ber of Commerce, averring that the prac- per or receiver of such carload freight at tice of the railroads was discriminatory Richmond, Virginia, for a like and conand unlawful, and violative of 2 of temporaneous service under substantialthe Act to Regulate Commerce. From ly similar circumstances and conditions." the facts found by the Commission it 44 Inters. Com. Rep. 455. appears that the appellant railroad com- The district court denied the applicapanies bring freight from the South to tion for an injunction, and ordered that Richmond, Virginia, where the same is the petition be dismissed. 249 Fed. 368. delivered to industries in the switching The contention of the appellants is limits of that city. If the freight is re- that the carriage is not a like and conceived at a point served by any two or temporaneous service in the transportamore of the carriers, the switching tion of a like kind of traffic under subcharge is absorbed if the freight be de- stantially similar circumstances and livered on the line of either. But if the conditions. delivery is to an industry served only by Section 2 of the Act to Regulate Coma noncompetitive carrier, the switching merce provides: charge is not absorbed. The Commis- “That if any common carrier subject sion illustrated the point by an example: to the provisions of this act shall, direct“Oxford, North Carolina, is a pointly or indirectly, by any special rate, reached both by the Southern and the rebate, drawback, other device, Seaboard, but not by the Chesapeake & charge, demand, collect, or receive from Ohio. Norlina, North Carolina, is a local any person or persons a greater or less point on the Seaboard. Assume that in compensation for any service rendered, dustries A, B, and C (referring to a or to be rendered, [61] in the transpordiagram] on the Seaboard, the Southern, tation of passengers or property, suband the Chesapeake & Ohio, respectively, ject to the provisions of this act, than it are similarly located with regard to the charges demands, collects, or receives interchange tracks of the three carriers from any other person or persons for at Richmond. On traffic from Oxford to doing for him or them a like and conindustry B on the Southern, the Sea- temporaneous service in the transportaboard will absorb the Southern's switch- tion of a like kind of traffic under subing chargés. But on traffic from Oxford stantially similar circumstances and to industry C, on the Chesapeake & conditions, such common carrier shall be Ohio, the Seaboard refuses to absorb the deemed guilty of unjust discrimination, Chesapeake & Ohio's switching [60] which is hereby prohibited and declared charges. On traffic from and to Nor- to be unlawful." February 4, 1887, 24 lina, a local point, however, the Sea- Stat. at L. 379, chap. 104, Comp. Stat. board refuses to absorb all switching $ 8564, 4 Fed. Stat. Anno. 2d ed. p. 371. charges whatsoever to any off-line in- Upon this controversy the Commisdustry.”


its report, said: The order complained of directed the “Complainant insists that when the three carriers to cease and desist, on or line-haul carrier reaches the common before August 1, 1917, and thereafter to point and competes for the traffic abstain, from absorbing switching to or from Richmond proper, the abcharges on certain interstate carload sorption of the switching charges freight at Richmond, Virginia, while re- should not be confined to that traffic fusing to absorb such charges on like for which the switching line carload shipments for a like and con-petes for the entire haul. That is, if temporaneous service under substantial- the Seaboard absorbs


switchly similar circumstances and conditions, ing charges for the shipper on the termisuch practices having been found in anal tracks of the Southern, it should supplemental report to be unjustly dis- also absorb the switching charges for the criminatory and unlawful within § 2 of shipper on the terminal tracks of the the Act to Regulate Commerce; and “to Chesapeake & Ohio. Unless this is done, establish, on or before August 1, 1917, complainant contends that the two ship

and thereafter to maintain and pers are not upon an equality, since the apply uniform regulations and practices Seaboard pays for a delivery service to for the absorption of charges for the shippers on the terminal tracks of the switching of interstate carload freight Southern, and declines to pay for a simat Richmond, Virginia, and to collect no ilar delivery service to shippers on the higher rates or charges from shippers terminal tracks of the Chesapeake & and receivers of such carload freight at Ohio. Richmond, Virginia, than they contem- “Section 2 is primarily directed poraneously collect from any other ship-' against discrimination between shippers



