* This cause reversed. See 284 U.S. 239 (52 Sup. Ct. Rep. 133, 76 L. Ed. 265). For the years 1919 to 1922, inclusive, the plaintiffs (two national banks and five state banks and trust companies doing business in Des Moines) made their sworn statements to the assessor for the assessment of the shares of their stock to their individual stockholders (omitting, however, the names of the stockholders and numbers of shares of their several holdings, as to which, and as to deductions on account of amount invested in real estate, no question is raised), all as provided by Section 1322 et seq., Code Supp. 1913.
The assessor classified the plaintiffs' taxable property as corporate stock and made up the assessment rolls accordingly, assessing the stockholders (though not individually) on each share of stock. The returned value of such shares was computed on the basis of the sworn statements. This classification and assessment was passed by the board of review. The assessor's books were made up and returned to the county auditor in conformity with the sworn statements and assessment rolls.
These assessments were made and appeared upon the rolls and upon the assessor's books as assessments upon "corporate stock." The county auditor so entered them upon the tax books, fixing the taxable value at 20 per cent of the actual value, and applied to such taxable value the consolidated levy for the respective years which varied from 137.8 to 164 mills.
During these years a large number of domestic corporations employing, as we shall assume, moneyed capital in competition with plaintiffs in Des Moines in like form made to the assessor their sworn statements. The assessor in these cases used the same classification and assessment, applied to the capital of these corporations the same basis of assessment, and made up and returned to the county auditor the assessment rolls and the assessor's books in identically the same form and on the same basis as in the case of the assessments against the plaintiffs. *Page 1232
The county auditor in some of these assessments against competing corporations fixed the taxable value at 20 per cent of the actual value and applied the consolidated levy as in the case of the plaintiffs. After the tax books had passed into the hands of the treasurer, but before payment, the county auditor changed these assessments as they appeared upon the tax books to assessments of moneys and credits and applied to them the five-mill levy. As to the rest of the assessments of the competing domestic corporations the county auditor, instead of entering on the tax books the assessments as taxes upon "corporate stock" and applying the consolidated levy upon 20 per cent of the valuation, extended them on the tax books as "moneys and credits," and applied the five-mill levy on the dollar of actual valuation, under Sections 1310 and 1311, Code Supplement, 1913.
During these years there were in the city of Des Moines a large number of persons and a few foreign corporations, who, as we shall assume, were employing moneyed capital in competition with plaintiffs. The assessor classified and assessed this competing capital as "moneys and credits." He made up the assessment rolls and assessor's books accordingly and returned them to the county auditor. The county auditor extended these assessments upon the tax books as "moneys and credits," and applied to them the five-mill levy upon the actual net valuation.
The consolidated levy applied to the 20 per cent of the valuation of the stock in plaintiff corporations resulted in a much larger tax than would have the five-mill levy applied to the full valuation.
Plaintiffs knew just what was occurring with respect to their assessments. The sworn statements of the plaintiffs to the assessor show that they are "to aid the assessor in fixing the value of shares of stock in national, state or saving banks or loan and trust companies, to be assessed to the individual stockholders, each such bank or trust company is required to furnish him a verified statement of all the matters set forth below * * * Statement of Assets, Liabilities, etc. On the first day of January * * * of the (e.g., Iowa National Bank) exclusive of real estate which is to be listed and assessed in each odd numbered year only, as other real estate, as follows * * *" Following are assets and liabilities tabulated, the total of capital, surplus and undivided earnings set out, the value of the real estate deducted, with the result "value of stock, *Page 1233 less real estate," (e.g., Iowa National Bank $1,814,347.49.) The printed instructions on the sworn statement forms direct the assessor to send the president or cashier one of the blanks, and state: "This data is to aid you in fixing the value of the stock of said corporation which is to be assessed to the stockholders * * * and the corporation is made liable for the payment of the tax thereon." The assessment rolls of the individual taxpayers in question show on their face that they were assessments "of moneys and credits taxed at 5 mills or $5.00 for each one thousand dollars thereof." The dates of all of the assessment rolls of competing capital do not appear, but at least part of them were made during January and February. The assessments against the plaintiffs were made during the month of January. The board of review met on the first Monday in April. The dates of final adjournment varied from April twentieth to May sixth.
