compel the old board to reconvene, and correct this mistake. Assuming that the board, in this case, acted in good faith, they simply made a mistake in omitting these votes from the canvass.

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It is further insisted that no proper demand was alleged or proven on the trial. There is in the affidavit the general allegation of demand and refusal, which is not denied. We think this is sufficient, if a demand in such cases is necessary. But we are of the opinion that where, as in this case, the duty is clearly and specifically imposed by law, and the defendants have neglected to perform the duty as required by law, no special demand is necessary. "The law itself makes the demand, and the omission to perform is the refusal. High, Extr. Rem. § 41; State v. County Judge, 7 Iowa, 186; State v. Bailey, Id. 390; Com. v. Commissiouers, 37 Pa. St. 237; Humboldt Co. v. Churchill Co., 6 Nev. 30. But as the judgment in this case was rendered by the court upon the theory that the board of canvassers in said Sully county was not properly constituted or organized, and that another officer should be added to said board, and that it should then proceed to canvass the returns from all the voting precincts, for all officers voted for, and upon all questions voted on, at the said election held on November 4, 1890, in said county, the same must be modified and made to conform to this opinion by striking out all of said judg. ment after the words, "considered, ordered, and adjudged that the peremptory writ of mandamus issued herein to the said defendants James Lawrence, J. H. Maxwell, and Thomas Mateer," and in. serting, "as members of the board of county canvassers of said Sully county, ordering and commanding them, as members of said board, that they do reconvene and reassemble as such board of canvassers at the court-house in the town of Onida, the county-seat of Sully county, state of South Dakota, on the ▬▬▬▬ day of ———, 1891, at ten o'clock A. M. of that day, [date to be inserted by the judge of the court below,] and that they do then and there at once proceed to open and canvass the returns from the various voting precincts of said Sully county, including precinct number twenty-six, (26,) of the votes cast in all the precincts in said county at the general election held in said connty on the 4th day of November, 1890, as returned to the county auditor of said county, and as shown by the poll-books returned to said county auditor from said precincts by the judges of election therein, so far as the same relate to the office of sheriff of said county; and that they do then at once proceed, as said canvassers, to make an abstract of all the votes cast at said election in the several precincts of said county for persons for the office of sheriff of said county, as shown by the poll-books from all the precincts in said county, to-wit, precincts from number one (1) to number twenty-eight, (28,) inclusive: and commanding them further to sign and certify to said abstract under the seal of the said county auditor, and to forthwith deposit the same in the office of said county auditor of Sully county. Done

AVANT et al. v. FLYNN, Treasurer. (Supreme Court of South Dakota. May 28, 1891.) VALIDITY OF TAX ASSESSMENT INJUNCTION— EQUALIZATION-NOTICE.

1. The failure of the proper officer, who administered the oath to the assessor, as required by the statute, to attach his signature and affix his seal of office at the time the assessment roll is filed in the office of the clerk, is a mere irregularity, which will not authorize a court of equity to set aside a tax levied on such an assessment roll.

2. The collection of a tax will not be restrained on the ground merely that it is irregular or erroneous. Errors in assessment do not render the tax void. As a rule, they do not constitute any reason whatever against the tax being enforced.

3. When a law creating a board of equalization provides that it may add to the assessment roll such property as has been omitted by the owner or assessor, but which fails to provide that personal notice shall be given the owner of the time or the place that the board will or contemplate making such addition to the assessment roll, personal notice must be given to the owner of the property before such assessment will be legal; but if the owner or his agent or representative be present at the time such addition was made to the roll, and knew of such addition at the time it was made, such knowledge is equivalent to personal notice.

(Syllabus by the Court.)

Appeal from circuit court, Custer county. Chauncey L. Wood, Buel R. Wood, and J. W. Fowler, for appellants. Edmund Smith and H. D. Reynolds, for respondent.

