OPINION OF THE COURT.
— This is a suit in equity to restrain a. tax sale. Three national banks and one state bank join as plaintiffs. The plaintiffs allege that, in pursuance of a notice by the county assessor that all property must be returned at 35 per cent, of its actual value, they returned their property at 35 per cent, of its actual value, while many other taxpayers of the county returned their property at a much less rate. They allege that the said notice and requirement of the assessor was “intentionally, systematically, and arbitrarily” made and promulgated for the purpose of causing plaintiffs to pay a larger tax than other taxpayers, and that said scheme was effectuated by means of various acts of the assessor, which may be summarized as follows: That he intentionally and willfully failed to assess or to require to be returned credits, mortgages, and other moneyed capital in the hands of individuals to an 'amount of over $100,000; that he assessed the real estate of plaintiff at 50 per cent, of its value, while the real estate of other taxpayers was assessed at a ratе not exceeding 35 per cent.; that he directed owners of live stock to return only two-thirds of the number of animals, and assessed the same at 35 per cent, of their value: that he added to'the returns of plaintiffs their undivided profits, and assessed the same at 35 per cent, of the amounts. They further alleged that thereafter the board of county commissioners, sitting as a board of equalization, reduced the assessment of plaintiffs in certain named amounts for the purpose of equalizing the taxes of taxpayers. They allege that thereafter an appeal on behalf of certain taxpayers was perfected and presented to the state board of equalization, requesting that the valuation of the property of the First National Bank of Raton and the National Bank of New Mexico, of Raton, plaintiffs herein, be restored to that fixed by the assessor, which appeal was sustained, and said valuations restored; that thereafter the state board of equalization made a general order which is as follows:
“Inspection of the tax rolls disclose the fact that there is great variation and lack of uniformity in the assessment of banks in the different counties in the state, such assessments having been made in some cases lower and in others higher than the valuation fixed by this board at its meeting in February last, and it therefore becomes the duty of the board to equalize the assessment of banks in the different counties. It is therefore ordered that all banks in the state shall be assessed at the uniform rate of fifty (50) per cent, of their capital stock, surplus, and undivided profits, as directed by the board at its February meeting, and this is to be construed as including the whole of the capital stock, surplus, and undivided profits, as they existed on the 1st day of March, 1912; and the treasurers of the respective counties are directed to change the assessments of all banks, by raising or lowering the same, so as to conform with this order.5’
They allege that thereafter the assessor extended the valuations of plaintiffs5 property upon the tax rolls as fixed by the state board of equalization, and did so “arbitrarily, willfully, and intentionally, for the purpose of compelling plаintiffs to pay a larger tax in proportion to the value of their property55 than other taxpayers in the county; that he failed and refused to raise the valuation of other taxpayers in like proportion, and again failed and refused to assess credits, mortgages, or other monied capital in the hands of individuals to the amount of at least $100,000, and failed and refused to add the one-third in number of the live stock theretofore omitted from the tax rolls. They allege that thereafter the board of county commissioners approved the action of the assessor, and approved the tax rolls as so prepared, and the same were delivered to the defendant, as treasurer and ex officio collector, for the collection of the taxes. They allege that they have paid the amount of taxes due, according to the valuations as fixed by the board of county commissioners, but that the defendant, notwithstanding, has advertised a tax sale, and is about to sell plaintiffs5 property for the balance of taxes unpaid, to the irreparable injury of plaintiffs, unless restrained by order of the court. Aside from the alleged illegality of the taxes, plaintiffs allege, as a basis for equitable interference, that said sale, unless restrained, will create a cloud upon the title of plaintiffs; that said sale will result in irreparable injury to the three national banks, plaintiffs, but in what manner is not pointed out; and that plaintiffs will be compelled to bring a multiplicity of suits'in order to recover the money paid, owing to its distribution to the various funds to which it would belong, and which funds are under the control of various public officers. They pray for an injunction to restrain the sale.