Plaintiffs severally in each of the years in controversy made complaint to the board of review in which they objected to their respective assessments on the ground that the assessments included the value of tax-exempt government securities, the amount of which should, as plaintiffs there claimed, have been deducted from their assessments. In presenting this claim the plaintiffs in their respective objections, among other things, appealed to Section 5219, U.S. Revised Statutes, to Sections 1321, 1322, Code Supp., 1913, to Chapter 257, Laws 38th G.A., and Section 2, Article 8, of the State Constitution, all of which were, in the objections, alleged to have been violated. The board of review overruled the objections. Plaintiffs severally appealed to the district court. Similar appeals and similar objections were made and overruled and appeals taken in each of the years in controversy.
That plaintiffs, at the time of making their objections before the board of review, were chargeable with notice of the facts on which they now base their complaint of discrimination (except, of course, that at the time of making the objections for any one year they did not know of the fact of the change by the auditor on the books for that year, because that change would be made after the filing of the objections), is not denied, but is the necessary conclusion from the record before us, some of which will be referred to.
The record shows the existence of considerable intimacy between plaintiffs and the taxpayers whose assessments are brought *Page 1234 to our attention. The vice president and trust officer of plaintiff Central Trust Company made the returns of some of the individual taxpayers here alleged to be in competition with plaintiffs. The president of the plaintiff Central State Bank testifies that that bank waited until 1923 to pay their taxes because they thought they would be exempted.
"Q. When did you think you would be exempted? A. I think it was brought to our attention in 1919 that we would not have to pay these taxes. * * * Q. In 1919 you knew or were conscious of the fact that you had objections to these taxes which were eventually paid by the Central State Bank; is that correct? * * * A. Yes, we thought we should be excused from paying the taxes. Q. And those were the same objections that you now make to these taxes; is that right? * * * A. Yes. Q. And you had those same objections in 1920, 1921, and 1922? * * * Yes." (The objection, "immaterial and irrelevant", is not well taken.)
The vice president of plaintiff Valley National Bank and cashier of plaintiff Valley Savings Bank testifies:
"I have discussed the matter with Mr. Crawford [president of the Valley National Bank and vice president of the Valley Savings Bank] as to whether the stock of the bank ought not to be taxed as moneys and credits at five mills on the dollar. I could not state when that discussion was first had — it has been a matter of several years. I would say that Mr. Crawford had it in mind some years back; at least the question of whether the bank stock ought not to be taxed as moneys and credits. * * * I had in mind on March 17, 1920, that we might wish to contest this assessment. I have no positive recollection as to the grounds of such contest, but I presume on the same grounds we are contesting it now. * * * I unquestionably discussed many times the question as to whether the banks were being discriminated against when other people were only being taxed five mills on the dollar, but I could not say just when, possibly 1921."
The vice president of plaintiffs Des Moines Savings and Iowa National Bank testifies:
"During the four years we set up a reserve to cover the taxes if it developed we would have to pay them. * * * The question *Page 1235 as to the law and liability of the banks was frequently discussed among the officers. I think as far back as January 1, 1919, there was some discussion among the officers of the bank that there were other people engaged in business which we considered competitive with the bank that were not being taxed at as high a rate as we were. * * * I think in 1921 and 1922 there was still considerable discussion as to the liability of the bank for payment of taxes and resisting of payment."
In the petition of the Iowa National Bank on appeal from the assessment for 1920 is the allegation:
"That on said January 1, 1920, there were within the limits of the city of Des Moines persons other than corporations and part of whose business is the receiving of deposits subject to check or certificates, receipts or otherwise, or the selling of exchange, or in other words there were within the limits of the city of Des Moines persons engaged in business as private bankers, within the meaning of Section 1321 of the Supplement to the Code of Iowa; that plaintiff is informed and believes, and upon such information avers, that the Drake Park Bank, the Cottage Grove Bank, the Oak Park Bank and the Capitol Hill. Bank were each conducted by persons other than corporations and as private bankers within the meaning of said section."
