(specially concurring and dissenting in part).
I concur in most of the majority opinion, except as hereinafter stated and explained.
I am fully aware that decisions of the court generally have both retroactive application as applied to the facts of the case giving rise to the decision and prospective application as to the rule of law announced and as it may apply to others. It really would be an unusual situation if a decision did not apply to the facts performed or accomplished and in that respect the decision is retroactive as applied to those facts. With this I have no problem. I also recognize that a rule of law, purely the product of the court, as distinguished from the interpretation or construction of a statute or constitutional'provision which if later overruled may be given a delayed effective date. I have reservations in making a ruling effective some time in the future and am reluctant to support and promote such a concept.
The often referred to “Sunburst Doctrine” was primarily concerned whether or not an estimate rate for rate purposes can later be substituted with an actual rate and given a retroactive application. The Montana Supreme Court held it could not be legally done on the basis that the rates established by the Railroad Commission are *467presumed to be reasonable. On appeal, the United States Supreme Court affirmed. The so-called delayed effective date was not at issue. The United States Supreme Court in Great Northern Railway Company v. Sunburst Oil & Refining Company, 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932), said:
“We think the federal constitution has no voice upon the subject. A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law none the less for intermediate transactions. Indeed there are cases intimating, too broadly [citations omitted] that it must give them that effect; but never has doubt been expressed that it may so treat them if it pleases, whenever injustice or hardship will thereby be averted. [Citations omitted.] On the other hand, it may hold to the ancient dogma that the law declared by its courts had a Platonic or ideal existence before the act of declaration, in which event the discredited declaration will be viewed as if it had never been, and the reconsidered declaration as law from the beginning.” 287 U.S. 358, 364-65, 53 S.Ct. 145,148-49, 77 L.Ed. 360, 366.
To obtain the full significance of the court’s ruling it is necessary to examine also the case entitled Sunburst Oil & Refining Co. v. Great Northern Ry. Co., 91 Mont. 216, 7 P.2d 927 (1932).
The court in the case at hand is not announcing a new principle of law. The rule of law announced here arises out of the constitutional and statutory provisions which have been on the books and have been discussed by. legislators and other public officials for many years. The concepts involved are not novel, but have been expressed by many public officials, if not advocated. The statutory and constitutional provisions are clear in this respect. It is simply a matter of á governmental body not following the concepts stated in the statutory and constitutional provisions.
Be that as it may, the assessments involved here were made on an annual basis. Section 179, N.D.Const. and § 52-05-01, NDCC. Each annual assessment can be likened to a cycle. Unless an appeal or review is demanded within a certain time the assessments are the equivalent of “res judicata.”
The basic opinion, as I understand it, concludes that “de facto classification” will no longer be countenanced and assessments must be uniform beginning with 1980 computations until such time as the legislature provides for classification of different levels of property for purposes of taxation. The ruling of the court was delayed until 1980. The reason given in the majority opinion in support of the delayed effective date is that the ruling then would apply to all tax assessment cases. I do not believe this ruling furthers the ends of justice, because the same result would be reached if there were no delay of the effective date on the basis that no further assessments, except the one in the case at hand, would be made until 1980 in any event. The budgets have all been made for the years past and the only case that would come before the Board again are those in which an appeal or a review has been taken.
The appellant won on the points of law but by court rule is denied the relief to which it is entitled. I would have the ruling applied across the board knowing that the only one that could take advantage of it now would be the appellant.