was in violation of the statutes under which they were acting, which required assessments to be at the true value in money. The state board of equalization for banks increased the assessment of complainant's bank shares to their full market value. The state board had no power to equalize bank shares with real or personal property, and, in assessing these bank shares at their full value, it was following the exact course prescribed by statute, and the statute was passed in accordance with the Constitution of Ohio, which requires the Legislature to pass laws taxing all property "by uniform rule at its true value in money." This action was brought by the complainant bank to enjoin the county treasurer from collecting the tax on the assessment against its shares which had been certified down by the state board of assessors. The Circuit Court of the United States enjoined the treasurer from collecting tax on a valuation greater than one-third of the real value of the shares. The effect of this order was to annul an assessment by the state board of equalization which was strictly in accordance with the letter of the statute governing it in the discharge of its duties, and which was equally in accord with the standard of value for assessment fixed by the Constitution of the state. The decree of the Circuit Court was affirmed by the Supreme Court on the principle stated by the court as follows: "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, and when the rule is applied, not solely to one individual, but to a large class of individuals or corporations, [that] equity may properly interfere to restrain the operation of this unconstitutional exercise of power.” * * *

The justice [Mr. Justice Miller] discussed the facts, to show that the laws had been unfaithfully administered by those charged with their execution, and that as the only method provided in the system by which constitutional uniformity was to be secured, namely, by taxing all property at its true value in money, though required by statute, had been departed from by the administrators of the law in assessing other classes of property than that held by the complainant, equity might relieve complainant from his unequal burden thus placed on him by enjoining taxation on more than one-third of the assessment against him, though his property had been only taxed at its true value. After commenting on the widespread custom or rule in many states to undervalue real estate, growing out of the effort of the landowner to produce something like equality of burden with personal property which escapes taxation by being hidden, the justice concluded: "But whatever may be its cause, when it is recognized as the source of manifest injustice to a large class of property, around which the Constitution of the state has thrown the protection of uniformity of taxation and equality of burden, the rule must be held void, and the injustice produced under it must be remedied, so far as the judicial power can give remedy."

The case before us cannot in any material respect be distinguished from the Cummings Case. In this case, as in that, the injunction sought is against the enforcement of an assessment upon complainant's property which was made at the true value of the property, in accordance with the mandate of the Constitution and statute, by assessing officers who had not themselves discriminated against complainant's property by undervaluing other species of property, and who were not themselves guilty of any fraud. In this case, as in that, the unjust operation of the assessment grows out of the systematic and intentional undervaluation of other species of property by assessors who are not responsible for the assessment complained of. In this case, as in that, the effect of the injunction is to compel certain assessors of the state to reduce their assessment to the illegal standard of valuation adopted by different and unfaithful assessors of other species of property, and is justified by the result that in this way is secured something like the uniformity which is the sole purpose of the Constitution. It has been pressed upon us that no such preconcert of action by the assessing officers, and no such uniform rule of undervaluation, have been shown in this case as appeared in the Cummings Case, and that upon these circumstances. the Cummings Case turned. We have already found, from the evidence, that there is an intentional undervaluation of property in each county, and that this is uniform as to all real and personal property, and results from a clear understanding between the assessors and county boards of equalization, who have a common motive for the reduction. More than this, it is clearly shown that the state board of assessors and equalizers in 1896 intentionally equalized all real estate in the state at 75 per cent. of its true value for the taxation of the year 1897. Could preconcert be clearer than this?

It is further said that, before the remedy pursued in the Cummings Case can become applicable, it must appear that the undervaluation of one species of property was adopted as a rule of action by the assessors for the fraudulent purpose of discriminating against the complaining taxpayer and his class, and that no such case is presented to this court. Now, it is true that, before equity will relieve in such a case, it must appear that the assessing officers whose acts of undervaluation create the unjust burden must intentionally and habitually violate the law, by assessing property at a less valuation than that which they know to be its true value; but it is not true that they must be shown affirmatively to intend to injure complainant and his class of taxpayers in so doing. It is true that in the Cummings Case the unfaithful assessors, or some of them, did undervalue both real and personal property, and money capital, in which were included bank shares, at different percentages of their true value; but the assessment of which complaint was made was not the work of these assessors at all, but, as here, of a state board

