GRAY, J.

The material facts alleged in the complaint must be regarded as admitted, under the defendants' demurrer, and, the legal question, which, therefore, arises is whether the plaintiff is without remedy at law, and, if that be so, whether it has made out a case for equitable intervention by way of an injunction restraining the defendants from collecting a portion of the tax levied against its stockholders. The Special Term decided the case upon the theory that the plaintiff had an adequate remedy at law, in a resort to the common-law writ of certiorari to review the action of the tax commissioners and "to have the valuation determined according to the rule and principle prescribed by the statute, or, if that should be impracticable, then according to some uniform rule or principle, which will result in substantial equality of the burden of taxation." The Appellate Division assigned no reasons in affirming the order of the Special Term.

I have grave doubt whether the common-law writ of certiorari would afford to the plaintiff an adequate remedy for the particular grievance assigned in its complaint, if the right to resort to it existed. The issuance of the writ was largely discretionary and its function was to bring up for review the record of the proceedings of tribunals, or boards, possessing a special, or limited, jurisdiction, for inquiry by the court into the questions whether the proceedings were with jurisdiction of the subject-matter and with regularity; that is to say, with due regard to individual rights in matters affecting their persons, or property. Did they keep within the boundaries prescribed by the statute law, or by well-settled principles of the common law, would be the question presented. It was not until the passage of the general act of 1880, (Chap. 269, Laws of 1880), that taxpayers were afforded an effective remedy against illegal, or erroneous, assessments by the writ of certiorari. Prior thereto, as the assessors were deemed to act judicially, the review of the courts was confined to questions of jurisdiction. ( People ex rel. Citizens' G.L. Co. v. Board of Assessors, 39 N.Y. 81, 88; People ex rel. Cook v. Board of Police, Ib. 506; People ex rel. Buffalo S.L.R.R. Co. v. Fredericks, 48 Barb. 173; affd., 48 N.Y. 70; People ex rel. Manh. Ry. Co. v. Barker, 152 ib. 417, 430.) In People ex rel. Cook v. Board of Police, ( supra), Judge WOODRUFF, in his opinion, elaborately reviews the authorities and concludes that there were these three classes, into which certiorari proceedings divided themselves: First, that of the common-law writ, brought to review the summary conviction of a person charged with crime, or offense in law; second, that of the common-law writ, brought to review other proceedings of inferior tribunals, magistrates, or bodies of officers, under a special, or limited, jurisdiction, and, third, the statutory certiorari. Speaking of the second class, he observed: "The decisions of this state seem to hold with much uniformity that none but jurisdictional questions can be considered." In that case, as in the later case of People ex rel. Clapp v. Board of Police, ( 72 N.Y. 415), where Judge ANDREWS wrote, the question related to the punishment of the relator by the board of police for an offense and it was held that, in such cases, the power to review extended to the consideration of the question whether there was any proof supporting the conviction. In People ex rel. Manh. Ry. Co. v. Barker, ( supra), Judge VANN, having under consideration the act of 1880, and contrasting its provisions with those of the common-law writ, observes of the latter, that it "brings up the record for inquiry into jurisdiction and regularity and in criminal, or quasi criminal, cases, the evidence, also, to see whether, as matter of law, there was any proof which could warrant a conviction of the relator. (Citing cases.) The general statutory writ brings up both record and proceedings for examination, not only as to jurisdiction and method of procedure, but, also, to see whether there was a violation of any rule of law, or any competent proof of all the essential facts, or a preponderance of proof against the existence of any of those facts." Thus, the common-law writ of certiorari, in bringing up for review the proceedings of the commissioners of taxes and assessments, which are, unquestionably, judicial in their nature, ( Barhyte v. Shepherd, 35 N.Y. 238; Buffalo S.L.R.R. Co. v. Supervisors, 48 ib. 93; Stanley v. Supervisors, 121 U.S. 535), would present questions relating to jurisdiction and to regularity and not to the merits of this controversy. But, in my opinion, the common-law writ would be no longer available in such cases. With the enactment of chapter 269, of the Laws of 1880, there was created a new and complete system for reviewing upon certiorari, and for thereby correcting, the errors of assessing officers. ( People ex rel. Wallkill Valley R.R. Co. v. Keator, 101 N.Y. 610.) It rendered inapplicable