
    Mitchell & Watson v. The Treasurer of Franklin County
    1. The act of April 6,1866, “to provide for the valuation of lands in new town plats, or additions thereto” (S. & S. 762), applies to cases where lands within the corporate limits of a city or town are laid out into lots, streets, etc., as well as to cases where the lands so laid out are situate without the corporate limits.
    2. This act should he considered and construed in connection with other statutes, in pari materia; and when so considered and construed, its operation does not conflict with the provisions of the second section ot the twelfth article of the constitution.
    Error to the District Court of Erauklin county.
    The plaintiffs, by the original action in the Court of Common Pleas, sought to restrain the defendant from collecting certain taxes. On hearing, the action was dismissed. On appeal to the District Court, a like judgment was rendered against the plaintiffs. This judgment is alleged to be erroneous.
    The cause of action, as stated in the original petition, was substantially as follows:
    The plaintiffs owned, in 1872, about six acres of land in the city of Columbus.
    It was not a part of the original corporation, but was added prior to 1870, during which year it was valued for taxation by an assessor, a city and state board of equalization, at |1,909.
    In September, 1872, the premises were subdivided into thirty-four lots.
    
      The premises were charged with taxes in 1871 and 1872, on the above valuation, which taxes were duly paid.
    In 1873, the county auditor “wrongfully and without warrant of law, and .contrary to the constitution of the state,” placed the premises, subdivided as aforesaid, upon the duplicate for taxation at the valuation of $7,080 — no' part of which was for buildings or improvements of any kind.
    The auditor placed said duplicate in the hands of the treasurer for collection, who is about to enforce the payment of the taxes.
    The plaintiffs tendered $36.79, the amount due on the valuation of 1870, which was refused.
    Plaintiffs ask an order- restraining the defendant from' collecting taxes on any other valuation.
    To this petition there is a general' demurrer.
    
    In 1866, the legislature enacted a statute (S. & S. 762), which provides:
    “ That whenever any person or persons shall lay out any town or addition to any city or town in this state, before-the plat thereof shall be recorded, it shall be the duty of the proprietor or proprietors of such plat to present the same to the county auditor of the county in which lands so platted are situate, and the auditor shall cause the assessor of the proper township to assess and return the true-valuation of each lot or parcel of said town plat or addition to the county auditor, who shall enter such valuation upon the tax duplicate in the same manner as new structures are now entered.”
    The petition, the demurrer, and this statute comprise the whole case, and present three questions:
    1. What is admitted by the demurrer?
    2. Does the statute apply to the case made in the petition?
    3. Is the statute constitutional ?
    
      James L. Bates, for plaintiff’:
    I. What is admitted by the demurrer?
    