The evidence shows that these institutions were assessed on the basis of moneys and credits at the five-mill rate.
The competing capital in question falls into two classes: 1. Competing capital, the assessment of which, as made by the assessor, reported by him to the board of review, approved by that board, entered upon the tax books, and so returned to the county auditor, was on the alleged discriminatory basis now complained of. This capital is that in the hands of individuals and foreign corporations. 2. Competing capital the assessments of which, as made by the assessor and as approved by the board of review, entered upon the assessor's books and returned to the county auditor, were by the same mode and at the same rate as those against the plaintiffs, but in respect to which the alleged discrimination resulted from subsequent acts of the county auditor in attempting to change them. This capital was in the hands of domestic corporations.
[1] I. As to the first class of competing capital the plaintiffs *Page 1236 had an available remedy by appeal to the board of review and further appeal from the board of review to the district court, a remedy to which they resorted, though they did not therein ask for correction on account of the alleged discrimination of which they now complain.
In the appeals so taken in 1919 to the district court the defendants therein demurred to the petitions. The demurrers were overruled August 1, 1919. The defendants in the appeals elected to stand on their demurrers, and judgments were entered for plaintiffs (who are plaintiffs here). Those defendants then appealed to this court. Stipulations that the appeals should abide the final judgment in the then pending case of the Des Moines National Bank against Fairweather were made. Like objections, appeals and proceedings were taken in each of the years 1920, 1921 and 1922. The judgment in Des Moines National Bank v. Fairweather was reversed in this court. 191 Iowa 1240. On writ of error to the Supreme Court of the United States the judgment of this Court was affirmed. Des Moines National Bank v. Fairweather, 263 U.S. 103, 68 L. Ed. 191. Thereupon in each of the cases of these plaintiffs there was entered: "This case is hereby dismissed by plaintiff * * * in accordance with stipulation."
By Section 1373, Code Supp. 1913, "any person aggrieved by the action of the assessor in assessing his property may make oral or written complaint thereof to the board of review, which shall consist simply of a statement of the errors complained of, with such facts as may lead to their correction, * * * and appeals may be taken from the action of the board with reference to such complaints to the district court * * * within 20 days after its [board of review's] adjournment. * * * The court shall hear the appeal in equity and determine anew all questions arising before the board which relate to the liability of the property to assessment or the amount thereof * * *" As to competing capital of individuals and foreign corporations, this remedy was available to the plaintiffs to correct the alleged errors of which they now complain. Griswold L. C. Co. v. Calhoun County,198 Iowa 1240; First National Bank v. Board of Review, 199 Iowa 1124; First National Bank v. Board of Review, 200 Iowa 131.
It is essential to the proper functioning of the state and of its subdivisions that matters of taxation be adjusted and settled *Page 1237 at as early date as possible and through administrative boards. The board of review may make the assessment. Barhydt v. Cross,156 Iowa 271. Plaintiffs were required in their complaint to the board of review to make all objections to the proposed assessment which they then had, though the objections might be made very informally. However informally made, if called to the attention of the board of review, objections would be reviewed on appeal in the district court and would be there triable de novo. Wahkonsa Investment Co. v. Ft. Dodge, 125 Iowa 148.
"It is the duty of the district court to make a just and equitable assessment." Lyons v. Board of Review, 102 Iowa 1.
"Upon the appeal the circuit (district) court * * * that court is required to hear the matter anew upon all evidence tending to direct to a just decision." Grimes v. Burlington, 74 Iowa 123, 126.
See, also, Lyons v. Board of Equalization, 102 Iowa 1; Des Moines Gas Company v. Saverude, 190 Iowa 165. The district court tries the appeal de novo in chancery, and on appeal to this court the case is triable de novo. Grimes v. Burlington, 74 Iowa 123, 126.
