
    Davies, Jr., Auditor, et al. v. The National Land and Investment Company. Davies, Jr., Auditor, et al. v. Mitchell.
    
      Completion of decennial appraisement — Municipal board of review — ■ Cannot increase taxable value of property, when — Section 2819-1, Revised Statutes — Complaint of clerk of board not sufficient, when.
    
    
      1. After the completion of the decennial appraisement of real estate in any municipality of this state, and its equalization in accordance with the statutes in force for that purpose, it is not competent for the board of review of any such municipality, created and acting under the provisions of Section 2819-1, Revised Statutes (95 O. L., 481), during the running of the decennial period, to select certain tracts or lots therein for revaluation and to increase their taxable value above that fixed by the preceding decennial valuation, unless such increase in value is caused by the erection of new structures not returned, of unless such increase becomes necessary in equalizing such real estate on account of omitted lands or lots restored to the tax list, new entries and additions, or, in correcting gross inequalities in existing valuations, requiring a new equalization of the property so increased with other real property affected thereby. And such increase and equalization cannot be made, except upon complaint of an owner or owners of real estate interested therein, and after due notice of the time and place of hearing of said complaint, to persons whose real estate may be affected by such increase and equalization. ,
    A complaint filed by the clerk of such board of review, even if filed under its order, is not the complaint contemplated by said Section 2819-1. It must be the complaint of an owner of real estate interested in a new equalization.
    (No. 10408
    Decided June 4, 1907.)
    (No. 10409
    Decided June 4, 1907.)
    Error to the Circuit Court of Lucas County.
    On the first day of February, 1906, the defendant in error filed in the court of common pleas of Lucas county a petition against the said David T. Davies, Jr., as auditor, and Peter Parker as. treasurer of that county, and also made James M. Brown, W. H. H. Smith and Wm. E. Malone, as members of the board of review pf the city of Toledo, defendants.
    • The plaintiff in that action, now defendant in error, alleged its ownership of certain real estate in the city of Toledo, situate in the well improved and valuable part of the city, which, at the decennial appraisement of 1900, by the action of the decennial district appraisers, the decennial board of equalization and revision, and the state board of equalization, was valued at $16,380 as its tax value for the decade of 1900 to 1910, at which valuation it was placed on the tax duplicates and so remained until the year 1905. This property, the petition says, with all the other ■ real estate in Lucas county, in the year 19001, was duly appraised at the decennial appraisement for that year, and the same was, with other real estate in the county duly equalized by the proper boards selected for that purpose, and that thereafter said appraisals of the county were equalized with similar appraisals from all the counties of Ohio, by the state board of equalization. In said state equalization, the state board found that the appraisal of real property in the city of Toledo was five per cent, too high, and ordered a reduction of that per cent., which reduction was made by the auditor of Lucas coufity on its grand duplicate as the amount of valuation for the decennial period to 1910 — which valuation as to plaintiff’s property was $16,380. The auditor of the county gave the required notice of the reduction so made and of the time and place of meeting of the boards of revision of the county and city. No changes were made by them as to plaintiff’s property, and said last valuation became fixed and so remained on the duplicate until the close of the tax year of 1904, and that except as to new structures erected, or structures destroyed, said last valuation of the other real property, in the county also remained the same to the close of the tax year of 1904. •
    Since the decennial appraisement of 1900, no new structure has been erected on the property of the plaintiff, and there has been no increase in the value of its property since 1900, except as in common with the other real estate m Toledo, the real property of the county .outside the city and other real property in the state of Ohio.
    It is also alleged, that the defendants who compose the board of review, arid acting as such board, during the year 1905, selected twelve blocks of lots in the city of Toledo, of which plaintiff’s property is a part, and publicly proclaimed that they would proceed to make a new appraisal thereof for' the purpose of fixing a valuation for taxation upon the duplicates for that - year. The boundaries of these blocks are given in the petition. It is then averred that no complaint had. been filed with said board or with the county auditor by any taxpayer that any error existed in said decennial valuation which required a special equalization as between plaintiff’s property and other real property in said city or courity, and that in order to have a “complaint” the clerk of the board of revision was ordered to file complaints concerning the tax valuation of the lots composing said twelve blocks, which complaints so made by the clerk were the only complaints filed with the board.
    The board of review then notified the lot owners of a time and place of hearing, when “said board would consider and act upon a petition to review for taxation and to revalue and equalize the valuation of real estate which is described on the tax duplicates of the current year,” et cetera. .
    At the hearing, testimony was heard concerning the then value of said lots respectively, but no testimony was taken as to the value of the lots at the time of the last decennial appraisement, or as to the relative value as between such parcels respectively as "of the date of said decennial appraisement, or of the value of any of the realty in said twelve blocks in relation to the value of the other realty in the city of Toledo. As a result of the hearing the board added to the decennial valuation of plaintiffs property the sum of $8,430 which it certified to the auditor to be placed on the duplicate, which was done by the auditor and the duplicate so increased was delivered to the treasurer for collection.
    It is further alleged that substantially all lands outside of and adjacent to the city of Toledo, since said decennial appraisement, have increased in value in proportion to the value fixed by the decennial appraisers, in a greater ratio than the increase in value of said twelve blocks, or any part thereof, and that all lands surrounding the larger cities of the state have also increased in value in substantially a like ratio since said decennial appraisal, and that no general re-appraisal of said real estate .outside the municipalities has been made or attempted to be made, and that the time to hear complaints and correct' errors in said decennial appraisement has gone by, whether they were errors of omission of properties, or because of gross over or under valuation. It is also complained of, that if all the realty in the state had been re-appraised for taxation for the year 1905 according to the same rule of valuation applied by' the board to plaintiff’s property and the remainder of the twelve blocks, a rate of taxation for 1905 substantially1 lower than the rate which has been imposed on the property in the state would have produced an adequate and equal revenue for all the purposes of taxation, and would have charged plaintiff’s property with a payment of no larger sum than was charged for the year 1904.
    It is charged that since said board re-appraised the twelve. blocks and charged them with the additional burden, it revalued another nearby block and found it to be below real value in the sum of $123,410, but that the latter block still stands on the duplicate at the decennial valuation, except as to new structures; and that the levies for state, county and municipal taxes for the year 1905 were made upon the grand total of the duplicates of 1904, and that there was no public necessity for said revaluation. The petition proceeds to state grounds for holding the act providing for the boards of review unconstitutional, because of want of uniformity in rules of taxation; and that all the acts of the board complained of are in violation of plaintiff’s rights as guaranteed by section 26 of article II, and section 2 of article XII, of the constitution of Ohio, as well as by the constitution of the United States.
    
