Page:North Dakota Reports (vol. 2).pdf/183

 versive of the statute, and takes from the citizen his constitutional right to a hearing in the very tribunal which the legislature has prescribed. The right to be heard in the tribunal so designated is as much a part of his constitutional right as the right to be heard at all. It is the only tribunal in which the hearing can be lawfully had. The legislature with full and exclusive authority over the subject (no constitutional right being violated), have constituted it for that express purpose, to the exclusion of all other tribunals. If the citizen has no constitutional right to be heard there he has no constitutional right to be heard at all. But equity assumes that this arbitrary exaction is just, and literally forces the tax payer to litigate its justice in a different tribunal, taking from him the constitutional right to contest it before the only body to which the legislature has delegated such power, and casting upon him the burden of showing that this arbitrary valuation is unfair. If he will not litigate it there, he must pay or tender the pretended tax, or under a statute like ours, judgment for this pretended tax will be rendered, or he must submit for all time to have the market value of his property impaired by a cloud upon his title. It seems te my mind anomalous to treat in equity the fiat of the assessor as everything in the constitution of a legal assessment and the right to be heard as nothing. The essence of a just and lawful assessment is not a mere valuation of property, but a valuation which has or could have been subjected to examination before a tribunal or officer upon due notice to the taxpayer. If the law had failed to provide any hearing no one would seriously urge the legality of the tax, even in equity. But it cannot matter how this constitutional right is invaded. The opportunity for a hearing is as effectually denied when the proper tribunal fails to assemble as when there is no provision in the law for a hearing.

There is nothing in the suggestion that the plaintiff should have shown that he made an attempt to be heard. The law dogs not require that the citizen should perform an idle ceremony to protect a constitutional right. His appearance where and when the board should have assembled would not have secured him a hearing. He was as effectually debarred of a