As to the alleged discrimination in favor of moneyed capital held by individual taxpayers and foreign corporations, the remedy afforded before the board of review and by appeal was available, adequate and exclusive. Collins v. Keokuk, 118 Iowa 30; Crawford v. Polk County, 112 Iowa 118; First National Bank v. Burke,201 Iowa 994; Dickey v. Polk County, 58 Iowa 287; Keokuk Bridge Co. v. Salm, 258 U.S. 122, 66 L. Ed. 496; First National Bank v. Board of County Comrs. 264 U.S. 450, 68 L. Ed. 784; Burrill v. Locomobile Co., 258 U.S. 34, 66 L. Ed. 450. Munn v. Des Moines Nat. Bank, 18 F.2d 269, cited at this point, will be referred to later.
Whether or not plaintiffs, though they did not in their appeals present the objections now made, are estopped by the judgments, we need not pause to discuss. See, however, Lyman v. Faris,53 Iowa 498; Turner v. Sandhouse, 205 Iowa 1151; Reining v. Nevison,203 Iowa 995; Benedict v. Nielson, 204 Iowa 1373; Fidelity National Bank Trust Co. v. Swope, 274 U.S. 123, 71 L. Ed. 959; 34 C.J. 779, 784, 787, 890; 34 C.J. 818, 910, 966; Bowen v. Duffie, 66 Iowa 88; Woodbury County v. Talley, County Treasurer,147 Iowa 498; In re Assessment Stock Yards *Page 1238 Co., 149 Iowa 5; Skinner v. Township Board (Mich.), 213 N.W. 680, 681.
[2] II. As to taxes assessed upon competing capital held by domestic corporations. Plaintiffs are of two classes. 1. State Banks. 2. National Banks. The state banks are organized under and owe their existence to the statutes of the state of Iowa. They are concluded by state legislation within constitutional limits. National banks are agencies of the United States, and they or their shares are subject to taxation only to the extent permitted by federal legislation. Both classes of plaintiffs allege unconstitutional discrimination against them because of the acts of the county auditor in changing the assessments upon competing capital held by domestic corporations from "corporate stock" to "moneys and credits" and applying the five-mill levy instead of the consolidated levy of 20 per cent of the valuation applied to plaintiffs. Plaintiffs' contention is that by these means they were denied the equal protection of the laws in violation of the Fourteenth Amendment and of the corresponding guaranty (Section 6, Article 1) of the State Constitution.
"The purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the state's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents." Sunday Lake Iron Co. v. Wakefield, 247 U.S. 350, 62 L. Ed. 1154.
See, also, Sioux City Bridge Co. v. Dakota County,260 U.S. 441, 67 L. Ed. 340, 342.
Plaintiffs do not attack the statutes of the state. Their assault is exclusively upon the administration of the statutes, which they claim, for the years mentioned, was systematically, habitually and intentionally discriminatory, to their injury. Section 5219, Rev. St. U.S., prior to the amendment, with which we are not here concerned, permitted state taxation, subject to the restriction "that the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state." The state statutes prescribing the mode and rate of taxation applicable to plaintiffs and their competitors may be found in Sections 1310, 1311, 1321, 1322, 1322-1a of the Code Supplement, 1913. The alleged unconstitutional discrimination *Page 1239 and the alleged violation of the restriction of Section 5219 with respect to taxes assessed upon competing capital held by domestic corporations are not in the proceedings by the assessor or the board of review or in the assessment as made and returned by them, but in the subsequent acts of the county auditor in extending the assessments upon the tax books and (the inferentially alleged) resulting failure of the county treasurer when the tax books came into his hands to collect the taxes as assessed by the assessor and confirmed by the board of review. Discrimination in the administration of a concededly valid law can be practiced only in the imposition of the tax or in its collection. If the tax as legally imposed is valid, there can be no discrimination in the imposition. If the tax legally imposed is non-discriminatory, it does not become discriminatory in the imposition by subsequent illegal and void acts of a merely ministerial or clerical officer or employee in attempting to make changes. If the alleged discrimination is in the collection, it must be in collecting from some and not collecting from others. Clearly, in such case the non-collection must be such as to be chargeable to the state. The non-collection of lawfully assessed and nondiscriminatory taxes upon other property must be due to bad faith, intentional and willful on the part of those who therein as its duly constituted officers represent the state.