      ■ The plaintiff tendered the treasurer, Parker, .the first half of the tajees due in 1905, less the taxes on the increase of valuation, which tender was refused, and the treasurer threatened to place the property on the delinquent list and thereby cast a cloüd upon plaintiffs title. The prayer is for an order of abatement of taxes. charged upon the new valuation; and an injunction against in any way subjecting its property to the increased taxation. The foregoing is the substance of the allegations of fact made in the petition.
    The auditor and treasurer demurred generally to the petition. The board also filed a general demurrer. The court of common pleas sustained these demurrers. On appeal the circuit court overruled the demurrers and granted the injunction prayed for in the petition. The case is here on error to reverse the judgments of the circuit court.
    
      Mr. Wade H. Ellis, attorney-general, and Mr. S. W. Bennett, for plaintiffs in error.
    Has the board -of review. power to add to or take from the decennial valuations of the real estate within a city when such values have substantially changed between decennial periods and in cases other than those of newr structures, structures destroyed or lands newly brought upon the tax list?
    We assert that such powder exists in the board of review; the defendant in error denies it.
    The power contended for is evident from the language employed in the act.
    While emphasis should be given to that portion of the act in question (Section 2819-1, Revised Statutes), providing that the boards of review ‘shall be governed by rules prescribed for the government of decennial county and state boards, and annual county and city boards for the equalization of real’ and personal property” — equal emphasis should also be given to the other portion bf the act which provides that the boards of review shall immediately become “the successor of said boards of revision (annual and decennial), said annual city board and said decennial city board, all of which boards shall, upon the appointment of a board of review in any municipal corporation under this act, be abolished.”
    From this language we observe explicit authority is vested in boards of review to be not only boards of equalization but also boards of revision. The annual city board of revision and the decennial city board of revision are abolished and their powers pass, in toto, to the board of review. To raise values and reduce values, to equalize values and to revise values are among the powers thus conferred.
    Section 2 of Article XII of the constitution of 1851 compels the view that such boards are required to equalize the valuation of real property as well as of personal property, moneys and credits. The language above quoted is not susceptible of applying the same to one subject, personal prop- ■ erty, and withholding it from the other, real property.
    If, to “equalize” implies the necessity of an increase or a decrease of personalty valuations by what reasoning are we to restrain the application of the same language with the same meaning from realty valuations? This is especially true when we are seeking to observe the constitutional mandate to tax- all real and personal property by a uniform rule.
    But, we contend, the language of the act under consideration confers the power more patently upon the board to increase real estate values than that of personalty. This arises from the language negativing the power to reduce the values of real property below the aggregate value thereof as fixed by the state board of equalization, or below its aggregate value on the duplicate of the preceding year.
    The limitation upon the right of reduction of values is to preserve the minimum aggregate value as having been fixed by the state board of equalization, decennially, so that the state authorities could in safety provide a tax rate by which to compute upon this amount an income sufficient to cover all the state’s expenses. The prohibition was only' against the reduction. If there was a substantial increase in values, ad interim, decennial periods, the income to the state would be correspondingly increased, hence, the prohibition did not operate against the power to increase values.
    In this contention, we' are sustained by many decisions asserting that in case of a doubtful construction of power, that construction should be upheld which would sustain the statute as a valid constitutional enactment in preference to that which would be contrary to the letter of the constitution. It has further been frequently emphasized by this court that Section' 2 of Article XII above cited furnishes the “governing principle” for all .laws under which property is taxed. Mitchell & Watson v. Treasurer, 25 Ohio St., 156; Wagoner v. Loomis, 37 Ohio St., 578; State, ex rel. v. Morris et al., 63 Ohio St., 496; Lander v. Bank, 186 U. S., 458.
    While the question here presented has never been directly before this court, the following dicta support our position: Gaylord et al. v. Hubbard, Treas., 56 Ohio St., 25; Mills v. Board of Education, 1 C. S. C. R., 556; Humphreys, Auditor, v. Deposit Co., 29 Ohio St., 608; State, ex rel., v. Raine, 47 Ohio St., 447; Black et al., Trustees, v. Hagerty, Auditor, 60 Ohio St., 551; State, ex rel., Board of Equalization, 65 Ohio St., 544; State, ex rel., v. Lewis, Auditor, 64 Ohio St., 216; State, ex rel., v. Rockwell et al., 70 Ohio St., 440; State, ex rel., v. Clark et al., 68 Ohio St., 463; Sections 2804 and 2814, Revised Statutes.
    
