207

each other in the relation of plaintiff and | Sup. Ct. Rep. 601; New Orleans v. New defendant. When a question of fact is at Orleans Waterworks Co. 142 U. S. 79, 35 issue between the parties in a court, and L. ed. 943, 12 Sup. Ct. Rep. 142; Penn Mut. that question does not involve the relation | L. Ins. Co. v. Austin, 168 U. S. 685, 42 L. of debtor or creditor, such a fact cannot be proved by a party's own books, for such books are merely the self-serving declarations of the party producing them, and are incompetent under familiar rules of evidence.

Lewis, Harry A. Lewis, William F. Struck-Hopkins, 118 U. S. 356, 30 L. ed. 220, 6 mann, Frank L. Shepard, William H. Stead, and George B. Gillespie filed a brief in reply for appellants:

ordinance by public officers charged with | 197 U. S. 70-75, 49 L. ed. 669-673, 25 Sup.

Ct. Rep. 384; Sandford v. Poe, 60 L.R.A. 641, 16 C. C. A. 305, 37 U. S. App. 378, 69 Fed. 547; Western U. Teleg. Co. v. Norman, 77 Fed. 21; Central P. R. Co. v. Evans, 111 Fed. 74; Dundee Mortgage Trust Invest. Co. v. Parrish, 11 Sawy. 92, 24 Fed. 202; Balfour v. Portland, 28 Fed. 739; Railroad & Teleph. Cos. v. Board of Equalizers, 85 Fed. 305; Taylor v. Louisville & N. R. Co. 31 C. C. A. 537, 60 U. S. App. 166, 88 Fed.

such administration is the act of the state.
Yick Wo v. Hopkins, supra.
Under the terms of the leases and assign-
ments of leases from said companies to the
Chicago Union Traction Company, dated
June 1, 1899, all property rights and fran-
chises were absolutely transferred to and
vested in the lessee for the terms of the
leases, respectively. The supreme court of
Illinois has passed upon one of these leases,
and has held that the conveyance therein | 374.
was practically absolute, leaving in the les-
sor no reversionary interest in the property
and franchises conveyed of any substantial
value whatever.

Chicago West Div. R. Co. v. Metropolitan
West Side Elev. R. Co. 152 Ill. 525, 38 N.
E. 736.

The appellee had no hearing as to the power of the board to reassess or as to the value to be placed on its property.

Hagar v. Reclamation Dist. No. 108, 111 U. S. 701, 28 L. ed. 569, 4 Sup. Ct. Rep. 663; Kentucky Railroad Tax Cases, 115 U. S. 321, 29 L. ed. 414, 6 Sup. Ct. Rep. 57;

To constitute due process, every step pro- Davidson v. New Orleans, 96 U. S. 104, vided by law must be duly observed.

Chicago, B. & Q. R. Co. v. Chicago, supra. The members of the state board did not exercise their judgment.

Chicago, B. & Q. R. Co. v. Cole, 75 Ill. 594; Chicago, B. & Q. R. Co. v. Paddock, 75 Ill. 616.

The state board of equalization did not equalize the assessment so made with the assessments of other property in the state of Illinois.

Nashville, C. & St. L. R. Co. v. Taylor, 86 Fed. 184; Law v. People, 87 Ill. 405; Railroad & Teleph. Cos. v. Board of Equalizers, 85 Fed. 306; Chicago, B. & Q. R. Co. v. Chicago, supra.

The reassessments made by the state board are so grossly excessive as to amount to fraudulent assessments.

24 L. ed. 619; Fallbrook Irrig. Dist. Co. v. Bradley, 164 U. S. 157, 158, 41 L. ed. 388, 17 Sup. Ct. Rep. 56; Kennard v. Louisiana, 92 U. S. 480, 23 L. ed. 478; Wurtz v. Hoagland, 114 U. S. 606, 29 L. ed. 229, 5 Sup. Ct. Rep. 1086; Lent v. Tillson, 140 U. S. 316, 35 L. ed. 419, 11 Sup. Ct. Rep. 825; Spencer v. Merchant, 125 U. S. 345, 31 L. ed. 763, 8 Sup. Ct. Rep. 921; Walston v. Nevin, 128 U. S. 578, 32 L. ed. 544, 9 Sup. Ct. Rep. 192; Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 289; Powell v. People, 214 Ill. 475, 105 Am. St. Rep. 117, 73 N. E. 795; Fallbrook Irrig. Co. v. Bradley, 164 U. S. 150, 41 L. ed. 385, 17 Sup. Ct. Rep. 56; Lovejoy v. Murray, 3 Wall. 1, 18 L. ed. 129; Flanders v. Seelye, 105 U. S. 718, 26 L. ed. 1217; Litchfield v. Goodnow (Litchfield v. Crane) 123 U. S. 549, 31 L. ed. 199,

