
    Wagoner v. Loomis.
    1. Statutory provisions, whereby different classes of property are listed and valued for taxation in and by different modes and agencies, are not necessarily in conflict with the provisions of the constitution which require all property to be taxed by a uniform rule, and according to its true value in money.
    2. As a general rule, the decisions of officers and tribunals specially created and charged, in tax laws, with the duty of valuing property for taxation and equalizing such valuations, are final and conclusive.
    8. Inequalities in the valuations, made under a valid law, of property for taxation, do not constitute grounds for enjoining the tax, in the absence of fraudulent discriminations by the agents and officers charged by the law with the duty of making such valuations.
    
      4. Even in such case equity will not relieve a tax-payer whose property is not assessed in a greater amount than would have been imposed upon it, in case all the taxable property of the state had in fact been assessed, by a uniform rule and according to its true value in money.
    5. A petition for such injunction, which shows that the plaintiff’s property was valued only at 80 per cent, of its true value in money, while other property in the county was valued at only 40 per cent, of its value, and avers that such valuations were unequal, unjust and illegal, does not state sufficient facts.
    Error to tbe District Court of Seneca County.
    
      This case and Geyer v. Wagoner, reserved in the district court of Seneca county, were argued, submitted and considered together.
    In the principal case, the plaintiffs below, Loomis et al., were stockholders in the National Exchange Bank of Tiffin, Ohio, organized under the act of congress of June 3, 1864, entitled “ An act to provide a national currency,” &c., while Geyer et al., who were also plaintiffs below, were stockholders in Commercial Bank of Tiffin, Ohio, organized under an act of the general assembly of the state of Ohio, passed February 26, 1873, entitled “ An act to incorporate savings and loan associations.” But as all the questions raised in the latter case are also involved in the former, Geyer’s case will not be further noticed in this report.
    The original action was brought by Loomis and his co-stockholders in the National Exchange Bank, against Wagoner, as treasurer of Seneca county, to restrain the collection of certain taxes assessed against them, upon their shares of stock in said bank, in the year 1877. The moiety of the taxes so assessed in said year, which became due in December, was paid under protest, and this suit was brought to restrain that moiety of said levy, wMch became payable in June, 1878.
    The capital stock of said bank is divided into twelve hundred and fifty shares, of the par value of $100 each. These shares were listed upon the duplicate of said county for taxation, and were taxed at their par value. Their actual cash value at the time, however, was from $120 to $125 -each. All other property within said county, both real and personal (save bank stocks), was placed upon the duplicate for taxation, and taxed upon a valuation not exceeding forty per cent, of its real cash value. The rate of taxation for state, county,, and municipal purposes, upon the valuation of all property, for that year, was 30 6-10 mills on the dollar.
    In the original petition, it was alleged that the stock of said bank was placed upon the duplicate for taxation, at its par value, by order of the state board of equalization, organized under the statute of Ohio, for the equalization of bank stocks in the state of Ohio, and “ That by reason of the said statute of the said state of Ohio, requiring the value of said shares of stock in said bank and others, to be fixed by a state board of equalization, and not as is required by and for other personal property and real estate subject to taxation, an unjust, wrongful and illegal discrimination has been, and is made against said bank stock, and its value for taxation assessed largely in excess of what it should be, to be uniform with other species of taxable property in said Seneca county, Ohio, and the value of said bank stock lias not been compared or equalized, and is not taxed at a uniform value with other taxable property in said Seneca county, Ohio,” and “ That said tax by reason of the premises, was and is unjust, and illegal, was not uniform; that said stock was by the authority aforesaid taxed greatly in excess of any other class of property in said Seneca county, Ohio ; was not taxed in proportion to its actual value as compared with other taxable property listed for taxation in said Seneca county, Ohio.”
    In the court of common pleas, the plaintiff’s petition was dismissed, but on appeal to the district court, the defendant was “perpetually enjoined from collecting, or attempting to collect, any further sum, or part of said tax for the year 1877.”
    To reverse this decree, the present proceeding is prosecuted.
    