      Mr. J. S. Martin and Mr. H. C. Webster, for plaintiffs in error in both cases.
    1. This act is a valid and constitutional enactment. State, ex rel., v. Clark et al., 68 Ohio St., 463; Wagoner v. Loomis, 37 Ohio St., 571; State, ex rel., v. Jones, Auditor, 51 Ohio St., 492; Shotwell v. Moore, 45 Ohio St., 632.
    2. The constitution of Ohio provides but one rule for the valuation of all property, viz., according to its true value in money. The questions of uniform rule and true value are discussed and their meaning enlarged upon in several Ohio, cases. Bank v. Hines, Treas., 3 Ohio St., 1; McCurdy, Gdn., v. Prugh, Treas., 59 Ohio St., 465.
    3. The board appointed under this act is empowered, upon proper notice to the owner of real property, to increase the value of such property, when such value is, in the judgment of the board. below its true value in money. Mitchell & Watson v. Treasurer, 25 Ohio St., 143; Section 2, Article XII, constitution; Ransom v. Potter, Treas., 22 C. C., 388; State, ex rel., v. Raine, 47 Ohio St., 447; Black & Archer, Trustees, v. Plagerty, Auditor, 16 C. C. 255; Sections 2804, 2805 and 2814, Revised Statutes.
    4. No complaint of .any character is necessary to give the board of review jurisdiction. Britt v. Lewis, Auditor, 16 C. C., 343; 60 Ohio St., 589.
    5. The board of review is presumed to have acted in good faith in the exercise of its powers and in the performance of its duties. State ex rel., v. Lewis, Auditor, 64 Ohio St., 216; Hagerty, Auditor, v. Huddleston, Hubbard & Co., 60 Ohio St.,, 149; Hambleton v. Dempsey & Co., 20 Ohio., 168; People, ex rel., v. Board of Equalisation, 102 N. Y., 630; Frats v. Mueller, 35 Ohio St., 397.
    6. Mistaken judgment of the board of review, or inequalities in valuations, in the absence of fraud, do not afford grounds for relief to the taxpayer. Cooley on Taxation, 221; City of Findlay v. Frey, 51 Ohio St., 390; Loring v. State, 16 Ohio, 590; Spencer & Gardner v. People, 68 Ill., 510; City of New York v. Tucker, 91 App. Div. N. Y., 215; State v. Savage, Governor, et al., 65 Neb., 714; Bank v. Commonwealth, 80 S. W. Rep., 479; Gaylord et al. v. Hubbard, Treas., 56 Ohio St., 25.
    In their reply brief, counsel for plaintiffs in error cited and commented upon the following authorities: Bank v. City of Toledo, 1 Ohio St., 623; Scott’s Sons v. Raine, Auditor, 25 W. L. B.; 1541 Britton v. Baker et al., 13 Ohio Dec., N. P., 107; Cummings v. Bank, 101 U. S., 153; Schindler v. 
      Lewis, Auditor, 16 C. C., 348; State, ex rel., v. Lewis, Auditor, 1 C. C., N. S., 56; Humphreys, Auditor, v. Deposit Co., 29 Ohio St., 608; Crozer v. People, ex. rel., 206 Ill., 464; State, ex rel., v. Morris et al., 63 Ohio St., 496; Scarborough v. Gibson, 13 Ohio Dec., 738; Black et al., Trustees, v. Hagerty, Auditor, et al., 60 Ohio St., 511; Ludlow et al. v. Lewis, Auditor, 9 Ohio Dec., 600; Lewis, Auditor, v. State, ex rel., 69 Ohio St., 479; Trust Co. v. Lander, Treas., 62 Ohio St., 266; Sections 2753, 2804 and 2806, Revised Statutes.
    
      Mr. F. E. Calkins; Mr. L. W. Storey and Mr.. Thomas H. Tracy, for defendant in error in case No. 10408.
    The board of review has no power to place a new and independent valuation on real estate in the middle of the tax decade, and as of the time when the revaluation is made, except in the case of new structures, structures destroyed, and lands newly brought into the tax list.
    Surely the legislature has intended that since 1870 the valuation found by the decennial appraisment should remain fixed for ten years; otherwise it would have provided that the appraisement should be made more often than once in ten years. _ ■
    It is. worthy of observation. that Section 2753, Revised Statutes, gives power to the annual assessor to increase or reduce valuation where the actual substance of the realty has been added to or ■ destroyed, but no such power is given where the assessor may find that the realty is more or less valuable than at the beginning of the decennial period, on account of fluctuation in prices. Schindler v. Lewis, Auditor, 16 C. C., 348 State, ex rel., v. Lewis, Auditor, 1 C. C., N. S., 50 Scott's Sons v. Raine, 25 W. L. B., 154; Crozer v. People, ex rel., 206 Ill., 464, 69 N. E. Rep., 489; Scarborough v. Gibson, 13 Ohio Dec., 738; Britton v. Baker et al., 12 Ohio Dec., 107; State, ex rel., v. Morris et al., 63 Ohio St., 496; State, ex rel., v. Raine, 47 Ohio St., 447; Humphreys, Auditor, v. Deposit Co., 29 Ohio St., 608; Mills v. Board of Equalization, 1 C. S. C. R., 566; Wagoner v. Loomis, 37 Ohio St., 571; Black et al., Trustees, v. Hagerty, Auditor, 60 Ohio St., 559.
    These cases recognize and establish three propositions concerning the boards of which the board of review is the successor: 1, that they are equalizing boards; 2, that their operations relate back to the beginning of the decennial period; 3, that they are subject to the rules in Section 2814, Revised Statutes. These facts are inconsistent with the holding in Ransom v. Potter, 22 C. C., 388, where the main question of the case at bar is very clearly and forcefully decided in favor of defendant in error. •
    The case of Gaylord et al. v. Hubbard, Treas., 56 Ohio St., 25, is very much in point.
    If Section 2819-1, is not rendered unconstitutional by the- empowering paragraph (third paragraph) it must be given some other interpretation than that given to Section 2805-b, Revised Statutes, and different from that claimed by plaintiffs in error. But to give it a different interpretation is an argument in itself that the board of review acted without authority. Where two interpretations of a statute are possible, one of which will render it unconstitutional, and the other will not render it constitutional, the latter interpretation should be adopted to preserve the statute. The acts of the board of review should be held void rather than that Section 2819-1 should be held void. Commercial Co. v. Manufacturing Co., 55 Ohio St., 217.
    Section 2819-1, Revised Statutes, should be construed in connection with all other statutes relating to the fixing of tax values of- real estate in Ohio. City of Cincinnati et al. v. Guckenberger, 60 Ohio St., 353; City of Cincinnati v. Connor, 55 Ohio St., 82; Cooley’s Constitutional Limitations, 7th Ed., 711; Cameron v. Cappeller, Auditor, et al., 41 Ohio St., 533; State v. Grow, 105 N. W. Rep., 898.
    The valuation by the board of review is illegal because it acted without evidence.
    Additions or deductions by a board of equalization should be made upon satisfactory evidence of the facts and not arbitrarily without any evidence of the facts to support the same. Fratz v. Mueller, 35 Ohio St., 397; Harvesting Co. v. Sims, Treas., 14 Ohio Dec., 15; Rawson & Co. v. Schott, Treas., 14. C. C., 94; Britton v. Baker, 12 Ohio Dec., 107.
    The board of review of Toledo in the year 1905 could sit only as an annual city board of equalization', or revision. As such board it could act only when a proper complaint was filed with it to the effect that the valuation complained of was returned wrong in 1900.-
    The different sectibns and provisions of a statute of this character must be construed together, and, if possible, a construction placed on the wholq statute, which will give effect to every section and every clause. Medical College v. Zeigler et al., 17 Ohio St., 52; State, ex rel., v. Blake et al., 2 Ohio St., 147; Aspley v. Murphy, 2 U. S. App., 382; State, ex rel., v. Road Co., 16 Ohio St., 308; Sections 2814a, 2814-3 and 2814-8, Revised Statutes.
    There is no presumption in this case’ that the board of review acted in good faith. The unwarranted acts of the board of review are not justified by good faith. Bank v. Hines, 3 Ohio St., 15; Cooley on Taxation, 2d Ed., 245; Cooley on Constitutional Limitations, 7th Ed., 705; McCurdy, Guardian, v. Prugh, Treas., 59 Ohio St., 465; Kemper et al. v. McClelland’s Lessee, 19 Ohio St., 308.
    Where the inequality results from the acts done without authority the maxim de miniums lex non curat has no application; no matter how small, they can not be held to be unimportant and overlooked. Cooley Constitutional Limitations, 7th Ed., 747.
    The true rule of law governing this case we think is to be found in: Gray’s Limitation of Taxing Powers, Sec. 1469; Bank v. Kimball, 103 U. S., 732; Cummings v. Bank, 101 U. S., 153.
    Where, though the law itself is unobjectionable, the officers who are appointed to make assessments combine together and establish a rule of valuation, the necessary result of which is to tax one species of property higher than the average rate, a court of equity will give relief. Desty on Taxation, Vol. 1, page 428. Hagerty et al. v. Huddleston, Hubbard & Co., 60 Ohio St., 165.
    
