
    CITY RAILWAY CO. v. BEARD, County Treas.
    U. S. District Court, S. D. Ohio, E. D.,
    No. 41,
    Decided June 5, 1922
    TAXATION — State tax commission a legislative agency — (1) Assessment becomes justiciable, when — (2) GC. 5611-2 — (3) Inequality of taxation in violation of constitution — ■ (4) Judicial power over — (5) Equity.
   SATER, D. J.:

Epitomized Opinion

The tax commission of Ohio had fixed the valuation of property of plaintiff at what is claimed to be its true value in money. The plaintiff did all that the law prescribed to get valuation reduced from' $2,970,220 to 60 per cent of $2,000,000, its value. It paid the first semi-annual payment of taxes and brought this suit to enjoin the state and county officials from collecting the last half, alleging that the tax commission of. Ohio had per-mitter other property to be for a long time placed on duplicate at 60 per cent of its value, that this made the tax rate much higher, that it would be if all property was assessed at the constituted rate of 10.0 per cent of its value; that it was assessing plainttiff at 100 per cent and 30 per cent more.

Attorneys — McMahon, Corwin & Landis, Dayton, for plaintiff; H. E. Man & R. E. Hoskot, Dayton, for defendant; John G. Price, Ray Martin and Clarence D. Laylin, Columbus, for tax commission.

The tax commission contended that the plaintiff had an adequate remedy at law, by Sec. 5611-2, to appeal to the common pleas; that the federal court did not have jurisdiction. Held:

(1) Taxation is legislative in assessment, and the tav, the boards created by the legislature have done that which the law authorizes; the assessment becomes justicable, and resort may be to a court of equity.

(2) Sec. 5611-2 GC. language, “Petition in Error,” is a misnomer, the proceeding is de novo; but the court is limited to fixing the value at its true value in money only, and does not allow the fixing of the value at the uniform value, other property is assessed at; consequently there is no adequate remedy at law and a court of equity has jurisdiction.

(3) Where property has been generally valued at a per cent of value below 100 per cent, all property must be assessed on the basis of the same per cent, i. e., uniform per cent of value.

(4) Assessment of property at a higher per cent of value than other property is a fraud upon the owners of the higher assessed property.

(5) Where the owner is assessed in violation of his rights under the federal constitution, he does not need to pursue his statutory rights, but may invoke the aid of a federal court.

.6) The state rule being a uniform rule of 100 per cent, if the practice has been to assess at 60 per cent, or any other per cent than 100 per cent and a property is assessed at a greater value, the courts will grant the necessary relief. Injunction granted.  