203 U. S.

Argument for Plaintiff in Error.

Mr. John T. Shelby and Mr. George R. Hunt, with whom Mr. Joseph D. Hunt and Mr. John R. Allen were on the brief, for plaintiff in error:

The right to be heard in tax cases is a constitutional right and indefeasible.

It is fundamental that in judicial or quasi-judicial proceedings affecting the rights of the citizen he shall have notice and an opportunity to be heard before any judgment, decree, order or demand shall be given and established against him. Tax proceedings are not in the strict sense judicial, but they are quasi-judicial, and as they have the effect of a judgment, the reasons which require notice of judicial proceedings are always present when the conclusive steps are to be taken. Cooley on Taxation, 2d ed., 362; 3d ed.; 626; McMillan v. Anderson, 95 U. S. 37; Davidson v. New Orleans, 96 U. S. 97; Hager v. Reclamation District, 111 U. S. 701; Spencer v. Merchant, 125 U. S. 345; Palmer v. McMahon, 133 U. S. 660; Lent v. Tillson, 140 U. S. 316; Pittsburg, Cincinnati &c. Ry. Co. v. Backus, 154 U. S. 421; Winona & St. Peter Land Co. v. Minnesota, 159 U.S. 537.

The action of the assessing officers, when completed according to the statutes, is a finality; at all events, so far as it relates to the value placed on the assessed property. In fixing these values, the assessors and the Boards of Review, if there be such boards, exercise a judicial or quasi-judicial function, and their conclusions are not open to review by any tribunal or court, unless otherwise expressly provided by statute. We must, therefore, look to the assessment proceedings to determine whether or not there was the due process of law required by the Constitution.

If the facts, or any material facts are there conclusively established against the property owner, without the required notice and opportunity to be heard, due process of law is wanting. Stanley v. Supervisors, 121 U. S. 550; Cooley, Taxation, 2d ed., 730; 3d ed., 1353.

The doctrine of the Kentucky cases is the same. Odd

Argument for Plaintiff in Error.

203 U.S.

Fellows v. Dayton, 25 Ky. Law Rep. 665; Ward v. Beale, 91 Kentucky, 65; Henderson Bridge Co. v. Commonwealth, 99 Kentucky, 623; Royer Wheel Co. v. Taylor County, 104 Kentucky, 741; Coulter v. Louisville Bridge Co., 114 Kentucky, 42; Albin Co. v. Louisville, 117 Kentucky, 895; Citizens National Bank v. Lebanon, 118 Kentucky, 60; Slaughter v. Louisville, 89 Kentucky, 112; Turner v. Pewee Valley, 18 Ky. Law. Rep. 757.

Both as to Kentucky authorities and the law as expounded by this court and the authorities generally, the action of the assessing officers, whatever the form of the assessment, when completed, if it be of any force at all, becomes conclusive as to the value of the property embraced in the assessment; and that matter is not open to further inquiry in any court, and if in these proceedings the requisite notice and opportunity for hearing be not allowed, then the so-called assessment is void for want of due process of law. No other hearing can be the legal equivalent or substitute for the hearing the party to be affected is entitled to before the assessing officers, whose authority to value, and give relief against errors of valuation, is full and exclusive.

Tested by these well established principles, we submit that there cannot be any reason to doubt that the assessment in this case, made as stated above, is absolutely void.

The right of the city to the affirmative relief granted upon its cross-action must be tested by precisely the same principles, as would determine its right to such relief had it been sought in an original suit, brought by it for the collection of the tax levied on the assessment in controversy. The whole question, therefore, is whether the alleged assessment was such an assessment as could constitute the basis of any enforceable tax claim at all. If there was no valid assessment the court had no power to make one. No such power is conferred by statute, and the authorities, so far as we have seen them, deny any such power to the courts. Certainly such power does not pertain to the courts of Kentucky.. Palmer v. McMahon, 133

U. S. 669; Slaughter v. Louisville, 89 Kentucky, 123, and authorities supra.

Until a valid assessment is made by an authorized officer, the city or municipality has no standing to enforce any claim.

