MR. JUSTICE MORRIS
delivered the opinion of the court.
This is an appeal from a judgment of the district court in and for the First Judicial District sustaining the State Board of Equalization in assessing and levying taxes against defendant’s fleet of freight line cars employed in transportation by various common-carrier lessees engaged in interstate commerce, such cars being used to transport freight into, out of and through the state of Montana. The power to impose the tax is predicated upon Chapter 190 of the Political Code.
The State Board of Equalization, hereinafter referred to as the State Board, filed its complaint March 21, 1940, setting up five separate causes of action. The first cau.se is grounded upon the allegation of taxes being due for the years 1930 to 1935 inclusive. The other four causes of action are for the four subsequent years, each cause of action relating to the taxes alleged to be due for the particular 3rear. A demurrer to the complaint was overruled. The answer was in the nature of a general denial supported by certain affirmative defenses.
The case was tried on an agreed statement of facts which the trial court adopted in toto, and which was made the basis of its findings. Judgment was given for the state for the full amount demanded and the defendant appealed.
The several specifications of error assigned were grouped by appellant for argument under the following heads:
“(a) That the method of fixing the values and rate of taxation on said properties is unjust, arbitrary and discriminatory ;
“(b) That said provisions violate the equality and uniformity provisions of the state and federal constitutions;
“(c) That the rate of taxation is violative of limitations of the Constitution of the State of Montana.”
We recite here such of the agreed statements of fact, in substance or in full, as we deem essential to our determination of the controversy, giving to those mentioned the same Roman numerals under which they appear in the transcript, as follows:
IV. The defendant is the owner of certain railroad cars consisting of refrigerator, poultry, and tank ears leased to and used by common carriers in the transportation of commodities. The defendant is not engaged in the transportation of comcodities in the state of Montana or elsewhere. Defendant’s cars are moved into, over and through the state of Montana but none of the ears are permanently located in this state or in any taxing district thereof. The cars are chiefly used in interstate commerce and only a small percentage of "such use is intrastate.
V. The several common-carrier railroad companies operating in Montana own and operate freight ears of the same kind and nature as the freight cars owned by the defendant and there is no difference in the nature, kind, basic classification and utilization of the cars owned by the defendant and those owned by such common-carrier railroad companies.
VI. Defendant has never paid any tax upon its cars to the state of Montana but admits that the provisions of section 2103.2, Revised Codes, directs the State Board to assess the cars of said corporation and to levy a tax thereon.
VII. In September 1936 the State Board, pursuant to sections 2097 to 2110, Revised Codes, determined the full and true value of defendant’s freight line cars which were habitually em
ployed within the state of Montana for the years 1930 to 1935 inclusive and did assess such ears to the defendant.
VIII. In determining the value of defendant’s cars, the State Board followed the method provided by the sections of the statute mentioned in the preceding paragraph. The defendant not having reported to the State Board the use of its cars in Montana for the period mentioned, as required by section 2009, the State Board, in fixing such valuation for assessment purposes, had informed itself as best it could on matters necessary to determine the true and full value of defendant’s cars.
VIII-A. This agreed statement of fact, being of particular importance in this controversy, is set out in full:
“That the said Board construed and interprets Section 2103, Revised Codes of Montana, 1935, to require it to determine and fix a rate of levy against the property of defendant corporation as to equal as nearly as may be the average of all rates of levy imposed upon all property within the State of Montana during each year. So the said Board, for each of the years involved herein, ascertained the total amount of all ad valorem taxes levied in the State of Montana and in all of the minor taxing districts, counties, cities, towns and school districts therein, and then divided said total sum of all such levied ad valorem taxes by the total taxable value of all the property in the State of Montana.” [This statement of fact being based upon section 2103, Revised Codes, that section, for convenient comparison, is recited here: “It shall be the duty of the state board of equalization and it is authorized each year, to determine the rate of tax levy against the property of such companies which shall be equal, as nearly as may be, to the average rate of all general taxes, state, county, municipal, school and local, levied throughout the several taxing districts of the state for the preceding year and the average rate as so determined is hereby levied against the property of such companies.
