§ 289. Same-When notice and an opportunity to be heard are requisite.-Where an ad valorem tax is levied on property, and the value of the property is to be ascertained by assessors or by a special tribunal appointed for that purpose upon such evidence as they may obtain, the owner of the property is entitled to notice and an opportunity to be heard on the validity and amount of the tax intposed on his property, either before the amount is determined or in subsequent proceedings for its collection. In distinguishing between the kinds of taxation in which notice and an opportunity to be heard are not required and those in which they are required, the supreme court of the United States, in one of the cases cited, speaking through Field, Justice, said: "Of the different kinds of taxes which the state may impose, there is a vast number of which, from their nature, no notice can be given to the taxpayer, nor would notice be of any possible advantage to him, such as poll taxes, license taxes (not dependent upon the extent of his business) and, generally, specific taxes on things or persons or occupations. If the tax be not paid, the property of the delinquent may be sold and he be thus deprived of his property. Yet there can be no question, that the proceeding, is due process of law, as there is no inquiry into the weight of evidence, or other element of a judicial nature, and nothing could be changed by hearing the taxpayer. No right of his is, therefore, invaded. But where a tax is levied on property, not specifically but according to its value, to be ascertained by assessors appointed for that purpose upon such evidence as they may obtain, a different principle comes in. The officers, in estimating the value, act judicially, and in most of the states provision is made for the correction of errors committed by them, through boards of revision or equalization, sitting at designated periods provided by U. S. 404 (45:924); Savings & L. 25 Hagar V. Reclamation District, 115 U. S. 701, 715 (28:569); Bellingham Bay & British Columbia Railroad Co. v. New Whatcom, 172 U. S. 314, 320 (43:460); Davidson v. New Orleans, 96 U. S. 97, 105 (24:616); Kentucky Railroad Tax * Cases, 115 U. S. 332 (29:417); Lent v. Tillson, 140 U. S. 316, 334 (35:419); Winona & St. Peter Land Co. v. Minnesota, 159 U. S. 526, 539 (40:247); Paulsen V. Portland, 149 U. S. 30, 42 (37: C37); Palmer v. McMahon, 133 U. S. 660 (33:772); Pittsburg, C., C. & St. L. R. Co. v. Backus, 154 U. S. 421 (38:1030) law, to hear complaints respecting the justice of the assessment. The law in prescribing the time when such complaints will be heard, gives all the notice required, and the proceeding by which the valuation is determined, though it may be followed, if the tax be not paid, by a sale of the delinquent's property, is due process of law. In some states, instead of a board of revision or equalization, the assessment may be revised by proceedings in the courts, and be there corrected if erroneous, or set aside if invalid; or objections to the validity or the amount of the assessment may be taken when the attempt is made to enforce it. In such cases all the opportunity is given to the taxpayer to be heard respecting the assessment, which can be deemed essential to render the proceedings due process of law.'' 26 § 290. Same Same-What is due process of law in taxation -General rule.-What is due process of law in the levy, assessment and collection of taxes, within the meaning of the fourteenth amendment to the federal constitution, in those forms of taxation which require notice and an opportunity to be heard? The general rule established by the decided cases seems to be that: Whenever by the laws of a state, or by state authority, a tax, assessment, servitude, or other burden is imposed upon property for the public use, whether it be of the whole state, or some more limited portion of the community, as a local assessment for local improvements, and those laws provide for a mode of confirming or contesting the charge thus imposed upon the property, either before the amount is determined or in subsequent proceedings for its collection, in special tribunals established for that purpose, or in the ordinary courts of justice, upon due notice to the owner, either actual or constructive, and in the latter case either by publication or by statute fixing the time and place of the hearing, and upon such hearing the owner is given an opportunity to question the validity and amount of the tax, the judgment in such proceedings meets the requirements of the fourteenth amendment as to due process of law, however obnoxious it may be to other objections.27 In one of the cases cited, the court states the two 26 Hagar V. Reclamation District, 115 U. S. 701, 715 (28:569). 27 Davidson v. New Orleans, 96 U. S. 97, 108 (24:616); Hagar v. Reclamation District, 111 U. S. 701 (28:569); Lent v. Tillson, 140 following propositions, and sustains them by a full citation of authorities namely: (1) The rule is that a law authorizing the imposition of a tax or assessment upon property according to its value does not infringe that provision of the fourteenth amendment to the constitution which declares that no state shall deprive any person of property without due process of law, if the owner has an opportunity to question the validity or the amount of it. either before the amount is determined or in subsequent proceedings for its collection.28 (2) That the notice is not personal but by publication, is not sufficient to vitiate it; and where the state statute prescribes the court in which and the time at which the various steps in the collection proceedings shall be taken, a notice by publication to all parties interested, to appear and defend, is suitable and one that sufficiently answers the demand of due process of law.29 § 291. Same--Same-Same-Notice.