      Does it admit that the act of the auditor was wrongful1 and without warrant of law ?
    An officer has only the benefit of a presumption. That presumption may be overcome by averment or by proof.
    The question then is, does the- averment in the petition repel or overcome the presumption in favor of the auditor ?
    The language is, “ wrongfully and without warrant of law.” This charge is general, and might have been met with a motion to make it more specific. The defendant did not take this course, but by his demurrer admits the truth of the general statement.
    ■ There is no admission in the petition, either express or implied, that the auditor acted under this law. The charge is, that he wrongfully and illegally put the lots upon the duplicate at the value of $7,080. This statement can not be reconciled with the presenting of the plat to the auditor by the proprietors, or the valuation of the lots by an assessor. The averment of the petition denies both these propositions. The demurrer admits that the auditor placed the lots on the duplicate without complying with either of these positive provisions of the statute.
    This seems to be the only fair construction of the petition, and on demurrer it clearly entitles the plaintiffs to an injunction.
    II. Does the statute apply to the case made in the petition ?
    The solution of this question depends upon the construction which is given to the following clause of the statute:
    “ That whenever any person or persons shall lay out any town or any addition to any city or town in this state.”
    1st. We are bound to presume that words are used in their ordinary sense. The word “addition” implies, when used in connection with a municipal corporation, something added to it. It does not imply a modification of what is already embraced in it.
    The other terms of the statute explain what is meant. The assessor is required to “ return the true valuation of each lot or parcel of said town plat or addition.” The language is “ lot or parcel.” The word “ parcel ” clearly includes lands which are not subdivided. By what rule of construction can “parcels” of land already in the corporation be considered an addition to a city or town ?
    The language used clearly implies the creation of a corporation, or enlarging the territory of one which has already been created; and therefore does not apply to this case.
    III. Assuming that the statute does apply to the property of the plaintiffs, is it constitutional?
    Article 12, section 2, of the Constitution is as follows: “Laws shall be passed, taxing by a uniform rule, all real and personal property, according to its true value in. money.”
    Can the statute under consideration be reconciled with this clause ?
    The uniform rule requires both a uniform levy and a uniform valuation. 5 Ohio St. 589 ; 3 Ohio St. 15, 43.
    There may be a valuation every year, or every five or ten years; but every such valuation must be uniform.
    A law was enacted in pursuance of this clause, requiring—
    1. A valuation of all real estate by assessors at the same time.
    2. An equalization of such valuation by county and city boards.
    3. An equalization by a state board.
    The statute under consideration provides :
    That if any person owning property in a town or city, more or less, shall plat the same, each lot or parcel as represented on such plat shall be immediately re-appraised by the assessor at its value at that time, and such valuation shall be entered on the duplicate for taxation, while all the other property in the town or city remains at the valuation of 1870.
    If, as is generally the case, the value of property thus subdivided has risen since 1870, the same causes which have enhanced its value have produced a corresponding «effect on the adjoining and all other property in the town or city. It follows, therefore, that this statute necessarily and inevitably produces inequality in valuations in towns and cities which are prosperous and increasing in wealth. It does not admit of equality. It leaves the mass of property as valued in 1870, and selects a small portion, which it requires to be valued years later, and when its value has been increased many fold.
    We have a statute which provides for apportioning the value fixed on the whole in 1870, among the several lots. This is consistent with the constitution, and carries out its provisions.
    If values have not changed since 1870, why enact such a statute ? If they have changed, it is clearly in conflict with the rule which requires uniformity.
    The statute requires that the value, as found by the assessor, shall be entered on the duplicate. There is no provision for equalization; and if there were, it would be. useless. The other property was valued in 1870. This was> valued in 1873. How can values at such different periods be equalized ? What, under such circumstances, can be the standard of equalization?
    
