fines and penalties, but always in some way observed and yielded to."

The principle thus declared has been uniformly applied by the Supreme Court in cases where due process of law in the tax procedure of the States has been in question. In the first taxation case under the Fourteenth Amendment, it was said that due process of law in taxation does not mean by a judicial hearing. The nation from which we inherit the phrase itself has never relied upon the courts of justice in the collection of taxes, though she has passed through a successful resistance to unlawful taxation.1

In another taxation case, it was said that taxes have not, as a general rule, in this country since its independence, nor in England before that time, been collected by regular judicial proceeding. The necessities of government, the nature of the duty to be performed and the customary usages of the people have established a different procedure, which in regard to that matter is, and always has been, "due process of law."

In another early case under the Fourteenth Amendment, the meaning of "due process of law" was exhaustively discussed, 1. c. page 104, in a memorable opinion by Justice Miller. He laid down the proposition:

"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 for the whole State or for some more limited portion of the community, and those laws provide for a mode of confirming or contesting the charge thus imposed in the ordinary courts of justice, with such notice to the person, or such proceeding in regard to the property.as is appropriate to the nature of the case, the judgment in such proceedings

1 Justice Miller in McMillen v. Anderson, 95 U. S. 37.

2 Justice Miller in Kelly v. Pittsburgh, 104 U. S. 78.

3 Davidson v. New Orleans, supra, § 306.

cannot be said to deprive the owner of his property without due process of law, however obnoxious it may be to other objections.”1

§ 319. Notice and hearing not required in cases of licenses, etc.

Due process of law in taxation is that which is due and appropriate, i. e. suitable to the nature of the case. In what are known as license, privilege or occupation taxes, and those imposed upon specific things, where the amount to be paid is fixed by law, and no valuation is required, hearing would be of no service, and therefore none is required.

Justice Field,2 in the opinion already referred to, supra, § 312, says that the distinction between taxes upon licenses and taxes upon values is plain and everywhere recognized.

The same distinction was later made by the same judge in delivering the opinion of the Supreme Court in the California Drainage District Case,3 1. c. page 708:

6

"It is sufficient to observe here that by due process'

1 Justice Bradley gave an opinion, concurring in the conclusion, but saying that he thought the opinion of the court narrowed the scope of the inquiry as to what is due process of law more than it should do. He thought that the court is entitled, under the Fourteenth Amendment, to see not only that there is some process of law, but due process of law; and in judging what is due process of law, attention must be given to the cause and object of the taking, whether under the taxing power, the power of eminent domain, the power of assessment for local improvement, or none of these. If found to be suitable and admissible in the special case, it will be adjudged to be due process of law; but if found to be arbitrary, oppressive and unjust, it may be declared to be not due process of law. Such an examination may be made, he concluded, without interfering with that large discretion which every legislative power has of making wide modifications in the forms of procedure in each case, according as the laws, habits, customs, and preferences of the people of the particular State may require.

2 County of Santa Clara v. So. Pac. R. R. Co., 18 Fed. Rep., p. 409. 3 Hagar v. Reclamation District, 111 U. S. 701.

is meant one which, following the forms of law, is appropriate to the case, and just to the parties to be affected. 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. In such cases the legislature, in authorizing the tax, fixes its amount, and that is the end of the matter.

"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. Thus, if the tax on animals be a fixed sum per head, or on articles a fixed sum per yard, or bushel, or gallon, there is nothing the owner can do which can affect the amount to be collected from him. So, if a person wishes a license to do business of a particular kind, or at a particular place, such as keeping a hotel or a restaurant, or selling liquors, or cigars, or clothes, he has only to pay the amount required by the law and go into the business. There is no need in such cases for notice or hearing. So, also, if taxes are imposed in the shape of licenses for privileges, such as those on foreign corporations for doing business in the State, or on domestic corporations for franchises, if the parties desire the privilege, they have only to pay the amount required. In such cases there is no necessity for notice or hearing. The amount of the tax would not be changed by it.

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 law to hear complaints respecting the justice of the assessments. 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 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."

§ 320. Hearing not required where valuation is fixed by taxpayer.

The principle, that due process of law in taxation does not require a hearing, where from the nature of the case it can be of no service, was applied by the United States Circuit Court in Virginia to the case of an assessment of shares in national banks. Under the act the assessment was made upon the market value of the shares as reported to the assessor by the bank, and the act itself fixed the amount of the tax upon this market value, so that the tax bills were self-executing and enforceable by levy. The court said that, as the bank itself fixed the market value and the statute the amount of the tax, the assessor's duty was a mere

ministerial one, and therefore the case was within the principle declared by the Supreme Court in Hagar v. Reclamation District, supra, § 319.1

§ 321. Where amount of tax is dependent on valuation, hearing is required.

But the court said in the California Drainage Case that, where a tax is levied on property, not specifically but according to its value, to be ascertained by assessors upon such evidence as they may obtain, a different principle applies, and hearing at some stage is required. The legislature may prescribe the kind of notice, and the mode in which it shall be given, but it cannot dispense with it altogether. In some tribunal, or before some official authorized to correct errors, the owner must be afforded an opportunity to be heard in respect to the proceedings under which his property is to be taken or burdened, and this must be at some time before the tax or assessment becomes final or effectual, in order to constitute such procedure due process of law.2

While the imposition of taxes is in its nature administrative and not judicial, assessors exercise quasi judicial power in arriving at the value, and opportunity to be heard as to value should be given and is given under all just systems of taxation.3

While this principle that some opportunity for hearing is necessary in taxing according to value, has been declared, it is noticeable that in no case has the Supreme Court declared the tax procedure of a State wanting in respect to the requisite notice and hearing, though numerous cases of

1 People's National Bank v. Marye, 107 Fed. Rep. 571, 1. c. 580. 2 A leading case is Stuart v. Palmer, 74 N. Y. 183. See also Jackson, J., in Scott v. Toledo, supra, § 312, and Field, J., in Santa Clara Co. v. So. Pac. R. R., supra, § 311; Gatch v. Des Moines, 63 Iowa 718.

3 Palmer v. MacMahon, 133 U. S. 660, 669.