The opinion
BARCUS, J.
(dissenting).
I regret that I cannot agree with my associates in the disposition of this cause. I think beyond question the testimony raised an issue of fact to . be submitted to the jury with, reference to whether appellants had been discriminated against in violation of their constitutional and statutory rights by having their property assessed at a higher valuation for taxes than other property of like kind and character. The testimony shows without dispute that the tax assessor of the city of Waco assessed property at two-thirds of its market value, and that the equalization board was endeavoring to have all property in the city of Waco equalized in accordance therewith. The members of said board each testified that they endeavored to see that all property was assessed at two-thirds of its real value. There are' four separate tracts of land involved in this litigation. Appellants rendered same for taxes for $140,000, and the equalization board raised same to $175,470. According to some of the witnesses, the actual value of the four tracts of land was $170,000. Other witnesses placed it as high as $195,000. The trial court refused to submit the issue to the jury for it to determine whether appellants’ property was assessed at a higher value than' that assessed against other property in the city of Waco. If the testimony of some of the witnesses is true, appellants’ property has been assessed at more than its market value, when all other property in the city of Waco has been assessed at 65 per cent, of its market value. It seems to be the universal holding of our courts that it is a question of fact to be determined by the trial court or jury as to whether there has been a discrimination against a party by the tax assessor or equalization board in raising the value of property as assessed by the owner. Appellant W. W. Early testified in this case that, at the time the equalization board raised his property, he appeared before them and complained, and testified before the board that -the property was not worth the amount for which they had it assessed, and that the rendition as he gave it was more than two-thirds of its real value. He further testified that the equalization board at said time heard no other witnesses and took no' further testimony. The members of the equalization board testified that they took no other testimony but that they did personally inspect the property of appellants after they had raised the assessment.
The authorities all seem to hold that a party claiming that he has been discriminated against in the assessment of his property for taxes has a right to have the question determined by a jury. City of Sweetwater v. Biard Development Co. (Tex. Civ. App.) 203 S. W. 801 ; Brown v. First Nat. Bank (Tex. Civ. App.) 175 S. W. 1122 (error refused); Power v. Andrews (Tex. Civ. App.) 253 S. W. 870 ; Brundrett v. Lucas (Tex. Civ. App.) 194 S. W. 613 ; section 1, art. 8, state Constitution. In the case of City of Sweetwater v. Biard Development Co., supra, the court held, in substance, that, where the record shows the equalization board valued real estate at 75 per cent, of its market value for taxable purposes, and the jury found that the valuation placed upon appellee’s land was grossly in excess of said amount, said finding was sufficient to show an arbitrary discrimination against appellee rather than the exercise of an honest judgment as to such values. In Power v. Andrews, supra, the court held that the'equalization board did not have a right to assess all real estate for school purposes at three times the value placed thereon by the county tax collector, regardless of what the property might be worth, although all of the property was assessed on the same basis; that it was violative of section 1 of article 8 of the Constitution, which provides that all taxes shall be equal and uniform and all property taxed in proportion to its value. In Brown v. First Nat. Bank, supra, the court •stated that if, as a matter of fact under the evidence, the equalization board did not value all of the property on an equal basis, the taxpayer was entitled to relief, and used this language:
“Nor is the intention with which the acts of the appellants were done of any consequence. ‘It is not necessary that the officers in so discriminating should have intended specifically to injure the appellee.’ ⅜ * ⅜ So the contention of appellants, to the effect that, if the commissioners’ court, sitting as a board of equalization, acted honestly and in good faith in equalizing the values of property in Navarro- county for the year 1912, their act was final, cannot be sustained.”
This holding was specifically followed in the case of Garza Land & Cattle Co. v. Red
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wine Independent School District (Tex. Civ. App.) 282 S. W. 905 . In this case the evidence shows all other property in Waco was rendered at 65 per cent, of its market value, and the evidence tends to show that appellants’ property was assessed* at more than its real market value. I do not think the rules with reference to issues of fact are or should be any different in tax suits than in others, and, if the jury should find as a matter of fact that appellants’ property was rendered for more than its actual value, or that they have been discriminated against, whether intentionally or otherwise, they would be entitled to relief. The trial court in this cause did submit the issue as to whether the personal property had been excessively rendered, and the jury found it had, and the same rule, as I view it, applies with reference to the real estate. I cannot see any reason why the trial court should have discriminated and submitted issues as to the personal property and refused to submit issues with reference to the real estate. In my opinion, the judgment of the trial court should be reversed, and the cause remanded.