The opinion
On Rehearing.
Appellant’s primary complaint is of unjust discrimination, in that, defendant Board of Equalization has approved for the year 1941, a valuation upon its land approximately sevjsn times in excess of the tax valuations placed upon surrounding and similar lands. After consideration of the cause on rehearing, we conclude that the foregoing and sole issue has not been correctly disposed of, in light of Art. 8, § 1, State Constitution, which says: “Taxation shall be equal and uniform. All property in this State, whether owned by natural persons or corporations, other than municipal, shall be taxed in proportion to its value, which shall be ascertained as may be provided by law.”
Our inquiry may well begin with appellant’s protest of the assessor’s appraisal, the equalization hearing of July 1, and what there transpired; having first in mind the location of all tracts described in the court’s findings relative to the Jackson acreage, which, by the way, was unimproved. West across Preston Road were the Lindsley and Luna tracts; along the entire east and south sides lay the two Schreiber tracts, and the Aronson and Florence land adjoined on the northeast corner. Aforesaid findings of fact are that no testimony was offered by Bank attorneys on values, and that the Equalization Board, with the exception of Commissioner Field, was not familiar with the particular lands or their valuation. The hearing seems to have been an informal one; and to the extent above findings indicate that the Board was not there informed by appellant’s representatives concerning *561 the similarity of all lands as to kind and value, the same is not supported by the statement of facts. Indeed, the inequality of the Bank’s higher assessment appears to have been assumed and recognized by the Board, the expressed desire of several members being to equalize by causing a corresponding increase in surrounding assessments. And explanatory of the Board’s refusal to lower appellant’s assessment, the following testimony of Commissioner Frank at the later court trial should be quoted: “Q. Now, Mr. Frank, I believe you made a statement at one or both of those sessions that the' County of Dallas had purchased from the owners of the Jackson Estate by condemnation proceedings about two acres of land and paid about $500 an acre for it? A. That is correct. * * * Q. You made that statement. Now, Mr. Frank, isn’t it also true that you made the statement that- since the County had paid $500 an acre for that land, you would not consider reducing it one dime regardless of the value assessed against other or similar lands in the same vicinity? A. Well, that’s correct.”
Upon appellant’s protest and the Board hearing thereon, we believe that such County Commissioners should have proceeded to an equalization of these values, either by (1) raising adjoining valuations after notice, Art. 7206, § 5, or (2) appropriately reducing appellant’s valuation, in view of the constitutional mandate that taxes should be equal and uniform. Stafe Const., supra. Neither course was taken by the Board, hence their action of July 1, confirming an assessment against appellant, approximately seven times in excess of that imposed on lands similarly situated, was illegal and grossly discriminatory, to the material prejudice of complainant. Zachary v. City of Uvalde, Tex.Com.App., 42 S.W.2d 417 ; Victory v. State, 138 Tex. 285 , 158 S.W.2d 760 .
Full weight may be accorded the court’s findings of fact, still under the whole record (mainly uncontroverted), it is our conclusion that the Rule invoked in original opinion is inapplicable to the case as made. This was a direct attack upon the judgment of the Equalization Board; Brown v. First Nat. Bank, Tex.Civ.App., 175 S.W. 1122 , writ refused; which, though regular on its face, may be rendered voidable by weight of competent testimony. 25 T.J., Judg-ments, p. 696; 40 T.J., Taxation, pp. 156— 158. In such a proceeding all lands involved have been conclusively shown to be of like kind and value; and where, in the situation thus presented, taxes are levied upon appellant’s land on a basis of 70% of its full value, in contrast to 10% thereof on adjacent lands, an inequality results that may be invalidated; for the wrong inflicted upon appellant was not in requiring it to pay taxes based upon approximately the full value of its property, “but in denying to it the equality of taxation secured by the Constitution, which equality of taxation necessarily depends upon uniformity of assessment.” Lively v. Missouri, K. & T. Ry. Co., 102 Tex. 545 , 120 S.W. 852, 857 . Contrary to our original analysis of the Lively case, we believe the principle there involved is likewise applicable here. There, all property values were fairly determined but the Railroad intangibles were assessed on full valuations, while property of individuals at only 66% % thereof. Here, the same percentage of valuation (55%) was applied to all property, but the method pursued by the Board has confirmed a full valuation on appellant’s land, seven times in excess of that affixed to similar and surrounding lands. The value of property is the correct standard of uniformity, and taxation cannot be in proportion to the value of property unless the value of all property is ascertained by the same standard. Hunt v. Throckmorton Independent School Dist., Tex.Civ.App., 59 S.W.2d 470 ; Lively v. Missouri, K. & T. Ry. Co., supra.
Appellees earnestly argue that, the equalization proceedings being regular in form, the burden was upon appellant to show fraud or its equivalent in connection with the higher assessment, which the testimony wholly failed to establish; also, that complainant suffered no legal injury, in that its assessment, after all, was upon less than actual or market value.
It may be, under the court’s findings, that the Board merely failed to properly investigate adjoining values, and was not guilty of fraud in the sense of intentional discrimination. The result was the same — a disproportionate assessment, of which, we have already concluded, the Board had been duly notified; and that the equalizing agency may not have intended to act unfairly is immaterial; Poteet v. W. T. Waggoner Estate, Tex.Civ.App., 96 S. *562 W.2d 405 . Consequent upon such hearing, appellant’s assessment was unconstitutional, though based on less than actual value, when its property is assessed on a greater proportion of its full value than is used at the same time in the assessment of like and adjacent lands. “The fact that appellant would pay on a valuation less than the full and true value does not make the taxes 'equal and uniform,’ nor its land ‘taxed in proportion to its value.’ Langley et al. v. Smith et al., 59 Tex.Civ.App. 584 , 126 S.W. 660 . To assess the property of one or a few owners at a materially higher percentage of its value than the percentage of the value at which the property of a great majority of the owners in the district is assessed is unconstitutional, and, especially if done in pursuance of some custom, system, or scheme in which values are not ascertained as provided by law, it is discrimination.” Garza Land & Cattle Co. v. Redwine Independent School Dist., Tex.Civ.App., 282 S.W. 905, 908 ; Randals v. State, Tex.Civ.App., 15 S.W.2d 715 . While no system or scheme on part of the Board has been'alleged or claimed in the case at bar, yet, as compared to lands similarly situated, the procedure herein has resulted in fixing upon appellant’s property a value without regard to and in violation of the principle of uniformity and equality required by the Constitution.
We further conclude that the 1942 action by tax officials, wherein the existing inequality in values was corrected, has no special bearing on a charge of discrimination for the year in suit.
Appellant has heretofore tendered and paid into court the sum of $65.77, the amount properly due on its original tax rendition, in connection with the equitable relief sought. On grounds hereinabove briefly indicated, it is our opinion that petitioner is entitled to the final injunction as prayed, and that the trial court should have rendered judgment invalidating the particular assessment. The trial court is therefore instructed to so adjudicate the present controversy without prejudice to the right on part of appellee tax officers to reassess the property in accordance with provisions of Title 122, Taxation, R.S. Art. 7346 et seq; Electra Independent School Dist. v. W. T. Waggoner Estate, Tex.Com.App., 168 S.W.2d 645 .
Reversed and rendered with instructions.
BOND, C. J., dissents and adheres to original opinion.