On- Appellant’s Motion for Rehearing.
In our original opinion we held that the clause “but this defense shall apply only to such excess” as used in Subdivision 3 of Article 7329 should be interpreted to mean that one against whom the tax is sought to be collected could defend only as to the excess over and above the amount properly assessable on an equality basis, and unless the amount properly assessable on an equality basis was proven the judgment would stand.
In its motion for rehearing appellant insists we were in error in that part of our opinion just mentioned because in holding that Dallam County since 1954 has been operating under an illegal and fundamentally erroneous plan of taxation, and appellant having established substantial injury, that the judgment would have been based on an illegal and void levy and assessment, would have been in an incorrect amount and therefore void.
A more mature consideration and study of this question has convinced this writer that to the extent just mentioned our former opinion was incorrect. We believe our other pronouncements of the law were correct in our former opinion and that the judgment in the case will have to be reversed for the reasons hereinafter stated.
In 9 Tex.Jur., Ten Yr. Supp., Section 122a at page 102 it is said, “Where, upon appeal, a tax levy is adjudged void, the appellate court should reverse and render judgment for the taxpayer, but without prejudice to the right of the taxing authority to reassess the taxpayer’s interest in the land and to collect taxes due thereon.”
In State v. Richardson, 126 Tex. 11, 84 S.W.2d 1076 our Commission of Appeals has held that where the board of equalization had adopted an arbitrary method and scheme for fixing valuations, which resulted in an unjust discrimination against the taxpayer the assessments thus made were void, and the collection of the taxes based on such assessments could be successfully resisted by defendant. Our original thinking was that a successful resistance would have to constitute proof of the excess over and above the amount properly assessable *629on an equality basis and that the taxing units could recover for the full amount sued for in the absence of such proof.
In a case written when the present Article 7329 R.C.S. was Article 7689a R.C.S., with the exact same wording, the San Antonio Court of Civil Appeals in Vance v. Town of Pleasanton, 261 S.W. 457, at page 459, in discussing said article said:
“If the statute has the effect of depriving the property owner of defenses vouchsafed to him under the due process or other provisions of the state or federal Constitutions, then, of course, to that extent the legislative act is void and ineffectual. For instance, if a town or city should levy and assess and endeavor to collect taxes upon property situated without the corporate limits of the municipality, then clearly the property owner could plead and prove that fact as a defense in a suit brought against him to enforce collection of the taxes, notwithstanding the statute in question precludes such defense.
“So, also, would such statute be ineffectual to cut off an injured property owner from showing that a tax is materially out of proportion to the value of the property taxed, or that it was not equal or uniform with the taxes assessed against like property of others, because these defenses are guaranteed to the citizen in article 8, § 1, of the state Constitution, in which it is provided, that ‘taxation shall be * * * uniform,’ and that all property ‘shall be taxed in proportion to its value.’ ”
In State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569, 572, our Supreme Court said, in speaking of boards of equalization, “ * * * no attack on valuations fixed by such boards can or will be sustained in the absence of proof of fraud, want of jurisdiction, illegality, or the adoption of an arbitrary and fundamentally er-roneotis plan or scheme of valuation.” (Emphasis added.)
One of the latest expressions of our Supreme Court concerning defenses against taxing units seeking judgment for delinquent taxes is found in Whelan v. State, 155 Tex. 14, 282 S.W.2d 378, 384. In that case the trial court refused to receive evidence offered for the purpose of showing an arbitrary plan or scheme of taxation and the court of civil appeals affirmed the case. The Supreme Court reversed both courts, saying, ‘If petitioners can show substantial injury on a retrial by reason of the omission of taxable bank deposits from the tax rolls they will be entitled to judgment setting aside the assessment for the years 1950, 1951 and 1952 and to a reassessment of their properties by taxing authorities on an equal and uniform basis under Article 7346, V.A.C.S., * * *.” Thus it appears that where the system of the taxing authorities is based on an illegal and fundamentally erroneous plan of taxation and where the one against whom the taxes are sought to be collected has shown substantial injury from such plan, both of which conditions we believe to be present in this case, the assessment itself is void as being in violation of both the state and federal constitutions, and any judgment based thereon would be void. State v. Richardson, 126 Tex. 11, 84 S.W.2d 1076; Rowland v. City of Tyler, Tex.Com.App., 5 S.W.2d 756; City of West University Place v. Home Mortgage Co., Tex.Civ.App., 72 S.W.2d 361; Whelan v. State, 155 Tex. 14, 282 S.W.2d 378; Bashara v. Saratoga Independent School District, 139 Tex. 532, 163 S.W.2d 631; 9 Tex.Jur., Ten Yr. Supp., Section 122a at page 102.
This writer comes to the conclusion just made with much reluctance because no tax system can possibly be completely free of some discrimination and injustice and because every reasonable inference should be resolved in favor of the validity of the levy and assessment of taxes in order that the state and its subdivisions depending upon the revenue therefrom may have the funds with which to render the services required of them. However, we *630have come to the conclusion that the law requires a reversal and that the State of Texas and Dallam County will ultimately be benefited more by relevying and reassessing the property in accordance with our holdings herein and in compliance with the requirement of the statutes and constitutions than they would to continue to litigate this and any other such similar actions as might hereinafter be filed. Accordingly, the judgment of the trial court is reversed and rendered that appellees take nothing on their judgment for $8.20 but without prejudice to the right of the taxing units to re-levy and reassess the property in question upon a fair and equal basis with property of like kind and value in the county and to collect taxes thereon.