State Bd. of Equalization v. People, 191 8 Sup. Ct. Rep. 210; Green v. Bogue, 158 Ill. 528, 58 L.R.A. 513, 61 N. E. 339.

U. S. 478, 39 L. ed. 1061, 15 Sup. Ct. Rep.

Other corporations of the same class were 975. not assessed on the same basis.

Cummings v. Merchants' Nat. Bank, 101 U. S. 153-156, 25 L. ed. 903, 904; Porter v. Rockford, R. I. & St. L. R. Co. 76 Ill. 596; Chicago, B. & Q. R. Co. v. Cole, 75 Ill. 591; Pacific Hotel Co. v. Lieb, 83 Ill. 602; La Salle & P. H. & D. R. Co. v. Donoghue, 127 Ill. 27, 11 Am. St. Rep. 90, 18 N. E. 827; Williams v. Dutton, 184 Ill. 608, 56 N. E. 868; Coxe Bros. & Co. v. Salomon, 188 Ill. 571, 59 N. E. 422; Dows v. Chicago, 11 Wall. 108, 20 L. ed. 65; Union P. R. Co. v. Cheyenne (Union P. R. Co. v. Ryan) 113 U. S. 516–525, 28 L. ed. 1098-1101, 5 Sup. Ct. Rep. 601; Allen v. Baltimore & O. R. Co. 114 U. S. 311, 29 L. ed. 200, 5 Sup. Ct. Rep. 925, 962; Pacific Exp. Co. v. Seibert, 142 U. S. 339-348, 35 L. ed. 1035-1038, 3 Inters. Com. Rep. 810, 12 Sup. Ct. Rep. 250; Ogden City v. Armstrong, 168 U. S. 224-237, 42 L. ed. 444-451, 18 Sup. Ct. Rep. 98; San Francisco Nat. Bank v. Dodge,'

The members of the state board of equalization were competent witnesses.

Railroad & Teleph. Cos. v. Board of Equalizers, 85 Fed. 302; 1 Wigmore, Ev. 350; State Bd. of Equalization v. People, 191 Ill. 528, 58 L.R.A. 513, 61 N. E. 339; Cummings v. Merchant's Nat. Bank, 101 U. S. 153, 25 L. ed. 903; Pelton v. Commercial Nat. Bank, 101 U. S. 143, 25 L. ed. 901; Pittsburgh, C. C. & St. L. R. Co. v. Backus, 154 U. S. 421, 434, 38 L. ed. 1031, 1039, 14 Sup. Ct. Rep. 1114; Fargo v. Hart, 193 U. S. 490–500, 48 L. ed. 761-765, 24 Sup. Ct. Rep. 498; Coulter v. Louisville & N. R. Co. 196 U. S. 599, 49 L. ed. 615, 25 Sup. Ct. Rep. 342; Louisville Trust Co. v. Stone, 46 C. C. A. 299, 107 Fed. 307; Cincinnati Southern R. Co. v. Guenther, 19 Fed. 399; First Nat. Bank v. Lucas County, 25 Fed. 749.

The duty of the board to equalize is not » matter of discretion, but a mandatory duty;

and the violation of that mandate is the denial of the equal protection of the laws.