Taxation for the purpose of this case consists of three processes: First, the levy; second, the assessment; third, the collection. It is contended that of the two levies involved (each of itself, if properly applied, concededly valid), the lesser one was applied to the competing capital of the domestic corporations, while the larger one was applied to the plaintiffs.
It is contended that the assessments were discriminatory although plaintiffs themselves correctly argue:
"The action of the county auditor and his deputy in placing the assessments on the shares of corporations upon the tax list as `moneys and credits' was an unlawful change of classification and beyond the power of the auditor. Fort Madison v. Maxwell, et al.,202 Iowa 1346."
The assessment is made in the first instance by the local assessor, who lists and classifies the property and makes valuations. He then lays the assessment rolls before the local board of review. The local board of review adjusts the assessments "in *Page 1240 such manner as to secure the listing of property at its actual value and the assessment of property at its taxable value," and adds "to the assessment rolls any taxable property not included therein * * * as the assessor should have done." Code Supp. 1913, Section 1370. When the corrections have been made, the assessor makes up the assessor's book and returns it to the county auditor together with the assessment rolls. Id. Section 1366. The county board of review equalizes class valuations between political subdivisions of the county and the state board of review equalizes between the counties. Id. Code 1897, Sections 1375, 1379. The classification and assessment by the assessor, as approved by the board of review, determine the levy or rate to be applied.
The assessment consists in the listing of the property to be taxed and the estimation of the sums which are to constitute the basis of the apportionment of the tax, — that is, the valuation. Appeal of Seaman, 135 Iowa 543; 3 Cooley Taxation, 4th Ed., Sec. 1044.
[3] The assessments and the rate to be paid by the several taxpayers as between themselves are complete and are determined when the assessor returns the assessment rolls and assessment book to the county auditor, subject to class modification by the county and state boards of review and to change by the court if appeal has been taken. The remainder of the process of taxation is one of collection and enforcement of the taxes as so assessed. This is ministerial. The auditor's duty is to transcribe the assessments into the tax book and make the necessary computations and extensions and clerical corrections. This duty is merely clerical and ministerial. First National Bank v. Burke, 201 Iowa 994; First National Bank v. Hayes, 186 Iowa 892; Ridley v. Doughty, 77 Iowa 226, 85 Iowa 418; Milwaukee St. Paul Railroad Co. v. Kossuth County, 41 Iowa 57, 66; 3 Cooley Taxation, 4th Ed., Section 1167; People v. Pittsburgh, 147 N.E. 492, 316 Ill. 410. The auditor's act in changing the classification and assessment of the property of the competing corporations was without power and void. Fort Madison Sec. Co. v. Maxwell,202 Iowa 1346. The county treasurer was not bound by it. Dickey v. Polk County, 58 Iowa 287. Whether he could justify under it we need not inquire.
[4] The process of assessment and the determination of the *Page 1241 levy or rate to be applied were complete and final when the assessment books recording the assessments and showing applicable levy as approved by the board of review were returned to the county auditor. The county auditor had no authority or discretion whatever to make or to change the assessment or levy or to determine the applicability of one or the other levy. His duties, merely clerical, were to transcribe to the tax books the assessments as returned by the assessor, to apply to them the designated levy (in this case the consolidated levy upon 20 per cent of the valuation), and to compute and extend the tax accordingly. He had no authority whatever to reduce the rate of taxation as determined by the assessor and the board of review. The auditor's acts in making the purported changes were a mere nullity. When the assessment books were returned to the county auditor, it was the right of the state to collect the taxes as shown by those books (subject to the result of appeals and action taken by the boards of equalization, if any). Neither the county auditor nor the county treasurer had authority to waive or discharge legally assessed taxes except on payment to the treasurer. The taxpayers could not absolve themselves from liability for the payment of those legally imposed taxes by setting up the illegal act of the auditor.