BENNETT, J. This was an action to restrain the defendant, as collector of taxes of Custer county, from collecting certain personal taxes levied on the property of plaintiffs for the year 1887. A temporary injunction was issued. The allegations of the complaint are in substance as follows: That on the 1st day of April, 1887, the plaintiffs were the owners of 237 head of cattle of taxable age, and were owners of said cattle on the 17th day of May of that year; that the county assessor applied to the plaintiffs to have them list all their property subject to taxation, which they did, and its value was $2,350, but by mistake of the assessor the number of cattle was written down as 120 instead of 237; that afterwards the assessor returned his assessment roll as made for that year, but failed and neglected to make and subscribe to the oath certified by the officer administering it, as provided by law, and failed and neglected to take and subscribe to any oath as the law directs and requires to be attached to the assessment roll, but it was returned without any oath being attached to it; that on the 6th day of July, 1887, the board of commissioners of said county, while siting as a board of equalization for said county, proceeding upon said assessment roll, did, against the protest of the plaintiffs, increase and raise the valuation of plaintiffs' cattle,

listed at $2,350, to the sum of $6,440, and increased the number of cattle from 237 to 400 head, making the number 163 more than the plaintiffs owned on the 1st day of April, 1887; that by the said unverified assessment roll, and the increase of valuation, and without their knowledge and approval, did increase their taxation in the aggregate sum of $250; that the plaintiffs, as evidence of their good faith, are willing and do tender the full amount of their taxes to be levied on the valuation of $2,350, which is the full value of all their personal property subject to taxation, but ask that the balance be declared invalid, and the collector be restrained from collecting the same. The auswer of the defendant admits the listing of 237 head of cattle, but denies that the plaintiffs fairly and fully listed all of their cattle, and that their value was only $2,350; admits that the assessor did fail and neglect to make and subscribe the oath, but denies that he returned said assessment roll without taking or subscribing to any oath concerning the same. The answer also admits that on July 6, 1887, the board of equalization of said county did increase and raise the valuation of plaintiffs' cattle to the aggregate value of $6,445, and the number from 237 to 400; denies the invalidity of the assessment roll and assessment lists returned by the assessor for the year 1887; denies that the assessor neglected to verify the assessment roll, as required by law; denies that the board of equalization unlawfully and against the protest of the plaintiffs did raise and increase the number or the value of the plaintiffs' cattle, but alleges that the plaintiffs were the owners of 400 head of cattle of taxable age on the 1st day of April, 1887. The cause was tried by the court sitting as a jury. The temporary injunction was dissolved, and the complaint was dismissed. From which judgment and order an appeal was perfected.

The appellants, upon the record and assignment of errors, insist upon the consideration of the following questions. as involved in the case: (1) If an assessment roll is not verified, as provided by statute, when it is returned, is it valid or is it void? (2) If void, has the board of com. missioners any jurisdiction to levy a tax on the property enumerated in it? (3) What are the duties and powers of a board of equalization? (4) Is legislation empowering a board of equalization to increase the amount and value of property listed by a tax-payer without notice, constitutional? In the case at bar the undisputed evidence shows that the assessment roll was actually verified and signed by the assessor, but the evidence does not disclose the exact day upon which the roll was returned to the office of the county clerk. The testimony of Joseph Pilcher shows that he was the register of deeds and ex officio county clerk of Custer county for the years 1887 and 1888; that the assessor signed his name to the affidavit on the 5th day of July, 1887; and that the oath was administered to the assessor by the said Joseph Pilcher on that day, but that he failed to subscribe his name on that day, but afterwards, in July, 1888, he