      George E. Seney, for plaintiff in error :
    The defendants in error ought not to be released from the payment of any part of the amount of the tax charged upon these bank shares. They should pay the whole tax and nothing less than the whole. They do not claim the tax to be illegal. Their only complaint is respecting the valuation of these shares. For the purpose of this argument, we must concede, that it is shown by the record that these bank shares are valued for taxation, higher, in proportion to value, than other taxable property in Tiffin. We contend that this inequality in valuation is no ground for relief, by a perpetual injunction, from the payment of any part of the tax charged upon these bank shares. We contend, for several reasons, the defendants in error have no right to such relief. The tax upon these shares is a legal tax. There is no part of it illegal. The rate of taxation for state, county and city purposes is, as we have stated, 30 6-10 mills on each dollar of valuation. The defendants in error make no question as to the legality of either of these levies. We say, therefore, that 30 6-10 mills is a legal tax upon all of the taxable property in Tiffin. The valuation put on these shares, .or the valuation put on the other taxable property in Tiffin, has nothing to do, whatever, with the legality, or illegality, of this tax. The valuations may be unequal, excessive, or oppressive, yet the tax perfectly free from any illegality. Against the payment of a legal tax the courts 'give no relief, by injunction or otherwise. No action to enjoin the collection of a legal tax can be maintained. The valuation of property for taxation is a matter with which courts have nothing to do. They may enjoin the collection of an illegal tax, but they have no power to interfere with the valuations upon the tax duplicate. These valuations are not to be equalized in courts. Errors and mistakes in valuing property for taxation, courts cannot correct. The laws of our state provide, wisely, we think, for the settlement of all matters pertaining to the valuation of property for taxation, outside of the courts. Swan & Sayler, 754, 755, § 42, 44, 45 ; 73 Ohio L. 251, §§ 3, 4. These laws establish a board of equalization for the purpose of equalizing the valuations made upon taxable property. Upon this board is conferred ample power to correct errors or mistakes in valuations—to increase, or to reduce valuations—in short, to equalize, truthfully and fairly, the valuations of all taxable property. More than this. The board has power to hear and determine all complaints respecting the valuations upon the tax duplicate. With respect to the valuing of bank shares for taxation, our laws provide that the county auditor shall value them at their true value in money. Const, art. 12, § 2; 73 Ohio L. 251. They provide for equalizing the valuation of the county auditor, with the valuations of real and other personal property, moneys and credits, subject to taxation, within the city where the bank is located. S. & S. §§ 44, 45, p. 755. This equalizing work.is done by a board composed of the county auditor and six citizens of the city, appointed by tbe city council. But this is not all. The statute creates a state board for the equalization of tbe value of bank shares. Tbis board is composed of the auditor and treasurer of state and tbe attorney-general. 73 Ohio L. 251. These boards, city and state, are authorized by tbe statute to hear and determine complaints respecting tbe valuations put upon bank shares. Tbe city board has power to equalize all valuations upon tbe tax duplicate. Tbe power of tbe state board is limited to equalizing the value of bank shares. Surely, laws with such provisions, amply protect tbe rights of taxpayers. The jurisdiction of an equalization board, in equalizing valuations for taxation, is exclusive. Cooley on Taxation, 528, 529. To secure equality in taxable valuations, tbe constitution provides, that property subject to taxation, shall be valued at its true value in money. Yaluations made by tbis rule, tbe constitution protects. Yaluations made by any other rule, tbe constitution does not protect. When made, as in the case at bar, below—far below—money value—there is a violation of tbe constitutional rule. When tbe owner of property claims under such a valuation, be violates tbis constitutional rule. We maintain, that the defendants in error violate tbis constitutional provision, in claiming under tbe valuation put upon these bank shares. We are, then, to consider tbis provision of the constitution with respect to tbe rights of tbe public, or state, upon the one band, and tbe rights of tbe individual tax-payer upon tbe other. For while tbe constitution secures to tbe tax-payer equality in valuation, at tbe same time it demands from him tbe true value of bis property for taxation. Upon tbe condition that bis property is valued for taxation at its true value in money, be bas the guaranty that all other valuations shall be made at the true value of the property. If there is a failure of tbis condition as to bis property, there is a failure also of bis right to enforce tbis guaranty. Actual value is the basis of equal valuation. It is tbe right of tbe State to have taxable property valued for taxation at its true value, and in tbis is tbe.right of equal valuation to tbe taxpayer.
    
