« ForrigeFortsett »
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
from an honest belief, founded upon without fraudulent intent, and reasonable grounds, that what property he had was not taxable.
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 selecposes tion of an umpire, the county commis- tion, and a Kansas law providing for an of taxation is not a judicial funcsioners shall appoint one, and the arbi- appeal from the county board of equalitrators shall render their decisions with-zation to the district court is unconstiin 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. E. 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.
Silven v. Osage County, 76 Kan. 687, 13 L.R.A. (N.S.) 716, 92 Pac. 604, 14 Ann. Cas. 163.
Under the Tennessee statutes, the board of equalization may either increase 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.
The Wyoming statutes providing that the county board of equalization shall, at its first meeting, add to the assessment roll any taxable property in that 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.
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 supreme court of Georgia. Upon a second  writ of error from the supreme court of Georgia the act was again held constitutional.
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,
Horton v. Driskell, 13 Wyo. 66, 77 in the opinion of the board, any taxPac. 354, 3 Ann. Cas. 561.
 Mr. Justice Day delivered the 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 Equalization Act. Georgia Laws 1913, p. 123.
payer has omitted from his return any property which should be returned, or has failed to return property at its fair 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 dissatisfied with the action of the board, he sors, without hearing, raised the assessment 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 he demands an arbitration, giving at the 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 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)
 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  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.
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.)
 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.
As we have understood the argument 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 hereinbefore 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 duty of said board to see that all taxable property within the county is assessed and returned at its just and fair valuation and that valuations as between the individual taxpayers are fairly and justly equalized so that each taxpayer shall pay as near as may be, only his proportionate share of taxes. When any such corrections, changes and equalizations shall have been made by said board, it shall be the duty of the board
payer shall pay taxes, and said decision shall be final, except so far as the same may be affected by the findings and orders of the state tax commissioner as hereinafter provided. The said arbitrators shall be freeholders of the county and shall render their decision within ten days from the date of the naming of the arbitrator by said board, else the decision of said board shall stand affirmed and shall be binding in the premises."
hearing before arbitrators, as provided for in the act, and that such hearing gave due process of law. In 147 Ga. 666, 95 S. E. 220, the previous decision is affirmed, and it was again held that where any change is made in the valuation of the property of a taxpayer, he must be given notice of the change, and, if dissatisfied, demand arbitration and a hearing before arbitrators, as provided in the act; and the opinion refers to Vestel v. Edwards, 143 Ga. 368, 85 S. E. 187, wherein it was said that § 6 of the act was attacked as violative of the due process of law clause of the Constitution for the reason, among others, that the act requires the arbitration to be made within ten days from the date of selection of the arbitrator by the tax assessors, and without making allowance for inability to agree upon a third assessor or arbitrator, or adequate time for the examination of property and the ascertainment of its value, or for any other cause which might render the arbitration impossible within the time specified in the act. The court said that this part of the act was not obnoxious to the state or Federal Constitutions.
In Vestel v. Edwards the court held that the appointment of a brother of one of the assessors as arbitrator disqualified him from acting as arbitrator, and, in considering the statute, we find no suggestion from the Georgia supreme court that a hearing was provided before the board of assessors. The court said that the provisions of a previous act (1910), read in connection with the Statute of 1913, provided that the ordinary might appoint the third arbitrator in event of inability to agree to such arbitrator by the two already selected. But this case presents no such situation. The arbitrators were agreed  upon. The arbitration failed because, within the ten-day period fixed, neither of the three arbitrators would recede from the valuation fixed by himself upon the property, and hence no majority award could be made. We are, therefore, unable to find in the decisions of the supreme court of Georgia that that court understood $7 to provide for the notice and hearing required by due process of law. Therefore, looking to the sections of the
statute for ourselves, we are forced to the conclusion that, reading the provisions together, being parts of one and the same act, they clearly show that the board of assessors was not required to give any notice to the taxpayer, nor was opportunity given him to be heard as of right before the assessment was finally made |
against him. But provision was made for notice of the assessment to the taxpayer after it was made, and in event of his dissatisfaction the arbitration was to afford a hearing to him. Such hearing was all that the statute contemplated that the taxpayer should have.
In the present case, as the facts already stated show, the taxpayer is subject to an assessment made without notice and hearing. In that situation we are clear that the case comes within the decision of this court in Central of Georgia R. Co. v. Wright, supra, and kindred cases, and not within that line of cases wherein the statute has fixed the time and place of hearing, with opportunity to the taxpayer to appear and be heard upon the extent and validity of the assessment against him.
Entertaining this view, it follows that the assessment of the board of assessors ought to have been enjoined, because § 6 of the act, as construed and applied in this case, denies to the complaining taxpayer due process of law. It follows that the judgment of the Supreme Court of Georgia must be reversed, and the case remanded to that court for further proceedings not inconsistent with this opinion. Reversed.
2. The constitutional protection against self-crimination was not removed by the
tion of provision of Bankrupt Act as to Note. As to who is within protecgiven by bankrupt-see note to People use in criminal proceeding of testimony v. Lay, L.R.A.1917B, 614. Sufficiency of statutory immunity to satify constitutional guaranty against self-incrimination.
