Calhoon, J.,
delivered the opinion of the court.
In this case we are compelled to decide whether the act of March 8, 188.8, entitled, “An act to equalize assessments in the different counties in the state” (Laws 1888, p. 24), is valid, under the constitution of 1869. Section 21, art. 5, of that constitution is this: “A sheriff, coroner, -treasurer, assessor and surveyor shall be elected in each county by the qualified electors thereof, who shall hold their offices for two years, unless [106]*106sooner removed.” And sec. 20,,art. 12, is this: “Taxation shall be equal and uniform throughout the state. All property shall be taxed in proportion to its value, to be ascertained as directed bylaw.” The act of 1888 divides the counties by name into five classes, numbered consecutively from one to five, and then divides each class into eight subordinate classes as to quality of lands, upon which it places an arbitrary value based on the quality. The first quality of the first class of the subordinate class of the main class No. 1, it rates at $20 per acre, the second at $16, and so on down to 50 cents in the eighth subordinate class. The first quality of land in the counties of the second main class it rates at $16 per acre, in the counties in class three, $12, and so on down to $8, all running down to the eighth quality, which in all is rated at 50 cents per acre. It then requires assessors to determine the quality to which the lands in their counties belong, and put them in their appropriate class, taking into consideration improvements and proximity to navigation. Having thus determined the appropriate general class of lands according to quality, the class, and not the very value of the specific lands, determines the valuation for taxation. In the fourth section the legislature has adjudicated that its own action had no reference to particular actual value of particular lands, because, having in the preceding section excepted land in cities, towns and villages, and excepted stores, it provides that land in cities and towns, and within two miles of them, and also in villages where values exceed in value the first quality, “shall be assessed at its real value.” This act does not admit of taxation of ‘‘all property in proportion to its value,” as the constitution requires, but adjusts it according to the opinion of the assessor, not of its real value, but as to what general class it ought to be put in. It is difficult to see how taxation can be “ equal and uniform” when lands within two miles of a town are taxed at their “ real value, ” and those at two'and a quarter miles are dumped into a general class, with an arbitrary maximum and minimum valuation. Valuation [107]*107must be actual, uot artificial; by particulars, not by groups. A system of averaging values by. classes, or geographical distribution, cannot result in equality and uniformity of taxation in ‘ proportion to value. ’ ’
The words at the conclus'iofi of section 20, “tobe ascertained as directed by law,” can warrant no such system. They do not mean that the legislative department is to perform the judicial function of ascertaining values. They do not mean that the legislature may assess property. The constitution had already provided for an assessor, whose duties- were known through the entire history of the state. The meaning is that the legislature may enact laws by which values are to be ascertained, not that it shall ascertain them. This act is a general act, affecting the whole state, not a local act, for. the benefit and protection of particular districts. The distinction is plain between the two classes of legislation, and has been often drawn by the courts in many states and in this state. But, whenever the distinction has been drawn in our own appellate court, it shows that such legislation for localities would not be tolerated in a general scheme of taxation affecting the whole people. In Daily v. Swope, 47 Miss., on page 381, Judge Simrall says: “The convention sought to devise a rule by which taxation, imposed for the general and ordinary expenses of the state and county administrations, should operate equally in all parts of the state. No discrimination shall be made which would disturb uniformity, and, when the rate has been determined, the assessment shall be on the ad valorem principle.” In Vasser v. George, 47 Miss., 721, the same great judge, in considering the same section 20 we are now on, and still while drawing the distinction between general taxation and district taxation for local benefit arising from local exigencies, says: ‘ The limitation upon the power in that section only applies and governs taxes levied for the usual, ordinary, and general purposes of the state, county, and incorporated city or town, and does not include special assessments for [108]*108local objects.” A-collation of authorities denouncing arbitrary and artificial rules for the estimation of values may be found in 25 Am. & Eng. Enc. L., 65. We refer, also, to the message of Gov. John M. Stone, of March 31, 1892, vetoing an act similar to the act under •consideration. The reasoning of that able document, which was under the constitution of 1890, which omits the words, “to be ascertained as directed by law,” nevertheless applies in full force to the constitution of 1869.