      
      Mr. W. S. Thurstin and Messrs. Seney & Thurstin, for defendant in error in case Ño. 10409.
    The sections of the state constitution bearing upon the subject of taxation, are: Section 5, Article XII; Section 2, Article XII; Section 4, Article XII; Section 26, Article II.
    Under the last section in Gaylord et al. v. Hubbard, Treas., 56 Ohio St., 33, the court found and decided that the Cleveland Act — 89 Ohio Laws, 283, to provide for a board of equalization and assessment in cities of second grade, first class— was unconstitutional.
    A comparison of the Cleveland Act with Sections 2819-1 and 2819-2, of the Revised Statutes, shows that our present board of review law is substantially a replica of the Cleveland Act, hence the criticism of the court in Hubbard v. Gaylord as to the differing powers granted by the general tax law and by the Cleveland Act, is just as applicable here as there. Longworth v. City of Cincinnati, 17 C. C., 18; Commissioners v. Rosche Bros., 50 Ohio St., 103.
    It has been held that valuations oí realty by different agencies is not necessarily repugnant to the constitution. We do not contend against this principle, but say it is vicious in its tendency, because it tends to open the door to jobs and combines and is destructive of the confidence which the citizen should have in his government.
    The American citizen under his system of government expects, arid by all constitutional guaranties has a right to expect, only to carry his own burdens, and not the burden rightfully assignable to another. Santa Clara County v. Railroad Co., 18 Fed. Rep., 385.
    If we understand the drift of recent decisions of this court, it is to the effect that classification of cities has been sustained by this court upon the grounds of necessity for the purposes of organization of municipal corporations, and conferring upon them corporate powers, and for. no other purpose. City of Cincinnati v. Steinkamp, 54 Ohio St., 284; Hixson v. Burson, 54 Ohio St., 470.
    We have -considered this question under the aspect that the law, known as the Municipal Board of Review Law, construed as it was by Judge Bradbury, in the Cleveland case is unconstitutional and void.
    . It will be remembered that the Board of Review Law is in all of its substantial provisions an adoption of the Cleveland Act, pronounced unconstitutional in the Gaylord case, because it was a law of a general nature and did not have a uniform-operation throughout the state. Cooley on Taxation, Chap. 12, 250; State, ex rel., v. Bargus et al., 53 Ohio St., 106.
    With the wisdom or the policy which the gentral assembly has, through the provisions of this act, attempted to establish in the two counties named, we have nothing to do. If it be unwise, this section forbids its application to Erie and Huron counties except by a law of uniform operation throughout the state which shall affect the interests of all constituencies and thus challenge the attention and judgment of all representatives. If it be wise, this section beneficently requires that the people of the whole state shall share, in its benefits. We are aware of no decision of this court in conflict with these views. McGill v. State, 34 Ohio St., 228.
    The attempted limitation of the scope of Section 26, Article II, in some of the cases cited, is too narrow; notably is this true of the case of McGill v. State and Cass v. Dillon, supra. State, ex rel., v. Davis et al., 55 Ohio St., 21.
    Our sense of the inherent fitness of things finds much to commend in the theory that all general subjects should be regulated by general laws, and all subjects of a local nature, by local laws. This court, however, as well as those of other states having a similar provision, in the practical administration of justice, has not adhered to this theory; though at all times and in every case, the subject of legislation has been accorded great weight in determining the character of the statute, and has generally controlled the question. Kelly v. State, 6 Ohio St., 269.
    The only practicable rule on the subject is that which requires each case as it arises to be placed in the one class or the other, as the common understanding of mankind may dictate. This is the rule of inclusion and exclusion, adopted by. the Supreme -Court of the United States in Davidson v. New Orleans, 96 U. S., 97.
    An enactment is not determined to be constitutional by its form, but by its operation.
    We hesitate to say that it is an open secret, that the law contemplated the establishment of a bureau for official purposes, to serve its promoters, in one way, and the citizens in another way, in a way in which he, the citizen, despises. Fields v. Commissioners, 36 Ohio St., 476; State, ex rel., v. Commissioners, 31 Ohio St., 592; State, ex rel., v. 
      Commissioners, 56 Ohio St., 718; Mott et al. v. Hubbard, Treas., et al., 59 Ohio St., 210; State, ex rel., v. Buckley et al., 60 Ohio St., 296; State, ex rel., v. Brown et al., 60 Ohio St., 469; Lehman v. McBride, 15 Ohio St., 573; City of Cincinnati v. Trustees, 66 Ohio St., 448.
    Those who are charged with the exercise of judicial power in a constitutional government can not too often advert to Marbury v. Madison, Secretary of State, 1 Cranch, 137. The opinion of Chief Justice Marshall in that case, is justified because of its demonstration that with respect to the adjudication of questions of this character, that which is sometimes urged and regarded as mere compromise or concession, is, in fact, a dereliction of duty. Since the soundness of that doctrine is universally admitted, its effect should not be evaded. State, ex rel., v. Yates, 66 Ohio St., 548; State, ex rel., v. Spellmire et al., 67 Ohio St., 80; Cass v. Dillon, 2 Ohio St., 607.
    The first effort of this court to carve a special subject-matter out of a general one, so ar as we know is in the case of State, ex rel., v. Judges, 21, Ohio St., 1; and there is little left of that effort since the decision of the case of State, ex rel., v. Yates, supra.
    