      
      N. L. Brewer, for defendant in error:
    It is an essential and fundamental requisite in the exercise of the power of taxation that the burden should be imposed -or apportioned with all practicable equality and justice. If a certain value is fixed upon real estate for the purpose of taxation by the persons or officers charged with assessing it, say one-third its value; for cattle, horses, &c., by the persons charged with assessing it, at two-thirds of such value; for bank shares by a different board, at full value, it will readily be seen, that although the rate may be the same, yet these men do not bear an equal burden of taxation. Section 2, article XII. of our constitution provides : “ Laws shall be passed taxing by a uniform rule,” &c., all classes of property. This is imperative ; such laws shall be passed. But what is meant by “ taxing by a uniform rule f” See Bank v. Hines, 3 Ohio St. 15. But what we complain is, that all property must be put upon the same plane. If real and personal property, generally, is to be put in tie forty per cent, of its value, then the uniform rule would require bank shares to be put in at forty per cent, of their value. The defendants are without a remedy, unless it can be given them in this action. Can it be claimed that these defendants in error shall or can cause all the real estate and personal property in the state of Ohio to be raised to its full value, and thus be brought up to the plane, or upon the same ground that bank stocks are taxed ? IIow could this be accomplished ? "What power have these defendants to accomplish it? The land for the past ten years, and for the coining ten years, has been and is appraised at that value. The personal property each year is fixed at that rate throughout the state. What board now has the power to increase this, whoso aid the defendants in error invoke ? It is impossible to raise the other property. The boards have not and will not, the court cannot. But the court can say that bank shares shall be brought down to the same plane—that there must be uniformity in taxation. If it cannot be at its full value, then at its proportionate value with all other property. Here is a wrong, a great wrong—an unjust and unlawful discrimination in assessing property—an unequal bearing of the burdens of taxation. It is an injustice that contravenes the constitution of the state of Ohio, whether brought about by insufficient legislation, or design, or inadvertence. But it is urged that equity will not enjoin the collection of a tax for mere over-valuation, or illegality of tax, or where there is a remedy at law. The supreme court of the United States says: “ The statutes of Ohio (Rev. Stat. §§ 5848 eb seq.) expressly provide for an in j unction against the collection of a tax illegally assessed, as well as for an action to recover back such taxes, when paid, showing clearly an intention to authorize both remedies in such cases.” Cummings v. National Bank, 101 U. S. 153. There is no statutory authority whatever for saying that the value of bank shares ever- came before the board of equalization for the city of Tiffin. It could not be considered there ; such board had no power over it. The only one that could raise or lower the value was the auditor—he fixed its value. To him complaint was made; he acknowledged the correctness of the complaint, but afforded no relief. The county board only equalized it with other bank shares held in the county, by adding to or taking off. It had no power of comparison, could not bring it down to other property. The state board could only do the same throughout the state. It was a fraud from the beginning. The defendants had the right to rely solely upon the constitution. It will be seen from the record that putting real and personal property and bank shares in the city of Tiffin on the same basis, that of actual value, that bank shares pay nearly three times as much in proportion to their actual value; as any other class of property. These defendants have already paid one-half the tax so assessed, and more tax for that year than any other class of property in the city of Tiffin. Here is the wrong—within the broad power of a court of equity lies the remedy. If the affording of such relief strikes at our defective legislation, the sooner the better. The rule of uniformity required by the constitution being violated, the defendants in error are entitled to the relief asked. Cummings v. National Bank, 101 U. S. 153; Pelton v. National Bank, U. S. 143; Marsh v. Supervisor, 42 Wis. 502; Perry County v. Selma & C. R. R. Co., 58 Ala. 546; 
      Bureau Co. v. Chicago, Burlington & Quincy R. R. Co., 44 Ill. 229; Exchange Bank v. Hines, 3 Ohio St. 1.
   McIlvaine, J.

That a gross, if not scandalous inequality exists between the burden of taxation cast upon bank shares and that imposed upon other property, in the county of Seneca, is fully established by the records before us. But whether this inequality results from incapacity, or a more reprehensible trait in the character of the agents and officers of the law, upon whom are imposed the duties of listing and valuing property for taxation, is not disclosed. That the blame attaches to the officers of the law, and not to the law itself, appears to us very plainly.

