located in the same community. It is aimed to put all shippers within a switching district upon a substantial equality. It provides that where a carrier receives from any person a greater compensation for any service rendered in the transportation of passengers or property than it receives from any other person for doing for him a 'like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination,' -a discrimination which is prohibited and declared to be unlawful. [62] Under this section it is settled that the competition of rival carriers as such does not constitute substantially dissimilar circumstances to justify a difference in treatment." 814, and cases cited; Pennsylvania R. Co. v. United States, 236 U. S. 351, 361, 59 L. ed. 616, 623, P.U.R.1915B, 261, 35 Sup. Ct. Rep. 370. The Commission did not hold that switching charges must be always the same. But did hold that they must be alike where the service was rendered under substantially similar circumstances and conditions. The Commission's report says: "We do not consider that the carriers must absorb the switching charges indiscriminately to all industries within the switching limits of Richmond if they choose to absorb the switching charges to any one industry off their rails. [63] The illegality herein found to exist is the receiving of a greater compensation for one service than for a like service under substantially similar circumWe are of opinion that the Commis- stances and conditions. To take a sion was correct in regarding the concrete example, and referring again service in question as a like and con- to the diagram: Suppose industry temporary service rendered under sub- C were 5 miles distant from the inter stantially similar circumstances and conditions, and amply sustained as matter of law in Wight v. United States, 167 U. S. 512, 42 L. ed. 258, 17 Sup. Ct. Rep. 822, and Interstate Commerce Commission v. Alabama Midland R. Co. 168 U. S. 144, 42 L. ed. 414, 18 Sup. Ct. Rep. 45. The principle established in these cases is that the statute aims to establish equality of rights among shippers for carriage under substantially similar circumstances and conditions, and that the exigencies of competition do not justify discrimination against shippers for substantially like services. Moreover, the determination of questions of fact is by law imposed upon the Commission, a body created by statute for the consideration of this and like matters. The findings of fact by the Commission upon such questions can be disturbed by judicial decree only in cases where their action is arbitrary, or transcends the legitimate bounds of their authority. Interstate Commerce Commission v. Louisville & N. R. Co. 227 U. S. 88, 57 L. ed. 431, 33 Sup. Ct. Rep. 185; Pre-cooling Case (Atchison, T. & S. F. R. Co. v. United States) 232 U. S. 199, 58 L. ed. 568, 34 Sup. Ct. Rep. 291; Los Angeles Switching Case (Interstate Commerce Commission v. Atchison, T. & S. F. R. Co.) 234 U. S. 294, 311, 312, 58 L. ed. 1319, 1327, 1328, 34 Sup. Ct. Rep. 65 L. ed. change tracks of the Seaboard, while industry B were only 2 miles distant. Suppose the Chesapeake & Ohio's switching charge amounted to $5, while that of the Southern was $2. If the Seaboard absorbed the Southern's $2 switching charge on traffic to industry B, we do not consider that it must absorb the entire $5 switching charge of the Chesapeake & Ohio on traffic to industry C, but only to the extent to which the service is similar. In other words, it would probably be necessary for the Seaboard to absorb $2 of the $5 charge of the Chesapeake & Ohio." The practice condemned by the Commission, as its report and order show, was that of absorbing switching charges only when the line-haul carrier competes with the switching line; and refusing to absorb such charges when the switching line does not compete with the line-haul carrier; this, the Commission held, was discrimination within the meaning of § 2 of the Act to Regulate Commerce. We find no occasion to disturb this ruling as arbitrary in character or beyond the authority of the Commission. We find no merit in the contention that the order of the Commission was too vague and uncertain to be enforced. Affirmed. 