    Counsel then cited and commented upon the following: State v. Powers, 38 Ohio St., 54; State, ex rel., v. Shearer et al., 46 Ohio St., 275; State, ex rel., v. Ellet et al., 46 Ohio St., 97; Cummings v. Bank, 101 U. S., 153; Taylor et al. v. Railroad Co., 88 Fed. Rep., 350; Railroad Co. v. Supervisors, 68 Ill., 458; Sherlock et al. v. Village of Winnetka, 68 Ill., 530; Attorney General, v. Road Co., 11 Wis., 33; City of Janesville v. Markoe, 18 • Vis., 350; Marsh et al. v. Supervisors et al., 42 Wis., 502; Merrill v. Humphrey, Auditor, et al., 24 Mich., 170; Solomon v. Township Oscoda, 43 N. W. Rep., 990; Trust Co. v. Stone, Auditor, et al., 107 Fed. Rep., 305; Railroad Co. v. Coulter, Auditor, et al., 131 Fed. Rep., 282; State, ex rel., v. Lewis, Auditor, et al., 74 Ohio St., 415.
    The term “taxes” in-our constitution respecting uniformity comprehends “valuation” and .should be interpreted to read: Art. XII, Sec. 2 — Laws shall be passed taxing and assessing by uniform rule.
    So the imposition of the burden in disregard of any rule of uniformity is always held unwarranted. Cooley on Taxation, 1st Ed., 259; Supervisors v. Railroad Co., 44 Ill., 229; Bank v. Hines, 3 Ohio St., 15; Railroad & Telegraph Co. v. Board of Equalizers, 85 Fed. Rep., 302.
    A law respecting taxation (and that of necessity includes valuation) must be of uniform operation throughout the territory to which it applies. Pelton v. Bank, 101 U. S., 143; Ex parte Bridge Co., 62 Ark., 461; Randell v. City of Bridgeport, 63 Conn., 321; Walsh v. King et al., 74 Mich., 350; County of Otter Tail v. Batchelder et al., 47 Minn., 512; State v. Reddington Township, 36 N. J. L., 66; Puitt et al. v. Commissioners, 94 N. C., 709; Mott et al. v. Railroad Co., 30 Pa. St., 9; Kemble v. Titusville City, 135 Pa. St., 141; McTwiggan v. Hunter et al., 18 R. I., 776; Knowlton v. Supervisors, 9 Wis., 410; Cooley on Taxation, 68. Cooley on Constitutional Limitations, 499-503; Cooley on Taxation, 2d Ed., 748, 751; Gilman v. City of Sheboygan, 2 Black (U. S.), 510; City of Zanesville v. Auditor; 5 Ohio St., 592; County 
      
      of San Mateo v. Railroad Co., 8 Sawyer, 238; Santa Clara County v. Railroad Co., 9 Sawyer, 165.
    The willful disregard for equality and uniformity of valuation amounts to fraud. Andrews v. King County, 1 Wash., 46; Railroad Co. v. Jackson County, 38 Ore., 589.
    Where it appears on the record that there is a gross inequality in the assessment and*valuation of property, and that this inequality is the result of the deliberate action of the authorities making such assessment, such inequality will be deemed fraudulent and excessive and will be corrected. Weeks v. City of Milwaukee, 10 Wis., 242; Taylor, Governor, v. Railroad Co., 88. Fed. Rep., 350; affirmed, 172 U. S., 647.
    Equality of burden is the essence of a lawful taxation, unequal taxation or valuation, to the extent of such inequality, is confiscation, not taxation. The rule of uniformity in valuation overrides that of actual value.
    Bearing in mind the general principles above enunciated, we call attention to the following leading cases from the various states that have constitutional provisions in effect like our own. Fletcher v. Oliver, 25 Ark., 289; Land Co. v. Gowen, Sheriff, 48 Fed. Rep., 771; Railroad Co. v. Boone County, 44 Ill., 241; Darling v. Gunn, 50 Ill., 424; Kimball v. Loan & Trust Co., 89 Ill., 611; Hazzard v. O’Bannon, 36 Fed. Rep., 854; Graham v. Commissioners, 31 Kans., 473; Railroad Co. v. Commissioners et al., 54 Kans., 781; Hawkins v. Mangum, 78 Miss., 97; State et al. v. Commissioners, 38 N. J. L., 173; London et al. v. City of Wil
      
      mington, 79 N. C., 109; People v. Weaver, 100 U. S., 539; Bank v. Hungate, 62 Fed. Rep., 548.
    And the following from states have no constitutional provision in respect to uniformity and equality in taxation, the decisions based on the principle of equity. Manufacturing Co. v. Strafford, 51 N. H., 455; People, ex rel., v. Carter et al., 109 N. Y., 576; Bank v. Parker et al., 41 Fed. Rep., 402.
   Price, J.