The

did attach to the affidavit the words: "Subscribed and sworn to before me this 5th day of July, 1887. [Signed] J. E. PILCHER, County Clerk." The question then arises, was the failure of the officer who administered the oath to attach his signature and affix his seal of office, at the time the assessment roll was filed in the office of the clerk, a mere irregularity which did not prejudice or tend to prejudice the plaintiff in respect to a substantial right, or was it such an irregularity as authorizes a court of equity to set aside the tax levy as void? Section 1551, Comp. Laws, provides that "the assessor shall take and subscribe an oath, to be certified to by the officer administering it and attached to the assessment roll.' It will be noted that no specific time is required for the assessor to take and subscribe the oath, nor for the officer who administers it to certify to it. In the absence of such specific demand it would, however, be presumed that the assessor would take and subscribe the oath, and the officer attach his certificate at the time of or before filing the assessment roll in the proper office. Still, if the oath required by the statute was taken by the assessor, and through inadvertence, carelessness, or other cause the officer administering the oath should fail to attach his certificate to the assessment roll, would this irregularity make the assessment void? We think not. contention of the appellants is to the contrary, and in support of their position we are cited to the cases of Marsh v Supervisors, 42 Wis. 502; Morrill v. Taylor, 6 Neb. 236; and Lynam v. Anderson, 9 Neb. 367, 2 N. W. Rep. 732. The pertinence and applicability of a decision is to be ascertained by reference to the statute upon which the decision is based. The statute of Wisconsin in relation to the affidavit of the assessor to the assessment roll is as follows: “Sec. 1063. The assessor or assessors shall annex to the assessment roll, when completed, his or their affidavit, to be made and certified in the following form: ** No assessor shall be allowed in any court or place, by his oath or testimony, to contradict or impeach any affidavit or certificate made or signed. by him as such assessor." The statute requires that the assessor's affidavit shall be made and annexed at the time the assessment roll is completed. The statute of Nebraska is the same as section 1551 of our Compiled Laws. In the case of Marsh. v. Supervisors, 42 Wis. 515, an assessment roll was attacked, among other things, because neither of the assessors took and subscribed the oath annexed to the assess ment roll as required by law. The court says: "It is apparent that the failure of an assessor to annex his affidavit and return it with the assessment roll is in disregard of a material provision of the statute, and defeats a material safeguard provided for the integrity of the assessment. When the affidavit is omitted in fraud of the statute because the assessment was not made in compliance with the statute. as is the case here beyond reasonable doubt, there could be little difficulty in holding the assessment roll void for want of it; for the statute does not authorize

an unverified return, and the assessment roll is prima facie positively valid or void when returned, and the verification of the affidavit cannot be supplied by evidence aliunde. The assessment may be impeached by evidence aliunde against the affidavit when annexed, (Hersey v. Supervisors, 37 Wis. 75;) but the affidavit cannot be supplied, (Iverslie v. Spaulding, 32 Wis. 394.) We were at first disposed to doubt in this case whether, when the affi. davit is omitted by accident, and evidence is given to supply its place in support of the assessment, that it was made in good faith, in the manner which the affidavit should have verified, the assessment might not be upheld. But the statute authorizes no assessment roll without the affidavit,sanctions none; and it is dangerous to relax statutory rules in matters so vital, going to the integrity of the assessment and its compliance with the constitution." The court then held that an assessment not verified by the statutory affidavit of the assessor cannot be otherwise verified, and that it was not within the statute, and was not valid for any purpose. We have quoted thus liberally from the opinion because it is in a great measure upon this decision that the contention of appellants is based. But counsel no doubt have overlooked the fact that this case has been virtually overruled by later decisions of the supreme court of Wisconsin: First. In the case of Fifield v. Marinette Co., 62 Wis. 537, 22 N. W. Rep. 707, 708, where the court says: "The contention of the learned attorney is based upon what was said by the late learned chief justice in Marsh v. Supervisors, 42 Wis. 502. It must be admitted that the chief justice made use of language which fully justifies his contention in the case at bar; but, if we look into the facts which were before the court in that case, it will be seen that there was no necessity for a discussion of the question whether a mere omission of an assessor to verify his assessment roll rendered the tax apportioned upon such assessment roll unequal and necessarily unjust. The evidence in that case showed that in making the unverified assessment rolls involved in that case the assessors had proceeded in such a way as to make the assessment unequal. * * * In that state of the evidence it was wholly unnecessary for the court to determine what would be the effect of a mere omission to verify the assessment roll." Thus it will be seen that the same court which rendered the decision in the case of Marsh v. Supervisors, 42 Wis. 502, have held that all that portion of that decision relating to the invalidity of an unverified assessment roll is in the nature of obiter. Upon a further examination of that case it will appear that the counsel for the appellant did not attach to that fact much importance, because it was not argued, and but one authority was cited in support of the proposition,-Van Rensselaer v. Witbeck, 7 N. Y. 517