      JR. G. $■ J. F. Hoffman, also for plaintiffs:
    No tax, either for state, county, township, or corporation purposes, can be levied without express authority of law. 5 Ohio St. 589.
    The only authority or law relied upon by defendant to support the claim for the taxes in dispute, is the act of April 6, 1866. S. & S. 762.
    We submit that that act does not apply to a subdivision of grounds in a city or town, but to additions made to cities and towns from territory not before included in them.
    The act of February 15, 1867, S. & S. 892, wholly and specifically relates to additions to cities and villages, and can have no possible relation to subdivisions of city or town property.
    The act of March 3, 1831, S. & C. 1483, section 6, provides for the subdivision of lots or grounds in cities and towns. Section 7 of the same act. provides a penalty for selling “lots in any plan of subdivision of, or addition to, the lots originally laid out in any town,” etc.
    The language, “ addition to the lots originally laid out,” will apply as well to the lots of a subdivision of city property, as to the lots in an addition to the city, for both add to or increase the number of lots in the city; but that can not be said of the language of April 6, 1866, relied upon by the defendant in this case. The language of that act is, “any addition to any city or town,” S. & S. 762, which can only mean the acquisition of territory from without the city or town limits, as contemplated and provided for by the act of February 15, 1867, 892.
    The act of February 2,1848, S. & C. 1489, authorizing the numbering of lots in cities, etc., distinctly recognizes three classes of lots in cities and towns — original lots, lots laid off as an addition to a city or town, and subdivisions of lots in towns and cities. See section 5 of said act, p. 1490.
    The act of February 15, 1857,’S. & S. 892, recognizes that additions to cities and towns had been made before that time, and was passed simply to legalize the same. It. was probably passed in aid of the act of April 6, 1866, S. & S. 762. Additions had everywhere been made to cities and towns from territory without their limits, although there was no law expressly authorizing it. The act of 1866 was intended to apply to such additions, and the act of 1867 was passed to legalize such additions.
    The act of 1866 is not a remedial statute, as claimed by counsel for defendant.
    The petition does not call the subdivision an addition to the city, as claimed by counsel for defendant. The language of the petition is, “thereby adding some thirty-four lots to the other lots of said city, as shown by said original plat and various other additions and subdivisions.”
    The language of the act of 1866 is “ addition to any city or town.” It is not an addition to the original plat of a city or town, but an addition to a city or town as it then existed, whether it embraced more or less than its original plat. .Neither is it an addition to the lots of a city or town.
    The construction claimed for the act of April 6, 1866, by the defendant, is in conflict with section 2, article 12, of the Constitution of the State of Ohio, “Laws shall be passed, taxing, by a uniform rule, all moneys,” etc.; and, also, “ all real and personal property, according to its true value in money.” Exchange Bank v. Hines, 3 Ohio St. 1, 15, 43; City of Zanesville v. Richards, 5 Ohio St. 539.
    The lands of the State of Ohio are valued for taxation, and the values thereof equalized, decennially, and only decennially, whether they appreciate or depreciate in the interim. New structures, whenever erected on lands, are appraised for taxation when erected, but the valuation of the land for taxation remains as originally made, throughout the decennial period, except as increased in value by the new structures.
    Neither the constitution, the law, or equity and right can permit the plaintiffs, because of the subdivision of their grounds for sale, to be taxed upon its natural or accidental increase in value, for three years, when no such tax is levied upon such increased value of the other lands of the city.
    A board of equalization can not equalize lands appraised at two different periods. It is impracticable. "We do not say that plaintiffs’ lands were valued too high in 1873. We complain that our lands are, and our neighbor’s lands are not, taxed upon the increase in the value of the lands from natural or accidental causes, from 1870 to 1873, and we say that equality or uniformity can not be attained without a revaluation of all the lands of the city, and it is not pretended that that can be done.
    The valuation must concur in point, of time, or there can be no equality or uniformity.
    