the provisions of the Code of Civil Procedure, relating to the writ of certiorari ( People ex rel. Church of the Holy Communion v. Assessors, 106 N.Y. 671; Matter of Corwin, 135 ib. 245), and resumed within itself the remedies available to a taxpayer aggrieved by the action of the assessing officers. What was discretionary at common law, now became a right. I think that that act became the only authority for the review of errors in assessments for purposes of taxation. It was entitled "An act to provide for the review and correction of illegal, erroneous, or unjust assessments." It authorized the issuance of a writ to review assessments for illegalities, the grounds of which are specified in the petition; or which are alleged to be erroneous by reason of overvaluation, or to be unequal, "in that the assessment has been made at a higher proportionate valuation than other real or personal property on the same roll by the same officers." It appears to be conceded that this general statute would furnish but an inadequate remedy for the plaintiff's grievance. It is not claimed that the assessment of the plaintiff's stockholders was illegal in the technical, or statutory, sense; inasmuch as the taxing officers had authority to proceed, and did proceed with regularity, and with all the forms prescribed by law, to their final determination. There was no invasion of the legal rights of the plaintiff, or of those of its stockholders, in the method of procedure for the imposition of the tax upon the shares of stock. A review upon the statutory ground of inequality would not reach the grievance asserted by the plaintiff; because that grievance does not relate to any question of fact, but to the principle, or rule, which had been adopted in the adjustment of municipal taxation for 1896, and which is claimed to have been in violation of the rule prescribed in the Revised Statutes. The inequality which, under the general act of 1880, is the subject of review, has reference to a case where the assessors have departed from the general rule, or ratio, of assessment in a particular case, to the taxpayer's injury, and where there have resulted unequal valuations of the same class of property, so that the complainant's property has been valued higher in proportion than other similar property on the same assessment roll. ( People ex rel. Warren v. Carter, 109 N.Y. 576; People ex rel. P. Mfg. Co. v. Moore, 11 N.Y. State Reporter, 859.) But, after the enactment of the general statute of 1880, in the system of taxation provided by the legislature for the city of New York, and which was embodied in the provisions of the New York City Consolidation Act, passed in 1882, the grounds of review by certiorari were still more locally restricted and, in my opinion, the right of the taxpayer to sue out the writ was limited to what the provisions of the Consolidation Act permitted. Section 819 of the Consolidation Act authorized the commissioners of taxes and assessments, within periods of time mentioned, to increase, or to diminish, "the assessed valuation of any real or personal estate in said city, as in their judgment may be necessary for the equalization of taxation," etc. Section 820 provided that "any person considering himself aggrieved by the assessed valuation of his real or personal estate may apply to the commissioners of taxes and assessments to have the same corrected." Section 821 of the Consolidation Act, as originally enacted, read that "a certiorari to review or correct on the merits any decision or action of the commissioners under either of the two preceding sections shall be allowed by the Supreme Court or any judge thereof directed to the said commissioners on the petition of the party aggrieved." It was amended in 1885, so as to read: "A certiorari to review or correct on the merits any decision or action of the commissioners, under either of the preceding sections, shall be allowed by the Supreme Court or any judge thereof, directed to the said commissioners on the petition of the party aggrieved, but only on the grounds, which must be specified in such petition, that the assessment is illegal, and giving the particulars of the alleged illegality; or is erroneous by reason of overvaluation." These provisions were comprehensive of the subject-matter of the right to review by certiorari an assessment made by the commissioners of taxes and assessments of New York city. The legislative intention is manifest, in the amendment of section 821, that the grounds specified for the issuance of the writ should be exclusive of all other grounds and I think that it provided the only rule which should govern. (See Matter of N.Y. Institution for Deaf and Dumb, 121 N.Y. 234.) Under it, it is obvious that the plaintiff could not obtain the redress, which it seeks for its grievance. It does not complain that the assessment is illegal. It complains that the assessment of the stockholders is unequal, as compared with that levied against real estate owners.

