
    The State of Ohio ex rel. Hasbrook v. Lewis, Auditor of Hamilton County. The State of Ohio ex rel. Weber v. Lewis, Auditor of Hamilton County.
    
      Decennial board of equalization — Receives in due time, from county auditor, returns of district assessors — And acts under section 2814', Rev. 8tat. — Board thereby acquires jurisdiction of equalizing valuations — Board may exercise discretion— Not controlled by court — County auditor must transmit to state auditor returns of district assessors as passed upon by equalization board — County auditor bound by same — Conceded facts prevail over general allegation — Pleading.
    1. Where the county auditor, in due time, lays before a decennial board of equalization, the returns made by the district assessors, and such board thereupon proceeds to act upon such returns for the purpose of equalization - under section 2814, Revised Statutes, it thereby acquires jurisdiction of the subject matter of equalizing such valuations of real property, and such jurisdiction will continue to the completion of the work of such board, even though the board considers matters not named in the statute; the essential requirement being, that the board shall raise or reduce the valuation of each tract or lot of real property, to such an amount as, in the opinion of the board, shall be the true value thereof in money.
    2. Such decennial board is free to form such opinion as to valuation, under’ the sanction of an official oath, and such opinion cannot be controlled by a court or an officer.
    3. Such decennial board having raised or reduced the valuations of real property to such an amount as in its opinion is the true value thereof in money, it is the duty of the county auditor to make out and transmit to the auditor of state, a proper abstract as returned by the several district assessors, together with such additions as have been made thereto; and the county auditor has no authority to omit such additions.
    (Decided March 12, 1901.)
    Petition in Mandamus.
    The petition on relation of John A. Hasbrook is as -follows:
    
      “The relator, John A. Hasbrook, says that he is the owner of real estate in Sycamore township, Hamilton county, and a taxpayer of said county; that Eugene L. Lewis is and was on the fifth day of November, 1900, the duly elected and qualified auditor of Hamilton county, Ohio; that the question involved in this action is one of a common or general interest of many persons, who are similarly situated and who are very numerous and that it is impracticable to bring them all before the court; and that by virtue of said office it was the duty of said auditor on or before the first Monday of November, 1900, to make out and transmit to the auditor of state an abstract of the real property of each township in said county, setting forth:
    “First. The number of acres, exclusive of town lots, returned by the several assessors of his county, with such additions as have been made thereto.
    “Second. The aggregate value of such real property, other than town lots, as returned by the several assessors of his county, inclusive of such additions as had been made thereto.
    “Third. The aggregate value of the real property in each township of his said county, as returned by the several assessors, with such additions as had been made thereto.
    “The relator further says that said defendant, on or about the fifth day of November, 1900, did make out and transmit to the auditor of state a pretended abstract of the real property of each township in said Hamilton county, in which pretended abstract he purported to set forth the number of acres exclusive of town lots, returned by the several assessors of said county of Hamilton with such pretended additions as had been made thereto; and the aggregate value of such real property, other than town lots as returned by the several. assessors of said county, inclusive of such pretended additions as had been made thereto; and the aggregate value of real property in each township of said county as returned by the several assessors, with such pretended additions as had been made thereto.
    ' “And the relator further says that the abstract so made out and transmitted by the defendant, auditor aforesaid, to the auditor of state, was illegal, invalid and void, because of the additions made to the valuation of the real property in said county, by the decennial county board for the equalization of the value of the real property, within the county of Hamilton, exclusive of the city of Cincinnati, which city is a city of the first grade of the first class, for the reasons following, to-wit:
    “The decennial county board of equalization for the said county of Hamilton, which was duly appointed and qualified, and consisting of said defendant, county auditor as aforesaid, the county surveyor and the county commissioners, did not, in the performance of its duties prescribed by the statute, proceed to equalize the valuations laid before said board by the defendant, auditor of said county of Hamilton, of the returns made by the district assessors of said county, with the additions which he had made thereto, so that such tracts or lots of land in said county should be entered on the tax list at their true value, and did not observe the rules prescribed by the statute, requiring them:
    “First. To raise the value of such tracts and lots of real property as, in their opinion, had been returned below their true value, to such price or sum as they believed to be the true value thereof, agreeable to the rules prescribed for the valuation thereof; and
    