“The state board of equalization shall, on or before the first day of June in each year, mail to each freight line company a statement showing the total assessed value and the taxable value
of the property of such company for such year, as ascertained and determined by the state board of equalization, together with the amount of the tax determined by the state board of equalization, and such freight line company may, at any time before the third Monday in June, file with said state board of equalization a protest, in writing, against such determination or assessment, or both, and the state board of equalization may, on the filing of such protest, or on its own motion, review and correct its findings in such manner as it may deem to be just and proper; provided, however, that no action of any kind shall be instituted or maintained by any freight line company to enjoin the sale of any property seized by the state treasurer on account of the non-payment of any such tax, or to recover, any tax, or any portion thereof, paid under protest, unless such freight line company shall have filed with said board a protest, in writing, in the manner and form and within the time provided .in this section”].
IX. On the first of June, 1936, pursuant to the provisions of section 2103 as construed by the State Board, an order was made determining the tax rate against defendant’s cars for the years 1930 to 1933, inclusive, to be 64.188 mills, for the year 1934 to be' 70.5 mills, for the year 1935 to be 71.347 mills, the amounts fixed being determined pursuant to paragraph VIII-A, supra.
X. In September 1936, the State Board computed the tax against defendant’s freight line cars for the years 1930 to 1935, inclusive, according to the orders theretofore given fixing the tax levy and determined that the amount due was $2,704.96.
XI. The defendant was duly advised of the assessment, the levy and the amount due and was further advised that such amount, if not paid, would become delinquent November 30, 1936.
XII. The orders referred to above were given and made after hearing on a protest filed by the defendant with the State Board and its due consideration. The Board thereupon certified to the
state treasurer the necessary information including the amount of said tax.
XIV. This agreed statement of fact is also of particular importance in this controversy and is here set out in full:
‘ ‘ That during all the years involved in this action, the taxing authorities of the State of Montana did not assess any taxable value upon nor levy any tax rate against the railroad freight cars owned by common-carrier railroads not operating within the State of Montana but which were furnished by such carriers, for compensation, to common-carrier railroads operating within the State, although such cars were of similar nature, kind, classification, and utilization as those owned by the defendant herein.”
XV. At all times involved in this action the State Board assessed all railroads operating in more than one county of the state of Montana, including in such assessment the franchise, roadway, roadbed, rails and rolling stock of such railroad companies, and including also their freight cars of the nature, kind, basic classification and use identical with those owned by the defendant, and apportioned such assessment to the several counties, school districts, cities, towns and other taxing subdivisions in which such railroads were located in a manner provided by sections 2131 to 2137, Revised Codes, and Chapter 13 of the 1939 Session Laws amendatory thereof, and the amount apportioned to each taxing subdivision thereof.
XVI. Such proportional assessment of the property of the railroads mentioned in the preceding section was taken as a basis for the tax rates fixed and taxes levied by the taxing authorities of each said tax district; and the taxes levied for each year involved in this action were as follows:
1930: 4.333 mills:
Made up of state general fund................................ 3.50
Educational bonds....................’...................................8333
1931: 5.333 mills:
Made up of state general fund levy........................ 2.