The substance of the complaist may be summarized as follows: The national banks, plaintiffs, are illegally taxed because “credits, mortgages, or other moneyed capital in the hands of individuals55 are not taxed; all of plaintiffs are illegally taxed because they are taxed at a higher valuation than other taxpayers similarly situated; and that said condition is the result of arbitrary, willful, and intentional acts of the taxing officers done for the purpose.
A demurrer to the complaint was interposed and overruled by the court, and, the defendant electing to stand upon his demurrer, a permanent injunction was awarded as prayed. The demurrer went upon the ground that the complaint failed to state facts sufficient to constitute a cause of action, and specified many particulars in this regard. It is deemed sufficient in form to raise all but one of tbe questions which will be discussed.
“The conclusions to be deduced from these decisions are that money invested in corporations or in, individual enterprises that carry on the business of railroads, of manufacturing enterprises, mining investments, and investments in mortgages does not come into competition with the business of national banks, and is not therefore within the meaning of the act of Congress; that such stock as those' in insurance companies may be legitimately taxed on income, instead of on value, because such companies are not competitors for business with national banks; and that exemptions, however large, of deposits in savings banks, or of moneys belonging to charitable institutions, if exempted for reasons of public policy, and not as an unfriendly discrimination against investments in national, bank shares, should nоt be regarded as forbidden by TJ. S. Rev. Stat. § 5219. * * * As to the sum of $237,400 alleged to be invested by individual citizens of Chehalis county in loans and securities to them payable and owing by other citizens of that countji, we are not informed by the bill of the nature of such loans and securities, and, as against the pleader, we may well assume that they belong to a class of investments which does not compete with the business of national banks. The same is true of the sum of $14,000,-000 alleged to be invested in loans and securities by citizens of the state of Washington and to them payable and owing by other citizens of said state.”
In Mercantile Bank v. New York,
“The main purpose, therefore, of Congress, in fixing limits to state taxation on investments in the shares of national hanks, was to render it impossible for the state, in levying such a tax, to create and foster an unequal and unfriendly competition, by favoring institutions or individuals carrying on a similar busines's and operations and investments of a like character. The language of the act of Congress is to be read in the light of this policy. * * * But ‘moneyed capital5 does not mean all capital the value of which is measured in terms of money. In this sense all kinds of real and personal property would be embraced by it, for they all have an estimated value as the subjects of sale. Neither does it necessarily include all forms of investment in which the interest of the owner is expressed in money. * * * The business of banking, as defined by law and custom, consists in the issue of notes payable on demand, intended to circulate as money where the banks are banks of issue; in receiving deposits payable on demand; in discounting commercial paper; making loans of money on collateral security; buying and selling bills of exchange; negotiating loans; and dealing in' negotiable securities issued by the government, state and national, and municipal and other corporations. These are the operations in which the capital invested in national banks is employed, and it is the nature of that employment which constituted it, in the eye of this statute, ‘moneyed capital.5 Corporations and individuals carrying on these operations do come into competition with the business of national banks, and capital in the hands of individuals thus employed is what is intended to be described by the act of Congress.’5
In National Bank v. Baltimore,
“It is the nature of the employment that fixes its character. Wherever money is employed in the carrying on of a business, the object of which is the making of profit by its use as money, it is moneyed capital. When such capital is invested in loans or securities of a permanent or temporary character, if it is so invested with a view to sale and reinvestment for the purpose of making money by the operation, it is moneyed capital. The securities themselves do not necessarily come within the definition. * * * The true test is the nature of the business in which the person is engaged, and that cannot be determined by the character of the investment.”
In First National Bank v. Chapman,
“The result seems to be that the term ‘moneyed capital,’ as used in the federal statute, does not include capital which does not come into competition with the business of national banks, and that exemptions from taxation, however large, such as deposits in savings banks or moneys belonging to charitable institutions, which are exempted for reasons of public policy, and not as an unfriendly discrimination as against investments in national bank shares, cannot be regarded as forbidden by the federal statute.”
See'citations to section 5219, R. S. U. S., appended to the section in 5 Fed. Stat. Ann. 157.
