v. Dawson County, 93 Mont. 310, 19 Pac. (2d) 892; Pierson v. Hendricksen, 98 Mont. 244, 38 Pac. (2d) 991; Thompson v. Tobacco Root, etc., Co., 121 Mont. 445, 193 Pac. (2d) 811.
Furthermore since the cause is being remanded for further proceedings the court ought to point out which of the contradictory rulings set forth in the Goza case should be followed by the court. It is not too late to declare the rule of law which the lower court should follow in the further proceedings. State v. Hale, Mont., 291 Pac. (2d) 229.
It should be noted that the opinions herein furnish no guide for the lower court to follow. It is only in the result of Justice Bottomly’s opinion that a majority of the justices agree.
It seems to me that this court ought not direct the taxpayer here to follow one blind alley after another only to strike a dead end when the cause reaches this court.