      “Second. To reduce tlie valuation of such tracts and lots as, in tbeir opinion, had been returned above tbeir true value, as compared with tbe average valuation of tbe real property of said county of Hamilton, having due regard to their relative situation, quality of soil, improvement, natural and artificial advantages, possessed by each tract or lot.
    “But tbe relator says that on tbe contrary tbe said decennial county board óf equalization in utter and entire disregard and violation of its duty as prescribed by tbe statutory rules, proceeded to and did illegally and arbitrarily add to tbe valuation of tbe returns made by tbe said district assessors amounting in said county of Hamilton, exclusive of Cincinnati township, in tbe aggregate to $2,224,770, by entirely ignoring, rejecting and disregarding said returns of .said district assessors and by improperly taking and assuming as the basis of said valuation the tax list and duplicate of tbe valuation of real property in said county of Hamilton for tbe year 1899 and adding thereto, without regard to the true valuation of any lot or tract of land, a sum which amounted in tbe aggregate to $700,-700; that said county board of equalization, instead of following any of tbe statutory rules prescribed for tbe valuation of real property, so as to cause a just and equitable equalization of tbe values thereof, as required by law, either from actual view of from tbe best sources of information within tbeir reach, entirely neglected to view any of the several lots and tracts of land in tbe several townships in said county of Hamilton outside of tbe city of Cincinnati, or to obtain and use any information in regard thereto; but on the contrary appointed a number of clerks to the number of about forty, and under tbe advice, instruction and supervision of said defendant, county auditor as aforesaid, placed before them, said clerks, the tax duplicate of real property in said townships for the year 1899 and instructed them to disregard and ignore the returns of the district assessors and to add to the values as they appeared upon said duplicate of 1899; that said clerks acted upon said instructions and did indiscriminately, arbitrarily and without exercise of any judgment or knowledge of the values, add to the valuations as they appeared upon the tax duplicate of real property for said year 1899; that said clerks were directed by said board and said auditor not to reduce or cause any reduction to be made from said valuations of said duplicate of 1899; that no reductions were in fact made; that no equalization of values, as required by law, were in fact made or attempted to be made, and that the values as they appeared on the abstract of said county auditor so transmitted as aforesaid, to the said state board of equalization, were made up by said clerks adding sums indiscriminately and without rule, examination or judgment to said valuations as they appeared upon said tax duplicate for the year 1899; that said board did not, collectively or otherwise, visit, examine or view any of the tracts or lots of land in said townships or attempt in any other way, than as hereinbefore described, to ascertain the values to be placed,- under the rules prescribed by law, upon the several tracts and lots of land in said townships; that said board, at the completion of the labors of said clerks, accepted the work of said clerks as the action of said board for the equalization of the valuations of said tracts and lots of land; and that said result and conclusion were accepted by said defendant, county auditor, as aforesaid, with full knowledge of the manner in which the same had been reached, and were, in violation of his duty as said auditor, transmitted to said state board as a true abstract of the valuations of tracts and lots of land in the several townships of Hamilton county.
    “Whereby, in reaching said conclusion and result, in the manner and by the means aforesaid, said board did not raise the valuation of such tracts and lots of real property in said county as, in its opinion, had been returned below its true value, to such price or sum, as, in its opinion, had been returned below their true value, to such price or sum, as they believed to-be the true value thereof; agreeably to the rules prescribed for the valuation thereof; nor did they reduce the valuation of such tracts or lots, as, in their opinion, had been returned above their true value, as compared with the average valuation of the real property of said Hamilton county, having due regard to their relative situation, quality of soil, improvement, natural and artificial advantages possessed by each tract or lot; but, on the contrary, illegally and arbitrarily increased said valuations, amounting in the aggregate to the sum of $2,224,770 aforesaid.
