Page:North Dakota Reports (vol. 1).pdf/127

 pretended deputy assessor, which was never in any manner adopted or ratified by the city assessor, is a nullity, and no tax can be predicated thereon.

4. Same; When Court Will Restrain Tax Proceedings.

Courts of equity should, in general, interfere to restrain the collection of a tax, or annul tax proceedings, only where it appears either that the property sought to be taxed is exempt from taxation, or that the tax itself is not warranted by law, or the persons assuming to assess and levy the same are without authority so to do, or where the proper taxing officials have acted fraudulently; and, in addition, plaintiff must bring himself within some recognized head of equity jurisdiction; and in the absence of statutory provisions regulating the subject, as a condition to relief in equity, the applicant must pay or tender the amount of taxes properly chargeable against his property.

5. Same; Court Should Enter Judgment for Amount of Legal Tax.

Held, further, that such action, in this state, comes within the provisions of section 1643 of the Compiled Laws, and that, instead of requiring the payment of the legal charges as a condition precedent to relief in equity, it becomes the duty of the trial court to enter judgment against the applicant for the amount of such legal taxes.

, dissents.

PPEAL from district court, Ramsey county; Hon., Judge.

This case was argued before the supreme court of Dakota Territory and the judgment of the district court was there affirmed. A re-argument was granted, pending which the territorial courts were succeeded by those of the states and this case passed to the supreme court of North Dakota.

J. F. McGee, for the appellants, argued: That the complaint did not state a cause of action, because it did not allege payment or tender of the taxes due; that the omission of the assessor’s oath from the roll was not fatal to the validity of the tax. Counsel did not discuss in his brief the effect of the resignation of the county assessor before the completion of the roll, nor the legality of the city assessment made by a so-called deputy assessor. The findings of the district court do not show that the city assessment was made by a "deputy" assessor, but that fact only