located in the same community. It is | 814, and cases cited; Pennsylvania R.
aimed to put all shippers within a Co. v. United States, 236 U. S. 351, 361,
switching district upon a substantial | 59 L. ed. 616, 623, P.U.R.1915B, 261, 35
equality. It provides that where a car- Sup. Ct. Rep. 370.
rier receives from any person a greater The Commission did not hold that
compensation for any service rendered switching charges must be always the
in the transportation of passengers or But did hold that they must be
property than it receives from any oth-alike where the service was rendered
er person for doing for him a like and under substantially similar circum-
contemporaneous service in the trans- stances and conditions. The Commis-
portation of a like kind of traffic undersion's report says:
substantially similar circumstances and “We do not consider that the carriers
conditions, such common carrier shall be must absorb the switching charges in-
deemed guilty of unjust discrimination, discriminately to all industries within
-a discrimination which is prohibited the switching limits of Richmond if they
and declared to be unlawful. [62] choose to absorb the switching charges
Under this section it is settled that the to any one industry off their rails. [63]
competition of rival carriers as such The illegality herein found to exist is
does not constitute substantially dissim- the receiving of a greater compensation
ilar circumstances to justify a differ- for one service than for a like service
ence in treatment."

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 change tracks of the Seaboard, while conditions, and amply sustained as mat- industry B were only 2 miles distant. *ter of law in Wight v. United States, 167 Suppose the Chesapeake & Ohio's U. S. 512, 42 L. ed. 258, 17 Sup. Ct. Rep. switching charge amounted to $5, while 822, and Interstate Commerce Commis- that of the Southern was $2. If the sion v. Alabama Midland R. Co. 168 U. Seaboard absorbed the Southern's $2 S. 144, 42 L. ed. 414, 18 Sup. Ct. Rep. switching charge on traffic to industry 45. The principle established in these B, we do not consider that it must abcases is that the statute aims to establish sorb the entire $5 switching charge of equality of rights among shippers for the Chesapeake & Ohio on traffic to incarriage under substantially similar cir- dustry C, but only to the extent to which cumstances and conditions, and that the the service is similar. In other words, exigencies of competition do not justify it would probably be necessary for the discrimination against shippers for sub- Seaboard to absorb $2 of the $5 charge stantially like services.

of the Chesapeake & Ohio." Moreover, the determination of ques- The practice condemned by the Comtions of fact is by law imposed upon mission, as its report and order show, the Commission, a body created by stat- was that of absorbing switching charges ute for the consideration of this and like only when the line-haul carrier competes matters. The findings of fact by the with the switching line; and refusing to Commission upon such questions can be absorb such charges when the switching disturbed by judicial decree only in cases line does not compete with the line-haul where their action is arbitrary, or transcends the legitimate bounds' of their carrier; this, the Commission held, was authority. Interstate Commerce Com

discrimination within the meaning of g
mission v. Louisville & N. R. Co. 227 U. 2 of the Act to Regulate Commerce. We
S. 88, 57 L. ed. 431, 33 Sup. Ct. Rep. 185; find no occasion to disturb this ruling as
Pre-cooling Case (Atchison, T. & S. Farbitrary in character or beyond the au-
R. Co. v. United States) 232 U. S. 199, thority of the Commission.
58 L. ed. 568, 34 Sup. Ct. Rep. 291; Los

We find no merit in the contention
Angeles Switching Case (Interstate that the order of the Commission was
Commerce Commission v. Atchison, T. & too vague and uncertain to be enforced.
S. F. R. Co.) 234 U. S. 294, 311, 312, 58 Affirmed.
L. ed. 1319, 1327, 1328, 34 Sup. Ct. Rep.
65 L. ed.