We learn from the petition, which the circuit court sustained when assailed by general demurrer, that at the decennial appraisement in the year 1900, by the action of the decennial district appraisers, the decennial board of equalization and revision, and the state board of’ equalization, the property of The National Land & Investment Company, defendant in error, was valued for the purposes of taxation for the decade to 1910, at $16,380, and it was so entered on the tax duplicates of the county and remained until the year 1905. No increase in the value of the real estate occurred since the year 1900, except such increase as was common to other real property in Lucas county, and no new structure has been erected on the property since the decennial appraisement of 1900.

In the year 1905 the board of review of the city óf Toledo concluded to revalue or reappraise twelve blocks of real estate near the heart of the city, of which the premises of defendant in error is a part,. and to that end the board ordered its clerk to file complaints against the existing valuation of the property in said blocks, which order the clerk obeyed. No complaints were filed by any one else.

The board notified the owners of real estate in the said blocks of a time and place of hearing, .which notice recited, “when said board will consider and act upon a petition to review for taxation and to revalue and equalize the valuation of real estate, etc.”

At the hearing, testimony was heard as to the value of the real estate in the year 1905, but none was considered as to the value of the same property at the time of the last decennial appraisement. The board revalued the property of the defendant in error at $24,810, an increase of about fifty per cent. This revaluation was certified by the board to the auditor of the county, and after he placed the same on the duplicates, they were delivered to the county treasurer for collection in the year 1905. The treasurer refused to accept the taxes according to the decennial appraisement, but demanded the taxes based on the increased valuation. The circuit court, on a petition for that purpose, awarded an abatement of the additional burden and enjoined the collection of the taxes as to the increase of valuation.

The rather novel proceedings of the board of review are attempted to be justified by certain sections of the Revised Statutes, from which are selected as giving clear authority, Sections 2804, 2805 and 2819-1; and they will now receive our attention.

Section 2804 provides for an annual county board of equalization “for the equalization of real and personal property, moneys and credits in each county, to be composed of the county commissioners and county auditor, who shall meet for that purpose at the auditor’s office in each county, on Wednesday after the third Monday in May, annually.”

The section proceeds to say:

“Said board shall "have power to hear complaints, and to equalize the valuation of all real and personal property, moneys and credits within the county, and shall be governed by the rules prescribed for^the government of decennial county boards for the equalization of real property; provided, that said board shall not reduce the value of the real property of the county below the aggregate value thereof as fixed by the state board of equalization, nor below its aggregate 'value on the duplicate of the preceding year, to which shall be added the value of all new entries and new structures over the value of those destroyed, as returned by the . several township assessors for the current year; provided further, that except as to new structures, and structures destroyed, and lands and lots.brought onto the tax list since the preceding decennial state board of equalization, the annual county board shall not increase or reduce the valuation of any real estate, except upon reasonable notice to all persons directly interested, and an opportunity for a full hearing of the question involved. Said board is authorized, by its president, or presiding officer pro tem.,- to administer oaths, call persons before them, and examine them under oath as to their own or other’s property, moneys, credits and investments to be placed on the duplicate for taxation, or the value thereof, and order any property, moneys, credits or investments to be placed on the duplicate, which have not been listed for taxation, and fix the value thereof according to law,, and .increase the valuation of such property, moneys, credits and investments as have, in their judgment, been listed at less than their true value in .money, and reduce the value of such as have been appraised above their true value in money.” * * *

Section 2805 relates to the powers and duties of annual city boards of equalization, and the part thereof which is important here reads:

“Said'board shall have all the powers, and be governed by the rules, provisions and limitations prescribed in the next preceding section, for the annual county board; each member of said board is authorized to administer oaths, and said board is empowered to call persons before them, and examine them, under oath, in regard to their own or' others’ property, moneys, credits and investments, and the value thereof, and to equalize the value of real and personal property, moneys, credits and investments within such cities, and to order any property, credit or investment to be placed on the duplicate for taxation, and fix the value thereof according to law, which has not been listed for taxation, and to increase the value of such property, moneys, credits and investments as have; in their judgment, been listed at less than their true value in money, and to reduce the value of such property, moneys, credits or investments as have been’ appraised above their true value in money.” * ‡ „

Section 2819-1 provides for powers of a board of review for municipalities, and the part pertinent to the present controversy reads:

“Said board of review shall, within and for their respective municipalities have all the powers and perform all of the duties heretofore conferred upon or required of the annual city board for the equalization of the value of real and personal property, moneys and credits; the decennial city board, for the equalization of the value of real property; the annual city board of revision; and the decennial city board of revision,, under any and all laws now in force, pertaining to such municipalities. And said board of review shall be the successor of said board of revision, said annual city board and said decennial city board, all of which boards shall upon the appointment of a board of review in any municipal corporation under this act be abolished. Said board of review shall have power to hear complaints and to equalize the valuation of real and personal property, moneys and credits within such municipal corporation as said board of review may be located, and shall be governed by rules prescribed for the government of decennial county and city boards, and annual county and city boards, for the equalization of real and personal property.”

Inasmuch as two of these sections refer to thq rules by which the board of equalization in one case, and the board of review in the other, should be governed, it is proper now to state the rules which are prescribed for decennial county and city boards of equalization, and they are found in Section 2814, Revised Statutes. It is there provided as to the decennial board that 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 that each tract or lot shall be entered on the tax list at its true value, and that for this purpose they shall observe the following rules:

“1st. • They shall raise the value 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 thereof agreeably to the rule 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 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 provision is made that such county decennial board of equalization may be called to sit as a board of revision which may hear complaints and equalize value where necessary: -

■Similar rules are provided for the government of decennial municipal boards. See. Section 2816, Revised Statutes.

