Page:North Dakota Reports (vol. 2).pdf/182

 somewhat of a disposition on the part of some of the courts to entertain loose notions touching the question whether there is a legal tax to be paid or tendered as a condition precedent to relief inequity. Where the legislature has prescribed certain proceedings as preliminary to a valid assessment and a valid levy, the citizen, so far as they affect his constitutional rights at least, has a valuable interest in them. If these steps are disregarded, I am at a loss to know on what principle the court will indulge the presumption that what is in mere legal effect a mere arbitrary exaction is exactly commensurate with the debt the citizen owes to the public. If there was no consummated legal assessment in this case then there is no tax for which judgment should be rendered. Is it essential to the validity of an assessment that the statutory opportunity for a hearing should have been accorded to the taxpayer? On principle I am clear that it is. Until such an opportunity is given, the tax proceedings, as to the assessment, are in their incipiency. Preliminary steps have been taken to make a valid assessment, but they have not been consummated. The sovereign, through its agent, the assessor, has apprised the citizen by the assessment and its proper return to the proper office that in the apportionment of the levy his property will be valued at a certain sum. So far he has had no hearing. The law provides for this at a later date. Is the arbitrary valuation of the assessor, without the chance of contesting its accuracy, a complete assessment? If so, then the allegation of the plaintiff is a final judgment against the defendant without any hearing or opportunity to to be heard. The assessment is no more than the statement of the case of the public against the citizen as to the valuation of his property as the basis of taxation. Fina] judgment can be pronounced—the assessment can be regarded as final and complete—only after an opportunity for hearing has been accorded. Then, and only then, is there a legal assessment. In the interim the proceedings with respect to the assessment are unfinished. The doctrine that the taxpayer must either tender or pay or must aver that the tax is unjust, although the right toa hearing has been denied by the failure of the proper board to assemble at the proper time and place for that purpose, is sub-