Earlier cases considering the ques
provision in § 7 of the Bankruptcy Act of
July 1, 1898, that no testimony given by APPEAL from the District Court of
the bankrupt shall be offered in evidence against him in any criminal proceeding, since this provision could not and would not prevent the use of his testimony to search out other testimony to be used in evidence against him or his property. [For other cases, see Witnesses, V. c, in Digest Sup. Ct. 1908.]
Argued October 21 and 22, 1920. Decided November 8, 1920.
tion under annotation will be found in a note attached to Interstate Commerce Commission v. Baird, 48 L. ed. U. S. 860.
The later cases are in accord with the cases cited in the earlier note in holding that a statute affording complete immunity will deprive the witness of his privilege against self-incrimination. Hale v. Henkel, 201 U. S. 43, 50 L. ed. 652, 26 Sup. Ct. Rep. 370; Jack v. Kansas, 199 U. S. 372, 50 L. ed. 234, 26 Sup. Ct. Rep. 73, 4 Ann. Cas. 689; McAllister v. Henkel, 201 U. S. 90, 50 L. ed. 671, 26 Sup. Ct. Rep. 385; Nelson v. United States, 201 U. S. 92, 50 L. ed. 673, 26 Sup. Ct. Rep. 358; Glickstein v. United States, 222 U. S. 139, 56 L. ed. 128, 32 Sup. Ct. Rep. 71; Re Kittle, 180 Fed. 946; Lockett v. State, 145 Ark. 415, 224 S. W. 952; People v. Knowles, 27 Cal. App. 498, 155 Pac. 137; Re Bell, 69 Kan. 855, 76 Pac. 1129; State ex rel. Jones v. Mallinckrodt Chemical Works, 249 Mo. 702, 156 S. W. 967, affirmed in 238 U. S. 41, 59 L. ed. 1192, 35 Sup. Ct. Rep. 671; People v. Cahill, 193 N. Y. 232, 20 L.R.A.(N.S.) 1084, 86 N. E. 39; People ex rel. Hunt v. Lane, 132 App. Div. 406, 116 N. Y. Supp. 990, affirmed in 196 N. Y. 520, 89 N. E. 1108; People v. Cassidy, 213 N. Y. 388, 107 N. E. 713, Ann. Cas. 1916C, 1009; Ex parte Muncy, 72 Tex. Crim. Rep. 541, 163 S. W. 29; Beauregaard v. Gunnison City, 48 Utah, 515, 160 Pac. 815; Flanary v. Com. 113 Va. 775, 75 S. E. 289.
The right of a witness to claim his provilege against self-incrimination afforded by the United States Constitution, 5th Amendment, when examined concerning an alleged violation of the Anti-trust Act of July 2, 1890, is taken away by the proviso to the Act of February 25, 1903, that no person shall be prosecuted or be subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence in any proceeding, suit,
the United States for the Southern District of New York to review the denial of an application for a writ of habeas corpus. Reversed and remanded for further proceedings.
The facts are stated in the opinion.
Messrs. Rufus S. Day and William J. Fallon argued the cause, and, with Mr. George L. Boyle, filed a brief for appellant:
Habeas corpus is the proper remedy. 2 Loveland, Bankr. § 685; Re Watts, or prosecution under certain named statutes, of which the Anti-trust Act is one, which furnishes a sufficient immunity from prosecution to satisfy the constitutional guaranty, although it may not afford immunity from prosecution in the state courts for the offense disclosed. Hale v. Henkel, 201 U. S. 43, 50 L. ed. 652, 26 Sup. Ct. Rep. 370; McAlister v. Henkel, 201 U. S. 90, 50 L. ed. 671, 26 Sup. Ct. Rep. 385; Nelson v. United States, 201 U. S. 92, 50 L. ed. 673, 26 Sup. Ct. Rep. 358.
Nor does the difficulty, if any, of procuring the testimony which a person has given on his examination before a grand jury concerning an alleged violation of the Anti-trust Act of July 2, 1890, render the immunity from prosecution or forfeiture given by the proviso to the Act of February 25, 1903, insufficient to satisfy the guaranty of the United States Constitution, 5th Amendment, against self-incrimination. Hale v. Henkel, supra.
Hale v. Henkel, supra, it will be observed, holds that the statutory immunity is sufficient although it may not afford immunity from prosecution in the state courts for the offense disclosed. The converse of this was also decided in Jack v. Kansas, 199 U. S. 372, 50 L. ed. 234, 26 Sup. Ct. Rep. 73, 4 Ann. Cas. 689; namely, that the fact that an immunity granted to a witness under a state statute would not prevent a prosecution of such witness for a violation of a Federal statute did not invalidate such statute under the 14th Amendment, since the danger that the testimony given in an examination under the state statute (Kansas Laws 1897, chap. 265, § 10) might incriminate the witness as a violator of the Federal Anti-trust Law, and that the testimony given in the state proceeding might possibly be used in a Federal prosecution for a violation of such statute, was so unsubstantial and remote as not to make an imprisonment for re