While treating upon the powers, duties and limitations of decennial county and city or municipal boards, it becomes natural to look at the further use made of their proceedings by the decennial' state board, for after the decennial county and municipal boards have performed their work of equalizing and revision, where revision is provided and called for, the case is made ready for the state decennial board, and it is made the duty of each county auditor to make out and transmit to the auditor of state the information required by Section 2817, and perhaps other sections not material here. The state board is required to equalize the valuation of real property among the several counties and towns in the state according to rules prescribed by the statute. When the state board of equalization has completed its work of equalization, the auditor of state shall transmit to, each county auditor a statement of the per centum to be added to or deducted from the valuation of the real property of his county, specifying the per centum added to or deducted from the valuation of the real property of each of the several towns, and of the real property not in towns, etc. The state board deals with the towns and counties and may increase or decrease the valuation of a county or town by a certain per centum. It does not deal with individual owners. It then becomes the duty of each county auditor to make the additions and deductions of the per centums so certified to him. When all this has been done, there is further need for the county and city boards of equalization, and there is a time fixed in which they shall complete their work of equalization. See Section 2819, Revised Statutes.

Thus we see the details of the state decennial appraisement of all the real property of the state, and the careful arrangement of details from the work of the decennial district land assessor to and through the different boards and the state board, so that an equitable valuation may be arrived at, and which should be the basis of all levies for the decade next ensuing.

This view is somewhat advanced by a consideration of the latter part of Section 2792 and supplemental Section 2792a. These provisions are amendatory of and supplementary to the statutes authorizing and regulating the decennial appraisement of real estate. The latter part of the former section provides “that the annual board of equalization may reduce the mineral value assessed against lands containing or producing petroleum, (oil), natural gas, coal, ore, limestone, fire clay, or other minerals in • proportion as the product of such mineral has diminished, if such mineral product was considered as a part of the value of said real estate in its previous appraisement for taxation,” etc.

Section 2792a (97 O. L., 294) supplementing the former, provides, in substance, that in all cases where the fee of both the soil and the minerals — except crude petroleum and other like sub-stances — of any lot or parcel of land were owned by the same person or persons, when the last decennial appraisement was made, but the title of the fee of the soil is now in one or more persons, and the title to such minerals, or any of them, is now in another person or persons, it shall be the duty of the county board of equalization, at its annual meeting each and every year, other than decennial year, to divide or apportion the valuation of such tract or parcel of lands made at' the next preceding decennial appraisement, between the owner of the fee in the soil and the owner of such minerals, so held separate from the fee of the soil, equitably, according to the relative value of the interests so held by such owners of the fee of the soil and such minerals respectively; such division or apportionment shall be and remain in force until the next decennial appraisement.

In such cases there is no increase in the taxable valuation under these sections, but a division and apportionment of values between the owner of the soil and the owner of the minerals, which shall stand until the next decennial appraisement.

These various provisions develop a scheme of general and equal appraisement of all the real property of the state, which, unless in excepted cases should stand during the decennial period. The policy of the legislation indicates that the state desired a fixed basis whereon to calculate its revenues which would not be affected by reduction during a certain period of years; and we think it is also within that policy that the owner of real estate should have, during the same period, repose from frequent changes in valuation, and he is entitled to that, unless the statute gives plain authority to the subordifnate boards to make such changes. The above statement of the general method and scheme of decennial land appraisal takes us back to the sections of the Revised Statutes which we have first quoted, and the inquiry is renewed — do they justify and authorize the proceedings complained of in the petition?

Section 2804 defines the powers and duties of a county board of equalization, and it “shall have power to hear complaints and equalize the valuation of all real and personal property, moneys and credits within the county, and shall be governed by the rules prescribed for the government of decennial county boards for the equalization of real property; provided, that said board shall not reduce the value of real property of the county below the aggregate value thereof as fixed by the state board of equalization, nor below the aggregate value on the duplicate of the preceding year. * * *” As to new structures, and structures destroyed,' and lots and lands brought on to the tax list since the preceding decennial state board of equalization, the county board may increase or reduce the valuation of real estate without notice, but- as to other real estate, notice and an opportunity to be heard .must be given to all persons directly interested. Persons may be examined under oath as to their, own and the property of others. The value of such' property may be increased where it has been listed at less than the true value, and the value may be reduced where the property was listed at too high a value.

When we take up Section 2805, providing for annual city boards. of equalization, we find its terms substantially like those of 2804. Each board is primarily one of equalization, and to carry out the work of equalization, the limitations and'rules prescribed for the government of decennial county, boards -apply, and we have already quoted these rules.

It is important to bear in mind these rules and limitations because Section 2819-1, defining the powers and duties of the new board of review, says it shall, within and for their respective municipalities, have all the powers and perform all the duties heretofore conferred upon or required of fhe annual city board for the equalization of the value of real and personal property, etc.; the decennial city board for the equalization of the value of real property; the annual city board of revision, and the decennial board of revision * * *. This board of review became the successor of the board of revision, said annual city board, and said decennial city board. The section proceeds: “Said board of review shall have power to hear complaints and to equalise the valuation of real and personal property, moneys and credits within such municipal corporation, g.s said board of review may be located, and shall be governed by rules prescribed for the government of decennial county and city boards, and annual county and city boards for the equalization of real and personal property.”

We have already seen the scope and limitations on these several boards referred to.

What is the practical meaning of this language concerning ail increase or reduction in values mentioned in this and the other sections where found? Does it' mean that the board may arbitrarily increase the value of real estate during' the ■ decennial period, and do nothing more? Or, does it contemplate that when the board finds on complaint, that some real estate has been listed too high, and other real estate in the same locality or district has been listed too low, producing a case of gross inequalities, the one may be reduced and the other increased, and they, with other real property affected, substantially equalized? The latter seems to be the more reasonable construction.