      Lorenzo English, for defendant.
    If the act of the auditor complained of is within the meaning and intent of this statute, and the statute is not invalid, as offending against the constitution, the complaint of the plaintiff's would seem to be without foundation.
    
      Section 2, article 12, of the constitution, “requires a uniform rate per cent, to be levied upon all property according to its true value in money, within the limits of the local subdivision for which the revenue is collected, subject only to the exemptions specifically provided for in the section.”' City of Zanesville v. Richards, 5 Ohio St. 589.
    Under this provision of the .constitution, it is the duty of the legislature to prescribe this uniform rule, and to provide for this valuation of all property at its true value iu money; and it will not be presumed, in the absence of averment to that effect, under the provisions made by our legislature for the listing and valuation of property for taxation, and for the equalization of values, that the property of any one-is taxed unjustly, or on a valuation above its true money value. The act of 1866, cited as part of the “ uniform rule” prescribed by the legislature under this constitutional provision, and is parcel of the legislation of the state, having for its object an equal distribution of the burdens of taxation. This statute was in force at the decennial appraisement of 1870, and is in qualification of the general rule that real estate shall be appraised every ten years. The-voluntary act of the plaintiff's, in subdividing and platting their lands, brought them within this qualification of the-general rule, prescribed by the act of 1866. To this right of the plaintiffs to subdivide and plat their ground, the law attached the condition that, as subdivided and platted, it should be subject to revaluation for taxation, and in the-exercise of their right they accepted this condition.
    The theory of the uniform rule for taxation, provided by the constitution, is that all property within the j urisdietionof the power imposing the tax shall bear its full, equal portion of every tax levied.
    In a matter so extended, intricate, and complicated 'as the subject of taxation — absolute equality being impracticable — we think the courts should hesitate to pronounce a statute invalid, as conflicting with the section of the constitution cited, unless it should be clearly manifest, that the-necessary practical effect of the statute will be to produce inequality of taxation, and to impose upon a particular class of property more than its fair share of the public burdens,
    Eor any supposed relative inequality of valuation of the property of the plaintiffs, as revalued by the assessor or auditor, the plaintiffs had their remedy clearly provided by law in the jurisdiction of the board of equalization of the city of Columbus, and they may not, without having availed themselves of this remedy, appeal to the courts to interfere by injunction to restrain the collection of a tax.
    The act of 1866 is entitled, “An act to provide for the valuation of lands included in new town-plats, or additionstheretothat is, additions to town-flats, and not additions to the territorial limits of a city or town as incorporated. The true intention of the legislature is sometimes arrived at by reading its enactment in the light, or by the aid of the light of its title, “ as where the meaning of the body of'the act is doubtful, or ambiguous, the title may be relied on as an assistance in arriving at a conclusion.” Under our present constitution, the subject-matter of every statute is required to be clearly expressed in its title, and should be supposed to reflect, in a general way, at least, the subject-matter of the statute.
    This statute is of a remedial character, and in the sense of an enabling or enlarging statute, and must be construed liberally in furtherance of its purpose. Dwarris, 632; Sedgwick on Statutory and Con..Law, 359.
    The language, “ new town-plats,” “ or additions thereto,” in the title of the act of 1866, is used in the same sense and meaning as is the language “ Shall lay out any town,” “ or-any addition to any city or town,” found in section 1 of the act, and any addition to any “ city or town,” means any addition to any “ city or town-plat.” As known in our legislation, bearing upon this subject, the laying out of a town was accomplished by the proprietor of lands subdividing it into lots of suitable size for building purposes, with suitable and convenient streets and highways, making a plat of the subdivision, showing the size of the lots and outlots, streets, etc.; and any addition to such town or city-plat was accomplished in the same manner. And the “town-plat,’ so made and recorded, was “ the town ” in its origin, and “the addition to the town-plat,” so made and recorded, was “ the addition to the town not, however, a corporation, or an addition to a corporation. By section 1 of the act of 1866, the proprietor or proprietors of the plat — not of the town or addition — are required to present it to the auditor for valuation, and the assessor is required “to assess and return the true valuation of each lot or parcel of said town-plat, or addition;” not each lot or parcel of the town, .as represented on the plat, indicating that, in this section the words, “town-plat” are synonymous with the words “town ” and “city,” in the previous part of the same section. An examination of the act entitled, “An act to provide for the recording of town-plats,” passed March 8,1831 {S. & C. 1482), and the various other acts amendatory thereof, and in pari materia, found in S. & C. 1486, and following pages, fully justifies our construction of the act of 1866.
    A uniform rule of taxation does not require that the valuations of the different parcels of property upon the duplicate should be made at the same time, any more than that all should be made by the same person, exercising the same judgment
    The plaintiffs’ property at its reappraisement, being upon the duplicate at its true valuation in money, as is admitted, if it should happen that the property of other citizens of •Columbus, by accident, mistake, or otherwise, in the execution of the rule, is wholly omitted from the duplicate, or listed below its true value, this would not invalidate the tax levied upon the property of the plaintiff. Exchange Bank of Columbus v. Hines, 3 Ohio St. 1.
    Counsel for plaintiffs in their argument say : “ Ve have a statute -which provides for apportioning the value fixed on the whole in 1870, among the several lots. This is.-consistent with the constitution, and carries out its provisions.” If the act of 1866 be a valid enactment, we submit, that, by implication, it repeals the act to which counsel refer, in its application to the lands of the plaintiffs and other lands similarly situated, and, conceding for argument’s sake, that this former act is in harmony with the constitution, we can not concede that, for that reason, the statute of 1866 is in conflict with the constitution, or fails to carry out its provisions.
   McIlvaine, C. J.

The truth of the averment in the petition that the auditor of the county “ wrongfully and without warrant of law, and contrary to the constitution of the state,” placed the taxes sought to be enjoined upon the duplicate, was not admitted by the demurrer. Such averment must be regarded as a mere conclusion of law, which the pleader alleged should be drawn from the facts stated in the petition. A general demurrer admits the truth of facts as stated in a pleading; but the correctness of legal conclusions averred in the pleading is not thereby conceded. The law, therefore, as understood by the court, and not as it may have been understood by the pleader, is the test by which the sufficiency of the facts stated in the petition must be determined. ' And, in applying this test, it must be assumed that the auditor, in placing this tax upon the duplicate, pursued the statute in such case made and provided — the performance of his duties in this respect not being negatived by averment. The law presumes that public officers have faithful^ performed all the duties of their offices, until it is otherwise made to appear. This brings us to consider whether the act of April 6,1866 (S. & S. 762), was a sufficient warrant for the assessment of the tax complained of.

