*371A motion by the appellant for a rehearing was denied.
Cole, J.I. In support of the motion for a rehearing, it is said the court failed to notice the argument founded on the allegation that the tax was void for the reason that the assessors intentionlly valued the property in question “ in accordance with a different rule or basis of valuation than that adopted and acted upon by them in their valuations of other property for taxation in said year.” Preceding this allegation in the complaint, certain facts were stated, which the court certainly assumed, as it had the right to assume, were relied on to show wherein the assessors departed from or violated the rule of uniformity. If the pleader did not intend to show by these facts that the rule of valuation as to this property differed from that acted upon in assessing other property, it is difficult to understand why they were set out in the complaint at all. We supposed they were stated to show wherein the proceedings were illegal. We deemed them insufficient to sustain that claim. Eor, to take an analogous case, suppose a party brings an action to set aside a contract on the ground of fraud, setting forth in his complaint certain specific facts to show the fraud, and then, as a conclusion founded on those facts, alleges that the contract is void. Would a court, on demurrer to the complaint, after deciding that the facts did not establish or show fraud, still hold the complaint good on the general allegation that the contract was void? We apprehend not. Now, if the fact that the assessors valued the property higher than the executor did in the statement which he furnished the assessors, was not relied on to show a violation of the rule of uniformity, why was it set forth in the complaint at all? This is really the only fact stated to show that the assessor adopted a different rule of valuation in respect to this property from that acted upon as to other property. And if the learned counsel will refer to his original brief, he will observe that this fact was the only thing there relied on to *372show that the tax collected was illegal and should be refunded. There is surely nothing unfair in meeting the precise position which counsel take in the argument of causes, as we did when considering the allegations of this complaint. We certainly did not intend to impute to the pleader any other intent than that fairly “ inferable from the language used.”
II. The second position relied on as showing the tax invalid, it is conceded, was not fully stated in the former brief. It is, that the tax is void for the reason that the assessors did not require the plaintiffs, or one of them, to make a statement as to the value of the property under oath, as the statute directs, but, having accepted the unsworn statement without offering to administer the oath, proceeded to determine its value in another way and by other sources of information. The executors had an undoubted right to conclude the judgment of the assessors as to the value of this class of property, by themselves fixing its value under oath. This was a right which the law gave them. But if they .did not see fit to render a sworn statement as to its value, the assessors had to determine its value in the best way they could. We presume it is not an unfrequent occurrence for tax-payers, from choice, to furnish assessors with unsworn statements of this kind of property, leaving it to the assessor, if dissatisfied with the valuation given, to get at the proper valuation in the best manner possible. But still we do not think that such a mode of assessment renders the tax void. It is the duty of the tax-payer to make oath to his statement, if he wishes it to be conclusive upon the assessors. The motion for a rehearing must be denied.
Evan, O. J.I was not present when this cause was heard. But I have carefully examined the case, the briefs on the hearing and on the motion for rehearing, and the opinion of the court. And I am compelled to dissent from the overruling of the motion, on two grounds:
*373I. I cannot but think the provision of sec. 1, ch. 78 of 1873, in relation to the assessment of moneys, notes, bonds, mortgages or other securities, to be mandatory, and therefore jurisdictional to the assessment; certainly so, unless the taxpayer refuses to make the statement and take the oath. It provides that, in determining the amount, the tax-payer shall be required, that is, by the assessors, to make a statement thereof, and of the average value thereof, under oath. Here is a marked difference of language from a previous clause of the section, in regard to all other personal property to be taxed, where the tax-payer ma/y be examined, under oath, as to the items and value; that is, at the discretion of the assessors.
And there is reason for the distinction. Eor other taxable personal property is generally, though not always, open to inspection and valuation of the assessors; but money and securities for money are generally not so. Therefore the assessors may, when necessary, appeal to the conscience of the tax-payer in regard to other personal property, but must appeal to it in the first instance in regard to money and securities. That appears to me to be the plain reading of the statute.
In the present case, one of the executors appears to have tendered the oath to the assessors, which it was the duty of the assessors, or one of them, to have taken. If they avoided to take it, by way of excuse for enlarging the amount, they violated the statute, and committed a wrong upon the executors.
In my humble judgment, the cases cited in the opinion of the court support my dissent, and not the opinion.
II. There is an averment in the complaint that the assessors intentionally valued the property by a different rule of valuation than that adopted and acted upon by them in their valuation of other property. It is true that this averment immediately follows one in regard to the disregard of the statement of money and securities rendered by the exec*374utors, and appears to be contained in the same sentence. But it is an independent averment, on a different subject matter; and is none the less so because it is separated from the preceding by a comma and not by a period.
The averment is certainly very general. But if it be defective in that respect, the remedy against it was by motion to make it more definite and certain, and not by demurrer.
If there were different rules of valuation, one of them at least was not the statutory rule. And all the late cases hold that a difference of rule avoids the whole assessment.
Eor these reasons I think the appeal should be reheard.
By the Court. — Motion for rehearing denied.