It would not be proper or necessary to increase a low valuation, unless relief is at the same time granted to one or more whose real property has been listed too high. Again, if there is no instance where property was valued too' low, a reduction of the high valuation of other property could not be made without reducing the aggregate, which is forbidden. So it was the rule followed by the decennial county and city boards of equalization, that where the district real estate assessor returned certain real estate at a valuation too high, and other real estate too low, the board could take from one and add to the other in the process of equalization, and so in like instances until that work was complete. That was one of the working rules of the city decennial board of equalization, whose duties are now vested in boards of review of such municipalities as are entitled to the same under the'statute; and we think that the boards of review, being clothed with powers of equalization, are to be governed by the spirit of the rule which has generally been followed as to the increase and reduction in real estate values. Indeed, the latter part of Section 2819-1 expressly provides that the board “shall be governed by the rules prescribed for the government of decennial county and city boards, for the equalisation of real and personal 'property.”

Again we see that equalisation is the paramount purpose and design of the statutes creating these different boards. To increase values serves only half of the legislative design, and that is legitimate only when the statutory machine performs its other functions as we recognize them. All the different statutory provisions relating to appraisement, revision, increase and reduction in real estate values and their equalization must be considered and so construed, if possible, as to make a just and harmonious system, not so much to unnecessarily increase as to equalize burdens.

It is therefore, evident from the different sections, when. we compare their terms, that there are some things which the city board of review is clearly authorized to do. It may review the returns of new entries, and the valuation of lands' newly platted which are in the corporation; the value of new structures as returned and the value of structures destroyed as returned and lots and lands restored to the tax list. Such a proceeding would almost necessarily require readjustment and equalization, and if in the course of said readjustment and equalization it is found in any case that certain real estate, as compared with other real estate in the locality, has been listed too low, and other real estate - listed too high, so that gross inequalities exist, the values may be increased or reduced as justice demands. But this increase in value may not be made arbitrarily, but in the process of equalization, which seems to be the paramount purpose of such boards. They are not boards of original appraisal, and such power to increase must be exercised, if at all, in connection with the primary work of equalization. There are also some things a board of review can not do. It may not reduce the value of the real property of the city below the aggregate value thereof as fixed by the state board of equalization, nor below its aggregate value on the duplicate of the preceding year. Such acts are expressly forbidden by the sections quoted.

It seems quite clear also that an increase in the valuation of realty can not be made except on complaint, and such complaint as we will later define.

According to the petition, what was the board of review doing and attempting to do when the action tinder review was commenced?

It was not undertaking to show that the rea] estate involved was listed too low when the decennial appraisal was complete, but that the value as listed was too low in the year 1905 — in the middle of the decennial period. Certain sections of the city of Toledo were selected as its field of operations. No one had requested the proceeding, except the clerk of the board, and his complaint .was filed under order of the board itself. There was no general movement to increase the taxable value of real estate of Lucas county, outside of Toledo, or of any real estaté anywhere outside the cities of the state, although the petition avers that the real estate outside the various cities has increased in value by a greater ratio than the increase in city real estate. And if the petition is true, as the demurrer admits, there was not in progress a general movement to raise the taxable value of the real estate in Toledo; and in this case it is said that the board did not take testimony or inquire into the relative value as between the lots' in question and other realty in the city.

Lienee, if we concede all that was attempted to be decided in Mitchell & Watson v. The Treasurer of Franklin Co., 25 Ohio St., 143, and in State, ex rel. Poe, v. Raine, 47 Ohio St., 447, cited by plaintiff in error, the action of the Toledo board of .review can not be sustained. Its course of procedure, as described in the petition, is in violation of the rules prescribed by the statftte heretofore stated.

The question .in the former case was different from ours, and different statutes were being con-. strued, as is apparent from the syllabus and statement of the case. The court was badly divided on the question decided, but in the opinion of Mc-Ilvaine, C. J., .there is some encouragement for the rule, that an annual board of equalization may increase the value of real estate within its jurisdiction under stated circumstances, which circumstances are absent in the present case. In the latter case, State, ex rel. Poe, v. Raine, questions unlike ours were decided, as a reading of the syllabus makes plain. Yet we are not at war with what was said in the opinions delivered in those and other, Ohio cases cited for plaintiffs in error, so far as they refer to the authority of a county auditor or an annual county or city board of equalization. ' The force of those opinions should be measured by the facts directly involved, just as in any other case decided by the court. If this board of review can radically change the decennial appraisal for the reasons adopted in 1905, the same thing may be done each year thereafter, and taxable values will be constantly fluctuating, and the taxpayer be kept in continuous turmoil. If the board can revolutionize the decennial appraisal in 1905, it could have done so in 1902, 1903 or 1904. The decennial appraisement, which many have been led to think amounted to something, would become a mere plaything, and might as well be abolished. But we are not yet ready to concede the authority for such a practice, or such fate of a decennial appraisal.

Another fact appears here that defeats the work of the board ‘complained of in the petition. The “complaint,” or “complaints,”, are made by the clerk of the board under its direction. No interested taxpayer seems to have come forward to demand a readjustment of real estate values. Is the statute complied with by the filing of complaint by the clerk? If a case of perpetual motion is desired, such practice would be convenient, but it is not an automatic action that the statutes recognize or allow, but there must be a real complaint by some one interested in having a change of valuation and an equalization within the rules of the law. Substantial interests of many owners may be involved, and the review or revision should be started legally as well as conducted legally.

The plaintiffs below urge the constitutional invalidity of the act creating the board of review, on grounds alleged in the petition and pointed out in the brief. But following the well-settled rule of this court, it does not become necessary for us to pass on that question, inasmuch as ample relief is granted on the other averments of the petition.

The judgments of the circuit court are affirmed.

Judgments affirmed.

Shauck, C. J., Crew, Summers and Davis, JJ., concur.  