Second. In a still later case, (Railroad Co. v. Lincoln Co., 67 Wis. 478, 30 N. W. Rep. 619,) the validity of the assessment of 1876its existence even-is denied for the reason that the document in the clerk's office of V.49N.w.no.1-2

the town, in which the lands were situated, purporting to be the assessment roll of such town for 1876, bears no signature of or verification by the assessor; neither does it appear to have been made by him. The court says: "Do the irregularities and defects in the assessment and levying of the taxes of 1876, or either of them, render the tax proceeding so utterly null and void that it can correctly be said that no taxes were assessed against the plaintiff's land in that year? * * We conceive that the judgment of this court in Fifield v. Marinette. Co., 62 Wis. 532, 22 N. W. Rep. 705, answers the above question in the negative. In that case, as in this, the document purporting to be the assessment roll, and which was the foundation of all the subsequent tax proceedings, was not signed or otherwise verified by the assessor. It was held that the tax certificates were not necessarily void in equity because of such omission.

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Counsel for the plaintiff relies mainly upon certain language found in the opinion of the late chief justice in Marsh v. Supervisors, 42 Wis. 502, and Philleo v. Hiles, Id. 527, to support the opposite view. This language is considered and restricted or explained in Fifield v. Marinette Co., 62 Wis. 532, 22 N. W. Rep. 705. It has ceased to be authority for the proposition mai". tained by counsel. We reach the conclusion, therefore, that the assessment and tax levy under consideration are not nullities. These later decisions of the Wisconsin supreme court effectually overrule and dispose of the case of Marsh v. Supervisors, 42 Wis. 502, as an authority upon the invalidity of an unverified assessment roll, and in our opinion the later decisions are founded on better reason, and estab lish the safer rule,-that such assessment rolls are not nullities. A tax will not be restrained on the ground merely that it is irregular or erroneous. Errors in the assessment do not render the tax void, nor are they necessarily injurious. As a rule, therefore, they do not constitute any reason whatever against the tax being enforced. Moreover, the law has provided remedies for all such mere irregularities and errors as do not go to the foundation of the tax, and parties complaining must be confined to these. Cooley, Tax'n, 776. From this view of the first question, it becomes unnecessary to consider the second.

As to the duty of the board of equalization in regard to changing the assessment without giving formal notice to the taxpayer. The statute (sections 1584, 1585, Comp. Laws) creates à board of equaliza. tion for each county, and requires it to meet on the first Monday in July of each year for the purpose of equalizing and correcting the assessment roll as filed by the assessors; and, in order to equalize and correct such assessment roll, it may change the valuation and assessment of any property, real or personal, upon the roll, by increasing or diminishing the assessed valuations for the purpose of rendering taxation uniform, provided the aggregate assessment is not materially changed. The board may also place upon and add to the assessment roll any property, real or

personal, subject to taxation, which has been omitted, either by the owner or the assessor, and place upon the same a reasonable, just, and uniform taxation. The board has the power to equalize the classes of property generally, and make the taxes on such uniform. This is the general purpose of equalizing boards, and it is a salutary and wise provision of the statute. But while the statute provides that it may add to the assessment roll such property as has been omitted by the owner or assessor, it fails to provide that notice shall be given to such person that the board will or contemplate making such addition; nor does it provide the manner in which such property shall be valued, | or the amount of the same be ascertained. The appellants contend that such a statute is in violation of the constitution of the state. This contention is not without some force. In the case at bar it appears from the record that the board of equalization did make new and largely increased assessments of appellants' personal property, raising the number of their cattle from 237 to 400, and increasing the value from $2,350 to $6,440. The acts of the board appear valid if a board of equalization can reassess property without giving notice to the owner. It no doubt is contended upon the part of the board that the statute gives absolute power to reassess property as it may choose. As the statute fixes the time when the board shall meet, it may exercise its powers without giving notice to the owner of property. This position seems untenable, because, if this were the case, it would be incumbent upon every tax-payer in the county to be at the meeting of the board, and watch their proceedings during their session, in order to protect his right of property. It certainly would be dangerous to establish such a precedent, and it can hardly be supposed that the legislature intended to confer such a power upon the board; and, if it did, we could hardly uphold such an enactment. The constitution provides that "no person shall be deprived of property without due process of law." We need not enter into any elaborate discussion of the meaning of the words "due process of law." This has been done in numerous judicial decisions. These words are held, under the liberal interpretation given to them, to protect the life, liberty, and property of the citizen against acts of mere arbitrary persons in any department of the government. Westervelt v. Gregg, 12 N. Y. 212; Rowan v. State, 30 Wis. 146. Mr. Justice EARL, of the court of appeals of the state of New York, in the case of Stuart v. Palmer, 74 N. Y. 191, says: "It may, however, be stated generally that due process of law requires an orderly proceeding, adapted to the nature of the case, in which the citizen has an opportunity to be heard, and to defend, enforce, and protect his rights. A hearing or an opportunity to be heard is absolutely essential. We cannot conceive of due process of law without this." It was held accordingly that a law imposing assessments for a local improvement, without notice to the owner of the assessed property, and a hearing