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(Turner Executors of the Estate of 9. 10. Morton, IN ERROR to the Supreme Court of the

State of Georgia to review a decree Deceased, Plffs. in Err.,

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 enforceGeorgia.

ment of a tax. Reversed and remanded (See S. C. Reporter's ed. 64–70.)

for further proceedings.

See same case below on first appeal, Taxes assessment increasing valu- 146 Ga. 600, 91 S. E. 690; on second apation.

1. The board of assessors, when in. peal, 147 Ga. 666, 95 S. E. 220. creasing the valuation of property

The facts are stated in the opinion. turned for taxation, is not required, by Mr. Arthur G. Powell argued the Ga. Laws 1913, p. 123, $$ 6 and 7, to give cause on both original and rearguments, any notice to the taxpayer, nor is oppor: and, with Messrs. John D. Little, tunity given him to be heard as of right Marion Smith, and Max F. Goldstein, before the

is finally made against him, but provision is made for no- filed a brief for plaintiffs in error: tice of the assessment to the taxpayer

Where a statute provides for the after it is made, and, in the event of his assessment of taxes without the law itdissatisfaction, an arbitration is to afford self giving the taxpayer such an oppora hearing, this hearing being all that the tunity to be heard at some such stage statute contemplates that the taxpayer of the proceeding as to make the hearshall have. (For other cases, see Taxes, III. b. ip Digest ing effective in the determination of the Sup. Ct. 1908. )

question, there is a violation of the due Constitutional law due process of process clause of the Federal Constitu

law tax matters notice and hear- tion. ing.

Davidson v. New Orleans, 96 U. S. 97, 2. Due process of law is not afforded a 24 L. ed. 616; Central of Georgia R. Co. taxpayer where the county board of asses

v. Wright, 207 U. S. 127, 52 L. ed. 134, sors, conformably to the state tax law, increased the valuation of his property as re

28 Sup. Ct. Rep. 47, 12 Ann. Cas. 463. turned for taxation without notice or hear

Mere notice and opportunity for ing, other than notice given after the as. | hearing, without more, will not satisfy sessment was made and a hearing in the the requirements of due process of law, arbitration provided for in case of the tax. if the hearing itself is subject to such payer's dissatisfaction, and such arbitration limitations as to amount to a deprivafailed because the arbitrators could not tion of this right. Regard must be had agree within the ten-day period fixed by law, and hence no majority award could be to substance, and not merely to form. made, though all believed the assessment

Fayerweather v. Ritch, 195 U. S. 276, was too high.

297, 299, 49 L. ed. 193, 209, 210, 25 Sup. (For other cases, see Constitutional Law, 725- Ct. Rep. 58; Chicago, B. & Q. R. Co. v. 744, 10 Digest Sup. Ct. 1908.)

Chicago, 166 U. S. 226, 41 L. ed. 979, [No. 29.)

17 Sup. Ct. Rep. 581. Argued November 14, 1919. Restored to Mr. Graham Wright argued the cause

docket for reargument January 5, 1920. on reargument, and, with Mr. R. A. Reargued October 11, 1920. Decided No. Denny, Attorney General of Georgia, vember 8, 1920.

filed a brief for defendant in error: Note. As to what constitutes due We have, in this case, the three essenprocess of law, generally-see notes to tial elements to make due process, as People v. O'Brien, 2 L.R.A. 255; Kuntz repeatedly held by this court; to wit, v. Sumption, 2 L.R.A. 655; Re Gannon, notice by the statute to all taxpayers of 5 L.R.A. 359; Ulman v. Baltimore, 11 the time and place of the meeting of the L.R.A. 224; Gilman v. Tucker, 13 L.R.A. assessors, and a board of assessors com304; Pearson v. Yewdall, 24 L. ed. U. S. petent and able to hear their complaint. 436; and Wilson v. North Carolina, 42 State R. Tax Cases, 92 U. S. 575, 23 L. ed. U. S. 865.