Counsel for plaintiffs cite and rely upon Evansville National Bank v. Britton,
At the time this tax was laid the law required that all property be taxed at its full cash value. There is no allegation by plaintiffs that they were assessed more than or as much as full value, but they allege an assessment against them of 50 per. cent, of full value. They claim that they have been arbitrarily, willfully, and intentionally discriminated against, and that such discrimination has been accomplished by omitting from the tax rolls other moneyed capital and one-third of all live stock, and by assessing such property as has been assessed at a lower rate of valuation than that of plaintiffs. They complain not of overassessment, but of failure to tax others equally with them, as a result of an intentional wrong on the part of the taxing officer. This is what is termed by Judge Cooley as “invidious assessment.” 1 Cooley on Taxation (3d Ed.) 385. Such taxation, of course, violates the letter and spirit of our Constitution, which provided, at the time this tax was laid, that:
“The rate of taxation shall be equal and uniform upon all subjects of taxation.” Section 1 of article 8 of the state Constitution.
Section 9 of article 8 provides also that:
“All property within the territorial limits of the authority levying the tax, and subject to taxation, shall be taxed therein for state, county, municipal and other purposes.-’’
None of the property in question is subject to any exemptions, so far as appears.
The proposition involved is one of much difficulty. When a taxpayer is required to return his property at its full cash value for taxation purposes, and where he has returned it or has been taxed upon it only 50 cents on the dollar, it is difficult to understand how he can appeal to a court of equity for relief simply because some other taxpayers have been more fortunate and have .escaped in a greater degree the just taxation to which their property was subject. To ask a court of equity for relief, under such circumstances, is to ask the court, from one point of view, to become a party to a patent violation of the law. It is asking the court to assist the taxpayer to violate the law because the law has been violatеd, either by another class of taxpayers or by the taxing officers in the latter's behalf. Every court must naturally shrink from taking any such position. But there inheres in the nature of the subject of taxation a necessity oftentimes which would seem to authorize, if not require, equitable interference. A taxpayer who has been unjustly discriminated against may ordinarily obtain relief by applying first to the assessor, next to the county board of equalization, and finalty to the state board of- equalization for the' redress of his grievances. His grievances may be redressed either by a reduction of the valuation of his property to an equality with that of the other taxpayers, or by the raising of the valuations of the other taxpayers to a proportion equal to that of his property, and by the placing of omitted property on the tax roll. This result can be accomplished by application to the assessing officers. If they fail or refuse to remedy the defect, the taxpayer may appeal to the county board of equalization, who have at least power to reduсe his valuations to an amount equal to that of other taxpayers similarly situated. If the county board refuses to remedy the defect, he may appeal to the state board of equalization for relief. But suppose that all of these assessing and taxing officers fail to award to the taxpayer the relief to which he is entitled; in such case there arises an overpowering necessity for the intervention of the restraining power of the courts. The courts have no power to list-property for taxation which has been omitted, and they have no power to raise the valuations of classes of property to the same proportionate value as that of other classes of property. All that the courts can do is to reduce the valuations of the property of the complaining taxpayer who has been intentionally discriminated against to an equality with that of other taxpayers, and thus give effect to the constitutional provision as to equality and ■uniformity in taxation. This proposition lias often been before both the fedеral and the state courts.