I think that the plaintiff's grievance is not one which can be reached by the writ of certiorari; or for which there exists any remedy at law. That being so, is the grievance one as to which the court will be moved to exert its equitable power? Though the right to the use of the writ of certiorari has been so limited by the statute as to be unavailing to the plaintiff's case, the right to appeal to the equitable power of the court may yet exist. That power remains, as it always must remain, inherent in the court, to be exercised in proper cases. That the plaintiff would have the right to invoke its exercise in behalf of its stockholders, I consider to be settled, upon reason, as upon authority. The provisions of the Tax Law, with respect to the collection of taxes assessed against stockholders of banks, in their requirement of the bank to retain, and to pay, from any dividend the tax upon the stock, and the responsible relations thereby created, seem to warrant the maintenance of a suit by the banking corporation in its representative capacity. But its right to do so has been distinctly held by the Supreme Court of the United States, in Hills v. Exchange Bank, ( 105 U.S. 319), and in Cummings v. National Bank, (101 ib. 153). In the latter case it was held, in language appropriate to the present plaintiff, that "in paying the money it is acting in a fiduciary capacity as the agent of the stockholders, an agency created by the statute of the state. If it pays an unlawful tax assessed against its stockholders, they may resist the right of the bank to collect it from them. The bank, as a corporation, is not liable for the tax and occupies the position of a stakeholder, on whom the cost and trouble of the litigation should not fall. If it pays, it may be subjected to a separate suit by each shareholder. If it refuses, it must either withhold dividends and subject itself to litigation by doing so, or refuse to obey the laws and subject itself to suit by the state." It was, further, observed, that the bank "holds a trust relation, which authorizes a court of equity to see that it is protected in the exercise of the duties appertaining to it. To prevent multiplicity of suits, equity may interfere."

What then is the grievance, which the plaintiff asserts, in its appeal to the equitable power of the court in behalf of its stockholders for preventive relief? It is that the commissioners of taxes and assessments of the city of New York have deliberately and intentionally assessed and taxed the real estate in the city, in 1896, at not more than sixty per cent of its actual value, while the shares of stock of the plaintiff have been deliberately and intentionally assessed and taxed at their full value; thus creating an inequality of assessment, whereby the plaintiff's stockholders are called upon to pay an undue portion of the annual taxes for city, county and state purposes. In other words, the grievance amounts to this, that the assessment for taxation on personal estate is at a higher ratio of valuation, than upon real estate, within the city. There is no question of discrimination against national bank stock. The system of taxation as to that form of personal property is in harmony with the taxation of other personal property in the city. The provision of the National Banking Act authorizes the state legislature to determine the manner of taxing national bank stock, provided that such taxation "shall not be at a greater rate than is assessed upon other monied capital in the hands of individual citizens in such state" (U.S.R.S. § 5219), and this is complied with in the legislative requirement that stockholders in state and national banks shall be assessed and taxed on the value of their shares of stock, which "shall be included in the valuation of their personal property," and "shall not be at a greater rate than * * * upon other moneyed capital in the hands of individual citizens." (Chap. 409, Laws of 1882, § 312.)

The complaint is founded upon the provision of the Revised Statutes of this state that "all real and personal estate liable to taxation shall be estimated and assessed by the assessors at its full and true value," etc., (1 R.S. 393, § 17) and upon the failure of the assessing officers to comply with that provision in assessing real estate. This failure, of course, we must regard as admitted in the case to have been deliberate and intentional on the part of the officers charged by law with the duty of municipal assessments for purposes of taxation. The reasons for the official action complained of do not appear; but it is not alleged to have been fraudulent in any respect, or to have been impelled by a motive to do injustice, or with the purpose of discriminating to the injury of a class of persons, or of a species of property. If the tax commissioners have refused to follow strictly the provision of the Revised Statutes, with respect to the valuation of the taxable real estate in the city, it does not follow that the general burden of taxation, as finally adjusted, has been laid unequally, or inequitably, upon the body of taxpayers. The inequality, which is complained of, is one that is incidental to a general plan of taxation. That is to say, there is no complaint of inequality in the assessment of the taxable personal estate; it is that the taxable real estate is assessed at a different ratio of valuation from that adopted as to personal estate. I do not think that this is an inequality which can constitute a legal grievance; as would be the case, if there had been an unequal valuation of property of the same class. Underlying the governmental power of taxation for the raising of revenues is the principle, implied from the nature of our political institutions, that taxation should be equal, in the sense that there shall be no discrimination against persons, nor any classification, which results in discrimination, and that the common burden shall be sustained by common contributions, regulated by some fixed general rule, which operates impartially. Is this a case where that principle has been violated? I think not. A general statutory rule has been disregarded by the assessors, in the exercise, presumably, of an honest and reasonable judgment, as nothing is charged to the contrary; but their action was impartial and with reference to the whole community. What discrimination was exercised was, solely, as to the basis of valuation for each of the two classes of property, into which all of the property of the community was divided. That there may be a different basis of valuation in the assessment of real estate from that in the cases of personal estate is, indeed, intimated by the legislature, in the statutory provision above cited from, and, also, in that relating to the taxation of the capital stock of corporations that their real estate shall be deducted at its assessed value. (Chap. 409, Laws 1882, § 312; Tax Law of 1896, § 12.) I think we may, fairly, assume that the assessors were influenced by the consideration that an assessment of personal estate is subject to a deduction for the debts of its owner, while real estate is not, and that the latter form of property bears the greater proportion of taxes, for the reason that, unlike personal estate, it cannot be concealed. It is a fact of common knowledge and discussion, that a disproportionate share of the public burdens is thrown on certain kinds of property, because they are visible and tangible; while others are of a nature to elude vigilance. ( Commonwealth v. P.F.C.S. Bank, 5 Allen, 428, 436.) Such considerations may well influence a board of assessing officers to assess real estate upon a different basis of valuation, in order to equalize the burdens of taxation. Equality is unattainable, and can never be but approximative.

