The opinion
On Motion for Rehearing.
It is insisted that under the facts of this case the appellees were not required to appeal to the city commission in the manner provided by the city charter, before resorting, to the courts to secure relief from an overvaluation of their shares of stock. The basis of that contention is the constitutional guaranty against an unfair discrimination in the exercise of the taxing power. It is true that it is the duty of the courts, when appealed to under proper conditions, to extend that constitutional protection. But the law contemplates that an aggrieved party shall, when he has the opportunity, apply for relief to the boards ’or agencies created specially for' the purpose of correcting inequalities in assessments of property. There may be instances where a direct appeal may be made to the courts, as where an effort is made to collect *an illegal tax, or where the property owner has, without his fault, been denied the opportunity to apply for relief to such equalizing boards or agencies. But there is no good reason why he should not be required to pursue the statutory or specially prescribed remedy when he has an opportunity to do so. Counsel for the appellees refer to the following cases in support of their contention. Ogburn v. Ward County Irr. Dist. No. 1 (Tex. Com. App.) 280 S. W. 171 ; Thompson v. Devine Ind. School Dist. (Tex. Civ. App.) 249 S. W. 887 ; and Town of Pleasanton v. Vance (Tex. Com. App.) 277 S. W. 89 .
The first case was a suit by an irrigation district to collect delinquent taxes. Payment was resisted upon the ground that the taxpayer’s property had been grossly discriminated against in the final valuation by the board of equalizers. The Court of Civil Appeals held that the evidence showed arbitrary and gross overvaluation and a deliberate undervaluation of the personal property in the district; that this was a fraud upon the taxpayers, which would ordinarily subject the| action of the board to review by the courts. It held, however, that, as Ogburn, the .taxpayer, had not rendered his property for taxes, he was charged by law with the notice that - the tax assessor would present to the board a list of his property, and the board would appraise it; that it was his duty to go before the board and make an effort to see that his property was appraised upon the proper valuation; that, the law having provided a special tribunal for the purpose of ap-praisement and equalization, and no excuse for such failure, he had no remedy in the courts. In reviewing that decision, the Commission of Appeals held that Ogburn was entitled to notice before finsal action on the assessment of his property by the board of equalization. No notice had been given. For that reason, the commission stated, he was justified in not going before that board and protesting against an overvaluation of his property.
In the next ease referred to above, the De-vine independent school district sued Thompson to recover taxes assessed for'two years upon a tract of land and a town lot owned by him. Thompson defended upon the ground that the board of equalization arbitrarily and fraudulently assessed his property at a value greatly in excess of its market value, that this valuation was determined by the amount of funds required by the school board, and not by the market value of the property. He also insisted that a valid levy and assessment had not been made. The trial court found that the taxes were regularly levied and assessed, and that notice was given the owner by the board of equalization of the proposed increase of the valuation of the property, and that he made no objection. The Court of Civil Appeals held that, while it appeared from the testimony that the board of equalization was primarily guided in the final valuation by the financial necessities of the school district rather than by a critical analysis of the market values, yet the evidence warranted the finding that the property was not assessed beyond its fair market value, and there was no contention that appellant was discriminating against, and the law’s demands were satisfied. There is nothing in that case to sustain the proposition upon which the appellees rely.
In the last case mentioned above, the town of Pleasanton sued to recover delinquent taxes. The defendant, Yance, answered, pleading that his property was assessed at a value much above its market or cash value, at a much higher rate than other similar property in the town, and that its value had not been ascertained in accordance with the requirements of law. The trial court sustained a general demurrer to the answer, and, upon the evidence heard, a judgment was rendered in favor of the town of Pleasanton. On ap- ■ peal, that judgment was reversed by the *316 Court of Civil Appeals, upon the ground that the facts alleged in the answer constituted a good defense. A writ of error was granted and the case referred' to the Commission of Appeals, where the decision of the Court of Civil Appeals was affirmed. It seems that the principal defense in that case was that there had been no valid assessment for two years, and hence there was ho right to collect any taxes for those years.
None of these cases supports the contention of the appellees, and none is in conflict with the ruling made in this case.
In the case of R. G. R. R. Co. v. Scanlan, referred to in the original opinion, the court refused to enjoin the collection of a tax on the ground of inequality in valuation. Justice Moore, in rendering the opinion, said:
“Although the tax may have been illegally assessed and the action of the sheriff in collecting it unauthorized, it does not follow that a court of equity will in all instances interpose to stay his action. A party asking for this extraordinary relief must have used all proper means to obviate the necessity, of appealing to the court, and must not himself be in default. * * * Eor if the sufficiency of the petition is tested by reference to the former law we find that appellant seeks to enjoin the collection of the tax assessed by the justice of the peace merely upon the failure of the arbitrators chosen by appellant and said officer to value the property to be assessed, or if they disagreed as to its value, to select a third arbitrator, without its being made to appear that appellant unsuccessfully sought to induce the arbitrators to perform the duty for which they were chosen, and without endeavoring to correct the assessment by an appeal to the county court from the order of the justice of the peace fixing the assessment against appellant on his rolls, without said arbitrators having decided upon the value of the property.”