of equalization. An intentional undervaluation of a large class of property, when the law enjoins assessment at true value, is necessarily designed to operate unequally upon other classes of property to be assessed by other taxing tribunals, who, it may be presumed, will conform to the law. In the case at bar the county assessors and board of equalization of each county have been actuated in their violations of the law by the desire to reduce, as far as may be, their county's share of the state burdens. Their undervaluations of property have been uniform as to all property in their county but railroads. They could not but know that such undervaluation must work an injustice against the property of railroads, if assessed at its true value by a state board, and taxed for county and state purposes on that basis. In this sense, the rule of undervaluations adopted in each county is necessarily "designed to operate unequally," within the meaning of Mr. Justice Miller in the Cummings Case. The ratio decidendi of that case is to be gathered from the facts, and the language of the opinion is to be interpreted in the view of the facts. The case has been commented on by the Supreme Court in a number of subsequent cases, but it has never been modified or overruled.

[The court then cites and quotes from Bank v. Kimball, 103 U. S. 732, 26 L. Ed. 469, Supervisors v. Stanley, 105 U. S. 305, 26 L. Ed. 1014, Stanley v. Supervisors, 121 U. S. 550, 7 Sup. Ct. 1234, 30 L. Ed. 1000, and Bank v. Perea, 147 U. S. 87, 13 Sup. Ct. 194, 37 L. Ed. 91.]

We find nothing in these cases which should change our view, already expressed, of the effect of the Cummings Case. They merely emphasize the point that equity will not relieve against an assessment merely because it happens to be at a higher rate than that of other property; that such inequalities, due to mistake, to the fallibility of human judgment, or to other accidental causes, must be borne, for the reason that absolute uniformity cannot be obtained; that, in other words, what may be called "sporadic cases of discrimination" cannot be remedied by the chancellor. He can only interfere when it is made clear that there is, with respect to certain species of property, systematic, intentional, and unlawful undervaluations for taxation by the taxing officers, which necessarily effect an unjust discrimination against the species of property of which the complainant is an owner. The reason for the distinction is obvious. The occasional and accidental discriminations are inevitable in every assessment, and are not likely to continue, because not the result of an illegal purpose on the part of any one. If equitable interference in such cases could be invoked, the obstruction to the collection of taxes would be so frequent as to be intolerable. More than this, an action to enjoin a tax is a collateral attack upon the judgment of a quasi judicial tribunal; and it cannot be justified except on the ground of an obvious violation of law, or something

equivalent to fraud. It does not lie where the injury complained of arises only from the erroneous, but honest, judgment of the lawfully constituted tax tribunal.

The interference by the chancellor in the case at bar and in the Cummings Case rests on something equivalent to fraud in the tribunal imposing the tax. The various boards whose united action is by law intended to effect a uniform assessment on all classes of property are to be regarded as one tribunal, and the whole assessment on all classes of property is to be regarded as one judgment. If any board which is an essential part of the taxing system intentionally, and therefore fraudulently, violates the law, by uniformly undervaluing certain classes of property, the assessment by other boards of other classes of property at the full value, though a literal compliance with the law, makes the whole assessment, considered as one judgment, a fraud upon the fullyassessed property. And this is true although the particular board assessing the complainant's property may have been wholly free from fault of fraud or intentional discrimination. Therefore the injunction might issue against the assessment upon the fully-assessed property, as void altogether, until a new and uniform assessment upon all property according to law could be made. And such is the rule in some courts. Weeks v. Milwaukee, 10 Wis. 263; Hersey v. Board, 16 Wis. 192, 82 Am. Dec. 713; Smith v. Smith, 19 Wis. 619, 88 Am. Dec. 707. The inequity of allowing the taxpayer to escape altogether, and the intolerable inconvenience to the public in the delay incident to such a course, however, lead a court of equity to shape its order so as to allow only so much of the fraudulent judgment to be enforced against 'the complainant as may be done without imposing on him any inequality of tax burden.