If they have not paid, the tax, to the extent not paid, has not been discharged. The power of the state to compel payment does not end until payment is made. Weyerhaueser v. Minnesota,176 U.S. 550 (44 L. Ed. 583, 71 N.W. 265, 75 N.W. 718); County of Redwood v. Winona Land Co., 40 Minn. 512 (41 N.W. 465, 42 N.W. 473); White River Lbr. Co. v. Arkansas, 279 U.S. 692 (73 L. Ed. 903, 2 S.W. [2d] 25); Anderson v. Ritterbusch 22 Okla. 761 (98 P. 1002).
Plaintiffs are the acting parties. It is incumbent upon them to plead and prove all the essential elements of their cause of action. The plaintiffs make no allegation and have introduced no evidence that the right of the state to the taxes so lawfully assessed has been in any wise defeated or barred. It is only by inference, or from the mutual assumption of the parties (if at all), that we can say that the domestic corporations have paid taxes only in accordance with the change illegally made by the auditor, or that no proceedings have been taken to enforce payment of the taxes legally assessed. The present suits were commenced within three years of the date when the last of the taxes *Page 1242 in question would be delinquent. It does not appear that the illegal acts of the auditor were ever called to the attention of the board of supervisors, the executive council, the department of justice, the legislature, or of any of the authorities of the state who had any power of supervision or duty to enforce correction of the misfeasances of the county auditor or county treasurer. The county auditor undoubtedly intended, as he testifies, to change from the higher to the lower levy upon the competing capital. His reason is, "under proper showing they were assessed wrong." But he was merely usurping authority. We are referred to no principle or authority upon which it may be held that the state or its subdivisions had not, at the time of the commencement of this suit, or have not now, the right and power to enforce payment of the taxes rightfully assessed against the competing corporations. We find no evidence or ground for inference that the state, or its duly constituted officers, do not intend to collect from the competing corporations the taxes which the statutes require them to pay and which have been levied and assessed against them. On this record it must be held that there was no discrimination in the levy or assessment as between plaintiffs and the competing corporations, and it cannot be held that the state has knowingly or willfully discriminated in the collection of the taxes.
"It is to be presumed that if trust or other companies are exercising powers not conferred by law the state will take the proper steps to keep them within their statutory limits, and a neglect for a limited time to do so cannot be considered as an assent by the state to such an improper assumption of power. It is not to be assumed that the state is acting in bad faith; that it has so legislated that upon the face of the statutes a uniform rate of taxation upon all moneyed capital is provided, while at the same time it has designedly placed the grants of some corporate franchises in such form as to permit the use of moneyed capital in certain ways with peculiar and less stringent rates of taxation. Certainly there is nothing in the case to indicate any want of good faith on the part of the state of New York." Jenkins v. Neff, 186 U.S. 230, 235 (46 L. Ed. 1140, 1143).
"And it must be regarded as settled that intentional systematic undervaluation by state officials of other taxable property in the same class contravenes the constitutional right of one taxed *Page 1243 upon the full value of his property. * * * It is also clear that mere errors of judgment by officials will not support a claim of discrimination. There must be something more, — something which in effect amounts to an intentional violation of the essential principle of practical uniformity. The good faith of such officers and the validity of their actions are presumed; when assailed, the burden of proof is upon the complaining party." Sunday Lake Iron Co. v. Wakefield, 247 U.S. 350 (62 L. Ed. 1154).
In White River Lbr. Co. v. Arkansas, 279 U.S. 692 (73 L. Ed. 903, 910), quoting from Winona St. Paul Land Co. v. Minnesota (U.S.), 40 L. Ed. 247, it is said:
"`If the state, as has been seen, has the power, in the first instance, to classify property for taxation, it has the same right of classification as to property which in past years has escaped taxation. * * * If taxes are to be regarded as mere debts, then the effort of the state to collect from one debtor is not prejudiced by its failure to make like effort to collect from another. And if regarded in the truer light as a contribution to the support of the government, then it does not lie in the mouth of one called upon to make his contribution to complain that some other person has not been coerced into a like contribution.'"