    “And the relator further says that the said decen: nial county board of equalization did not equalize the valuations of the real property of said county of Hamilton, as shown by the returns of the said district assessors, so that each tract and lot of real estate contained in said county, was entered on the tax list at its true value.
    “And the relator says that the said defendant, Eugene Lewis, as such auditor of Hamilton county, aforesaid, in violation of the duty, specially enjoined upon him by law, resulting from his said office, made out and transmitted to the auditor of state, an abstract of the real property of each township of said county of Hamilton, including and containing said invalid, illegal and void additions so made by said decennial county board of equalization, and has neglected, failed and refused, and still neglects, fails and refuses to make out and transmit to tbe auditor of state, an abstract of tbe real property of each township in said county of Hamilton, of the returns made by said district assessors, without the additions so illegally made by said boards.
    “And the relator says that, by the ordinary course of the law, he has not adequate remedy against the said Eugene Lewis, auditor aforesaid, for his said neglect, failure and refusal.
    “The relator therefore prays that the defendant, Eugene Lewis, auditor of Hamilton county aforesaid, may be compelled to make out and transmit to the auditor of state an abstract of the real ■ property of each township of Hamilton county, .as made by the. district assessors of said county, without the additions made thereto, by said decennial county board of equalization, by a mandamus from this court; that an alternative writ of mandamus may first issue, requiring the defendant to show cause, by a day to be named therein, why he does not do so; that on final hearing a peremptory writ of mandamus may be awarded to compel the defendant to make out and transmit said abstract; and that he may have such other and further relief as the nature of the case may require.”
    The petition on the relation of George Weber, complains against the auditor, as to the acts of the decennial city board of equalization of the city of Cincinnati, and it is in substance the same as the above petition, except that instead of the averments as to the acts of the county board of equalization employing forty clerks, etc., there are substituted averments as to the acts of the decennial city board of equalization as follows:
    “But the relator says that, on the contrary, said decennial city board of equalization, in utter and entire disregard and violation of its duty as prescribed by said statutory rules, proceeded to, and did, illegally and arbitrarily and not from actual view or from the best sources of information within their reach as required by law, add to the valuation of the returns made by the said district assessors, amounting in said city of Cincinnati, in the aggregate to $21,304,460, but acting under the advice and direction of said defendant county auditor and as aforesaid, by ignoring and rejecting and disregarding said returns of said district assessors, and by taking and assuming as the basis of said valuation, the tax list and duplicate of the valuation of real property in said county of Hamilton for the year 1899, and adding thereto without regard to the true valuation of any lot or tract of land, as fixed and returned by the district assessors, a sum which amounted in the aggregate to $11,002,610. In reaching said conclusion and result, said board did not raise the valuations of such tracts and lots of real property in said city as, in its opinion, had been returned below their true value, by said district assessors, to such price or sum, as, in its opinion, had been returned below their true value to such price or sum, as they believe the true value thereof; agreeable to the rules, etc., nor did they reduce the valuation of such tracts or lots, as in its‘opinion, had been returned above their true value, by said district assessors, as compared with the average valuation of the real property of said city of Cincinnati, having due regard to their relative situation, improvement, natural and artificial advantages, possessed by each tract or lot; blit on the contrary illegally and arbitrarily increased said valuations over and above the duplicate of 1899 amounting in the aggregate to the sum of $11,-002,610 aforesaid.
    “And the relator further says that said decennial city board of equalization did not equalize the valuations of the property of said city of Cincinnati as shown by the returns made by the said district assessors, so that each tract and lot of real estate contained in said city was entered on the tax list at its true value; but on the contrary wholly ignored and rejected the valuation as aforesaid returned by the said district assessors.”
    The charge of the petition as to the violation of duty by the auditor, is the same in both petitions, and from there on to the end, including the prayer.
    The defendant, the county auditor, interposed a general demurrer to each petition.
    