Reversed.1, and demurrer overruled, and sixty days allowed for answer. '
After the delivery of the foregoing opinion, Mo Willie da Thompson, for appellee, presented the following
SUGGESTION OP ERROR:
We desire, with much deference to suggest error in the decision reversing the decree of the court below in the above cause. The effect of the curative act of 1890 upon the assessment in question is entitled to grave consideration, but, before referring more particularly to the provisions of that act, we call the court’s attention to an apparent discordance between the decision in this case and several others which have never been in terms overruled.
In the case of Bank v. Worrell, 67 Miss., 47, it was held that the act of 1888, relieving banks of ad valorem taxes on payment of a designated privilege tax, was constitutional, and that the real estate of a bank, bought with its funds, was exempt under such legislation from ordinary ad, valorem taxation.
Again, in Bank v. Adams, 74 Miss., 179, the same act was upheld, this court holding that the payment of the prescribed privilege tax exempted the property of a bank from ad valorem taxation.
[109]*109Recollecting that this act of 1888 classified banks for taxation, and that the privilege taxes thereby imposed were in lieu of such ad valorem taxes as the bank property would have otherwise been subject to, it would seem that we have a case involving the exercise of legislative authority to quite as large an extent as in the act under review in the present controversy. It is true that the bank assets were to be determined by the return of the assessor, but upon the amount of the assets thus ascertained the law imposed a privilege tax of a specific amount in nowise the equivalent of ad valorem taxation. The constitutional mandate relates to “taxation,” and not assessments, and, if the lands and other property of banks could be so taxed, we are at a loss to see why the legislature exceeded its authority in the act assailed by the appellant.
In the case of Adams v. Railroad Co., 77 Miss., 291, the legislation subjecting railroad companies to privilege taxes in lieu of
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Calhoon, J.,
delivered the opinion of the court.
In this case we are compelled to decide whether the act of March 8, 188.8, entitled, “An act to equalize assessments in the different counties in the state” (Laws 1888, p. 24), is valid, under the constitution of 1869. Section 21, art. 5, of that constitution is this: “A sheriff, coroner, -treasurer, assessor and surveyor shall be elected in each county by the qualified electors thereof, who shall hold their offices for two years, unless [106]*106sooner removed.” And sec. 20,,art. 12, is this: “Taxation shall be equal and uniform throughout the state. All property shall be taxed in proportion to its value, to be ascertained as directed bylaw.” The act of 1888 divides the counties by name into five classes, numbered consecutively from one to five, and then divides each class into eight subordinate classes as to quality of lands, upon which it places an arbitrary value based on the quality. The first quality of the first class of the subordinate class of the main class No. 1, it rates at $20 per acre, the second at $16, and so on down to 50 cents in the eighth subordinate class. The first quality of land in the counties of the second main class it rates at $16 per acre, in the counties in class three, $12, and so on down to $8, all running down to the eighth quality, which in all is rated at 50 cents per acre. It then requires assessors to determine the quality to which the lands in their counties belong, and put them in their appropriate class, taking into consideration improvements and proximity to navigation. Having thus determined the appropriate general class of lands according to quality, the class, and not the very value of the specific lands, determines the valuation for taxation. In the fourth section the legislature has adjudicated that its own action had no reference to particular actual value of particular lands, because, having in the preceding section excepted land in cities, towns and villages, and excepted stores, it provides that land in cities and towns, and within two miles of them, and also in villages where values exceed in value the first quality, “shall be assessed at its real value.” This act does not admit of taxation of ‘‘all property in proportion to its value,” as the constitution requires, but adjusts it according to the opinion of the assessor, not of its real value, but as to what general class it ought to be put in. It is difficult to see how taxation can be “ equal and uniform” when lands within two miles of a town are taxed at their “ real value, ” and those at two'and a quarter miles are dumped into a general class, with an arbitrary maximum and minimum valuation. Valuation [107]*107must be actual, uot artificial; by particulars, not by groups. A system of averaging values by. classes, or geographical distribution, cannot result in equality and uniformity of taxation in ‘ proportion to value. ’ ’