It is claimed by plaintiffs in error that the words “addition to any city,” as used in this statute, mean an addition from territory lying without the corporate limits of the city; and that the statute does not apply in cases where lands within the city limits are laid out and platted into lots, streets, etc. In this construction the court is unable to concur. That these words do not purport an addition to the territorial limits or boundary of the corporation, is clear, from the fact that the territory of a city, as a municipality, can not be extended by laying out and platting into lots, etc., the lands adjacent to its boundary. The “addition” here meant, we think, is such kind as results from the mere act of the proprietor in laying out and platting his lands into lots, streets, etc., and is such as the law requires the plat thereof to be recorded. (

Large areas of farming lands, not subdivided into lots, streets, etc., are embraced within the corporate limits of most cities and villages in this state. The mode of laying out such lands into lots, streets, etc., and of platting the same is prescribed in section 6 of the act of March 3, 1831; and the mode of laying out towns “ or any subdivision or addition thereto,” on lands not embraced within the limits of cities or incorporated villages, is prescribed in the proceeding five sections of the same act (S. & C. 1482), and of the amendatory act of March' 22, 1849. (S. & C. 1489.) In each of the cases provided for, a map or plat of all the grounds so laid out is required to be recorded in the office of the recorder of the county in which the town or city is situated.

The terms of the act of 1866, now under consideration, are “that whenever any person or persons shall lay put any toion, or addition to any city or town in this state, before the plat thereof shall be recorded,” etc. That the legislatui’e did not mean, that the addition to any town should be such only as was made of territory without its corporate limits, is perfectly clear, for the reason that many towns in this state (within the meaning of the statute) are not incorporated at all. And if no reference was had to the corporate limits of towns, we feel assured that no reference was intended to be made to the corporate limits of cities, although the the word “ city,” in this state, imports a municipal corporation.

We are of opinion, therefore, that the plat of an addition, either to a city or town, intended by the statute, is an addition to the territory previously laid out into lots, streets, alleys, etc., the plat whereof has been recorded; and not an addition to the territory embraced within the limits of the city or town as prescribed in its charter.

It is also claimed by the plaintiff that this statute, in its operation, violates the constitution of the state in relation to the uniformity of taxation.

Article 12, section 2, of the constitution provides that “laws shall be passed, taxing, by a uniform rule, all real and personal property, according to its true value in money.”

In pursuance of this provision statutes were passed, under which all the real property of the state was valued for taxation-in the year 1870. The valuation was made, in each county, by district assessors. The valuation by them made and returned was afterward equalized, through the action of county and city boards of equalization; by raising the valuation of such tracts and lots as, in the opinion of the board, were returned by the assessors below their true value in money; and by reducing the valuation of such tracts- and lots as were returned above their true value. íhis valuation, as between the counties, was afterward equalized through a state board of equalization, bj'- adding to the aggregate valuation of each county, which it believed to be-valued below its true value in money, such per centum as raised the same to its true value; and by deducting-'from the aggregate valuation of the county, where it was believed to be above its true value in money, such per centum as reduced the same to its true value. This is known as the-decennial valuation, as the like process is to be repeated in every tenth year thereafter.

By the valuation thus fixed, the property of the plaintiffs-was placed on the duplicate for taxation at $1,909.

After this property was laid out into 34 lots, the valuation, made by the township assessor and placed upon the duplicate by the county auditor, under the pi’ovisions of the act of 1866, was $7,080.

"Without alleging that the valuation of their lots, as made by the township assessor, in 1873, was in excess of their true-value in money, the plaintiffs claim that the rule of uniformity in valuing property for taxation, required by the constitution, has been violated by the operation of this statute, to their injury, in this, that their lots are taxed upon a valuation of $7,080, whereas they should be taxed upon the valuation of 1870, to wit, on $1,909.

In discussing the operation of this statute, plaintiffs’ ■counsel say:

That if any person owning property in a town or city, more or less, shall plat the same, each lot or parcel as represented on such plat, shall be immediately reappraised by the assessor at its value at that time, and such valuation shall be entered on the duplicate for taxation, while all the ■other property in the town or city remains at the valuation of 1870.
If, as is generally the case, the value of property thus subdivided, has risen since 1870, the same causes which'have ■enhanced its value, have produced a corresponding effect on the adjoining and all other property in the town or city. An increase of inhabitants, the opening of mines, the increase of manufactures, public improvements, or other local or general causes, produce such results. Subdivisions made prior to 1870 are affected by the same causes and to the same extent. It follows, therefore, that this statute, necessarily and inevitably, produces inequality in valuations in towns and cities which are prosperous and increasing in wealth. It does not admit of equality. It leaves the mass of property as valued in 1870, and selects a small portion, which it requires to be valued years later, and when its value has been increased many fold.”

