dissenting.
The majority agrees with the Court of Civil Appeals that the system of taxation adopted by the County is arbitrary and fundamentally erroneous, but, largely because of the decision in State v. Whittenburg, 153 Texas 205, 265 S.W. 2d 569, and cases following, holds that the Federal Land Bank should lose *290for' failure to prove substantial injury to itself by virtue of that system.
This writer joined Justices Smedley and Brewster in a dissenting opinion in the Whittenburg case, supra. That opinion was written by Justice Smedley in February 1954.
This Court should exercise its right to review the principles of law announced by the majority in the Whittenburg case, and, if the law was erroneously pronounced, should correct the error committed in the former case. The holding is that showing that a taxing authority has followed an arbitrary plan or scheme is not enough, but that the taxpayer has the burden of going further and establishing that the use of the plan worked to his substantial injury. It seems that in the Whittenburg case, supra, as well as the case of City of Arlington v. Cannon, 153 Texas 566, 271 S.W. 2d 414, the theory is advanced that a taxpayer is charged with the duty of acting as a watchdog over the elected servants of the people and upon failure to immediately apply for a writ of mandamus or injunction to prevent such officials from thrusting upon him an unjust tax burden, he must suffer merely because he failed to show substantial injury. It is true that no dissent was filed in the City of Arlington case, supra, however, there is precedent for reviewing and even overruling former decisions of this Court, especially where such decision is based on a decision reached by a divided Court. See Federal Royalty Co. v. State, 128 Texas 324, 98 S.W. 2d 993; Bowman Biscuit Co. of Texas v. Hines, 151 Texas 370, 251 S.W. 2d 153. The Whittenburg case, supra, and the present case fáil to follow the rule that when the taxing officials employ an arbitrary and unjust method of valuing and assessing property, as was done here, the property owner' is entitled to relief against the' valuations and assessments. There is a distinction in a case where the board fairly and honestly endeavors to fix a just valuation for taxing purposes. In such case, a mistake on the part of- the board is not subject to court review, but, where the board adopts a method, plan or scheme that is illegal, arbitrary, or fundamentally wrong, the decision may be attacked and set aside, and this without proof of injury, as Whittenburg. and other cases now require. This Court should return to the true rule and the only just rule which was announced in the cases cited in the dissenting opinion in the Whittenburg case. The majority in the Whittenburg case, supra, emphasizes its holding by quoting from the case of Lubbock Hotel Co. v. Lubbock Independent School District, Texas Civ. App., 85 S.W. 2d 776, no writ history. The quotation reads as follows:
*291“A mere theory may not be litigated. * * * There must be more than the mere adoption of a fundamentally wrong principle or method of taxation. The courts grant relief upon ‘the adoption of a fundamentally wrong principle or method, the application of which substantially injures the complainant’.” 85 S.W. 2d at page 778.
It is my contention that there' existed something more in the Whittenburg case than an attempt to litigate a mere theory. In the present case, not only was there an illegal plan in full operation, but the taxing authority actually brought suit to collect taxes wherein the rate of taxation was fixed by such illegal plan. If the taxing authority adopts a method that is illegal, arbitrary, or fundamentally wrong, the taxation will not be permitted to stand.
Regardless of the action this Court may take in regard to overruling the holding in the Whittenburg case, it is my contention that the evidence in this case shows that the taxing authority has deliberately omitted from the tax rolls a large volume of property, personal and real, thereby acting in direct contravention of the constitutional provisions of Article VIII, Sec. 1, Constitution of Texas, and the provisions of Article 7174, Vernon’s Annotated Civil Statutes of Texas.
It is clear from the stipulated evidence that over 48 per cent of the minerals in Dallam County were shown to be owned in common with the surface, and were not valued for taxation, either by listing them separately or by adding their market value to that of the surface.
It was stipulated that no attempt was made to assess bank deposits. With bank deposits added, the lands, as well as the minerals, were entitled to a 20 per cent reduction in assessment to make the total tax for 1954.
In the case of Whelan v. State, 155 Texas 14, 282 S.W. 2d 378, 384, this Court held that money on deposit in banks was subject to taxation. This Court reversed that case because testimony as to bank deposits was excluded by the trial court. The Court said:
“It can hardly be questioned or doubted that on the. record before the court, the proffered evidence, if undisputed, would have shown substantial injury as a matter of law in that petitioners’ taxes were excessive to the extent indicated.”
*292-In our cáse, property, both real and personal, has been relieved entirely from taxation. This amounts to discrimination as against the respondent and is a denial of due process and equal protection, and amounts to a denial of rights guaranteed by the Texas Constitution, Art. 1, Secs. 3, 19, and the Fourteenth Amendment to the United States Constitution.
The judgment of the Court of Civil Appeals should be affirmed.
Opinion delivered December 9, 1959.