tions or individuals carrying on a similar business and operations and investments of a like character." (Mercantile Bank v. New York, 121 U. S. 138, 7 Sup. Ct. 826, 30 L. Ed. 895; Palmer v. McMahon, 133 U. S. 660, 10 Sup. Ct. 324, 33 L. Ed. 772; Talbott v. Silver Bow County, 139 U. S. 438, 11 Sup. Ct. 594, 35 L. Ed. 210; First Nat. Bank v. Chehalis County, 6 Wash. 64, 32 Pac. 1051; Com. Nat Bank v. Chambers, 21 Utah, 347, 61 Pac. 560, 50 L. R. A. 346.)

This being the sense in which the term "moneyed capital” is used in the tax laws, it is clear that real estate or personal property, such as horses, cattle, merchandise, shares of stock in irrigation companies, etc., is not included within it. Of course it does include shares of stock in banking institutions or associations. While it is shown that shares of stock of banking institutions of the state were assessed from sixty-five to seventy per cent. of their par value and those of the Nephi National Bank, a direct competitor of the plaintiff, at thirtyfive per cent. of their par value, and those of the plaintiff 200 per cent. of their par value, yet it is not made to appear that the shares of stock so assessed at thirty-five to sixty-five or seventy per cent. of their par value were assessed below their "full cash value," or actual value, or at a sum less in proportion to their full cash or actual value than was placed on plaintiff's shares of stock. There is a total want of evidence to show the actual or market, or cash value of the shares of stock of such banking institutions whose shares of stock were so assessed below par. Proof that plaintiff's shares of stock were assessed at 200 per cent. of their par value, and shares of stocks in banks generally within the state at sixty-five to seventy per cent. of their par value, does not, in itself, show that the plaintiff's shares of stock were assessed at a greater rate or amount in proportion to their value than the shares of stock of other banks. To so hold is to assume that the actual or cash value of the shares of stock of the different banks was of the same value. So, in the absence of proof of the actual or cash value of such shares of stock, we are unable to determine whether the plaintiff's shares of stock were assessed at a sum greater in proportion to their actual or cash value

than was placed on the shares of stock of other banks. There is even no satisfactory evidence to show the actual or cash value of plaintiff's shares of stock. There is evidence to show that in June, 1906, when plaintiff's bank was reincorporated, its twenty years' charter having then expired, 133 shares of its stock were purchased by it at $325 a share. But from the evidence manifestly such purchase was not a test of the market or cash value of the shares so purchased. When the charter of the bank had expired, in June, 1906, "any stockholder," as testified to by the president of the bank, "could demand his money at a valuation by disinterested persons or liquidate the bank, making it go out of existence and lose its name and standing. Two of the appraisers voted to assess the value of the stock at $330 a share and the other at $200 a share. We refused to pay the excessive amount levied by the majority of the appraisers and referred the matter to the Comptroller of the Currency. He notified us that we would either have to pay as the majority assessed it or liquidate the bank and change the name. We finally agreed rather thar change the name of the bank," to purchase the 133 shares of those who refused to become stockholders of the reincorporated bank at the price demanded by them, and as fixed by the majority of the appraisers. The only other evidence tending to show the actual or cash value of the shares of stock is that of its net assets amounting to about $147,000.

The question of inequality and want of uniformity in the assessment and taxation is more serious.

3

Inequality and lack of uniformity may result not only by applying different rates of assessment, but also from misconduct of taxing officers by which property of one per son, or a class of persons, or a particular class of property, is intentionally assessed at a valuation greater in proportion to its real or cash value than is placed on the general mass of other taxable property.

That is, though the Constitution and the statute require the taxing officers to assess all taxable property at "its full cash value," yet, should taxing officers of a county assess

39 Utah-37

4

5

real estate, live stock, merchandise and chattels at fifty to seventy per cent. of their actual or cash value, and moneys or shares of stock in manufacturing or industrial enterprises, or investments, at their actual or cash value, the assessment would not be equal or uniform. In such case, those whose property was intentionally assessed at a higher percentage or valuation than was placed on the general mass of taxable property in the county may invoke the aid of courts to compel the taxing officers to reduce the excessive assessment so made, to the same proportion of value as was placed upon the general mass of other taxable property in the county. A denial of such right results in inequality and a want of uniformity in the assessment and taxation. (Lively v. Missouri, K. & T. Ry. Co. of Texas, 102 Tex. 545, 120 S. W. 852; Raymond v. Chicago Traction Co., 207 U. S. 20, 28 Sup. Ct. 7, 52 L. Ed. 78; Taylor v. Louisville & N. R. Co., 88 Fed. 364, 31 C. C. A. 537, 37 Cyc. 737.)