If such were the necessary results of this statute, operating in connection with other statutes, in fari materia, it would be difficult to sustain it, and at the same time, enforce the principle of taxation as declared in the constitution, to wit, equality of burdens upon all taxable property.

The constitution requires that the valuation for taxation ■of all pi-operty — real and personal — shall be according to its true value in money. There appears to be a necessity, from the very nature of personal property, in order that it may be taxed according to its true value in money, that an annual valuation should be made; and so the legislature has provided. And if equality of burden between personal and real property must be preserved, it is necessary that the valuation of the latter should be adjusted annually also. If the decennial valuation of real property were the only method of securing its taxation according to its true value in money, great injustice would be done, on account of its fluctuations in value, not only as between owners of personal and real property, but also as between the proprietors of different tracts and lots of real property.

Hence, the legislature has wisely provided, as part of this system for taxing all property by a uniform rule, and according to its true value in money, for annual boards of equalization in counties and in cities of the first and second classes. Secs. 8 and 9 of the act of May 8, 1868 (S. &. S. 755).

These boards are empowered, and we may add, required, to hear complaints and equalize the valuation of all real and personal property, within their respective jurisdictions: by raising the valuation of any tract or lot of land, or any item of personal property, when the valuation is below its true value in money, and by reducing .it when above its true value — provided only that the aggregate valuation shall not be reduced below a certain standard.

This process of equalization is performed annually; and thus, uniformity in the valuation of all property, according to its true value in money, is fairly provided for, if not actually secured.

Under this state of legislation, the assumption that other real estate in the city of Columbus, which has not been subdivided into lots since the date of the decennial valuation in 1870, remains upon the duplicate for taxation at the valuation then fixed, is not authorized; nor can it be assumed, that the propeily of the plaintiff, as valued by the township assessor in 1873, is taxed on a valuation above its true value in money, or at a valuation greater than other real property in the city of Columbus of the same value iu money.

The plaintiffs admit that the rule of uniformity in valuation would not have been violated, if the auditor, instead of pursuing the statute of 1866, had distributed among their lots the valuation of $1,909, the amount placed upon the land, in 1870, before its subdivision. Suppose that method of fixing the valuation of the lots had been adopted by the auditor. Then it would have been within the power, as it would have been the duty, of the city board of equalization, at its session in 1873, to have raised their valuation in the aggregate to $7,080, if, in fact, their true value in money, at that time, equaled that sum. By this method, the same result would have been accomplished; and we doubt, whether any complaint of constitutional infringement would have been made.

If inequality, however, does, in fact, exist — if the plaintiffs’ property is placed on the duplicate for taxation at a higher valuation than other city property of the same cash value, or higher than its true value in money, ample provision is made by statute for their relief. It is their right and privilege to complain to the annual city board of equalization for redress, and it is the duty of the board to grant them relief. Until, therefore, they exhaust the remedy thus provided by statute, a court of equity should not interfere, in their behalf, by enjoining the collection of the tax.

In conclusion, we think, this statute, when considered and construed in connection with other statutes, in pari materia, does not, in its operation, conflict with the constitution in relation to the rule of uniformity in taxation.

Judgment affirmed.

White and Gilmore, JJ., concurred.

Rex, J.,

dissenting. The only question in this case is ; Does the act of April 6, 1866, to provide for the valuation of lands included in new town plats, or in additions there'to, S'. & S. 762, apply to a subdivision into lots, of grounds within the corporate limits of a city, which at the preceding decennial valuation were valued as city property ? The mere statement of the question, it seems to me, furnishes its own solution. Neither the phrase “ laying out a town,” nor that of “laying out an addition to a.town or city,” as used in section 1 of the act, can, giving to the words employed their usual and ordinary meaning, be construed to apply to a subdivision of lots or grounds in a city or town. The language clearty implies the creation of a new corporation, or the enlargement of the territory of one already created, and can not, therefore, have been intended to apply to a change or modification of grounds already embraced in it.