We reach the conclusion, therefore, that the Circuit Court was right. in enjoining the unjust, unequal, and (in the sense already explained) fraudulent assessment against the complainant; but we think the order should have required, as a condition of the issuing of the injunction, that the complainant should pay to the proper officers a tax upon the 75 per cent. of the assessment made by defendants. The evidence, taken with the averments of the bill, does not establish that the discrimination against the complainant's property really exceeds this. The condition imposed by the Circuit Court was the payment of the taxes on the assessment for 1897 by the state board of assessors and equalizers. That assessment, as we have found, was annulled by the act of 1897. The order of the court is that the order of injunction be modified as above stated, and that, as thus modified, it be affirmed, at the costs of the appellants.27

27 Other cases in this collection illustrating the appeal to the courts for relief against administrative action in the matter of taxation and revenue: Action against officer: Stetson v. Kempton, 13 Mass. 272, 7 Am. Dec. 145 (1816); Easton v. Calendar, 11 Wend. (N. Y.) 90 (1833); Chegaray v. JenFR.ADM. LAW--38

SECTION 75.-RAILROAD RATE REGULATION

CHICAGO, M. & ST. P. RY. CO. v. STATE OF MINNESOTA ex rel. RAILROAD & WAREHOUSE COMMISSION.

(Supreme Court of United States, 1890. 134 U. S. 418, 10 Sup. Ct. 462, 33 L. Ed. 970.)

Writ of error to review a judgment of the Supreme Court of the state of Minnesota awarding a writ of mandamus against the Chicago, Milwaukee & St. Paul Railway Company.

BLATCHFORD, J.28 The opinion of the Supreme Court is reported in 38 Minn. 281, 37 N. W. 782. In it the court, in the first place, construed the statute on the question as to whether the court itself had jurisdiction to entertain the proceeding, and held that it had. Of course, we cannot review this decision.

It next proceeded to consider the question as to the nature and extent of the powers granted to the commission by the statute in the matter of fixing the rates of charges. On that subject it said: "It seems to us that, if language means anything, it is perfectly evident that the expressed intention of the Legislature is that the rates recommended and published by the commission, assuming that they have proceeded in the manner pointed out by the act, should be not simply advisory, nor merely prima facie equal and reasonable, but final and conclusive as to what are lawful or equal and reasonable charges; that, in proceedings to compel compliance with the rates thus published, the law neither contemplates nor allows any issue to be made or inquiry had as to their equality and reasonableness in fact. Under the provisions of the act, the rates thus published are the only ones that are lawful, and therefore, in contemplation of law, the only ones that are equal and reasonable; and hence, in proceedings like the present, there is, as said before, no fact to

kins, 5 N. Y. 376 (1851); Tracy v. Swartwout, 10 Pet. 80, 9 L. Ed. 354 (1836); Elliott v. Swartwout, 10 Pet. 137, 9 L. Ed. 373 (1836); Cary v. Curtis, 3 How. 236, 11 L. Ed. 576 (1845); action against municipality: Lincoln v. Worcester, 8 Cush. (Mass.) 55 (1851); Falls v. Cairo, 58 Ill. 403 (1871); Etna Insur. Co. v. Mayor. 153 N. Y. 331, 47 N. E. 593 (1897); Dooley v. United States, 182 U. S. 222, 21 Sup. Ct. 762, 45 L. Ed. 1074 (1901); certiorari: People v. Board of Assessors, 39 N. Y. 81 (1868); People ex rel. Del. & II. Canal Co. v. Parker, 117 N. Y. 86, 22 N. E. 752 (1889); Tomlinson v. Board of Equalization, 88 Tenn. 1, 12 S. W. 414, 6 L. R. A. 207 (1889); injunction: Cleveland, etc., R. Co. v. Backus, 154 U. S. 439, 14 Sup. Ct. 1122. 38 L. Ed. 1041 (1894); Pittsburgh, etc., R. Co. v. Board of Public Works, 172 U. S. 32, 19 Sup. Ct. 90, 43 L. Ed. 354 (1898); Huling v. Ehrich, 183 Ill, 315. 55 N. E. 636 (1899); defense against enforcement: Hagar v. Reclamation District, 111 U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569 (1884); appeal: Bureau County v. C., B. & Q. R. Co., 44 Ill. 229 (1867).

28 Only a portion of the opinion of Blatchford, J., is printed.