The words at the conclus'iofi of section 20, “tobe ascertained as directed by law,” can warrant no such system. They do not mean that the legislative department is to perform the judicial function of ascertaining values. They do not mean that the legislature may assess property. The constitution had already provided for an assessor, whose duties- were known through the entire history of the state. The meaning is that the legislature may enact laws by which values are to be ascertained, not that it shall ascertain them. This act is a general act, affecting the whole state, not a local act, for. the benefit and protection of particular districts. The distinction is plain between the two classes of legislation, and has been often drawn by the courts in many states and in this state. But, whenever the distinction has been drawn in our own appellate court, it shows that such legislation for localities would not be tolerated in a general scheme of taxation affecting the whole people. In Daily v. Swope, 47 Miss., on page 381, Judge Simrall says: “The convention sought to devise a rule by which taxation, imposed for the general and ordinary expenses of the state and county administrations, should operate equally in all parts of the state. No discrimination shall be made which would disturb uniformity, and, when the rate has been determined, the assessment shall be on the ad valorem principle.” In Vasser v. George, 47 Miss., 721, the same great judge, in considering the same section 20 we are now on, and still while drawing the distinction between general taxation and district taxation for local benefit arising from local exigencies, says: ‘ The limitation upon the power in that section only applies and governs taxes levied for the usual, ordinary, and general purposes of the state, county, and incorporated city or town, and does not include special assessments for [108]*108local objects.” A-collation of authorities denouncing arbitrary and artificial rules for the estimation of values may be found in 25 Am. & Eng. Enc. L., 65. We refer, also, to the message of Gov. John M. Stone, of March 31, 1892, vetoing an act similar to the act under •consideration. The reasoning of that able document, which was under the constitution of 1890, which omits the words, “to be ascertained as directed by law,” nevertheless applies in full force to the constitution of 1869.
Reversed.1, and demurrer overruled, and sixty days allowed for answer. '
After the delivery of the foregoing opinion, Mo Willie da Thompson, for appellee, presented the following
SUGGESTION OP ERROR:
We desire, with much deference to suggest error in the decision reversing the decree of the court below in the above cause. The effect of the curative act of 1890 upon the assessment in question is entitled to grave consideration, but, before referring more particularly to the provisions of that act, we call the court’s attention to an apparent discordance between the decision in this case and several others which have never been in terms overruled.
In the case of Bank v. Worrell, 67 Miss., 47, it was held that the act of 1888, relieving banks of ad valorem taxes on payment of a designated privilege tax, was constitutional, and that the real estate of a bank, bought with its funds, was exempt under such legislation from ordinary ad, valorem taxation.
Again, in Bank v. Adams, 74 Miss., 179, the same act was upheld, this court holding that the payment of the prescribed privilege tax exempted the property of a bank from ad valorem taxation.
[109]*109Recollecting that this act of 1888 classified banks for taxation, and that the privilege taxes thereby imposed were in lieu of such ad valorem taxes as the bank property would have otherwise been subject to, it would seem that we have a case involving the exercise of legislative authority to quite as large an extent as in the act under review in the present controversy. It is true that the bank assets were to be determined by the return of the assessor, but upon the amount of the assets thus ascertained the law imposed a privilege tax of a specific amount in nowise the equivalent of ad valorem taxation. The constitutional mandate relates to “taxation,” and not assessments, and, if the lands and other property of banks could be so taxed, we are at a loss to see why the legislature exceeded its authority in the act assailed by the appellant.
In the case of Adams v. Railroad Co., 77 Miss., 291, the legislation subjecting railroad companies to privilege taxes in lieu of ad valorem taxes is. relied on as a constitutional exercise of power, although the payment of such privilege taxes was to operate as an. exemption from all ad valorem taxes, and the opinion in that case denied the authority of the legislature to grant any exemption from taxation. The taxation from which there was no power to grant an exemption was certainly the taxation contemplated by the constitution— i. e., equal and uniform taxation according to value. The idea that by calling the privilege tax a commutation tax the power of the legislature was extended, cannot stand the test of criticism. It is equivalent to saying that the legislature may do indirectly what it cannot do directly under the constitution, and to sanction this legislation we are forced to look at the concluding words of the provision touching the equality and uniformity, and its proportion to value, “a value to be ascertained as directed by law,” and recognize those words as committing to the control of the legislature the method of ascertaining such value.
