dissenting.
The majority opinion treats the principal issue in this case as one involving issues of uniformity and proportionate equalization with other property. The actual issue is the much more restricted issue of whether or not the particular property involved here was valued and assessed for taxes at more than its actual value.
Article VIII, section 1, of the Constitution of Nebraska, provides that “taxes shall be levied by valuation uniformly and proportionately upon all tangible property * * *.” Section 77-201, R. R. S. 1943, requires that all real property subject to taxation “shall be valued at its actual value * * * and shall be assessed at thirty-five percent of such actual value.”
A valuation in excess of actual value is clearly in violation of constitutional and statutory provisions. Such an overassessment has always been held to be an erroneous and illegal assessment but not void or unconstitutional except in the case of unlawful discrimination or other fraudulent conduct of the assessing officers. See Scudder v. County of Buffalo, 170 Neb. 293, 102 N. W. 2d 447. Such cases have held only that the exclusive remedy for overvaluation is by direct appeal to the courts, and that an erroneous overvaluation is not subject to collateral attack. See, Scudder v. County of Buffalo, supra; S. S. Kresge Co. v. Jensen, 164 Neb. 833, 83 N. W. 2d 569. The case here, however, is not a collateral attack but instead is a direct appeal to the courts, which was sustained by the District Court.
Two qualified expert witnesses for the taxpayer testified that the actual value of the real estate involved here was far less than the valuation fixed by the assessor and the county board of equalization. The county board called no expert witnesses but relied on the testimony of the assessor who, in turn, relied largely on the assessed valuation of other properties without evidence that such values represented “actual value” required by the Constitution and the statutes. The only *76issue tried was the “actual value” of the taxpayer’s property, an issue which generally demands opinion testimony by qualified expert witnesses. The District Court, who saw and heard the witnesses and who is presumptively far more familiar with local property values in Hastings than is this court, found the “actual value” of the property to be that testified to by the taxpayer’s expert witnesses rather than the value placed on it by the county assessor. The assessor’s valuation was roughly three times the valuation of the expert witnesses, a variation which can hardly be called “a mere difference of opinion.”
Neither the county nor its taxing officials have appealed the judgment of the District Court. An interested taxpayer has appealed on the ground that the downtown business property in Hastings is assessed at a much higher rate per square foot. The contention is that all land used for commercial and business purposes should be assessed and taxed at uniform unit prices per square foot or other measurement unit. Such a classification would obviously be uniform. It would just as obviously not meet the constitutional requirement that taxes shall be levied “by valuation.” Neither does such a method constitute an appropriate standard “for the determination of the value” of real estate as authorized by Article VIII, section 1, of the Constitution of Nebraska.
On the record here, and on the basis of such contentions, the majority opinion reverses the factual determination of the District Court, apparently upon the basis that the appeal is triable de novo' here and this court can therefore make a completely independent evaluation of the facts. In effect it concludes that the testimony of .two qualified expert witnesses was not acceptable or sufficient to support the judgment of the District Court and the judgment was therefore arbitrary *77and erroneous. I cannot agree. The judgment of the District Court should be affirmed.
Clinton, J., joins in this dissent.