The constitution provides (art. 12, § 2), “Laws shall be passed, taxing 'by a uniform rule, all moneys, credits, investments in bonds, stocks, and joint stock companies or otherwise; ;and also all real and personal property, according to its true value in money,” &c. And article 12, section 3, provides, “ The general assembly shall provide by law, for taxing'the notes and bills discounted or purchased, moneys loaned, and all other property, effects, or dues, of every description (without deduction) of all banks, now existing or hereafter created, and of all bankers, so that all property employed in banking shall always bear a burden of taxation equal to that imposed on the property of individuals.” Thus it appears, as far as the constitution is involved, that exact equality of burden is imposed upon all taxable property, whether owned by banks or bankers, or other persons; and further, that all property should be taxed according to its true value in money.

In obedience to these requirements of the constitution, the legislature has assumed to pass laws for the listing and taxing of all the property subject to taxation in the state, whether owned by banks or bankers or other persons, by a uniform j’ule and according to its true value in money. If the laws thus passed were faithfully executed, we have no doubt that the equality of burden, so positively enjoined by the constitution, would be substantially accomplished; and more than this should not be expected, as, from the frailty of human judgment, exact equality is not likely to be ever attained.

True, the mode and agencies employed, under the statute, for listing, valuing and equalizing shares of bank stocks, are not the same as those employed for the like as to other property. I shall not enter into details as to these matters of difference ; but it will suffice to say, that real property is valued for taxation decennially by township appraisers, whose action is supervised by a county board.of equalization, and finally, as between counties, by a state board of equalization composed of the auditor of state and a member from each senatorial district. Personal property generally is .annually listed and valued by the owner under oath. Some articles may be exhibited to the assessor, who is required to value the same. The returns of assessors are equalized by county or city boards of equalization. Shares of bank stock are listed, valued and equalized thus: The president and cashier of every bank is required to return under oath to the auditor of the county in which the bank is located, annually, the names and residences of all stockholders, the number of shares held by each, the actual value in money of such shares, together with a description of all real estate owned by the bank. Thereupon the auditor is required to deduct from the total actual value of all the shares, the appraised value of the real estate, and to place on the duplicate the remainder of the total value of the shares, in the names of the owners thereof, in amounts proportioned to the number of shares owned by each. The valuations of bank shares so fixed by county auditors are supervised by a state board of equalization, composed of the auditor of state, treasurer of state and the attorney-general, who are authorized to hear complaints and equalize the valuation of the shares so fixed, <£by adding to the valuation of the shares of any such banks or banking associations as in their opinion are assessed below their value in money, or by reducing the valuation of the shares of any such banks or banking associations as in their opinion have been assessed above their value in money.”

Now, the point is made, as we understand the claim, that the inequality complained of in the plaintiffs petition was the result of this diversity in the- modes employed by legislation for fixing the valuations for taxation, of the different species of property. That legislation which leads to such results i? obnoxious to the principles of the constitution, and, therefore, a tax levied under it is illegal and void.

"We wholly dissent from the first proposition. The inequality complained of cannot, in any just sense, be attributed to the state of legislation on the subject. "Whether it was wise to adopt different modes and agencies for determining the value of taxable property, we need not consider. Much might be said in its favor. But we can, and do affirm, with the utmost confidence, that an honest and intelligent discharge of duty by those intrusted with the execution of the respective modes provided by law, would accomplish all that was intended by the constitution. A faithful execution of the different provisions of the statutes would place upon the duplicate for taxation all the taxable property of the state, whether bank stocks or other personal property or real estate, according to its true value in money; and the equality required by the constitution has no other test. There is nothing in the constitution which requires property to be taxed according to the same per cent, of its true value in money, save only the one hundred per cent. The difficulty, therefore, in this case is not attributable to the laws, but to a failure to execute them in conformity to their true meaning and intent.

Confessedly, in this case, the property of the plaintiffs below, their bank shares, was valued for taxation at only eighty per cent, of its true value in money—plus the value of the real estate-owned by the bank. No word of complaint is made against the officers of the law for violating their sworn duty in placing this property on the duplicate at its par value, instead of its true value in money (as the constitution required), which was one hundred and twenty-five per cent, of its par value. The complaint, in substance, is, that they acted unlawfully and unjustly towards the plaintiffs in valuing their property for taxation, at more than forty per cent, of its true value in money. This greater wrong, the plaintiffs below would justify on the ground that other property in the county was not returned for taxation at more than forty per cent, of its true value in money.