If, therefore, plaintiff's shares of stock were assessed at a value greater in proportion to that placed upon the general mass of taxable property in the county, it is entitled to have that value reduced to the proportion placed on such mass of taxable property. But on the evidence adduced we cannot say such was the case.

The burden to show the inequality was plaintiff.

on the

6

7

In the first place, the matter is left uncertain because of the character of the evidence in respect of the actual or cash value of plaintiff's shares of stock and a total want of evidence to show the actual or cash, or market value of shares of stock of other banks whose shares of stock were assessed below the par value. The only substantial evidence from which the actual or cash value of plaintiff's shares of stock may be inferred is that of its net assets. If we assume that to be the actual or cash value of its shares of stock, then the assessment made upon them was about seventy per cent. of their actual or cash value, a proportion not ma

terially greater in value than was placed on the general mass of taxable property in the county. True, specific instances were testified to where some real estate was assessed at fifty per cent. of its actual or cash value, horses and cattle from fifty to seventy per cent., some merchandise at about the same per cent., shares of stock of the Nephi National Bank at thirty-five per cent. of its par value, and shares of stock of banks generally in the state from sixty-five to seventy-five per cent. of their par value. Of course, specific instances here and there where a lower valuation in proportion to the actual or cash value was placed on taxable property than was placed on plaintiff's property do not, within themselves, furnish sufficient ground for complaint. To constitute such ground it must be made to appear that a greater valuation in proportion to the actual or cash value was placed on plaintiff's property than was placed on the general mass of taxable property in the county. On this point the assessor testified that real estate, shares of stock, merchandise, and other personal property were assessed at about seventy per cent. of their actual or cash value, the same proportion of value placed on plaintiff's property. While this testimony in some particulars is disputed by the testimony of other witnesses, yet we are of the opinion that the conclusion reached by the trial court is not so clearly against the weight of the evidence as to justify our interference on that ground.

The judgment of the court below is therefore affirmed, with

costs.

FRICK, C. J., and MCCARTY, J., concur.

SOULE v. WEATHERBY et al.

No. 2214. Decided September 21, 1911. Rehearing Denied November 11, 1911 (118 Pac. 833).

1. ACTION-RIGHT OF ACTION. To state a good cause of action, there must be shown a primary legal right in plaintiff, a corresponding duty upon defendant, and a breach of such duty. (Page 582.)

2. NEGLIGENCE-PROXIMATE CAUSE. The alleged negligent act or omission must be shown to have been the direct or proximate cause of the injury. (Page 583.)

3. CONTRACTS-ACTIONS-SUFFICIENCY

OF COMPLAINT. The com

plaint in a contract action need only show the making of the contract, the obligation assumed thereby, and its breach. (Page 583.)

4. MUNICIPAL CORPORATIONS-STREETS-OBSTRUCTIONS-EXCAVATIONS -FAILURE TO GUARD. To state a cause of action for injuries by falling into an unguarded excavation in a sidewalk, the complaint must affirmatively show that the excavation makes the sidewalk dangerous, that signals or guards, or both, were required to warn the public, and that the absence of such signals or guards proximately caused the injury. (Page 583.)

5. NEGLIGENCE-PRESUMPTIONS. Negligence is (Page 584.)

never

presumed.

6. NEGLIGENCE-PROXIMATE CAUSE ALLEGATIONS OF COMPLAINT. The complaint need not allege in terms that the negligence relied on was the proximate cause of the injury; it being only necessary that it show from the facts alleged that such negligence caused such injuries. (Page 584.)

7. NEGLIGENCE-PLEADING CAUSE OF INJURY. It is sufficient in an action for personal injuries by falling into an excavation if facts are alleged from which it may be clearly inferred that the place was dangerous, and that guards were necessary and that the failure to have them caused the injury; it not being essential that such facts be directly alleged. (Page 585.)

8. MUNICIPAL CORPORATIONS-DEFECTIVE

SIDEWALKS-PLEADING

CAUSE OF INJURY. The complaint alleged that defendants were engaged in constructing an areaway beneath the sidewalk, and had excavated the space entirely across the sidewalk, and carelessly and negligently failed to erect any guards to prevent persons from falling into the way, and negligently and carelessly failed to place any warnings of the existence of the excavation,