133 N ERROR to the Supreme Court of the State of Georgia to review a decree which, upon a second appeal, affirmed a decree of the Brooks Superior Court, J. P. WADE, Sheriff of Brooks County, dismissing a suit to enjoin the enforce Georgia. (See S. C. Reporter's ed. 64-70.) Taxes -assessment — increasing valu ation. re 1. The board of assessors, when increasing the valuation of property turned for taxation, is not required, by Ga. Laws 1913, p. 123, §§ 6 and 7, to give any notice to the taxpayer, nor is oppor: tunity given him to be heard as of right before the assessment is finally made against him, but provision is made for notice of the assessment to the taxpayer after it is made, and, in the event of his dissatisfaction, an arbitration is to afford a hearing, this hearing being all that the statute contemplates that the taxpayer shall have. [For other cases, see Taxes, III. b. In Digest Sup. Ct. 1908.j Constitutional law due process of law - tax matters - notice and hearing. 2. Due process of law is not afforded a taxpayer where the county board of assessors, conformably to the state tax law, in creased the valuation of his property as returned for taxation without notice or hearing, other than notice given after the assessment was made and a hearing in the arbitration provided for in case of the taxpayer's dissatisfaction, and such arbitration failed because the arbitrators could not agree within the ten-day period fixed by law, and hence no majority award could be made, though all believed the assessment was too high. [For other cases, see Constitutional Law, 725744, in Digest Sup. Ct. 1908.] Note. As to what constitutes due process of law, generally-see notes to People v. O'Brien, 2 L.R.A. 255; Kuntz v. Sumption, 2 L.R.A. 655; Re Gannon, 5 L.R.A. 359; Ulman v. Baltimore, 11 L.R.A. 224; Gilman v. Tucker, 13 L.R.A. 304; Pearson v. Yewdall, 24 L. ed. U. S. 436; and Wilson v. North Carolina, 42 L. ed. U. S. 865. On notice and hearing required, generally, to constitute due process of law -see notes to Kuntz v. Sumption, 2 L.R.A. 657; Chauvin v. Valiton, 3 L.R.A. 194; and Ulman v. Baltimore, 11 L.R.A. 225. On constitutional restriction on power of taxation-see note to Birmingham v. Klein, 8 L.R.A. 369. ment of a tax. Reversed and remanded for further proceedings. See same case below on first appeal, 146 Ga. 600, 91 S. E. 690; on second appeal, 147 Ga. 666, 95 S. E. 220. The facts are stated in the opinion. Mr. Arthur G. Powell argued the cause on both original and rearguments, and, with Messrs. John D. Little, Marion Smith, and Max F. Goldstein, filed a brief for plaintiffs in error: Where a statute provides for the assessment of taxes without the law itself giving the taxpayer such an opportunity to be heard at some such stage of the proceeding as to make the hearing effective in the determination of the question, there is a violation of the due process clause of the Federal Constitution. Davidson v. New Orleans, 96 U. S. 97, 24 L. ed. 616; Central of Georgia R. Co. 28 Sup. Ct. Rep. 47, 12 Ann. Cas. 463. v. Wright, 207 U. S. 127, 52 L. ed. 134, Mere notice and opportunity for hearing, without more, will not satisfy the requirements of due process of law, if the hearing itself is subject to such limitations as to amount to a deprivation of this right. Regard must be had to substance, and not merely to form. Fayerweather v. Ritch, 195 U. S. 276, 297, 299, 49 L. ed. 193, 209, 210, 25 Sup. Ct. Rep. 58; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581. Mr. Graham Wright argued the cause on reargument, and, with Mr. R. A. Denny, Attorney General of Georgia, filed a brief for defendant in error: We have, in this case, the three essential elements to make due process, as repeatedly held by this court; to wit, notice by the statute to all taxpayers of the time and place of the meeting of the assessors, and a board of assessors competent and able to hear their complaint. State R. Tax Cases, 92 U. S. 575, 23 L. ed. 669; Kentucky R. Tax Cases, 115 U. S. 321, 29 L. ed. 414, 6 Sup. Ct. Rep. 57; Pittsburgh, C. C. & St. L. R. Co. v. Backus, 154 U. S. 421-425, 38 L. ed. 1031-1036, 14 Sup. Ct. Rep. 1114; BiMetallic Invest. Co. v. State Bd. 239 U. S. 441, 60 L. ed. 372, 36 Sup. Ct. Rep. 141; Hagar v. Reclamation Dist. 111 U. S. 701, 28 L. ed. 569, 4 Sup. Ct. Rep. 663; Glidden v. Harrington, 189 U. S. 259, 47 L. ed. 802, 23 Sup. Ct. Rep. 624, 22 Mor. Min. Rep. 630; Londoner v. Denver, 210 U. S. 385, 52 L. ed. 1112, 28 Sup. Ct. Rep. 708; Pullman Co. v. Knott, 235 U. S. 23, 59 L. ed. 105, 35 Sup. Ct. Rep. 2. This law constitutes notice to every taxpayer of the time and place at which the assessment is to be made. Lander v. Mercantile Nat. Bank, 186 U. S. 458, 468, 469, 46 L. ed. 1247, 1253, 22 Sup. Ct. Rep. 908; Andes v. Ely, 158 U. S. 313-323, 39 L. ed. 997-1002, 15 Sup. Ct. Rep. 954; Merchants' & M. Nat. Bank v. Pennsylvania, 167 U. S. 461466, 42 L. ed. 236-238, 17 Sup. Ct. Rep. 