porations, and that caused the mandamus, and take into consideration, among other proceedings.)

things, as to each said corporation, as the same was on April 1, 1900, the market value, or, if no market value, then the fair cash value, of its shares of stock and the total amount of all indebtedness, except the indebtedness for current expenses, excluding from such expenses the amount for purchase or improvement of property and the assessed or equalized value of tangible property owned by said corporations, respectively, on April 1, 1900."

The amount of the assessment against the appellee for the year 1900 appeared upon the trial of the mandamus proceedings, and it was found by the trial court that the assessment was so low as to show that it was in fact a fraudulent assessment, and therefore in law no assessment at all, and upon appeal the supreme court held that the finding of the court below was justified, and that, under such circumstances, where there was in law no assessment, the court might compel the board to fulfil its duty by assessing the property of the taxpayer thus fraudulently undervalued. See State Board v. People, 191 Ill. 528, 58 L.R.A. 513, 61 N. E. 339. The state court held that under the provisions of the statute of Illinois the state board of equalization, acting as the original assessor of the capital stock and franchises of corporations, might make an assessment of omitted capital stock and franchises of corporations under the section of the stat-thereof. At this time and for years previous ute referred to. See 88 276, 277 of the revenue act, Hurd's Stat. 1899, page 441.

The judgment of the circuit court granting the writ of mandamus was thereupon affirmed by the supreme court, and the writ was issued on the 22d of November, 1901, against the board. The writ, as issued under the direction of the supreme court, after reciting that the previous assessment was in fact no assessment in law, and was unreasonable, arbitrary, and fraudulent, and was not the expression or the result of the honest judgment and discretion of the state board of equalization and the members thereof, and amounted to a wrongful, wilful, and arbitrary failure, omission, and refusal to assess the capital stock of the appellee at its fair cash value over and above tangible property of the appellee, and was a fraud in law and upon the relators and the people, directed the members of the board to assemble and to forthwith proceed to value and assess the capital stock, including the franchises, of the appellee as of the 1st day of April, 1900, in the manner provided by law, "and that you, the said state board of equalization and the members thereof, do value the capital stock of said corporations and each of them so as to ascertain and determine, respectively, as to each of them, the fair cash value of its capital stock, including the franchise, over and above the equalized assessed value of the tangible property of such corporation on the 1st day of April A. D. 1900, and that in arriving at said valuations and assessments of capital stock, including the franchises of the corporations herein named, the said state board and the members thereof, from the best information obtainable by it and them, shall ascertain

Pursuant to what the defendants believed to be the command of the writ, and without any independent judgment of their own, the members of the board proceeded to make an assessment upon the aggregate of the value of the capital stock, including franchises, of the appellee, and including its indebtedness, deducting therefrom the assessed equalized valuation of the real estate and tangible personal property belonging to the appellee, and then assessing for taxation one fifth

thereto all property, real and personal, cor-
porate or individual, throughout the state,
as well as in Cook county, had been as-
sessed as not to exceed 65 or 70 per cent of
its fair cash value, and one fifth of that per
cent was the amount upon which the tax
was laid. This assessment, however, was not
so made, but one fifth of the full value was
assessed, and the roll thus made up was de-
livered to the proper officer, and an extension
of the taxes made, and a warrant delivered
to the town collector for collection. The
total tax of the appellee on the second as-
sessment amounted to about the sum of $1,-
000,000 more than the tax paid under the
first assessment. It is the duty of the col-
lector and the county treasurer to enforce
the collection of these taxes, together with a
penalty by reason of the delay in payment,
and to that end levy the amount by distress
and sale of the goods and chattels of the
appellee, and which cannot be prevented or
defended by the appellee otherwise than by
payment or by a bill in chancery. The ap-
pellee's personal property consists chiefly of
its cars and other personal property actually
used in its business of transporting pas-
sengers, and levy of said tax will greatly
embarrass it in its business and also injure
the public using its cars.
the taxes it is the duty of the collector, and
he is required by law, to pay over and dis-
tribute them in the proportions designated
in the tax book to the city treasurer of
the city of Chicago, the county treasurer of
Cook county, the treasurer of the sanitary
district, and the other officers and authori
ties entitled to receive the same. In order
to recover back the amount thus paid to the
collector appellee will be obliged to bring

After collecting

2

"In the case of the Chicago Telephone Company, the depreciation is from a little less than two millions, six hundred thou sand dollars to a little over one million, seven hundred thousand dollars, or about 34% per cent.