and so it has been held that whoever, by virtue of public position under a state govLaw v. People, 87 Ill. 405; Railroad & ernment, deprives another of any right proTeleph. Cos. v. Board of Equalizers, 85 Fed. tected by that Amendment against depriva302; State Railroad Tax Cases, 92 U. S. tion by the state, violates the constitutional 575, 23 L. ed. 663; San Mateo County v. inhibition; and as he acts in the name of Southern P. R. Co. 8 Sawy. 238, 13 Fed. the state and for the state, and is clothed 733; Santa Clara County v. Southern P. R. with the state's powers, his act is that of Co. 9 Sawy. 165, 18 Fed. 397; Santa Clara the state. Chicago, B. & Q. R. Co. v. ChiCounty v. Southern P. R. Co. 118 U. S. cago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. 394, 30 L. ed. 118, 6 Sup. Ct. Rep. 1132; | Ct. Rep. 581. Following the above case, the Railroad & Teleph. Cos. v. Board of Equali- Federal courts throughout the country have zers, supra; Nashville, C. & St. L. R. Co. v. frequently reviewed the action of taxing Taylor, 86 Fed. 168; Louisville Trust Co. bodies when, under the facts, such action v. Stone, supra; Cummings v. Merchants' was in effect the action of the state, and Nat. Bank, 101 U. S. 153, 25 L. ed. 903; therefore reviewable by the Federal courts German Nat. Bank v. Kimball, 103 U. S. by virtue of the provisions of the Amend732, 26 L. ed. 469; Stanley v. Albany Coun- ment in question. See Nashville, C. & St. L. ty, 121 U. S. 535, 30 L. ed. 1000, 7 Sup. R. Co. v. Taylor, 86 Fed. 168; Louisville Ct. Rep. 1234; San Francisco Nat. Bank v. Trust Co. v. Stone, 46 C. C. A. 299, 107 Fed. Dodge, 197 U. S. 70, 49 L. ed. 669, 25 Sup. 305. In the last case, which related to enCt. Rep. 384. joining the collection of alleged illegal taxes by reason of discrimination, the court said: "It may be conceded that, if the allegations of the bill are made out, there exists, in respect to the property of complainant and others similarly situated, a systematic, intentional, and illegal undervaluation of other property by the taxing officers of the state, which necessarily effects an unjust discrimination against the property of which the plaintiff is the owner, and a bill in equity will lie to restrain such illegal discrimination, and that in such cases Federal jurisdiction will arise because of the equal protection of the laws guaranteed by the 14th Amendment."

Mr. Justice Peckham, after making the foregoing statement of facts, delivered the opinion of the court:

The claim that the action of the state board of equalization in making the assessment under consideration was the action of the state, and if carried out would violate the provisions of the 14th Amendment to the Constitution of the United States, by taking property of the appellee without due process of law, and by failing to give it the equal protection of the laws, constitutes a Federal question beyond all controversy. How that question should be decided is another matter, which we will proceed at once to discuss.

The same principle has been recognized in Reagan v. Farmers' Loan & T. Co. 154 U. S. 362, 390, 38 L. ed. 1014, 1021, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047; A. Backus, Jr. & Sons v. Fort Street Union Depot Co. 169 U. S. 557, 565, 42 L. ed. 853, 857, 18 Sup. Ct. Rep. 445; Fargo v. Hart, 193 U. S. 490, 502, 48 L. ed. 761, 766, 24 Sup. Ct. Rep. 498.

The case before us is one which the facts make exceptional. It is made entirely clear that the board of equalization did not equalize the assessments in the cases of these corporations, the effect of which was that they were levied upon a different principle or followed a different method from that adopt

The state board of equalization is one of the instrumentalities provided by the state for the purpose of raising the public revenue by way of taxation. In regard to corporations of the class of which the appellee and the other corporations involved here are members, it is the duty of that board to make an original assessment upon them. From the decision of the board in making such assessment no appeal is provided for, and each decision is therefore conclusive, except as proceedings for relief may thereafter be taken in the courts. As to the assessments of local assessing bodies, the board is one of review, but its decisions are equal-ed in *the case of other like corporations [37] ly conclusive, as in the case of original assessments. Acting under the constitution and laws of the state, the board therefore represents the state, and its action is the action of the state. The provisions of the [36]14th *Amendment are not confined to the action of the state through its legislature, or through the executive or judicial authority. Those provisions relate to and cover all the instrumentalities by which the state acts,

whose property the board had assessed for the same year. It was not the mere action of individuals, but, under the facts herein detailed, it was the action of the state, through the board. There is here no contention of illegality simply because of assessing the franchises of these corporations at a different rate from tangible property in the state, which the state might do (Coulter v. Louisville & N. R. Co. 196 U. S. 599, 49 L.