829. The arbitration proceeding is nothing more than an appeal, which is not necessary to due process. And the state of Georgia has the power to provide for the affirmation of the judgment of the lower tribunal through a failure of the appellate court to agree. Lott v. Pittman, 243 U. S. 588, 61 L. ed. 915, 37 Sup. Ct. Rep. 473. Mr. Clifford Walker, former Attorney General of Georgia, also filed a brief for defendant in error: Nor does it deprive the taxpayers of The court may review the valuation placed on property for taxation, where the record shows that it was imposed in a whimsical, capricious, or unwarrantable way instead of by the judgment, since such valuation would be no assessment. Consolidated Gas Co. v. Baltimore, 101 Md. 541, 1 L.R.A.(N.S.) 263, 109 Am. St. Rep. 584, 61 Atl. 532. An appeal is not necessary to enable a board of equalization to revise a tax assessment under a statute providing that the board was created for the purpose of revising the assessment when returned by a tax assessor. State Nat. Bank v. Memphis, 116 Tenn. 641, 7 L.R.A. (N.S.) 663. In the absence of grounds justifying a resort to a court of equity for injunctive relief, the decision of the statutory board of equalization, declining to reduce the assessed valuation of lands, is plenary and final. Finney County v. Bullard, 77 Kan. 349, 16 L.R.A. (N.S.) 807, 94 Pac. 129. the assessor a taxpayer who has failed The state may subject to the doom of to furnish a list of his property to the where the failure to make such returns assessor, as required by law, but not was from an honest belief, founded upon Travelers' Ins. Co. v. Board of Asses An act of the legislature which has for its object the equalization of taxation by means of a fair and just assessment of property returned for taxation, and which provides for notice to any taxpayer whose returns have been increased, and that, if he is dissatisfied with the action of the county board of tax assessors in assessing the value of his property for taxation, he may demand an arbitration of the question of the valuation of the property returned for taxation, and which provides that, The assessment of property for purin case of disagreement as to the selection of an umpire, the county commis-poses of taxation is not a judicial funcsioners shall appoint one, and the arbi- tion, and a Kansas law providing for an trators shall render their decisions with- zation to the district court is unconstiappeal from the county board of equaliin ten days from the date of the naming tutional and void. of the arbitrator by the board, is not repugnant to the due process clause of the Constitution of the United States, as contained in the 14th Amendment. Bearden v. Daves, 139 Ga. 635, 77 S. E. 871; Vanduzer v. Irvin, 138 Ga. 524, 75 S. É. 649; McWilliams v. Tallapoosa, 137 Ga. 283, 73 S. E. 510; Bower v. Bainbridge, 116 Ga. 794, 43 S. E. 67; White v. Forsyth, 138 Ga. 756, 76 S. E. 58; Central of Georgia v. Wright, 207 U. S. 127, 52 L. ed. 134, 28 Sup. Ct. Rep. 47, 12 Ann. Cas. 463; Kelley v. Pittsburgh, 104 U. S. 78, 26 L. ed. 658; McMillen v. Anderson, 95 U. S. 37, 24 L. ed. 335. sors, 122 La. 129, 24 L.R.A.(N.S.) 389, 47 So. 439. 13 L.R.A. (N.S.) 716, 92 Pac. 604, 14 Silven v. Osage County, 76 Kan. 687, Ann. Cas. 163. Under the Tennessee statutes, the board of equalization may either in crease or reduce assessments; and an increase is not rendered invalid by the fact that it is made by the board at its own motion, and not in a proceeding had pursuant to an appeal prosecuted by a taxpayer. State Nat. Bank v. Memphis, 116 Tenn. 641, 7 L.R.A. (N.S.) 663, 94 S. W. 606, 8 Ann. Cas. p. 22. The presumption is in favor of the regularity of the proceeding of commis sioners to equalize taxes, and whoever | arbitrator designated by the board had attacks them must show affirmatively expired, the statutory requirement that want of jurisdiction. Foster v. Rowe, 128 Wis. 326, 107 N. W. 635, 8 Ann. Cas. 595. Statutes creating boards to review the equalization of taxes by a county board are not in contravention of the due process of law clause of the Constitution of the United States because no provision is made for giving notice to taxpayers, nor do such statutes deny to the taxpayer the equal protection of the law, within the meaning of the Federal Constitution. Ibid. the valuation of the board of assessors should stand affirmed was followed, and the collector demanded payment of the taxes in the sum of $80,650, the valuation fixed by the assessors. The tax collector issued execution for the taxes upon this