In Taylor v. Louisville & N. R. Co.,
"The sole and manifest purpose of the Constitution was to secure uniformity and equality of burden upon all the property in the state. As a means of doing so (conceding that defendant’s construction is the correct one), it provided that the assessment should be according to its true value. * * * We have before us a case in which the complaining taxpayer, and other taxpayers owning the same species of property, are taxed at a higher rate than the owners of other species of property. This does not come about by legislative discrimination, but by the intentional and S3rstematic disregard of the law by those charged with the duty оf assessing all other species of property than that owned by complainant and its fellows of the same class. This is a flagrant violation of the clause of the Constitution forbidding discrimination in taxation between different species of property. That clause is self-executing. Reelfoot v. Dawson,97 Tenn. 160 ,36 S. W. 1013 [34 L. R. A. 725]. * * * The question presented is, then, whether, when the sole object of the article of the Constitution is being flagrantly defeated, to the gross pecuniary injury of a class of litigants, and one of them appeals to a court of equity for relief, it must be withheld because the only mode of granting it will involve an apparent departure from the method marked out by the Constitution and the law for attaining its sole object. We say ‘apparent’ departure from the constitutional method, because that instrument contemplated a system in which all property should be assessed at its real value. It did not intend that a large part should be assessed ■ at 75 pér cent., and a smaller part at 100 per cent. The method, of assessing one species of property cannot be truly said to be constitutional without having regard to that pursued with other species; for the essence of the constitutional requirement is uniformity, and uniformity cannot be affirmed to exist without a due regard to the methods of assessing all species. Therefore, to enjoin the enforcement of the prescribed methods, of assessment as to one species of property, when there is a departure from it as to all others, if the injunction secures uniformity as to all, is not so great a violation of the method really prescribed as that involved in a continuance of the existing conditions and the denial of relief to the injured taxpayer. The court is placed in a dilemma from which, it can only escape by taking that path which, while it involves a nominal departure from the letter of the law, does injury to no one, and secures that uniformity of tax burden which was the sole end of the Constitution.”
The court cites several cases from the state courts, among them Randell v. City of Bridgeport,
“The point of this case, and those about to be cited, is that, where either the nnifonnity required by law or the prescribed means of attaining it must be' departed from, the court will choose the lesser evil.”
In Cocheco Co. v. Strafford, 51 N. H. 455, the law provided that all taxable property should be appraised at its full and true value in money. The court said:
“Justice requires an equal rate of taxation of Strafford real estate. If the Strafford real estate of others was appraised in 1870 at a less rate than its full value, tire real estate of the plaintiff should be appraised by the commissioners at the same rate, so that the plаintiffs shall pay their proportion of tax, and no more.”
In Ex parte Ft. Smith & Van Buren Bridge Co.,
“It may be said that, inasmuch as its property was not assessed above its true value, it had no right to complain. But this is not true. It had the right to demand that no unequal burden be imposed upon it by taxation. * * * The duty to contribute to the support of the state government by the payment of taxes is imposed upon all persons owning property subject to taxation. The Constitution provides that this burden shall be apportioned among them according to the value of their property, to be ascertained as directed by law. When, therefore, the property of a few is taxed according to its value, and of all others at one-half its value, then the few are required to contribute double their portion of the burden. This is manifestly a wrong, and justice demands that it be redressed whenever it can be done conformably to the laws.” ■
In Board of Supervisors v. C., B. & Q. R. Co.,
In C., B. & Q. R. Co. v. Board of Commissioners,
“The state board of railroad assessors valued the railroad property in Atchison county for taxation at its true value, but the city and township assessors of that county, by an agreement between themselves, assessed all the other property of the county at 25 per cent, of its true value. Thus, by concerted action, the statute of the state was flagrantly disregarded. * Í * There has been a gross discrimination in the taxation of the railroad company. The law has not been observed. The taxes complained of are not equal and uniform.”
The court awarded an injunction.
The Supreme Court of the United States, in Cummings v. Bank,
“When a rule or system of valuation is adopted by those whose duty it is to make the assessment, which is designed to operate unequally and to violate a fundamental princiрle of the Constitution, and when this principle is applied not solely to one individual, but to a large class of individuals or corporations, equity may properly interfere to restrain the operation of this unconstitutional exercise of power.’’
In Atchison, etc., Ry. Co. v. Sullivan,
Judge Cooley, in 1 Cooley on Taxation (3d Ed.) 386, quotes from Merrill v. Humphrey,
“A discretionary power cannot excuse an officer for refusal to exercise his discretion. His judgment is appealed to — not his resentments, his cupidity, or his malice. He is the instrument of the law to accomplish a particular end through specified means, and when he purposely steps aside from his duty to inflict a wanton injury,'the confidence reposed in him has not disarmed the law of the means of prevention. His judgment may, indeed, be final if he shall exercise it, but an arbitrary and capricious exertion of official authority, being without law, and done to defeat the purpose of the law, must, like all other wrongs, be subject to thе law’s correction.’’