L. ed. 669; Kentucky R. Tax Cases, 115 On notice and hearing required, gen-U. S. 321, 29 L. ed. 414, 6 Sup. Ct. Rep. erally, to constitute due process of law 57; Pittsburgh, C. C. & St. L. R. Co. v. -see notes to Kuntz v. Sumption, 2 Backus, 154 U. S. 421-425, 38 L. ed. L.R.A. 657; Chauvin v. Valiton, 3 L.R.A. 1031-1036, 14 Sup. Ct. Rep. 1114; Bi194; and Ulman v. Baltimore, 11 L.R.A. Metallic Invest. Co. v. State Bd. 239 U. 225.

S. 441, 60 L. ed. 372, 36 Sup. Ct. Rep. On constitutional restriction on pow. 141; Hagar v. Reclamation Dist. 111 U. er of taxation-see note to Birmingham S. 701, 28 L. ed. 569, 4 Sup. Ct. Rep. v. Klein, 8 L.R.A. 369.

663; Glidden v. Harrington, 189 U. 8.


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259, 47 L. ed. 802, 23 Sup. Ct. Rep. 624, Nor does it deprive the taxpayers of
22 Mor. Min. Rep. 630; Londoner v. the equal protection of the laws.
Denver, 210 U. S. 385, 52 L. ed. 1112, 28 Vestel v. Edwards, 143 Ga. 368, 85 S.
Sup. Ct. Rep. 708; Pullman Co. v. E. 187.
Knott, 235 U. S. 23, 59 L. ed. 105, 35 The court may review the valuation
Sup. Ct. Rep. 2.

placed on property for taxation, where This law constitutes notice to every the record shows that it was imposed in taxpayer of the time and place at which a whimsical, capricious, or unwarrantthe assessment is to be made.

able way instead of by the judgment, Lander v. Mercantile Nat. Bank, 186 since such valuation would be no assessU. S. 458, 468, 469, 46 L. ed. 1247, 1253, ment. 22 Sup. Ct. Rep. 908; Andes v. Ely, 158 Consolidated Gas Co. v. Baltimore, U. S. 313-323, 39 L. ed. 997–1002, 15 | 101 Md. 541, 1 L.R.A.(N.S.) 263, 109 Sup. Ct. Rep. 954; Merchants' & M. Nat. Am. St. Rep. 584, 61 Atl. 532. Bank v. Pennsylvania, 167 U. S. 461- An appeal is not necessary to enable 466, 42 L. ed. 236-238, 17 Sup. Ct. Rep. a board of equalization to revise a tax 829.

assessment under a statute providing The arbitration proceeding is nothing that the board was created for the purmore than an appeal, which is not neces- pose of revising the assessment when sary to due process. And the state of returned by a tax assessor. Georgia has the power to provide for State Nat. Bank v. Memphis, 116 the affirmation of the judgment of the Tenn. 641, 7 L.R.A.(N.S.) 663. lower tribunal through a failure of the In the absence of grounds justifying appellate court to agree.

a resort to a court of equity for inLott v. Pittman, 243 U. S. 588, 61 junctive relief, the decision of the statL. ed. 915, 37 Sup. Ct. Rep. 473.

utory board of equalization, declining

to reduce the assessed valuation of Mr. Clifford Walker, former Attor

lands, is plenary and final. ney General of Georgia, also filed a brief for defendant in error:

Finney County v. Bullard, 77 Kan. An act of the legislature which has 349, 16 L.R.A.(N.S.) 807, 94 Pac. 129.