      Foraker, Outcalt, Granger c£ Prior; Paxton & Warrington; George B. Okey and D. F. Pugh, for relators.
    We take it to be the settled rule that the powers of officers, such as constitute boards of equalization, under our statute, must be strictly pursued. They have such powers only as are expressly delegated, and such additional incidental powers as may be necessary to carry the delegated powers into effect. Mix v. People, 72 Ill., 241; Webster v. People, 98 Ill., 343; Merrill v. Humphrey, 24 Mich., 170.
    In proceedings under statutory authority whereby a man may be deprived of his property, the statute must be strictly pursued and compliance with all its pre-requisites must be shown. D’Antignac v. Augusta, 31 Ga., 700; Sea Isle City v. Board of Assessors, 50 N. J. L., 50.
    
      Courts of equity have frequently intervened to control and correct the wrongful acts of like officers and boards where they exceeded their authority, or where their duty has been recklessly disregarded, or where they have acted through prejudice, or where their acts have been arbitrary and unreasonable. Railway Co. v. Cole, 75 Ill., 591; Walsh v. King, 74 Mich., 350; Brauns v. Green Bay, 5 Wis., 115; Cooley on Taxation, (2d ed.), 746 and 784; Rawson v. Schott, 7 Circ. Dec.; 256; 14 C. C. R., 94; Orr v. State, 28 Pac. Rep., 420.
    Equity will enjoin the collection of taxes, upon bank shares valued by a rule different from other personal property. Pelton v. National Bank, 4 O. F. D., 573; 101 U. S., 143.
    A rule or principle of unequal valuation of different classes of property for taxation adopted by local boards of assessment, is unconstitutional, and equity will enjoin. Cummings v. National Bank, 4 O. F. D., 578; 101 U. S., 154; Grant v. Bartholomew, 57 Neb., 674; State v. McClurg, 27 N. J. L., 253; State v. Allen, 43 Ill., 456.
    If the acts of the equalization boards were, as we maintain, illegal, null and void, the valuations of the district appraisers, as we have shown by the foregoing citation of authority, remain unaffected, and must form the legal basis, together with the additions and corrections made thereto by the county auditor, of the abstract which he is required, by section 28Í7, of the Revised Statutes, to transmit to the auditor of state. Hence, it becomes the duty of the defendant, the performance of which may be compelled by mandamus, to transmit such true and legal abstract, as an act which the law specially enjoins upon him as a duty resulting from his office. Section 6741, Revised Statutes; State ex rel. v. Cornwall, 97 Wis., 565; State ex rel. v. Tansey, 49 Ohio St., 656.
    