valuation, and plaintiffs in error filed a petition in equity to prevent the enforcement of the execution, setting up the constitutional objection to which we have referred. The superior court of Georgia, on interlocutory hearing, granted an ad interim injunction. This action was reversed by The Wyoming statutes providing that the supreme court of Georgia. Upon a the county board of equalization shall, second [66] writ of error from the suat its first meeting, add to the assess-preme court of Georgia the act was ment roll any taxable property in that again held constitutional. county not included in the assessment as returned by the assessor, and assess the value thereof, give such board full power to add omitted taxable property to the roll and assess its value, although the property has not been assessed, and the name of the owner does not appear upon the assessment roll until entered thereon by the board. Horton v. Driskell, 13 Wyo. 66, 77 Pac. 354, 3 Ann. Cas. 561. The assessment by the board of assessors was made under § 6 of the act, which provides that the board of county assessors shall meet each year within ten days of the date of the closing of the tax returns, to receive and inspect the same. It is made the duty of the board to examine the returns of both real and personal property, and if, at any time, in the opinion of the board, any taxpayer has omitted from his return any property which should be returned, or [65] Mr. Justice Day delivered the has failed to return property at its fair opinion of the court: This case involves the constitutional validity under the due process clause of the 14th Amendment of certain provisions of the Georgia Tax Equalization Act. Georgia Laws 1913, p. 123. valuation, the board is authorized to correct such returns and assess and fix the fair valuation upon the property. When the corrections, changes, and equalizations have been made by the board, it is then its duty to give notice to any taxpayer The facts stated in the petition and of any changes made in his return, either amended petition are not disputed, and personally or by leaving the same at his show that plaintiffs in error returned residence or place of business, or, in case property for taxation at the value of of nonresidents, by mail. The section fur$44,225. The county board of tax asses- ther provides that if the taxpayer is dissors, without hearing, raised the assesssatisfied with the action of the board, he ment to $80,650. Notice was then given may, within ten days from the giving of to the plaintiffs in error of the increase. said notice, give notice to the board that Following the statute, plaintiffs in error he demands an arbitration, giving at the demanded arbitration, and named an arbi- same time the name of his arbitrator. trator, the board selected an arbitrator, Whereupon the board shall name its arbiand the two selected a third. Upon meet-trator within three days thereafter, and ing of the arbitrators all agreed that the the two shall select a third, a majority of value assessed by the board was excessive. whom shall fix the assessment upon the The arbitrator named by the plaintiffs in property upon which the taxpayer shall error fixed the valuation at $50,000. The pay taxes except so far as the same may arbitrator named by the board fixed the the state tax commissioner, as in the act be affected by the findings and orders of valuation at $66,000. The third arbitrator provided. Provision is made for qualificafixed the valuation at $63,000. The arbi- tion of arbitrators, and that they shall trators could not agree, each adhering to render their decision within ten days his own view. All the arbitrators believed from the date of naming of the arbitrator the assessment too high, but, for lack of by the board of assessors; otherwise the agreement, the arbitration failed, and after decision of the board of assessors shall ten days from the date of naming of the 'stand and be binding in the premises. (The pertinent part of § 6 is given in the margin.1) [67] In considering certain sections of the Georgia tax laws this court held in Central of Georgia R. Co. v. Wright, 207 U. S. 127, 52 L. ed. 134, 28 Sup Ct. Rep. 47, 12 Ann. Cas. 463, that due process of law requires that after such notice as may be appropriate, the taxpayer have opportunity to be heard as to the validity of a tax and the [68] amount thereof by giving him the right to appear for that purpose at some stage of the proceedings. This case, with others, was cited with approval in Londoner v. Denver, 210 U. S. 373, 385, 52 L. ed. 1103, 