See, also, to the same effect, Wells-Fargo & Co. v. Johnson,
It seems clear, therefore, that under proper circumstances a taxpayer or class of taxpayers- who has been discriminated against in the matter of taxation may have equitable relief as to the excess over other taxpayers, notwithstanding the property has not been assessed as much as it should be under the taxing laws.
In tire ease at bar it appears that, after the assessor had raised the valuation of the property of the complainants from 35 per cent, to 50 per cent, of its value, they appeared before the board of county commissioners, sittings as a board of equalization, which board reduced the valuation to 35 per cent, of the value of the property. It does not appear, however, that the plaintiffs ever demanded of the assessor, or of the county commissioners, that the omitted property be listed for taxation, and that all be raised to 50 per cent, of its value, thus equalizing the burdens of taxation upon all, nor does it appear that the collector of the county, after the tax lists had been delivered to him, was ever requested by the plaintiffs to list any of the omitted properly as he was authorized to do under section 4056, C. L. 1897. It thus appears that there was total lack of effort on the part of the plaintiffs to secure equalization by the means provided by the statute, except in one particular, viz., they attempted to have the valuations of their property reduced from 50 to 35 per cent, of its value, and succeeded in their effort in that behalf before the county commissioners; but they made no effort either before the assessor or before the county commissioners, or before the collector, to have the omitted property listed, or to have all of the property in the county valued the same as their own.
By chapter 103, Laws of 1907, the territorial board of equalization was clothed with the power to fix the value of shares of all national banks and other banking institutions in the territory; the tax to be imposed being in lien of any taxes which otherwise might be assessed u}ron their property. By section 5 of article 8 of the Constitution, the state board of equalization succeeded to all of the power of the territorial board, until otherwise provided by law, and at the time the state board acted in this case there was no new legislation adding to or curtailing the state board’s powers. At the time the state board acted (October 7, 1912) all of the acts of the assessor сomplained of were, presumably, known to the plaintiffs. They also knew that bank shares were within the exclusive assessing power of the state board, at least that part of that power which involves the fixing of values. At the time of the meeting of the board of county commissioners the plaintiffs knew that tire state board had ordered that all bank shares should be assessed at 50 per cent, of the actual value of the capital, surplus, and undivided profits-, and that, presumably, the assessor had so assessed them in accordance with the order. When they appeared before the county commissioners, however, so far as appears, they failed to- request them to add the omitted property to the tax rolls, and failed to request a valuation of 50 per cent. upon all of the other property in the county. On the other hand, they simply asked that their valuation be reduced to 35 per cent, because others were so assessed. It thus appears that they asked the board of county commissioners to do an unlawful thing, namely, to aid them in escaping a measure of taxation over and above what they had already escaped by reason of the action of the state board in assessing their property at 50 per cent, of the capital, surplus, and undivided profits. We do not think that this can be done.