University fund.......................................................... 2.5
Educational bonds.......................................................8333
1932: 5.333 mills:
Made up of same levies as above stated for 1931 1933: 5.333 mills:
Made up of state general fund levy........................ 1.050
Funding bond sinking & Interest fund. — ...............450
University fund.......................................................... 3.000
Educational bonds.......................................................833
1934: 7.146 mills:
Made up of general fund levy.................................. 1.500
University fund.......................................................... 3.00
Educational bonds on basis of taxable value.......... 2.646
1935: 7.143 mills:
Made up of general fund levy.................................. 2.00
University millage fund............................................ 2.50
Educational bonds on basis of taxable value.......... 2.643
1936: 7.120 mills:
Made up of general fund levy.................................. 1.75
University fund.......................................................:.. 2.75
Educational bonds on basis of taxable value.......... 2.62
1937: 7.117 mills:
Made up of general fund levy.................................. 1.75
University fund.......................................................... 2.5
Educational bonds on basis of taxable value.......... 2.617
1938: 5.540 mills:
Made up of general fund levy.................................. 2.00
University fund.......................................................... 2.5
Educational bonds on basis of taxable value.......... 1.040
1939: 5.5 mills:
Made up of general fund levy.................................. 2.00
University fund.................. 3.00
Capitol bldg, refunding bonds...................................5
“Said tax rates were also fixed only with reference to the tax rates of tbe several taxing districts in which said property, including freight cars, was physically present, and said rates
were fixed without considering the average tax rates levied by all the taxing subdivisions in the State, * *
XVII. There are a large number of taxing subdivisions in the state in a great many of which no railroad equipment is utilized or is physically present. During the years involved in this action, defendant’s cars were actually located outside incorporated cities and towns more of the time than they were within the same. Defendant’s cars were not taxed in proportion to the amount of and actual physical presence and use within the several taxing districts of the state. In computing the tax rate to be levied against defendant’s property, the same was arrived at solely in the manner specified in paragraph VIII-A hereof. During the years defendant’s freight line cars were taxed, freight cars owned by others than freight line companies were taxed in the manner provided by sections 2131 to 2137, Revised Codes, and acts amendatory thereof, which resulted in the freight cars owned by others than freight line companies being taxed in such manner that only that portion of the value of such other cars was taxed in each taxing subdivision of the state, at tax rates prevailing therein, as was determined by computing the ratio of the railroad track mileage and value in such taxing subdivisions as compared with the total railroad track mileage and value in the state in which said cars were utilized and were present. During all the years that assessments were made and taxes levied against the cars of the freight line company, taxes were levied for the purposes of all funds of the state including the common school income and interest fund at the rates of levy set forth in paragraph XVI, supra. The taxes levied against the defendant for the years 1930 through 1939, inclusive, were levied only for credit to the state public school general fund in the following manner:
1930, 64.188 mills; 1931, 64.188 mills;
1932, 64.188 mills; 1933, 64.188 mills;
1934, 70.50 mills; 1935, 71.347 mills;
1936, 71.347 mills; 1937, 69.93 mills;
1938, 74.15 mills; 1939, 72.115 mills.”
XIX. Defendant lias repeatedly offered to pay and is ready, willing- and able to pay to the state “what it regards as a reasonable, non-arbitrary, and non-discriminatory tax upon its freight cars habitually used within the State of Montana.”
We deem it unnecessary to give any other of the agreed statement of facts. In this connection this Court said in the case of McCarthy v. Employers’ Fire Ins. Co., 97 Mont. 540, 553, 37 Pac. (2d) 579, 582, 97 A. L. R. 292: “When a case is tried 'and submitted’ on an agreed statement of facts, the statement becomes the court’s findings of fact and has the effect of a special verdict, and judgment must be pronounced thereon, and, iii doing so, the court is bound by the stipulation. Section 9372, Rev. Codes 1921; Conklin v. Cullen, 25 Mont. 214, 64 Pac. 502; Jenkins v. Newman, 39 Mont. 77, 101 Pac. 625; Yellowstone County v. First Trust & Sav. Bank, 46 Mont. 439, 128 Pac. 596; Read v. Lewis and Clark County, 55 Mont. 412, 178 Pac. 177; Lewis v. Lambros, 58 Mont. 555, 194 Pac. 152. But, to sustain a judgment for plaintiff on an agreed statement of facts, the statement must show all the facts necessary to a’ recovery (Billings Hardware Co. v. Bryan, 63 Mont. 14, 206 Pac. 418), and must contain ultimate facts presenting only questions of law, and not circumstances which may tend to prove ultimate facts. Longmeyer v. Lawrence, 50 Okl. 457, 150 Pac. 905; Wilson v. Merchants’ Loan & T. Co., 183 U. S. 121, 22 S. Ct. 55, 45 L. Ed. 113. If, in the judgment of the trial court, the statement is not sufficient to enable the court to render judgment, the court may set aside the agreement and remand the cause for further proceedings. Powers v. Provident Institute, 122 Mass. 443; Ford v. Buchanan, 111 Pa. 31, 2 A. 339; Jones v. Integrity Trust Co., 292 Pa. 149, 140 A. 862; Carr v. Lewis Coal Co., 96 Mo. 149, 8 S. W. 907, 9 Am. St. Rep. 328; Field v. Chicago, etc., Ry. Co., 21 Mo. App. 600; 1 R. C. L. 780; State Ins. Co. v. Farmers’ Mutual Ins. Co., 65 Neb. 34, 90 N. W. 997.” We are, therefore, concerned here with questions of law only.