The state may subject to the doom of for its object the equalization of taxation by means of a fair and just assess

the assessor a taxpayer who has failed

to furnish a list of his property to the ment of property returned for taxation, and which provides for notice to any where the failure to make such returns

assessor, as required by law, but not taxpayer whose returns have been in

without fraudulent intent, and creased, and that, if he is dissatisfied

from an honest belief, founded upon with the action of the county board of tax assessors in assessing the value of he had was not taxable.

reasonable grounds, that what property his property for taxation, he may de

Travelers' Ins. Co. v. Board of Assesmand an arbitration of the question of the valuation of the property returned sors, 122, La. 129, 24 L.R.A. (N.S.) 389,

47 So. 439. 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 func

tion, and a Kansas law providing for an sioners shall appoint one, and the arbitrators shall render their decisions with-zation to the district court is unconsti

appeal 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 13 L.R.A.(N.S.) 716, 92 Pac. 604, 14

Silven v. Osage County, 76 Kan. 687, the Constitution of the United States, Ann. Cas. 163. as contained in the 14th Amendment. Bearden v. Daves, 139 Ga. 635, 77 S. board of equalization may either in

Under the Tennessee statutes, the E. 871; Vanduzer v. Irvin, 138 Ga. 524,

crease or reduce assessments; and an 75 S. É. 649; McWilliams v. Tallapoosa, increase is not rendered invalid by the 137 Ga. 283, 73 S. E. 510; Bower v fact that it is made by the board at its Bainbridge, 116 Ga. 794, 43 S. E. 67;

own motion, and not in a proceeding White v. Forsyth, 138 Ga. 756, 76 S. E. had pursuant to an appeal prosecuted 58; Central of Georgia v. Wright, 207


a taxpayer.
U. S. 127, 52 L. ed. 134, 28 Sup. Ct. State Nat. Bank V. Memphis, 116
Rep. 47, 12 Ann. Cas. 463; Kelley v. Tenn. 641, 7 L.R.A.(N.S.) 663, 94 S. W.
Pittsburgh, 104 U. S. 78, 26 L. ed. 658; 606, 8 Ann. Cas. p. 22.
McMillen v. Anderson, 95 U. S. 37, 24 The presumption is in favor of the
L. ed. 335.

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.

the valuation of the board of assessors Foster v. Rowe, 128 Wis. 326, 107 N. should stand affirmed was followed, and W. 635, 8 Ann. Cas. 595.

the collector demanded payment of the Statutes creating boards to review taxes in the sum of $80,650, the valuathe equalization of taxes by a county tion fixed by the assessors. The tax colboard are not in contravention of the lector issued execution for the taxes upon due process of law clause of the Consti- this valuation, and plaintiffs in error filed tution of the United States because no a petition in equity to prevent the enprovision is made for giving notice to forcement of the execution, setting up the taxpayers, nor do such statutes deny to constitutional objection to which we have the taxpayer the equal protection of the referred. law, within the meaning of the Federal The superior court of Georgia, on interConstitution.

locutory hearing, granted an ad interim inIbid.

junction. 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 ment roll any taxable property in that again held constitutional. county not included in the assessment The assessment by the board of assesas returned by the assessor, and assess sors was made under § 6 of the act, which the value thereof, give such board full provides that the board of county aspower to add omitted taxable property sessors shall meet each year within ten to the roll and assess its value, although days of the date of the closing of the the property has not been assessed, and tax returns, to receive and inspect the the name of the owner does not appear same. It is made the duty of the board upon the assessment roll until entered to examine the returns of both real and thereon by the board.

personal property, and if, at any time, Horton v. Driskell, 13 Wyo. 66, 77 in the opinion of the board, any taxPac. 354, 3 Ann. Cas. 561.

payer has omitted from his return any

property which should be returned, or [65] Mr. Justice Day delivered the bas failed to return property at its fair opinion of the court:

valuation, the board is authorized to corThis case involves the constitutional va

rect such returns and assess and fix the lidity under the due process clause of the fair valuation upon the property. When 14th Amendment of certain provisions of the corrections, changes, and equalizations the Georgia Tax Equalization Act.

have been made by the board, it is then Georgia Laws 1913, p. 123.

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 assess

satisfied 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. he demands an arbitration, giving at the

said notice, give notice to the board that Following the statute, plaintiffs in error 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 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.

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