As before stated, it is a general and well-established proposition that no taxpayer may appeal to a court of equity for relief against discriminatory taxation unless he has no adequate legal or statutory remedy, or unless he has first exhausted his legal and statutory remedies without avail. We take it that this proposition is settled. However, there is an exception or qualification that such legal or statutory remedies must be adequate to secure the redress required, and therefore it becomes necessary to* examine our legislation as it appeared at the time this tax was laid. By section 4048 of the Compiled Laws of 189’*/ it is provided that the board of county commissioners shall constitute a board of equalization for the revising, correction, and completion of the assessment roll. At its first meeting as such board of equalization it has power to “supply omissions in the assessment roll, and, for the purpose of equalizing the same, may increase, diminish or otherwise alter and correct any assessment or valuation, except where such valuation is fixed by law.” At either the first or second meeting of the said board of county commissioners they were authorized and required to “hear appeals and complaints of those dissatisfied with the assessment by the assessor, and shall decide the same, as in their judgment is proper and right.” The same section provides that any taxpayer dissatisfied with the decision of said board may appeal to the territorial board of equalization, and that said territorial board of equalization has full power to act in the premises, “either in increasing, diminishing, exempting, or otherwise altering and correcting any assessment or valuation so appealed from.” This section is a part of chapter 73 of the Laws of' 1887. By section 2636, C. L. 1897, which comes from a later act (chapter 12, Laws 1897) the territorial board of equalization is given the рower:
“To hear and determine any appeals taken, as now provided by law, and also any appeals taken by the territory, or any county, which appeals are hereby authorized to be made and taken in the same manner as other appeals from assessments for taxation are now allowed, and it shall be the duty of the solicitor general of the territory to take an appeal from any action of the board of county commissioners on behalf of the territory and * * * county whenever he shall be requested so to do, by a petition in writing signed by three responsible taxpayers of any county. Hi ❖ ❖ 99
Under these two sections, it is perfectly apparent that any taxpayer who believes that he is being discriminated against may appeal to the board of county commissioners, as the board of equalization, and, if he knows of any omitted property, as, it is presumed, plaintiffs in this case knew, to request said board to list the omitted property for taxation. If he knows of any valuation for taxation at a less proportion of actual value than the valuation upon his property, he may request the county commissioners to raise the valuations of the other taxpayers to an equality with him. The quotation from section 4048 does not seem to confine an appeal to the territorial board of equalization to a complaint of the taxpayer on his own assessment, but he may complain of undervaluations of other taxpayers, and section 2636 clearly gives the right of appeal on behalf of the territory or any county from any undervaluations of any classes of taxpayers. In other words, the appeal to the territorial board of equalization is not confined in its scope to overvaluation of any one or more taxpayer’s property, but includes the question of undervaluation of the property of other taxpayers. It therefore becomes apparent that the plaintiffs in this case had a complete and adequate statutory remedy for all of their grievances of which they complain in this suit. It may be suggested in this connection that to require a tаxpayer to present all this data to the taxing officers would impose upon him a difficult, if not an impossible, task, and involve him in the necessity of stating the whole tax situation of any given taxing district. But this is certainly no valid objection. The taxpayers, plaintiffs in this case, had they appealed to the tax officers, would be subjected to no greater burdens in the way of accumulating evidence than they were subjected to in this very suit. The same facts were presented in this suit which could have been presented to the taxing 'officers, and, presumably, the plaintiffs were at the time they were assessed at 50 per cent, on the dollar as well informed as to the facts as they were when they filed the complaint in this case. Under these circumstances the plaintiffs have no basis upon which to invoke the aid of a court of equity. There is no principle of law or equity of. which we are aware whereby a taxpayer can ask a court of equity to aid him in defeating the payment of a just tax, simply because others have succeeded in evading a just proportion of their tax, unless he first attempts to remedy the evil by application to the proper taxing officers. As has been pointed out, plaintiffs in this case were taxed at 50 cents on.the dollar, and desire to be taxed at 35 cents on the dollar, thereby evading 65 per cent, of their just taxation, upon the theory that they should be reduced to the same proportion of values as the other taxpayers in the county. As before seen, under proper circumstances, and when the taxpayer has exhausted all his legal and statutory, remedies, or where he has no adequate ones, he may come into a court of equity and obtain relief simply because the courts have no power to relieve him against discriminatory taxation except by reducing him to a level with the other taxpayers. This position is supported by what we consider good authority.
Thus in Bagley Elevator Co. v. Butler, 24 S. D. 429,
“What, then, was the remedy of appellant? Under -our law it is the duty of the assessors to assess property at its true value, and the duty of all equalization boards to correct errors and inequalities by raising property to its true value, where it has been valued too low by the assessor. Therefore the remedy of ajopellant was to ask the town board and the county board to equalize taxation by raising the values of other property, and not by lowering the value of appellant’s property. From the complaint it simply appears that the town boards were asked to equalize values, but it clearly appears that the county boards were asked to equalize values by lowering the values of appellant’s property, or, in other words, such board was asked to disobey the laws of this state. This court will take judicial notice that the taxing officers of this state, from the assessors to the state board of equalization, absolutely disregard the clear mandate of the law in placing values upon property for taxation purposes, but that is no -reason why the courts of this state should connive at such acts or become active parties thereto. When a party whose property, though assessed at less than its value, is assessed much higher than that of other taxpayers, shall have requested the several boards to equalize taxes- in the manner fixed by statute, to-wit, by raising the assessment of all property to its actual value, and such boards shall have refused or failed to do their clear duty under the law, then, and only.then, let such party apply to the courts for relief.”