ed. 615, 25 Sup. Ct. Rep. 342), but it is | erred in the method to be pursued in relaasserted that the board assessed the fran- tion to the corporations now before us, the chises and other property of these com- mistake is one which may be corrected in panies at a different rate and by a different equity. method from that which had been employed by the board for other corporations of the same class for that year. The result is an enormous disparity and discrimination between the various assessments upon the corporations. The most important function of the board, that of equalizing assessments, in order to carry out the provisions of the Constitution of the state in levying a tax by valuation, "so that every person shall pay a tax in proportion to the value of his, her, or its property," was, in this instance, omitted and ignored, while the board was making an assessment which it had jurisdiction to make under the laws of the state. This action resulted in an illegal discrimination which, under these facts, was the action of the state through the board. Barney v. New York, 193 U. S. 430, 48 L. ed. 737, 24 Sup. Ct. Rep. 502, holds that where the act complained of was forbidden by the state legislature, it could not be said to be the act of the state. Such is not the case here.

We are also of opinion that the case is one over which equity has jurisdiction. In Cummings v. Merchants' Nat. Bank, 101 U. S. 153, 25 L. ed. 903, this court held that the case was one properly brought in equity. It was to restrain the collection of a tax. While the court held that the position of the bank as trustee entitled it to maintain an action in equity and also under the statute | of Ohio, it was further held (page 157): "Independently of this statute, however, we are of opinion that 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 principle of the Constitution, [38]and when *this rule is applied not solely to

In all these cases, however, where there is jurisdiction to tax at all, equity will not grant an injunction to restrain the collection, even of an illegal tax, without the payment on the part of the taxpayer of the amount of a tax fairly and equitably due. People's Nat. Bank v. Marye, 191 U. S. 272, 48 L. ed. 180, 24 Sup. Ct. Rep. 68, and cases cited. Acting upon this principle, the circuit court refused to issue the injunction until the appellee paid the amount which the court found to be a fair and just amount due from the appellee for the tax of the year 1900, based upon a tax at the same rate as that levied upon other property and on corporations of the same class within the state. The sum to be paid by the appellee herein, as decided by the circuit judge, was $134,350.03. That sum was paid instead of $1,019,211.78, called for by the warrant in the hands of the collector.

Finally, it is objected that the appellee had a complete and adequate remedy at law by paying the amount of the warrant, and then suing the collector to recover the same back as money paid under duress, although upon a void warrant. Undoubtedly, if there be a complete and adequate remedy at law in such a case as this, the remedy in equity [39 will not be recognized. Assuming the tax to be void, equity will not restrain, by injunction, its collection, unless there be some other ground for equitable interposition. Shelton v. Platt, 139 U. S. 591, 35 L. ed. 273, 11 Sup. Ct. Rep. 646; Allen v. Pullman's Palace Car Co. 139 U. S. 658, 35 L. ed. 303, 11 Sup. Ct. Rep. 682; Pacific Exp. Co. v. Seibert, 142 U. S. 339, 35 L. ed. 1035, 3 Inters. Com. Rep. 810, 12 Sup. Ct. Rep. 250. In the cases in 139 U. S., supra, it was one individual, but to a large class of indi- recognized that no ground appeared for the viduals or corporations, that equity may interposition of a court of equity, because of properly interfere to restrain the operation the existence of a statute in the state of of this unconstitutional exercise of power." Tennessee providing for paying the amount We have in the case at bar similar facts. A of the alleged illegal tax to the officer holdsystem of valuation was adopted and ap- ing the warrant, and granting to the taxplied to a large class of corporations, differ- payer a right to commence an action to reing wholly from that applied to other cor. cover back the tax thus paid, the statute porations of the same class, and resulting in providing that the officer should pay the a discrimination against the appellee of the amount received into the state treasury, most serious and material nature. It is not where it was to remain until the question a question of mere difference of opinion as was decided, and, if it was decided in favor to the valuation of property, but it is of the taxpayer, provision was made for the a question of difference of method in the repayment of the amount by the state. The manner of assessing property of the same other averments, beside that of the illegalkind. Although the law itself may be validity of the tax, made in these two cases, were and provide for a proper valuation, yet if, held not to constitute a ground for the inthrough mistake on the part of the state, terposition of a court of equity by restrainthrough its board of equalization, and while ing the collection of the tax. In the case acting as a quasi-judicial body, the board' in 142 U. S., supra, the court held that there