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or an opportunity to be heard, was unconstitutional. So, in People v. Supervisors, 70 N. Y. 234, it is said: "Due process of law requires that a party shall be properly brought into court, and that he shall have an opportunity when there to prove any fact which, according to the constitution and the usages of the common law, would be a protection to his property. Due process of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty, or property, in its most comprehensive sense, to be heard, by testimony or otherwise, and to have the right of controverting by proof every material fact which bears on the question of right in the matter involved. If any question of fact or liabil ity be conclusively presumed against him, this is not due process of law. See Land Co. v. Buffalo Co., 7 Neb. 258; Hutson v. Protection Dist. (Cal.) 16 Pac. Rep. 549,where it is held that in case of an assessment an opportunity should be given the owner to be heard, otherwise it is “without due process of law." In California the statute requires the board of equalization to meet on the first Monday in August, and provides that it may hold sessions from time to time until the second Monday in September. It also gives the board power to add to or deduct from any valuation, whether the said sum was fixed by the owner or the assessor. This statute came before the supreme court of that state in the case of Patten v. Green, 13 Cal. 329, where the court says: "It would be a dangerous precedent to hold that an absolute power resides in the supervisors to tax land as they may choose without giving notice to the owner. It is a power liable to great abuse. The general principles of law applicable to such tribunals oppose the exercise of any such power. The publication of notice of the sittings of the board amounts to no protec tion to the owner, for the sessions of the board are or may be from the first Monday in August until the second Monday in September, and it would hardly be expected that every tax-payer is to wait upon the board all this time to see if his taxes are to be increased. There can be no considerable difficulty in giving this notice, and we think the best interests of the state require it. Any other construction seems to us to be at the sacrifice of those great principles upon which private right reposes for security. In the case at bar, if the facts had shown that the appellants' assessments were raised without notice, we should have further considered their contention on this point, but upon examination of the record we find that at the time of the action of the board of equalization in raising their assessment they were present, and protested against such action. In the fifth paragraph of appellants' complaint we find the words: "That on the 6th day of July, 1887, the board of Custer county, while sitting as a board of equalization, * did unlawfully, and against the protest of these plaintiffs, increase and raise the valuation of plaintiffs' said cattle," etc. The plaintiffs certainly could not protest against

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the acts of the board unless they were present by themselves or an agent, or at least had full knowledge of what they were protesting against; and this allegation of their own must be taken as conclusive, in the absence of proof to the contrary. Again, in the testimony of John V. Avant, it appears that the witness was present at the meeting of the board when the assessment was raised, and he says: "The board of equalization increased the number to 400 head. I was there, and protested against it." It is true that this witness is not one of the appellants, but the record shows that he was the father of them, and living with them, and an active employe of theirs, and appeared to take a deep interest in their affairs. Again, the record shows that upon the trial the cause was submitted to the court, and one of the findings of fact was" that plaintiffs were present, and had notice" of the action of the board. A finding of fact must always be based upon evidence, and we think this finding of the court was based upon such evidence as would warrant it in so finding. The certificate of the clerk to the bill of exceptions on the record does not show that the evidence set out was all the evidence introduced at the trial. Consequently the well-known rule will prevail that, in the absence of such a certificate, the appellate court will presume that there was evidence to support a verdict or a finding of fact by the court. The objection to the statute creating a board of equalization and defining its duties, in that it provides no notice to the tax-payer of the intention to raise or alter his assessment, has no application or force in the case at bar, because at the time the raise was made the appellants enjoyed all the rights and privileges they could have had if a formal notice had been served upon them. No error appearing to the detriment of the appellants in the trial of the cause, the judgment of the court below is affirmed. All the judges concurring.