Adverting to defendant’s contentions (a), (b) and (c), if either of such contentions be established the defendant shall be
entitled to judgment. Taking up contention (a), if the mode for “fixing values and rate of taxation” set up by section 2103, Revised Codes, be discriminatory, it will logically follow that the values fixed for defendant’s cars and the rate imposed are “unjust and arbitrary.” We, therefore, need to determine only the question as to whether such mode be discriminatory or not.
“Discrimination” is defined by Black’s Law Dictionary as: “In constitutional law, the effect of a statute which confers particular privileges on a class arbitrarily selected from a large number of persons, all of whom stand in the same relation to the privileges granted and between whom those not favored no reasonable distinction can be found.” This definition was obviously predicated upon the case of Franchise Motor Freight Ass’n v. Seavey, 196 Cal. 77, 235 Pac. 1000. See also Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 22 S. Ct. 431, 46 L. Ed. 679.
Sections I and II of Article XII of the Constitution of Montana respectively provide:
“I. The necessary revenue for the support and maintenance of the state shall be provided by the legislative assembly, which shall levy a uniform rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property, except that specially provided for in this article.”
“II. Taxes shall be levied and collected by general laws and for public purposes only. They shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax.”
This court in interpreting these two provisions of the Constitution said, in the case of Hilger v. Moore, 56 Mont. 146, 170, 182 Pac. 477, 481: “Construing the first sentence of section I with section II the meaning is reasonably clear: The taxes levied shall be uniform upon the same class of property within the same taxing district. The entire state is one district for the purpose of raising state taxes. Every county is a separate district for county taxes, every city for city taxes, etc. Or, stating
the principle of sections I and II in different form, the mandatory injunction to the Legislature is that it shall prescribe such uniform mode of assessment as shall secure a just valuation of all taxable property, that all taxes shall be levied and collected by general laws and for public purposes only, and that they shall be uniform upon the same class of property within the territorial limits of the authority levying the tax. This is the rule of uniformity declared by our Constitution, if we are able to determine the intention of its framers aright.”
We think it will be admitted that any tax against the same kind of property used for identical purposes is not uniform when a different valuation and a different rate is applied to two distinct taxpayers, separately distinguishable only in name, and the tax being imposed by the same taxing district. We further believe it will be admitted that such disregard of the uniform clause of sections I and II of Article XII, supra, constitutes clear discrimination.
In the case of State ex rel. Northern Pacific R. Co. v. Duncan, 68 Mont. 420, 219 Pac. 638, 639, the railway company complained of discrimination by the county taxing officials where improvements on railroad land had been classified for taxation purposes in a class taking a higher rate under section 2000, Revised Codes, than like improvement of other taxpayers similarly situated. The court granted the writ asked for and in the course of its opinion said:
“It is asserted that the improvements mentioned in class 4 of section 1999 apply only to those upon land, town, and city lots, and, as the improvements in question are not upon town or city lots, and not upon land because within a roadway, therefore the improvements in question do not come within class 4, and so inevitably must come within class 7. * * *
“If respondent’s contention were correct we should have different valuations for the same kind of property. If a merchant owned a warehouse upon a tract of land adjoining the railroad right of way, the warehouse would be in class 4, and taxed upon the 30 per cent, basis. An adjoining and precisely
similar warehouse owned by the railroad upon its right of way would be within class 7, and be taxed upon the 40 per cent, basis. * * * By such construction we should have two classes of improvements precisely similar, without anything to distinguish one elass from another, except that the property in one class belonged to a railroad and the other to an individual.
“ ‘Classification must be based upon substantial distinctions which make one class really different from another. Northwestern Mut. Life Ins. Co. v. Wisconsin, 247 U. S. 132, 38 S. Ct. 444, 62 L. Ed. 1025.’ Northern Pac. R. Co. v. Sanders County, 66 Mont. 608, 214 P. 596.