Examples of the use of the phrases “ laying out a town,” and “ laying out an addition to a town or city,” as contra-distinguished from the phrase “ subdividing lots or grounds in a city or town,” are of frequent occurrence in the statutes of this state. Section 6 of the act of March 3, 1831, to provide for the recording of town plats, S. & C. 1482, directs how a proprietor of lots or grounds in a city or town, who desires to subdivide or lay out the same into lots for sale, shall proceed to effect that object, and declares the penalty that shall be imposed upon such proprietor for selling lots so subdivided, before the provisions of the section have been complied with; and section 9 of the same act directs the manner of proceeding by a proprietor of lands outside of a city or town, who desires to lay out a town or an addition to a town or city, and declares the penalty he shall be liable to for selling a lot in such town or addition before he has complied with the provisions of section 9. The penalty for selling lots in a subdivision of grounds in a city or town being $50, whilst that for selling lots in a new town, or addition to a town or city, is but $25.

Again, section 3 of the act of February 2, 1848, authorizing the numbering of any city, town, or borough in this state to be revised, S. & C. 1489, provides that any person who shall lay off lots, as an addition to any city or town, or who shall make a subdivision of any lots therein after such revision, shall number the lots in such addition, or of such subdivision, on his plat, in regular consecutive numbers,, commencing with the next number after the highest number of lots on the revised plat of such city or town. ,

If the words, “laying out an addition to a town or city,”' as used in section 1, of the act of April 6, 1866, was intended by the general assembly, to apply to the subdivision of lots or grounds within the corporate limits of a city or town, as well as to lands outside the corporate limits of a city or town, laid out into lots as an addition thereto, it is clear, that such intention must be implied from the language of that act, and can not be inferred from the other-acts, above cited; for when we look to them, we find the implication to be very clear, that the intention was to use the words “ addition to a town or city,” in the act of April 6, 1866, in their usual and ordinary meaning.

In carrying out the constitutional provision of taxing the real and personal property of the- state, by a uniform rule, it became necessary for the general assembly, not only to provide for the listing, valuation, and equalization of the values of real and personal property; but also to provide means by which the values of lands thus equalized could, in cases of sale, be transferred, on the duplicate, to the purchaser; and hence we find, that contemporaneous with the passage of the act of April 5, 1859, for the assessment and taxation of property in this state, and for levying taxes-thereon according to its true value in money, ¡3. & C. 1438, an act was passed, prescribing the duties, of county auditors, S. & C. 96, by the 17th section of which, provision is made for the transfer, in cases of sale, to the purchaser, on the duplicate, of the land sold and of the value thereof, as fixed at the time prescribed for the valuation and equalization of the values of real estate, next preceding the date of such sale, whether the sale be made in tracts or lots as valued, or in parcels thereof. Where the-sale is of the entire tract or lot, the auditor is required to transfer the same, on the duplicate, to the purchaser, on the presentation of the deed ; but where the sale is of less than the entire tract or lot, as charged on the duplicate, the auditor is required to transfer the same, if the seller and purchaser agree upon the amount of valuation to be transferred with the portion of the tract or lot sold; and if the seller and purchaser do not so agree, then the auditor is required, under the provisions of section 16 of the same act, to furnish a list of such lands or lots to the assessor, who is required to ascertain and report to the auditor, the proportion of the valuation of the original tract or lot to be transferred, with the portion or portions sold. Under these provisions, between the periods fixed by law for the listing, valuation, and equalization of values of real estate, the valuation of the original tract remains as fixed, by the decennial valuation, without regard to the number of parcels or lots into which it may have been subdivided, unless changed by the annual board of equalization.

The annual boards of equalization of cities of the first and second classes, have power, under the provisions of the statute, to equalize the value of the real and personal property, moneys, and credits of such cities; but the exercise of that power in relation to the value of the real estate of a city, is not, by the statute, made to depend upon the fact of the subdivision of any of the grounds within its limits,, into building lots.

Any cause which may operate to produce inequality in values, at any time after the decennial valuation, is sufficient to authorize the exercise of the power; but the power, under the statute, is to be exercised by the board of equalization, and not by the auditor and assessor. There is no statute in this state, by virtue of which, a county auditor is authorized to direct, or an assessor to make, a revaluation, between decennial periods, of lots or grounds in a city, listed for taxation ; and having shown, as I think conclusively, that the provisions of the act of April 6,1866, do not apply to a subdivision of grounds in a city into lots, I am of opinion that the action of the auditor in the premises, was without any authority of law, and that, therefore, the judgment of the District Court ought to have been reversed.

Welch, J., dissented on substantially the same grounds.  