Respondents rely upon Barney v. City of New York, 193 U.S. 430, 438 , 24 S. Ct. 502. The question there decided was the the lower federal court had properly dismissed a bill in equity since it appeared upon its face that the act complained of was forbidden by the state legislation. We have no occasion to discuss that case. 6 Here the petition- [284 U.S. 239, 247] ers sued in a state court. Some expressions in the opinion in the Barney Case, said to be inconsistent with the conclusions stated above, have been disapproved by this Court. Home Telephone & Telegraph Co. v. City of Los Angeles, 227 U.S. 278, 294 , 33 S. Ct. 312.
Third. The fact that the state may still have power to equalize the treatment of the petitioners and the competing domestic corporations by compelling the latter to pay hereafter the unpaid balance of the amounts assessed against them in 1919, 1920, 1921, and 1922 is not material. The petitioners' rights were violated, and the causes of action arose, when taxes at the lower rate were collected from their competitors. It may be assumed that all ground for a claim for refund would have fallen if the state, promptly upon discovery of the discrimination, had removed it by collecting the additional taxes from the favored competitors. By such collection the petitioners' grievances would have been redressed; for these are not primarily overassessment. The right invoked is that to equal treatment; and such treatment will be attained if either their competitors' taxes are increased or their own reduced. But it is well settled that a taxpayer who has been subjected to discriminatory taxation through the favoring of others in violation of federal law cannot be required himself to assume the burden of seeking an increase of the taxes which the others should have paid. Cumberland Coal Co. v. Board of Revision, supra; Greene v. Louisville & Interurban R. R. Co., 244 U.S. 499 , 514-518, 37 S. Ct. 673, Ann. Cas. 1917E, 88; Chicago Great Western Ry. Co. v. Kendall, 266 U.S. 94, 98 , 45 S. Ct. 55; Sioux City Bridge Co. v. Dakota County, supra. Nor may he be remitted to the necessity of awaiting such action by the state officials upon their own intiative. Montana National Bank v. Yellowstone County, supra.
The petitioners are entitled to obtain in these suits refund of the excess of taxes exacted from them.
[ Footnote 1 ] Section 1310 expressly excepts from its operation 'all moneyed capital within the meaning of section fifty-two hundred nineteen of the revised statutes of the United States,' and provides that such capital 'shall be listed and assessed ... at the same rate as state, savings, national bank and loan and trust company stock is taxed, ... and at the actual value of the moneyed capital so invested.'
[ Footnote 2 ] Other competing moneyed capital in the form of investments held by individuals and by a few foreign corporations was wrongfully classified by the assessor as 'moneys and credits,' and so returned upon the assessment rolls to the county auditor, who extended the assessments upon the tax books accordingly, and applied to them the 5-mill levy. The Supreme Court of Iowa held that the right to complain of this discrimination had been lost by failure to avail of the method of review prescribed by the state. We have no occasion to consider this matter, as we hold that the more favorable taxation of the competing domestic corporations entitles the petitioners to the relief sought.
[ Footnote 3 ] The Iowa court describes (232 N. W. at page 451) the functions of the several taxing officers: '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 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, 1366, 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. 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, 1375, 1379. The classification and assessment by the assessor, as approved by the board of review, determines the levy or rate to be applied. ... 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.'
[ Footnote 4 ] Rippey v. Texas, 193 U.S. 504, 509 , 24 S. Ct. 516, 517, citing Missouri v. Dockery, 191 U.S. 165, 171 , 24 S. Ct. 53, 63 L. R. A. 571. Compare Coulter v. Louisville & Nashville R. R. Co., 196 U.S. 599, 609 , 25 S. Ct. 342; Hayman v. City of Galveston, 273 U.S. 414, 416 , 47 S. Ct. 363.
[ Footnote 5 ] Neal v. Delaware, 103 U.S. 370 , 397; Yick Wo. v. Hopkins, 118 U.S. 356, 373 , 374 S., 6 S. Ct. 1064; Home Telephone & Telegraph Co. v. City of Los Angeles, 227 U.S. 278, 287 , 288 S., 33 S. Ct. 312; Cuyahoga Power Co. v. Akron, 240 U.S. 462, 464 , 36 S. Ct. 402. Compare Raymond v. Chicago Union Traction Co., supra; Greene v. Louisville & Interurban R. R. Co., 244 U.S. 499, 507 , 508 S., 37 S. Ct. 673, Ann. Cas. 1917E, 88; Fidelity & Deposit Co. v. Tafoya, 270 U.S. 426, 434 , 46 S. Ct. 331; Hopkins v. Southern California Telephone Co., 275 U.S. 393, 398 , 48 S. Ct. 180. See, also, Chicago Great Western Ry. Co. v. Kendall, 266 U.S. 94, 98 , 45 S. Ct. 55. Cases discussing the question of what constitutes a suit against the State within the meaning of the Eleventh Amendment, such as Ex parte Young, 209 U.S. 123 , 28 S. Ct. 441, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764; Western Union Telegraph Co. v. Andrews, 216 U.S. 165 , 30 S. Ct. 286; Looney v. Crane Co., 245 U.S. 178 , 38 S. Ct. 85; Public Service Co. v. Corboy, 250 U.S. 153 , 39 S. Ct. 440, have no bearing upon the power of this Court to protect rights secured by the federal Constitution.
[ Footnote 6 ] See Samuel Shepp Isseks, 'Jurisdiction of the Lower Federal Courts to Enjoin Unauthorized Action of State Officials,' 40 Harv. L. Rev. 969.