Upon what principle will a court of equity interfere, in a case where the grievance relates to the determination of a political body, acting judicially within the sphere of its jurisdiction? Public policy is against the interference by injunction to restrain the collection of a tax, to the delay and detriment of the public business, ( Western R.R. Co. v. Nolan, 48 N.Y. 513), and courts should be reluctant to grant such preventive relief, when they are unable to do complete justice by causing a new assessment upon just principles. A court of equity does not sit to enforce the laws of the state; nor will it sit in review of the judgment of a political body, whose judgment, in the assessment of property for taxation, has been honestly exercised. Nor will the collection of a tax be restrained, which is merely erroneous and not void. (See Mooers v. Smedley, 6 John. Ch. R. 28; Livingston v. Hollenbeck, 4 Barb. 9; Van Rensselaer v. Kidd, Ib. 19; Heywood v. City of Buffalo, 14 N.Y. 534.) In the system of taxation, which was created for the city of New York by the Consolidation Act of 1882, an official board was provided, with the amplest jurisdiction to hear complaints and with power to act upon appeals, in matters of assessments, as might seem necessary for the equalization of taxation. (Sec. 819.) This fact, together with the limitations upon the right to review by certiorari the decision, or action of the board, seem strongly to evidence a legislative intention that the scheme of assessment of the real and personal estate within the city, for purposes of taxation, should rest, finally, in the wisdom and discretion of the official body, to which it has been confided. How is the court to say that there has not been an equitable adjustment of the burden of taxation, under the rule adopted by the board of commissioners? When assessments for the purposes of taxation are made upon principles applicable alike to all the members of a community, there is substantial equality. If equality is equity, there is no inequity in a general scheme of assessment for taxation, which applies to the whole community and discriminates against no species of property. How the plaintiff's stockholders, in behalf of whom this suit is brought, are affected, individually, by the application of the rule of valuation adopted, we are not informed. They may have had the assessed valuations of their personal estate reduced by the deduction of their indebtedness. The plaintiff's bank is treated like all other moneyed corporations and its stockholders have the same privileges as are possessed by other holders of personal property. (Chap. 409, Laws of 1882, § 312.) The inequality, of which complaint is made, is one that is general in its nature. If the plaintiff's attack were allowed to prevail, the whole assessment roll might be invalidated and serious embarrassment might be caused to governmental operations. I do not think that the exercise of the equitable power of the court can be invoked to accomplish the subversion of a general scheme of assessment and taxation, which has been adopted by the department of government constituted for the purpose.

The cases in the United States Supreme Court, to which our attention has been directed, as justifying the intervention of equity, do not conflict with these views. They differ in essential facts. Either they relate to the statutory conditions, which resulted in an injurious discrimination against a class of persons, or a species of property; or to acts of assessors, having a clear purpose to discriminate against shares of bank stock. ( Stanley v. Supervisors, 121 U.S. 535; Cummings v. National Bank, 101 ib. 153; People v. Weaver, 100 ib. 539.) Equity will go far to afford relief in cases of mistake; or for the prevention of fraud; or to secure to the citizen the equal protection of the laws; but it is not its province to interfere with the collection of a tax, in a case where the grievance assigned does not relate to some question of fraud, or of illegal discrimination, or classification.

For the reasons stated, I advise the affirmance of the judgment appealed from, with costs.

PARKER, Ch. J., O'BRIEN, BARTLETT, HAIGHT, MARTIN and VANN, JJ., concur.

Judgment affirmed.