Mr. George C. Webb and Mr. George S. Shanklin, with whom Mr. J. R. Morton and Mr. E. P. Farrell were on the brief, for defendants in error:

The decision of the Court of Appeals was based upon facts showing due process of law. Due process of law means notice, and an opportunity to be heard in such manner as adapted to the exigencies of the case. This requirement of due process of law was complied with in this case by the public notice which was given in accordance with the statute; by actual notice before the omitted property was assessed; by a full hearing given to the plaintiff in error in this suit as to the justice of such assessment. Central Land Co. v. Laidley, 159 U. S. 103; Kentucky Code, § 126; Pomeroy on Code Remedies, 623; Reynolds v. Bowen, 36 N. E. Rep. 756; Clark v. Louisville Water Works,-90 Kentucky, 524; Kentucky Statutes, § 3179; Davidson v. New Orleans, 96 U. S. 97; Hagar v. Reclamation District, 111 U. S. 701; Kentucky Railroad Tax Cases, 115 U. S. 321; 1 Cooley on Taxation, 3d ed., 61, 65; Weyerhaueser v. Minnesota, 176 U. S. 550; Paulson v. Portland, 149 U. S. 30; Sturgis v. Carter, 114 U. S. 511; Foster v. Essex Bank, 16 Massachusetts, 245; Greenleaf on Evidence, §78; Brandt v. Hyatt, 7 Bush, 363; Brown v. Young, 2 B. Mon. 26; Baldwin v. Shine, 84 Kentucky, 502; Gates v. Barrett, 79 Kentucky, 295; Stanley v. Board of Supervisors, 121 U. S. 535; McMillan v. Anderson, 95 Ú. S. 37.

MR. JUSTICE PECKHAM, after making the foregoing statement, delivered the opinion of the court.

There are in the State of Kentucky two distinct methods by which an assessment for so-called back taxes can be made. One method is an assessment by a special back tax assessor,

elected as provided for by an ordinance of the city of Lexington. This ordinance the Court of Appeals of the State of Kentucky has held, contrary to the contention of the plaintiff in this case, did not displace the regular assessor, or affect his right to make an assessment for back taxes. The other method provides for an assessment by the regular assessor, under section 3179 of the laws relating to the city of Lexington, which section, among other things therein contained, provides that: "Whenever the assessor shall ascertain that there has, in any former year or years, been any property omitted which should have been taxed, he shall assess the same against the person who should have been assessed with it, if living; if not against his representative."

In this case the assessment for back taxes was made by the regular assessor, but not until December 31, 1898, under the above quoted provision in section 3179. It was, however, a special assessment, made after the regular assessment in the assessor's books of 1898, and after such books had been transmitted within the time prescribed by law (sec. 3180) December 1, 1898, to the auditor, subject to the inspection of the public. In regard to the regular assessment the Statutes of Kentucky provide (section 3181) for a board of equalization, which sits on the first Monday of January, and continues in session not longer than four weeks. The auditor must deliver to the board the assessment books filed with him by the assessor, and it is to hear all complaints against the assessments made by the assessor, and may determine the same, but it cannot increase the assessment without notice to the party whose property is to be increased. The section is part of the general statutes as to assessments for the annual taxes, and it refers evidently to the assessments made by the assessor up to the first of December preceding, and which appear in the book which the law directs to be sent to the auditor and by him transmitted to the board of equalization. It does not refer to an extraordinary assessment made by the assessor for back taxes subsequently to the time provided for by law for

the making of the general assessment. The assessor must return the general assessment which he makes in his book under section 3179 to the auditor on or before December 1 in each year. (Section 3180.) This book remains in the auditor's office subject to the inspection of the public until transmitted, in the January following, to the board of equalization, under section 3181. In the case before us the assessment for the back tax was made December 31, 1898, by entering a separate assessment for each year in the assessor's book for that year, and, therefore, these various assessments were not contained in the books of the assessor, as they were sent to the auditor on December 1 of each year respectively. The assessor's books for the years prior to 1898 were obtained in some way, and the entries of the assessments were therein made, because, as stated, there were no other books provided. We find no provision of the statute as to assessments for back taxes which requires notice of such assessment if made at any time other than in the regular course for the general assessment as provided for in the general statute. If the assessment happens to be made in the assessor's book prior to December 1 in any year it, of course, goes with the book to the auditor, and remains there for inspection by the public until taken before the board of equalization. Such an assessment would carry with it the provision of the law of the State applicable to the city on the subject of assessments, including the general notice under the law providing for such assessment. But that, of course, cannot apply where the assessment is not made on or before December 1, in the regular assessment book. That book the taxpayer must omit to examine at his peril, when filed with the auditor, or when before the board of equalization. As sent to the auditor, December 1, 1898, the book did not contain the assessment in question. And as to the books of the former years, they had passed out of the legal custody of the assessor, and he could not take any of such books and, without notice, impose a conclusive assessment for back taxes for the particular year the book had been made