See, also, Florida Cent. P.R. Co. v. Reynolds, 183 U.S. 471 (46 L. Ed. 283, 287, 288).
The changes made by the auditor would, if carried into effect, operate as a fraud upon the state. They would also operate as a fraud upon the other taxpayers by reason of their tendency to reduce the legitimate income of the state, and consequently increase the burden of the other taxpayers. For this they had a remedy. VanWagenen v. Supervisors, 74 Iowa 716; Collins v. Davis,57 Iowa 256. See, also, Ridley v. Doughty, 85 Iowa 418; First Nat. Bank v. Burke, 201 Iowa 994; Avoca State Bank v. Burke,193 Iowa 1055; 38 Corpus Juris 846, 575. Plaintiffs now however in effect ask, not that this wrong be righted, but that the auditor's illegal action be confirmed and perpetuated and its benefits extended to them; that the injury to the state and taxpayers generally be expanded by extending to them the benefits as of a similar wrong.
"The `equal protection of the law' cannot mean equal immunity *Page 1244 in its violation or evasion." State v. Hall (Ala.), 54 So. 560.
Whether under the facts of the case the plaintiffs have a standing to invoke the extraordinary remedy of mandamus, the granting of which is largely controlled by equitable principles, we do not stop to determine. See Duncan Townsite Co. v. Lane,245 U.S. 308, 311 (62 L. Ed. 309, 311); Ex parte Skinner, 265 U.S. 86 (68 L. Ed. 912).
What is said in Montana Nat. Bank v. Yellowstone County,276 U.S. 499 (72 L. Ed. 673), is not in point, for the reason that the taxing officers in that case had acted in accordance with the construction placed on the tax laws by the Supreme Court of the state — a construction which was afterwards changed. The county officers in the taxation there in question had acted under the authority of the state, and had executed the law as authoritatively declared by the highest judicial tribunal of the state. The court's construction of the law was afterwards changed, but at the time of the acts in question was binding upon the taxing officers. Whether after the change those officers might, or probably would, proceed to correct the discrimination which was valid when made was purely speculative. Here, not the taxing officers, but a local clerical official perpetrated an act illegal and a nullity from the beginning — an act which was wholly without authority, an act as to which no semblance of confirmation or waiver is shown. In order to constitute discrimination in the practical administration of the law it must appear that the discriminatory administration was authoritative and intentional. The intention must be that of the state, through officials to whom administration is entrusted, and whose intention may be charged to the state. We hold on this record that the taxation against competing domestic corporations is at the same rate as that against plaintiffs, and that, giving the plaintiffs the benefit of all inference and assumptions that may legitimately arise upon this record, there has been, at most, merely delay in not collecting the full amount of taxes owing by domestic corporations.
The main purpose of Congress in the enactment of Section 5219 is to render it impossible for the state, in levying taxes upon national banks or upon their shares, "to create and foster an unequal and unfriendly competition, by favoring institutions or individuals carrying on a similar business and operations and *Page 1245 investments of a like character." New York ex rel. Amoskeag Sav. Bank v. Purdy, 231 U.S. 373 (58 L. Ed. 274, 281).
See, also, Des Moines Nat. Bank v. Fairweather, 263 U.S. 103, 116 (68 L. Ed. 191, 199); First Nat. Bank v. Anderson,269 U.S. 341 (70 L. Ed. 295). While the lawfully imposed assessments against the competing corporations stand, as having been made by the same method and at the same rate as those against the plaintiffs, and the right to collect then does not appear to be barred, and it is not shown that the state or its duly constituted officers do not intend to collect such taxes, it cannot be said that plaintiffs have suffered from unequal competition because the state has collected from the national banks a larger tax in proportion than it has yet collected from the competing corporations. This record falls far short of showing that unequal or unfriendly competition has been in any wise created, fostered, or encouraged by the state or those charged with the administration and enforcement of the law. Certainly the state and all of its authorized officials have acted in the utmost good faith and in accordance with the constitutional and statutory rights of the plaintiffs.