"In the case of the Chicago Edison Company, the depreciation is from a little over two millions, four hundred thousand dollars, to a little over one million, three hundred thousand dollars, or about 46 per cent.

separate suits against each one of the bodies "In the case of the Chicago City Railway, receiving its proportionate share of said tax, the depreciation is from a little over six necessitating a multiplicity of suits. Re-millions to a little over four millions and a payment of the amount which should be quarter, or about 30 per cent. paid for the uses and purposes of the state of Illinois could not be enforced by any legal proceeding whatever, nor could repayment be obtained from anyone which would cover the costs, including the commissions deducted for the recovery of the taxes; and if proceedings to collect the taxes were not enjoined great and irreparable injury would result to the appellee, for which there was no complete or adequate remedy at law. It was then alleged that to pay the enormous sum of over a million of dollars, claimed as the tax for 1900, would render it impossible for the company to pay its rentals or preserve its leasehold interests, and would necessarily result in its insolvency. It was also averred that there were hundreds of corporations subject to be assessed by such board in the same manner that the appellee was assessed under the writ of mandamus issued in respect to the taxes assessed against it, and that not one of such corporations was, as a matter of fact, so assessed, but a discriminating, crushing tax burden was placed upon appellee and the other corporations mentioned in the writ, contrary to the provisions of the Constitution of the United States, and in violation of the Constitution of the state of Illinois.

"In the case of the South Chicago City Railway, the depreciation is from nearly five hundred seventy thousand dollars to a little less than three hundred thousand dollars, or about 47 per cent.

"These assessments, so widely divergent, were upon the same properties, by the same board, entered almost on the same day. The dates of which they spoke of were, it is true, a year apart; the one being of the 1st of April, 1900, the other of the 1st of April, 1901. But the tide of stock quotations, and the tide of current values, were higher on the latter day than the former. If between these two assessments a considerable disparity *should exist, the increase ought to be found in the assessment for 1901, and not in that for 1900." [114 Fed. 559.]

Other averments were made in the bill,

ones discussed in the following opinion, and for that reason are not set forth.

Within a month of the time when the assessment of 1900 was made under the com-designed to raise other questions than the mand of the writ the same board of equalization made an assessment upon the property of the appellee for the year 1901, using the best judgment of its members, and at that time it equalized the assessment with other property assessed throughout the state, and the difference between the two assessments is most material. The facts are stated in the opinion or the circuit judge, as follows:

"A comparison between these records of the the state board is significant. In the case of the Chicago Union Traction Company the assessment for the year 1901-capital stock and tangible property aggregated-falls from a little over fourteen millions of dollars (the reassessment for 1900) to about eight millions, two hundred and fifty thousand dollars,—a loss of about 40 per cent. "In the case of the Chicago Consolidated Traction Company, the depreciation is from a little over three millions, seven hundred and fifty thousand dollars to about two millions of dollars, or about 47 per cent.

"In the case of the People's Gas Company, the depreciation is from over twelve millions and a half to about eight millions and a half, or about 32 per cent.

The defendants put in their answer and joined issue in regard to many of the material averments contained in the bill. The case was referred to a matter and testimony was taken and a report made by the master to the court, in which he found all the material averments of the bill had been proved. The court approved the findings of the master, but before granting the injunetion it ordered that the appellee should pay

sum

of

to the city an amount which the court found
was fairly and equitably due from the ap-
pellee as its proportion of the taxes for 1900.
The sum was arrived at by the court by a
computation which, in its judgment, pro-
duced a fair and proper result. The amount
directed to be paid by the court before the
injunction should issue was the
$134,350.03, which sum the appellee paid,
and the injunction issued as directed. The
appellants duly excepted to the findings of
the master that the amount of taxes equita-
bly due from the appellee was as just stated,
and the appellants insisted that the find-
ing of the master of the amount of tax to be
paid should have been the sum of $961,154.-
15 for general taxes, and $58,057.63 for in-

It was also averred that the assessment was grossly excessive and the property greatly overvalued.