-When a state statute, providing for the assessment and valuation of property for purposes of taxation, names and fixes the time and place for the meeting of the assessment board, that is sufficient notice. to the owners of the property to be assessed and valued; personal notice is unnecessary.30 And a state statute which directs notice by publication that at a certain time the equalization board will hear and consider objections to the assessment rate by parties aggrieved by such assessment, is due process of U. S. 316, 334 (35:419); Winona & St. Peter Land Co. v. Minnesota, 159 U. S. 537 (40:251); Fallbrook Irrigation District v. Bradley, 164 U. S. 155 (41:387); Bellingham Bay & British Columbia Railroad Co. v. New Whatcom, 172 U. S. 314, 320 (43:460); Kentucky Railroad Tax Cases, 115 U. S. 332 (29:417); Spencer v. Merchant, 125 U. S. 345 (31:763); Palmer v. McMahon, 133 U. S. 660 (33: 772); Pittsburg, C., C. & St. L. R. Co. v. Backus, 154 U. S. 421 (38:103); Taylor v. Secor (State R. Tax Cases), 92 U. S. 575 (23:672); Paulsen v. Portland, 149 U. S. 30 (37:637); King v. Portland, 184 U. S. 61 (46:43); Bank v. Pennsylvania, 167 U. S. 461 (42:236); Goodrich v. Detroit, 184 U. S. 432 (46:627). 28 Winona & St. Peter Land Co. v. Minnesota, 159 U. S. 526, 539 (40:247), citing authorities. 29 Winona & St. Peter Land Co. v. Minnesota, 159 U. S. 526, 539 (40:247), citing authorities. 30 Pittsburg, C., C. & St. L. R. Co. v. Backus, 154 U. S. 421, 438 (38:1031); State R. Tax Cases, 92 U. S. 610 (23:672); Kentucky Railroad Tax Cases, 115 U. S. 332 (29:417). law, where the publication is made in a reasonable manner and for a reasonable length of time, and the time and place fixed in the notice are such that with reasonable effort the property owner will be able to attend and present his objections.31 § 292. Same Same-Local assessments-Rules of apportionment. The state legislature may, by statute, in the exercise of the taxing power, and without infringing the due process clause of the fourteenth amendment, create special local taxing districts, for the purpose of local improvements, and conclusively determine the question of benefits, and charge the cost of such improvement, in whole or in part, upon the property in the district, according either (1) to valuation, or (2) superficial area, or (3) frontage.32 In creating local taxing districts, the legislature may ascertain and determine for itself (1) the amount of tax to be raised, and (2) the benefited property which is to be embraced within the district, and upon which the tax is to be apportioned; or the legislature may commit the ascertainment and determination of both these matters to commissioners, 33 in which latter event the land owner has a right to be heard upon the question of benefits to his property before it is taken into the taxing district to be subjected to the assessment.34 "In the absence of any more specific constitutional restriction than the general prohibition against taking private property without due process of law, the legislature of the state having the power to fix the sum necessary to be levied for the expense of a public improvement, and to order it 31 Bellingham Bay & British Columbia Railroad Co. v. New Whatcom, 172 U. S. 314, 320 (43:460); Lent v. Tillson, 140 U. S. 316, 328 (35:419); Paulsen v. Portland, 149 U. S. 30 (37:637). 32 Webster v. Fargo, 181 U. S. 394 (45:912); Shumate v. Heman, 181 U. S. 402 (45:922); Farrell v. West Chicago Park Com'rs, 181 U. S. 404 (45:924); French v. Barber Asphalt Paving Co., 187 U. S. 324, S70 (45:879); Davidson v. New Orleans, 96 U. S. 97 (24: 616); Spencer v. Merchant, 125 U. S. 345 (31:763); Paulsen v. Port land, 149 U. S. 30, 40 (37:637); Hagar v. Reclamation District, 111 U. S. 701 (28:569); Fallbrook Irrigation Co. v. Bradley, 164 U. S. 112 (41:369); Detroit v. Parker, 181 U. S. 399 (45:917); Tonawanda v. Lyon, 181 U. S. 389 (45: 908); Cass Farm Co. v. Detroit, 181 U.. S. 396 (45:914). 33 Spencer v. Merchant, 125 U. S. 345, 361 (31:763). 34 Fallbrook Irrigation District v. Bradley, 164 U. S. 112 (41: 369); Spencer v. Merchant, 125 U. S. 356 (31:767); Bauman v. Ross, 167 U. S. 548 (42:270). to be assessed, either, like other taxes, upon property gener ally, or only upon the lands benefited by the improvement, is authorized to determine both the amount of the whole tax and the class of lands which will receive the benefit and should therefore bear the burden, although it may, if it sees fit, commit the ascertainment of either or both of these facts to the judgment of commissioners. When the determination of the lands to be benefited is intrusted to commissioners, the owners may be entitled to notice and hearing upon the question whether their lands are benefited and how much. But the legislature has the power to determine by the statute imposing the tax, what lands which might be benefited by the improvement are in fact benefited; and if it does so, its determination is conclusive upon the owners and the courts, and the owners have no right to be heard upon the question whether their lands are benefited or not, but only upon the validity of the assessment and its apportionment among the different parcels of the class which the legislature has conclusively determined to be benefited. In determining what lands are benefited by the improvement, the legislature may avail itself of such information as it deems sufficient, either through investigations by its committees or by adopting as its own the estimates or conclusions of others, whether those estimates or conclusions previously had or had not any legal sanction." 35 The legislature has the power to ascertain, determine and fix the territorial limits of a local taxing district for itself, without any hearing as to benefits, for the purpose of assessing upon the lands within the district the cost of a local public improvement. The legislature, when it determines the district itself, is supposed to have made proper inquiry, and to have finally and conclusively determined the fact of benefits to the land included in the district; and the land owners have no constitutional right to any other or further hearing upon that question.3 36 37 § 293. Same-Same-Same-Frontage rule-Norwood V. Parker. In Norwood v. Parker, the supreme court of the United States held that the frontage rule established by the 35 Spencer v. Merchant, 125 U. S. 345 (31:763). 36 Paulsen v. Portland, 149 U. S. 30, 41 (37:637). 37 Norwood v. Parker, 172 U. S. 269, 303 (43:443). |