This case was followed iln Sioux Falls Savings Bank v. Minnehaha County, 29 S. D. 146,
In Burlington, etc., R. R. Co. v. Board of County Commissioners,
"Where a taxpayer feels himself wronged,, either because his own property is valued too high, or that of others too low, or omitted altogether from the lists, a summary and inexpensive remedy is provided by a resort to the county board of equalization, a tribunal created expressly to hear complaints and make corrections of the assessment roll, preliminary to the levy of taxes, to the end that every person shall bear his due proportion, and no more, of the public burdens. The plaintiff, having entirely neglected to bring the matter of these deductions and exemptions to the attention of this board, is in no situation to be heard in complaint now. Nor does it matter that some of the deductions were made, as the evidence shows, by the board of equalization. This was error to be sure, but, having occurred in the determination of a question of which the board had jurisdiction, their decision must stand until corrected in a proper proceeding.”
In the First National Bank v. Steenson,
“Another consideration, in our opinion, is equally decisive of this case. It is not claimed that the plaintiff, or any of its said shareholders, ever presented their grievances arising upon the alleged unequal and overvaluation of said shares of capital stock to either the board of review of the city of Hillsboro or the board of equalization of Traill countjq or to the state auditor, all of which officers are expressly empowered by the revenue laws of this state to hear and redress grievances of the character set out in this complaint.”
In First National Bank v. Holmes,
"The illegality was not in valuing all the property of the township at its fair cash value, and, as between the taxpayers in the township, in valuing the real estate at a lower rate proportionately than personal property. It is not within the power of the Legislature to provide that different classes of property shall be valued differently, and, if moneys, mortgages, bonds, or securities are valued at a different proportion of their full value or on a different basis from other property, the Constitution and the law are both violated. The complainant would have had just cause to .object that lands and lots in the township of Urbana were illegally valued far below their actual value so as to work an injustice to owners of other property, but the shares of stock of complainant were subject to taxation, and the assessment was made in conformity to the mode prescribed by the statute, and the valuation of the shares by the board of review was considerably below the actual value. A court of equity cannot intervene in behalf of a taxpayer on the ground that the property of others has been valued too low. People v. Lots in Ashley,122 Ill. 297 ,13 N. E. 556 . The complainant was not without a remedy at law to compel a performance by the assessor or board of the duty declared by the statute, so that one class of property should not be assessed on- a lower basis than the property of the complainant, hut the court could not give the relief asked for by the bill without doing an injustice to all other owners of similar property who were assessed on substantially the same basis of valuation, and the shares of stock were finally valued by the board of review at much less than they should have been valued under the law. The complainant had no equitable right to have the reduction of the valuation fixed by the assessor.”
In this cause it is to be observed, as before pointed out, that the sole assessing power of bank shares was in the state board of equalization, and they made an order taxing all banks in the- state at a valuation of 50 per cent, of the capital, surplus, and undivided profits. If a suit of this kind can now be maintained by one or more banks in Colfax county, and their valuations be reduced from 50 per cent, to 35 per cent, by a decree of a court of equity, then and in that event the court becomes a party to a wrong against all of the other banks in all of the other counties of the state. This order of the state board was a general order, and affects all banking institutions. They were therefore all assessed at 50 per cent, of their valuation. The wrong which would be committed by such a decree of the court is of the same quality and character, although, perhaps, of a lesser degree, under the facts pleaded in the complaint, as the wrongs committed by the tax officers of Colfax county or the state board of equalization. The courts can take no such position.
It follows that the plaintiffs in this case have stated no cause of action in equity, and the judgment overruling the demurrer will be reversed, and the cause remanded to ike district court, with leave to the parties to plead further if they shall be so advised.