      Gideon G. Wilson, County Solicitor, Otway J. Cos-grave, Asst. County Solicitor, Oliver B. Jones, Asst. County Solicitor, J. M. Sheets, Attorney General, J. E. Todd, Asst. Attorney General, Smith W. Bennett and W. M. Ampt, for defendant.
    Our statutes on mandamus (part 3, ch. 2, tit. 4) lay down very clear rules in relation thereto:
    1st. Section 6741, Revised Statutes, authorizes the issuance of writ in the name of the state to a person “commanding the performance of an act which the law specially enjoins as a duty resulting from an office.”
    2d. Section 6744, Revised Statutes, provides that “the writ must not be issued in á case where there is a plain and adequate remedy in the ordinary course of the law,” and
    3rd. That “It may issue on the information of the party beneficially interested.”
    1. The duty sought to be enforced must be clearly required by law.
    Mandamus will not be issued in the absence of a clear right to the object sought to be obtained by it. State v. Yeatman, 22 Ohio St., 546.
    Nor to compel an officer to do an act, which it is claimed the law enjoins on him as a duty, unless the existence of all the facts necessary to put him in default be shown. Cincinnati College v. LaRue, 22 Ohio St., 469.
    If he has any discretionary power the court will noii. attempt to control it. State ex rel. v. Comrs. of Shelby Co., 36 Ohio St., 326; State ex rel. v. Moore, 42 Ohio St., 103; High’s Extraordinary Legal Remedies; Commonwealth v. Mitchell, 82 Pa. St., 243; Dechert v. Commonwealth, 113 Pa. St., 229; United States v. Lamont, 155 U. S., 303; Spelling on Extraordinary Relief, vol. 2, p. 1134; Meckem on Public Officers; United States ex rel. v. Seaman, 58 U. S. (17 How.), 225; United States v. Commissioners, 72 U. S. (5 Wall.), 563.
    2. If relator, individually, or the public at large have been injured by any improper action of the county or city board of equalization, there is a plain and adequate remedy in the ordinary course of law and that being the case, the writ of mandamus will not issue (R. S. 6744).
    The scope and power of the board of revision and the object of its creation is well set forth in the recent opinion of this court in State ex rel. v. Morris, 45 Bull., 74.
    An opportunity being thus afforded for the full consideration of all tax valuations complained of, both in the aggregate and by the individual lots and tracts, before the tribunals established by law for that purpose, the courts will not intervene, especially at this time, to disturb or revise them. Wagoner v. Loomis, 37 Ohio St., 571.
    In the first place the assessor is required to return the true value of the property. That is one valuation. Then the county board of equalization is required to raise or lower it so as to make its actions show the true value. That is another valuation. Then the state board, acting upon aggregates, raises or lowers the valuations in towns or counties according to their opinion of the true value, giving a third opportunity for corrections. And finally, after action by all these agencies, another review is had by the board of revision. This action of the board of revision becomes therefore quite important to the individual property holder in fixing the comparative valuation for his property as related to other property in his county, and is to be had at the sessions of said board, after notice given to taxpayers, so that all may be given proper opportunity for full and complete hearing. If any wrong has been done to relator he can make his application to this board, and have ample opportunity to be heard before it. State ex rel. v. Morris, 45 Bull., 74; Stanley v. Supervisors of Albany, 121 U. S., 535; Martin v. Clay, 56 Pac. Rep., 715 (Oklahoma, 1899).
    Nowhere in the petitions is it alleged that the valuations returned by the assessors were the true valuations of said property, nor is it stated, as before said, that the valuations as fixed by the county and city boards do not show the true valuations in the aggregate of such property. Boyd v. Wiggins, 54 Pac. 411 (Oklahoma, 1898); People v. National Bank, 55 Pac. 685 (Oklahoma, 1898); Ledoux v. Lavee, 83 Fed. Rep., 761 (Fla., 1898); Moody v. City of Galveston, 50 N. W. Rep., 481 (Ct. Civ. App. Texas).
    Boards may generally act upon their knowledge or personal examination or any other information or evidence satisfactory to themselves. This is true where no specific rules are laid down for the method of making valuations. In Ohio there is no requirements that the members of the board of equalization, collectively, should visit or examine the real estate for which the valuation is to be fixed, or that they should take evidence in regard to its valuation. They may fix its valuation from their own knowledge, from their examination, from evidence, or from any other method that they may deem proper and right in determining it. And they may avail themselves of any means of information they deem necessary. Under this rule it would clearly be within their province to consider the tax duplicate of 1899, as well as any other evidence or information they thought proper or necessary. Nova Ceasarea, etc., Lodge v. Hagerty, 11 Dec. (Re.) 595; 28 Bull., 67; Railway Co. v. Comrs. Riley Co., 20 Kans., 141; Knight v. Thomas, 45 Atlantic, 499, 93 Me., 494; Brown v. Cinida, 79 N. W. Rep., 216 (Wis., 1899); State v. Duluth Gas & Water Co., 78 N. W. Rep., 1032; State of Nevada, ex rel., v. Co. Comrs., 14 Nev., 140; Knapp v. Heller, 32 Wis., 467.
    But if relator should not secure the relief to which he is entitled by the final action of the state board and the board of revision, he still has a right to appeal to the courts under provisions of Sec. 5848, Revised Statutes, which furnishes full opportunity for an adequate remedy in the ordinary course of law.
    With this right to relief by injunction subsisting, Sec. 6744, Revised Statutes, forbids the issue of a writ of mandamus.
    3. A writ of mandamus can only be issued on the information of a party beneficially interested.
    The petition in each of these cases alleges that the relator is the owner of real estate and a taxpayer in Hamilton county, but there is no allegation that the relator is a citizen or an elector of that county. And while he states that the question involved is one of general interest of many persons similarly situated, he does not say he sues in their behalf as under Sec. 5008, Revised Statutes. State ex rel v. Henderson, 38 Ohio St., 644.
    While the petition alleges that the question involved in this action is one of common or general interest of many who are similarly situated, and who are very numerous, and that it is impracticable to bring them before the court, relator appears in behalf of his private right, he has made no demand upon any public officer, or made any attempt to bring this proceeding except in his private capacity, and while other taxpayers might have similar complaints as against valuations of their property, it does not follow that they have a common interest in this proceeding. Weber v. Dillon, 54 Pac. Rep., 894 (Oklahoma, 1896).
    Mandamus will not issue upon the information of a private citizen to secure the enforcement of a purely public duty. State ex rel. Clark v. Murphy, 2 Circ. Dec., 190; 3 C. C. R., 332; 25 Maine, 291; Williams v. Comrs. Lincoln Co., 35 Me., 345; People ex rel. Drake v. University of Michigan, 4 Mich., 98; Heffner v. Com. ex rel. Kline, 28 Pa. St., 108.
   Bukket, J.