The act entitled, “An act to authorize the equalization of land assessments,” approved February 24, 1890, was mani[110]*110festly intended to have a curative effect. Indeed, the nature of the act suggests the idea that the author, without in terms questioning the validity of the act of 1888, was guarding against any future attack upon it by additional legislation which would effect its validation, the taxpayer being allowed full opportunity to make such objections to the assessment of his particular land as he might deem proper.
The act imposed on the chancery clerks throughout the state the duty of giving notice, published for thirty days previous to the August meeting of the boards of supervisors, that all persons feeling aggrieved “at the present land assessment” would be heard by the board at that meeting, and fully empowered the boards to equalize assessments, granting relief from overvaluations where it might be proper to do so. The act further directed the auditor of public accounts to furnish the clerks printed forms for the use of persons who might apply for relief, required the person seeking relief to make oath to his application, and provided that the assessments in the various counties, after being so equalized, should be ‘ binding and conclusive.” Laws 1890, pp. 19, 20, 22.
As the court found it necessary to pass on the constitutionality of the act of 1888, we assume that the other objections to appellee’s title were considered without merit, and we therefore treat the bill as presenting the single objection that the act of 1888 was unconstitutional. It will be noticed that the bill itself shows that the land was regularly sold to the state for taxes in 1892 and included in the collector’s list evidencing the sales of that year. It further shows that the state conveyed the land by patent to the appellee in 1898. ’ The affirmative showing of the bill is unaccompanied by any averment of an application to the board of supervisors for the correction of the assessment of this tract of land, nor of any action of the board in respect to the assessment of the same, nor any appeal from such action.
Inasmuch as the act of 1890, by its own terms, gave notice [111]*111of the time, place and purpose of the meeting of the board of supervisors, and one form of notice which stated clearly the desired relief would be as good as another, it may well be questioned whether the publication of notice by the clerk and the preparation of the forms of application for relief by the auditor were essential prerequisites to action by the board of supervisors. But, however that may be, in the absence of all averment to the contrary, the court will presume that the officers discharged the duties imposed upon them by the act, and the assessment in Washington county was equalized and validated as in the other counties of 'the state.
• It is not necessary for the appellee to rely even upon this safe presumption, for, by the law in force at the date of the sale (code 1880, § 526), the list of lands sold to the state, which, by the averments in the bill, includes this tract, is made “prima facie evidence that the assessment and sale were legal and valid. ’ ’
As pertinent to the question in ha,nd, we notice the following decisions of this court:
Taxpayers failing to appeal from an order of the board of supervisors approving an assessment are concluded thereby. Code 1892, §§ 80, 3793; Investment Co. v. Suddoth, 70 Miss., 416. Equity has no jurisdiction to revise assessments in the absence of fraud or mistake. Brooks v. Shelton, 47 Ib., 243. In the absence of proof as to when an assessment roll was returned, the tax deed or duly certified list of land sold to the state will raise the presumption that it was at the time required by law. Grayson v. Richardson, 65 Ib., 222; Morgan v. Blewitt, 72 Ib., 903. A meeting of a board of supervisors not affirmatively shown to have been illegal is presumed to have been legal. Brigins v. Chandler, 60 Ib., 862; Corburn v. Crittenden, 62 Ib., 125. Although the approval of an assessment roll by the board of supervisors was at a time when there could be no regular meeting, in the absence of evidence to the contrary it will be presumed that it was at a special meeting [112]*112legally held. Tierney v. Brown, 65 Ib., 563. As the sales for three years appear to have been made under the act of-1888 as thus validated, it will be seen that by way of apology for our persistence, we need only refer to the far-reaching-effect of the decision. We submit that the decree of the court below should be affirmed.
Cauhoon, J.,
delivered the opinion of the court on suggestion of error.