Messrs. David K. Tone, James Hamil

terest thereon, making a total of $1,019,211,- | with the state's powers, his act is that of 78 as due from the appellee for the taxes of the state. Chicago, B. & Q. R. Co. v. Chi1900, as evidenced by the collector's war- cago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. rant in the hands of the defendants in this Ct. Rep. 581. Following the above case, the suit. Federal courts throughout the country have frequently reviewed the action of taxing bodies when, under the facts, such action was in effect the action of the state, and therefore reviewable by the Federal courts by virtue of the provisions of the Amendton Lewis, Harry A. Lewis, William F.ment in question. See Nashville, C. & St. L. Struckmann, Frank L. Shepard, William H. R. Co. v. Taylor, 86 Fed. 168; Louisville Stead, and George B. Gillespie for appel- Trust Co. v. Stone, 46 C. C. A. 299, 107 Fed. lants. 305. In the last case, which related to enjoining 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 affects 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

Messrs. William W. Gurley, Arthur Dyrenforth, and Howard M. Carter for appellee. *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 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 equally 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

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, and so it has been held that whoever, by virtue of public position under a state government, deprives another of any right protected by that amendment against deprivation by the state, violates the constitutional inhibition; and as he acts in the name of the state and for the state, and is clothed

Amendment."

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 Ú. 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 equal-
ize the assessments in the cases of these cor-
porations, the effect of which was that they
were levied upon a different principle or
followed a different method from that adopt-
ed in *the case of other like corporations
whose property the board had assessed for
It was not the mere action
the same year.
of individuals, but, under the facts herein
detailed, it was the action of the state,
through the board. There is here no conten-
tion of illegality simply because of assessing
the franchises of these corporations at a dif-
ferent 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
asserted that the board assessed the fran-
chises and other property of these com-
panies at a different rate and by a different
method from that which had been employed
by the board for other corporations of the
same class for that year. The result is an

ment 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 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.

enormous disparity and discrimination be- | tion, even of an illegal tax, without the paytween 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, and when this 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." We have in the case at bar similar facts. A system of valuation was adopted and applied to a large class of corporations, differing wholly from that applied to other corporations of the same class, and resulting in a discrimination against the appellee of the most serious and material nature. It is not a question of mere difference of opinion as to the valuation of property, but it is a question of difference of method in the manner of assessing property of the same kind. Although the law itself may be valid and provide for a proper valuation, yet if, through mistake on the part of the state, through its board of equalization, and while acting as a quasi-judicial body, the board erred in the method to be pursued in relation to the corporations now before us, the mistake is one which may be corrected in equity.

In all these cases, however, where there is jurisdiction to tax at all, equity will not grant an injunction to restrain the collec

In the cases in 139 U. S., supra, it was recognized that no ground appeared for the interposition of a court of equity, because of the existence of a statute in the state of Tennessee providing for paying the amount of the alleged illegal tax to the officer holding the warrant, and granting to the taxpayer a right to commence an action to recover back the tax thus paid, the statute providing that the officer should pay the amount received into the state treasury, where it was to remain until the question was decided, and, if it was decided in favor of the taxpayer, provision was made for the repayment of the amount by the state. The other averments, beside that of the illegality of the tax, made in these two cases, were held not to constitute a ground for the interposition of a court of equity by restraining the collection of the tax. In the case in 142 U. S., supra, the court held that there was no ground to warrant the interposition of a court of equity. The case was decided upon the ground that the averment of illegality of the tax was not sustained. There is no statute of a similar kind in Illinois which has been called to our attention, but