When stripped of their general charges of illegality and violation of statutes, the petitions in substance aver that the decennial board of equalization largely increased the amount of the total returns made by the district assessors, both in the city and county, and that the county auditor has certified the amounts of the returns so made by the district assessors, together with the increase made by the boards of equalization, to the auditor of state, so that the auditor of state has both the amounts as returned by the district assessors, and the increase added by the boards of equalization, and the totals of both added together; and the prayers of the petitions are, that the county auditor be compelled to make out and transmit to the auditor of state the amounts returned by the district assessors, without the additions made thereto by the decennial boards of equalization. It does not at first view clearly and plainly appear in the petitions that the county auditor has transmitted to the auditor of state the totals returned by the district assessors, the additions made thereto by the decennial boards of equalization, and the totals arising from such additions; but taking the petitions by the four corners, and construing them in the light, and with the knowledge, possessed by the court of such transactions, those facts appear with sufficient clearness to take them as 'true, when testing the sufficiency of the petitions, by a general demurrer.

The ground upon which it is urged that the additions made by the decennial boards of equalization should be withdrawn, is that those boards acted in violation pf the statutes prescribing their duties in making the additions, and that the violation of duty was so flagrant as to render their acts not only irregular, but void and of no effect, and being thus void, -that the returns of the assessors should stand as if no increase or decrease had been made by the boards of equalization.

The question then comes to this: Were the proceedings of the decennial city and county boards of equalization, in making the additions to the returns of the district assessors, when made in the manner as charged in the petitions, void, or merely irregular? If void the additions should be disregarded, but if only irregular, they must be held to be legal.

The law prescribing the duties of such boards, is section 2814, Revised Statutes, as amended 94 O. L., 246, and which reads as follows:

“Section 2814. The auditor shall lay before the board the returns made by the district assessors, with the. additions which he shall have made thereto,; and they shall then immediately proceed to equalize such valuation, so thát each tract or lot sliall be, entered on the tax list at its true value, and for this purpose they shall observe the following rules :
“1st. They shall raise the valuation of such tracts and lots of real property as, in their opinion, have been returned below their true value, to such price or sum as they may believe to be the true value therof, agreeably to the rules prescribed by -this title for the valuation thereof.
“2d. They shall reduce the valuation of such tracts and lots as, in their opinion, have been returned above their true value, as compared with the average valuation of the real property of such county, having due regard to their relative situation, quality of soil, improvement, natural and artificial advantages possessed by each tract or lot.
“3d. They shall not reduce the aggregate value of the real property of the county below the aggregate value thereof, as returned by the assessors, with the additions made thereto by the auditor, as hereinbefore required.”