1112, 28 Sup. Ct. Rep. 708, wherein we said that if the legislature of the state, instead of fixing the tax itself, commits to the subordinate body the duty of determining whether, and in what amount, and upon whom, the tax shall be levied, due process of law requires that at some stage of the proceedings, before the tax becomes irrevocably fixed, the taxpayer must have the opportunity to be heard, of which he must have notice, whether personal, by publication, or by some statute fixing the time and place of the hearing. See 210 U. S. 385, and previous cases in this court, cited on page 386. See also Coe v. Armour Fertilizer Works, 237 U. S. 413, 425, 59 L. ed. 1027, 1032, 35 Sup. Ct. Rep. 625. As we have understood the argument of the attorney general, it is admitted that the provision for arbitration, under the facts herein shown, does not of itself afford due process of law. But it is now contended that § 7 saves the statute and provides for notice and hearing. Sec. 7 provides: "That it shall be the duty of the county board of tax assessors to diligently investigate and inquire into the property owned in the county for the purpose of ascertaining what property, real and personal, is subject to taxation in the county and to require its proper return for taxation. "The said board shall have authority to issue subpoenas for the attendance of witnesses and to require the production by any person of all his books, papers, and documents, which may throw any light upon the question of the existence or liability of property of any class for taxation. If any witness so subpoenaed shall fail or refuse to produce any such books, papers, or documents, such person shall be cited by said board to appear before the ordinary of the county, etc. (Punishment as for a contempt is provided.) [69] This case was twice before the supreme court of Georgia (146 Ga. 600, 91 S. E. 690, in which the court held that when any change is made in the valuation of the property, the taxpayer must be given notice of such change, and, if dissatisfied, may demand an arbitration, and have a to immediately give notice to any taxpayer of any changes made in his returns, either personally or by leaving same at his resi dence or place of business, or, in case of nonresident of the county, by sending said notice through the United States mails to his last known place of address. 1 "Sec. 6. Be it further enacted by the authority aforesaid, That the said board of county tax assessors in each county shall meet each year within ten days from the date of the closing of the tax returns for the current year, to receive and inspect the tax returns to be laid before them by the tax receiver as herein before provided. It "If any taxpayer is dissatisfied with the shall be the duty of said board to examine action of said board, he may within ten all the returns of both real and personal days from the giving of said notice in case property of each taxpayer, and if in the of residents, and within twenty days in opinion of the board any taxpayer has case of nonresidents of the county, give omitted from his returns any property that notice to said board that he demands an should be returned or has failed to return arbitration, giving at the same time the any of his property at a just and fair valua- name of his arbitrator; the board shall tion, the said board shall correct such re- name its arbitrator within three (3) days turns and shall assess and fix the just and thereafter and these two shall select a third, fair valuation to be placed on said property a majority of whom shall fix the assessand shall make a note thereof and attachments and the property on which said taxthe same to such returns. It shall be the payer shall pay taxes, and said decision duty of said board to see that all taxable shall be final, except so far as the same property within the county is assessed and may be affected by the findings and orders returned at its just and fair valuation and of the state tax commissioner as hereinafter that valuations as between the individual provided. The said arbitrators shall be taxpayers are fairly and justly equalized so freeholders of the county and shall render that each taxpayer shall pay as near as their decision within ten days from the may be, only his proportionate share of date of the naming of the arbitrator by taxes. When any such corrections, changes said board, else the decision of said board and equalizations shall have been made by shall stand affirmed and shall be binding said board, it shall be the duty of the board in the premises." |