Our regard for, and deference to, the opinion of learned counsel for appellee have made us re-examine this case with great care.. In the act under consideration there • appears no legislative purpose to have an assessment for taxation according to value. On the contrary, the confessed purpose is not to do so, but to have it within two limits of money value fixed by the will of that body, according to arbitrary and artificial groupings. Whatever the actual value may be, even if it may be $50 or $100 per acre, the assessor is limited to a maximum valuation of $20, $16, $12, $10, or $8, according to class by quality, and this cannot consist with the constitution of 1869. In re Taxation of Mining Claims, 9 Colo., 638, s.c. 21 Pac. 476; Cheshire v. Berkshire Co., 118 Mass., 389; Assessment Board v. Alabama C. R. Co., 59 Ala., 556; Williams v. Bettle, 51 N. J. Law, 517, s.c. 18 Atl., 750. The cases referred to by counsel from our own reports have no pertinency to the question we are now considering. Bank v. Worrell, 67 Miss., 56, s.c. 7 South., 219, was on the privilege tax act (Laws 1888, p. 16), which put a privilege tax on banks, fixing- the sums according to capital stock. It simply upheld the power to put a privilege tax on a business, and to exempt the property of that business from all other tax. The court said: “The legislature may select the subjects of taxation, and everything not designated as taxable is exempt for the time being. The subjects of taxation may be classified at the discretion of the legislature, and, if all of the same class are taxed alike, there is no [113]*113violation of the equality and uniformity required by the constitution. It is admissible for the legislature to tax a business, and to provide that payment of a tax prescribed for the privilege of pursuing it shall be a substitute for, and in lieu of, all other taxes on the means employed in it.” Bank v. Adams, 74 Miss., 179, s.c. 21 South., 401, simply recognizes that doctrine. In the case at bar we find no privilege tax act, no imposition of a privilege tax on any trade, business, or calling, no classification for an equal tax, but a grouping of all lands in classes by quality in a manner to make taxation according to real value impossible, and to make it certain that it could not by any possibility be equal in its burdens. Where a thing is undertaken to be taxed, it can be taxed in no other way than according to value. The constitution requires it, and every citizen is interested in it, so that the burdens shall be equal and uniform. The legislature may exempt all horses from any taxation whatever, but if it undertakes to tax them it must be by value to be ascertained. It may not say that all gray horses, shall be valued at $100 each and all sorrel horses at $75. It may provide that the business of raising horses shall pay a privilege tax, and that this shall be in lieu of all taxation on the horses raised, but if it taxes the horses instead of, or as well as, the business of raising them, it must be by value. This is the mandate of the sovereign people in convention, and it must be obeyed by the courts, whether the consequences enshroud us in darkness or flood us in light. But we see no hideous and -destructive monsters looming in the perspective of the opinion under review. We would not heed them if we did see them. Let them come, if they must be gendered by the declaration that the property of the citizen cannot be taken or taxed in defiance of the plain principles of the organic law. The act of 1890 (Laws 1890, p. 19) has no sort of application to a case where there was no assessment. It has, and can have, no reference to an assessment absolutely void because of an unconstitutional law.
[114]*114Moreover, the legislature, assuming the validity of the law, as we suppose, the act is plainly, at most, simply a provision, as in many other acts, for hearing complaints as to valuations, and in this act as to such as may be ‘‘ in excess of the average valuation of similar property in the county.” This act cannot cure an unconstitutional law. It cannot apply, even if it could then be efficacious, to an assessment which was no assessment at all. Ross v. Lane, 3 Smed. & M., 695; Brown v. Commissioners, 50 Miss., 468; Dingey v. Paxton, 60 Miss., 1038; Insurance Co. v. Pollard, 63 Miss., 641; State v. Adler, 68 Miss., 487, s.c. 9 South., 645; Thibodeaux v. State, 69 Miss., 683, s.c. 13 South., 352; State v. Tonella, 70 Miss., 701, s.c. 14 South. 17; Tuttle v. Everett, 51 Miss., 27.
The suggestion of error is overruled.