III. Plaintiffs argue that "the identical causes of action were involved and determined in the cause of Munn v. Des Moines Nat. Bank (18 Fed. [2d] 269). Under such circumstances the holdings of the Federal courts are obligatory upon the state courts:"
Munn v. Des Moines Nat. Bank, 18 F.2d 269, was brought to enjoin the county treasurer from collecting taxes from the shareholders of the plaintiffs on their stock "in excess of the taxes that would have been levied on account of those shares in the years 1919, 1920, 1921, and 1922, if the taxes on the actual value of those shares had been levied on the same basis that taxes were levied on the actual value of other moneyed capital in the hands of individuals used in competition with the normal moneyed capital of these banks."
Those suits were brought in behalf of banks other than the present plaintiffs. The present suits are not based upon the judgment in that suit, and could not be.
In the later case in the same court of Nelson v. First Nat. Bank, 42 F.2d 30, it is said that the Munn case "was expressly based on `the peculiar facts of these cases.' * * * Unless we can say broadly that the above difficulties, pointed out in the Munn case, are inherent in this statutory system of review under *Page 1246 all circumstances, that case is not controlling. We think this would be an unwarrantable extension of that decision and that appellees must exhaust this administrative remedy of appeal to the board of review before they can come into court."
The Federal Circuit Courts of Appeals and, in respect to Federal law, the state courts of last resort are subject to the supervisory jurisdiction of the Supreme Court of the United States. They are, however, as to the laws of the United States co-ordinate courts. Finality of determination in respect to the laws of the United States rests in the Supreme Court of the United States. Until the Supreme Court of the United States has spoken, state courts are not precluded from exercising their own judgment upon questions of Federal law. They are not concluded by, though they should give respectful consideration to, the decisions of the Federal Circuit Courts of Appeal and district courts. Wells v. Western Union Tel. Co., 144 Iowa 605, 611; State v. Taylor, 298 Mo. 474 (251 S.W. 383); Walters v. Commonwealth,199 Ky. 182 (250 S.W. 839).
[5] IV. It is contended that the action of the taxing officials in exacting statutory interest and penalties from four of the plaintiffs was illegal because of the pendency of good-faith appeal. The appeals referred to adopt the appeal considered in Des Moines Nat. Bank v. Fairweather, 191 Iowa 1240, result in which by stipulation was to control. Plaintiffs' present contention is that they were taxed too much in comparison with the taxes of others. They failed to sustain the contention made in the Fair-weather case or their contentions made here. They have shown no legal excuse for not paying the tax. They are, therefore, liable for the penalty. Lamont Sav. Bank v. Luther,200 Iowa 180. See cases cited 37 Cyc. 1544.
Rystad v. Drainage Dist., 170 Iowa 178, involved the right to penalties on drainage assessment pending an appeal which was triable de novo. It was held that such appeal was part of the statutory method of determining the amount which should be levied, and during the pendency of such an appeal the assessment was in abeyance, not delinquent, and therefore not subject to penalties. See, also, Barber Asph. Pav. Co. v. District Court,181 Iowa 1265. Those cases are not in point. After the determination of the appeals in the district court the landowners tendered full payment of the amount as established by the district court, *Page 1247 though without interest. The taxes were payable in installments, and were held not to be delinquent at the time from which the penalties were assessed. The taxes here in controversy are for the current expenses which the state and municipalities must defray in due course after the taxes become due. Taxpayers ought not to be encouraged in the non-payment of taxes by saving them the penalties pending unsuccessful litigation on the plea that the litigation was prosecuted in good faith. One of the purposes of penalties is to discourage evasion and procrastination. — Affirmed.
EVANS, STEVENS, FAVILLE, and De GRAFF, JJ., concur.