If, upon this ground alone, a court of equity can say that the valuation of the plaintiffs’ property must be reduced from eighty to forty per cent, of its true value in money, because other property in Seneca county lias been taxed upon only forty per cent, of its value, by what name shall we call the wrong that will be perpetrated on the other eighty-seven counties of the state, where all property, including shares of bank stock, has been assessed according to its true value in money, and upon which the rate required for state purposes has been paid ?

It must here be remarked, that in the petition of plaintiffs below, no fraud or conspiracy, or other unfaithfulness, has been charged against the officers and agents of the law, who placed the taxable property of Seneca county, other than bank stocks, upon the duplicate at a valuation of only forty per cent, of its true value. If it be possible that such a thing could have occurred through mistake or error of judgment, we are bound to say that such was the case; and such a thing is possible.

Where then, lies the equity of this case? While it cannot be said that the plaintiffs below should be compelled to pay more taxes in proportion to the value of their property, than is required of other taxpayers of the county; it must be affirmed that other taxpayers should pay as much as is required of the plaintiffs, in proportion to the values of their respective properties, and that is to say, until all have paid the required rate, upon the full and true value of their respective properties. If either be relieved from any portion of the burden according to this standard, it must be on the ground of some accident, mistake or error of judgment, in determining the values of their property, but not upon any ground of right. And if for such reasons the plaintiffs below, to a certain extent, and the other taxpayers of Seneca county, to a greater extent, escape the payment of their just and equitable share of the public burdens, surely equity, on the mere ground of inequality as between them, will not interfere to restrain the collection of an excess arising upon such inequality, to the detriment and injury of other taxpayers throughout the state, whose property is subject to the same levies, and has been assessed in accordance with the very letter and spirit of the constitution and laws of the state.

Our statutes have made ample provision for the coi’rection of mistakes and errors of judgment, committed by those intrusted, in the first instance, with the fixing of values upon taxable property. Even unjust and corrupt discrimination can be relieved against, in the special tribunals provided by the statute, for the equalization of values. As a general rule, the decisions of these boards must be held to be final and conclusive. To these boards, and not to the courts, must complaints as to inequalities in valuations be preferred. True, the attention of the auditor was called to the fact, that the valuation of these bank shares was higher in proportion to their true value, than the valuations of other property in the county; but there is nothing in the record to lead us to believe that the annual city and county boards of equalization would not, if complaint had been made, have advanced the valuation of all other property in the county, to its true value’ in money. The opportunity provided by law for the correction of the inequality complained of, was omitted. We cannot correct it now. And if for such reasons, relief can be given to the plaintiff, we can see no reason why the like relief should not be given to every taxpayer of the state, whose property has been assessed on more than forty per cent. of. its value, even to the destruction of the revenues of the state.

What relief a court of equity would give in a case of fraudulent conspiracy, or combination or rule adopted by those whose duty it is to fix the taxable values of property, for the purpose of imposing upon some property, or class of property, more than its just share of the public burdens, we need not now inquire. No such combination or rule of action is shown in the case before us. Hence, the doctrine announced by the supreme court of the United States in Pelton v. Bank, 101 U. S. 143 ; and Cummings v. Bank, 103 U. S. 153, does not apply in this case. But even in such cases, equity will not afford relief to a complainant who cannot show that the burden imposed on him is greater than it would have been, if the laws had been faithfully executed, by taxing all property by a uniform rule, and according to its true value in money; and also, that the tribunals provided in the system of taxation, for redress against inequalities, had been appealed to in vain.

Ve are, however, entirely content to approve and follow a later decision of the supreme court of the United States (National Bank v. Kimball, 103 U. S. 732), in which it was held that a bill to restrain the collection of a state tax upon the shares of a national bank, is bad on demurrer, when it does not appear that there is any statutory discrimination against them, or that they, under any rule established by the assessing officers, are rated higher in proportion to their actual value than other moneyed capital; that averments that the assessments were unequal and partial, are not sufficient.

Judgment reversed and action dismissed. ,  