Page:North Dakota Reports (vol. 2).pdf/177

 that case, the court declined to go into the question of the legality of the session of the board which the plaintiff was then assailing; but no such facts exist in the case under consideration. We believe that the views which we have taken of the rights of taxpayers and the limitations which the law has placed upon the arbitrary as well as the careless conduct of officials who are charged with the responsibility of raising the revenue for public purposes are highly important and salutary, and that they have the support of the decided weight of authority. It follows from what we have said that the alleged taxes for which plaintiff's lands were sold to defendant, and those subsequently paid voluntarily by the defendant were illegal, and absolutely void, for the reasons already detailed. This fact appearing, the plaintiff was manifestly entitled, under the law and the issues made by plaintiff's reply to the answer, to have defendant's tax deed declared null and void.

Section 75, c. 28, Pol. Code (Comp. Laws, § 1640), has given the courts and the bar much trouble in their attempts to ascertain its proper construction; but of one thing we are clear, and that is that the legislature never intended by this section that mere arbitrary sums exacted by the taxing officers and miscalled “taxes,” but which were never lawfully assessed against the land, should be tendered or paid as a condition precedent to bringing suit to quiet title. We think the contrary view would result in rendering the section unconstitutional, because such a construction would involve the taking of the taxpayer’s property without due process of law. Black, Tax Titles, § 229; Philleo v. Hiles, 42 Wis. 527; Tierney v. Lumbering Co., 47 Wis., 248, 2 N. W. Rep. 289. It follows that it was error in the trial court to require the plaintiff to tender or pay into the court the sum of $217.84, which defendant had paid out at the tax sale of the land and as subsequent taxes thereon, as a condition upon which plaintiff could enter judgment setting aside the worthless tax deed as a cloud upon his title. It is in a broad sense a moral obligation resting upon every taxpayer to pay a fair and equal tax upon his property. Such obligation, however, does not become legal and enforceable in the courts unless the tax is a substantially legal one. Barber v. Evans, 27