The rule prescribed by the title to which the above section belongs is found in section 2792, and is that each parcel of real property shall be valued at its true value in money. This is also the rule prescribed by the constitution of the state. Section two of article twelve.

It was therefore the sworn duty of each board of equalization to raise or reduce each parcel of real property to such an amount, as, in their opinion, was its true value in money; and no restriction is placed upon the manner of forming that opinion when it comes to raising the valuation, only so that it be “to such price or sum as they may believe to be the true value thereof.” As- the petitions do not complain of any reductions of value, we need not consider the duty of the board in that regard, but it is sufficient to say that the duties prescribed are merely directory, and the statute provides no remedy for the enforcement of such direction, and therefore the action taken by the board under the sanction of a solemn oath is presumed to be fair and correct, and is conclusive, subject to the action of the state board of equalization.

It is urged that this is a case in which the boards of equalization had no jurisdiction, and not merely a case of irregular exercise of power. This is not tenable. The petitions admit that the boards of equalization were legaly constituted, and that the auditor placed before them for equalization the returns of the district assessors. Having those returns before them for the purpose of equalization, the boards were thereby invested with jurisdiction of the subject matter, and that jurisdiction continued until they completed their work; and if in the course of exercising that jurisdiction they took into consideration matters not required by the statute, that fact might be irregular, but it would not oust the jurisdiction, and would not render the result of their work void.

The petitions concede in the foreparts of them, that the auditor made out and transmitted to the auditor of state, an abstract of the real property of each township returned by the several assessors, with such additions as had been made thereto, and the aggregate value of such real property as returned by the several assessors, inclusive of such additions as had been made thereto.. True the pleader charges that it was a pretended abstract, and pretended additions; but nevertheless an abstract, and additions. And judging by the strong language hurled against those same additions, in other parts of the petitions, the additions were not mere pretenses, but were substantial both in amount and effect.

The petitions do not charge that the boards did not proceed to equalize the valuations laid before them, but charge that they did not so equalize that each tract or lot of land should be entered on the tax list at its true value, and did not observe the rules prescribed by statute. This concedes that the boards acted upon the returns of the district assessors laid before them by the auditor, and having acted, they undertook to exercise their jurisdiction, and while they may have erred in judgment and proceeding, such error would not render their work void, but only irregular.

The petitions further aver that the decennial boards of equalization proceeded to, and did add to the valuation of the returns made by the district assessors, amounting in the aggregate to $21,304,460: True they charge that this was illegally and arbitrarily done, but still the fact is conceded that it was done, and that the returns of the district assessors - were therefore the basis and foundation to which the additions were made. This and like concessions of fact in the petitions, negative and destroy the averment that the board “wholly ignored and rejected the valuations returned by the district assessors.” When a conceded material fact in a pleading is inconsistent with a general allegation in the same pleading, such conceded fact must prevail, and the general allegation be disregarded. Both cannot be true.

It being conceded in the petitions that the decennial boards of equalization made their additions to the returns of the district assessors, it follows that they had jurisdiction of the subject matter; and all the averments in the petition, as to the manner in which they arrived at the amount of such additions, are insufficient to take away such jurisdiction and render their work void. The statute confers no power on the auditor, to supervise, review, correct, or disregard the work of the hoards. He is one of the board, and is bound by the acts of the majority. He, as auditor, has only such powers as are conferred on him by statute, and there is no statute in this state authorizing him to cast aside the additions made to the valuations returned by the district assessors, and certify the amounts of such returns to the auditor of state, without the additions made by the board of equalization. Such an abstract by the county auditor would be in direct violation of the statute; because section 2817 requires him to make out and transmit to the auditor of state, an abstract of the real property, with the aggregate value as returned by the several district assessors, with such additions as shall have been mad 2 thereto.

We prefer to dispose of these cases upon the merits of the main question involved, and have therefore not decided the technical questions raised by the defendant, nor the question as to whether mandamus is the proper remedy.

The demurrer to each petition will be sustained, and each petition dismissed.

Judgment accordingly.

Minshall, C. J., Williams, Speak, Davis, and Shauck, JJ., concur.  