P. C. HANFORD OIL Co. v. FINDLAY. (Supreme Court of Wisconsin. June 3, 1891.) ACCOUNT-PLEADING-COMPLAINT - Departure.

1. In an action for a balance alleged to be due on an account, where a bill of particulars shows the items of goods sold defendant and credits for payments and rebates, and defendant's answer admits the items of goods purchased, but claims greater credits for rebates, it is not error to allow plaintiff to allege in his reply, and prove, that the parties had agreed on a rebate of a certain sum, which, being deducted from the amount of the account, left a certain amount due plaintiff, as such reply is consistent with the complaint.

2. Where it appears that the parties had agreed as to the amount due plaintiff after deducting the agreed rebates, a judgment for plaintiff for that amount is proper.

Appeal from circuit court, Dane county; ROBERT G. SIEBECKER, Judge.

Olin & Butler, for appellant. Pinney & Sanborn, for respondent.

COLE, C. J. The material question in this case is, as we view it, fairly raised upon the pleadings. The action is to re

cover a balance alleged to be due on an account for certain gasoline and kerosene oil furnished the defendant between September 3, 1888, and December 2, 1889. There is a bill of particulars annexed to the complaint, and made a part of it, which shows the number of barrels furnished, and the quality of oil in each barrel; also the amount and description of oil sold, and the price per gallon, together with the total amount of oil so sold, and the price per gallon, during the period, and the sum the defendnat agreed to pay for the same. After crediting the defendaut with payments made, and allowing rebates on the oil sold, the plaintiff claims a balance due on the account of $650.29 for which sum judgment is demanded. The defendant filed an answer, which, in effect, admits that the quantity of kerosene oil and gasoline set out in the bill of particulars was purchased, but alleged that there was an agreement between him and the plaintiff that there was to be allowed a greater rebate on the oil than had been given him. The cause was referred to a referee to try and determine, and the defendant asked and obtained leave before the referee to file an amended answer so as to set up the defensive matter in the original answer by way of counter-claim; still alleging in such amended answer that, under the agreement, the defendant should have been allowed, on the account with the plaintiff, a rebate or deduction of two cents per gallon on the amount of oil charged in the bill of particulars for kerosene which was purchased in bulk, whereas the plaintiff had allowed him a rebate of only one-half a cent per gallon on such oil, and had charged at least a cent more per gallon than the market price on a specified number of gallons of gasoline and kerosene sold, on which the plaintiff had not allowed the proper amount of rebate per gallon according to the terms of the alleged agreement. To this answer the plaintiff filed a reply to the counter-claim, alleging that, in the month of March, 1889, it was agreed by the parties that the rebate on bulk oils,and on all oils purchased by the defendant of the plaintiff, should be one-half a cent a gallon, and that this had been allowed the defendant in the account; and also that on January 11, 1890, the parties agreed upon the further rebate on the oil purchased of a given sum, which, being deducted from the amount claimed to be due on the account, left the sum of $473.65 still due, which the plaintiff was willing to accept in full discharge of its claim against the defendant. We think there was no error in allowing the amended answer or the reply thereto. In various ways the objection was taken that the plaintiff had no right to set up and prove this agreement or settlement as to the amount of rebate which should be allowed the defendant on the oil furnished. It is insisted that it is equivalent to setting up a new cause of action in the reply, which was not mentioned or referred to in the complaint, and was inconsistent with the cause of action there counted on; in other words, it is said that the reply is really founded on an account stated, which is different from the original