I & G. N. R. R. Co. v. Smith County, also cited, is another case in which the taxpayer sought to enjoin the collection of taxes on account of an excessive and unequal assessment. After discussing the facts at considerable length the court said:
“Occupying the position of seeking equity relief against alleged unauthorized action of the board, it devolved upon appellant to establish clearly facts showing that the board had acted illegally or without authority. The facts established are insufficient to show with requisite certainty that the railroad proceeded under section 17 [Acts 1876, c. 153]. Whether the proceeding was so regarded at the time or not, we, for the purposes of this case, must regard it as under section 5 and hold the assessor authorized to proceed under that section. * * * It sufficiently appears that the assessor did reject the valuation, and did refer the question to the board, and that the valuation complained of was affixed by the board of equalization, the appellant having had notice of the reference and time of meeting. The expressed intention of the law is to make the decisions of the board of equalization final on the question of valuation. If that tribunal errs and affixes an excessive valuation, that fact gives the taxpayer no right to resort to the courts for relief. * * * it would seem to be the design of the law that the person rendering property should in some way have an opportunity to present his side of the question to the board. In this case it has not been shown that the appellant was denied such opportunity. The adoption by the board of a general rule not to hear evidence or argument, did not amount to such denial. A party desiring the equitable aid of the court on such a ground should show that he at the proper time and in the proper way demanded to be heard, or offered to adduce evidence, and was denied. Whether, if he had made such a showing, the courts would have been empowered to interpose, is a question not now before us.”
In Duck v. Peeler, supra, the trial court perpetuated the injunction against the collector, restraining the collection of taxes assailed upon the ground that the assessor had illegally increased the valuation of the property. The Supreme Court, in an opinion by Chief • Justice Stayton, reversed that judgment and dissolved the injunction. Among other things, he said:
“Looking to the entire petition it is evident that appellee bases his statement that the board of equalization did not order his property to be assessed at the value stated in the tax roll on the fact that he found no such order on the minutes of that court. The petition-does not state that he had applied to the board of equalization at any time to correct his assessment if raised without authority, nor does he give any reason for not doing so or show that he could not have obtained relief in that way if entitled to it. * * *
“If, however, no action was taken by that board and the assessment was raised unlawfully by the assessor, then the statute gave appellee a complete, speedy, and adequate remedy, for the statute declares that ‘the board of equalization shall have power to correct any errors in the assessment of property at any time before the tax is paid on said property.’ ”
The principle above stated is, we think, equally applicable here. There the court refused to correct an error made by the assessor because the taxpayer had failed to exercise his right of appeal to the board of equalization. In this instance the ruling of the board of equalization was subject to review by the city commission, and the taxpayer has failed to exercise that right of appeal.
In 2 Cooley on Taxation (3d Ed.), beginning on page 1382, the author says:
“The courts of common law or of equity are powerless to give relief against the erroneous judgments of assessing bodies, except as they may be specially empowered by law to do so. This principle is applicable to statutory boards of equalization, which are only assessing boards with certain appellate powers, but whose action, if they keep within their jurisdiction, is conclusive except as otherwise provided by law, although if fraud is charged there may be a remedy in equity under principles to be stated hereafter. And the general rule is that, if one fails to appeal to the statutory board of re *317 view, he can have no remedy in the courts. But where the defect is.jurisdictional one does not lose rights by failing to appeal to a board or council which could not have remedied the defect.”
In the following cases the Supreme Court of Michigan has decided substantially the very question involved in this case: Michigan Savings Bank v. City of Detroit, 107 Mich. 246 , 65 N. W. 101 ; Detroit River Savings Bank v. City of Detroit, 114 Mich. 81 , 72 N. W. 14 . In the case last referred to the court said:
“The charter of the city of Detroit made it the duty of the plaintiff to appeal from the action of the assessors to the common council * * * during the period when the assessment roll was in their hands. Having failed to do this, we think the ease comes within the decision made in Michigan Sav. Bank v. City of Detroit.”
In Stanley v. Board of Supervisors, 121 U. S. 535 , 7 S. Ct. 1234 , 30 L. Ed. 1000 , the court passed upon a question somewhat similar to that here involved. There the complaint was that the. shares of stock in a national bank had been overvalued for the purpose of taxation. The taxes had been paid, and the suit was to recover the excess. It appears from the facts that the method adopted by the local board in ascertaining the value of the shares of stock was practically the same as that adopted by the board of equalization of the city of Longview in this ease, and the court held that it was a reasonable one. Among other things, it said:
“To these boards of revision, by whatever name they may be called, the citizen must apply for relief agáinst excessive and irregular taxation, where the assessing officers had jurisdiction to assess the property. Their action is judicial in its character. They pass judgment on the value of the property upon personal examination and evidence respecting it.”
The motion is overruled.