“A classification such as respondent contends for would be arbitrary, discriminatory, and unfair, and therefore would be unconstitutional. Hilger v. Moore, 56 Mont. 146, 182 Pac. 477.” See also State v. Sunburst Refining Co., 73 Mont. 68, 235 Pac. 428; Hayes v. Smith, 58 Mont. 306, 192 Pac. 615; Fruit Growers Express Co. v. Britt, 94 Mont. 281, 22 Pac. (2d) 171; Hauser v. Miller, 37 Mont. 22, 94 Pac. 197; Northern Pacific R. Co. v. Sanders County, 66 Mont. 608, 214 Pac. 596.
After reviewing these authorities on discrimination we think that if any doubt remains about the defendant’s having been discriminated against in the fixing of the value of its cars and also in determining the rate of taxation, such doubt will be removed by comparing statements of fact XIV, XV, XVI and XVII. It is our opinion that the discrimination against the defendant is clearly apparent and that such discrimination conflicts with sections I and II of the Constitution of Montana, and also with the Due Process and Equal Protection Clauses of the Constitution of the United States, the 5th and 14th amendments, respectively, and the assessment and levy are therefore void. They are further void as in violation of section 9 of Article XII, Constitution of Montana. That section of the Constitution provides that, except for a special levy upon livestock for wild animal bounty and stock inspection purposes, the rate of taxation on real and personal property for state purposes shall never exceed 2 mills on each dollar of valuation
unless the increase is authorized by the people at a general election. Certain additional levies have been so authorized as a result of which during the years 1930 to 1939, inclusive, the total state levies on real and personal property (with the exception of that in question here) for all state purposes varied between a low of 4.333 mills and a high of 7.146 mills. During the same years the state levy upon the property in question varied between a low of 64.188 mills and a high of 74.15 mills. It must be obvious that those levies far exceed the levies authorized by the people.
It is no answer to say that by the statutes in question the legislature has released this property from taxes for county, municipal and other purposes, for the legislature has no such power. Section 7 of Article XII of the state Constitution provides: “The power to tax corporations or corporate property shall never be relinquished or suspended, and all corporations in this state, or doing business therein, shall be subject to taxation for state, county, school, municipal and other purposes, on real and personal property owned or used by them and not by this constitution exempted from taxation.” Nor is it an answer to say that by this provision the legislature has not released the property from such taxes but has merely substituted its own levy for the local ones, for section 4 of Article XII provides: “The legislative assembly shall not levy taxes upon the inhabitants or property in any county, city, town, or municipal corporation for county, town, or municipal purposes, but it may by-law invest in -the corporate authorities thereof powers to assess and collect taxes for such purposes.”
Neither can it be contended that this tax, all of which goes into the state common school income and interest fund, does not violate the limitation, by section 9 of Article XII, of levies for state purposes. Section 1 of Article XI makes the establishment and maintenance of “a general, uniform and thorough system of public, free, common schools” a state duty and therefore a state purpose. The parties agree that the common school income and interest fund, which is used for that
purpose, is a state fund and such agreement is in accord with law. Section 2106, Revised Codes. That section directs the state treasurer to collect the tax and a state treasurer has nothing to do with collecting any tax other than such as relate to state funds. See also sections 13 and 14 of Article XII; section 198.1 and 198.6, Revised Codes; State ex rel. Journal Pub. Co. v. Kenney, 10 Mont. 488, 492, 26 Pac. 383; State of Ohio ex rel. Treasurer of Athens County v. Auditor of State, 15 Ohio St. 482; Du Bois v. Baker, 52 Ohio App. 148, 3 N. E. (2d) 552, 555; United New Jersey R. & Canal Co. v. Baird, 75 N. J. L. 788, 69 A. 472; City of Astoria v. Kozer, 124 Or. 261, 264 Pac. 445; Eugene School Dist. v. Fisk, 159 Or. 245, 79 Pac. (2d) 262.
There are other questions that have some bearing upon this controversy but we deem their determination unnecessary in this case. They would become important in any attack upon the validity of Chapter 190, supra, as a whole. The right of the legislature to enact retroactive legislation in tax matters is a question about which, among others, determination at this time is reserved.
The judgment is reversed and the cause remanded with instructions to sustain the demurrer to the complaint.
Mr. Chief Justice Johnson and Associate Justice Cheadle concur.