N. Y. 183; Violett v. Alexandria, 92 Va. 561, 31 L. R. A. 382, 23 S. E. 909; Walsh v. State ex rel. Soules, 142 Ind. 363, 33 L. R. A. 392, 41 N. E. 65; Tucker v. Sellers, 130 Ind. 514, 30 N. E. 531; Scudder v. Jones, 134 Ind. 547, 32 N. E. 221; Terre Haute & I. R. Co. v. Baker, 122 Ind. 441, 24 N. E. 83; Norvell v. Porter, 62 Mo. 309; Osborne v. Schutt, 67 Mo. 712; Harmon v. Birchard, 8 Blackf. 418; Eaton v. Union County Nat. Bank, 141 Ind. 159, 40 N. E. 693; English v. Wilmington, 2 Marv. (Del.) 63, 37 Atl. 158; Hood River Lumbering Co. v. Wasco County, 35 Or. 498, 57 Pac. 1017; Minneapolis Brewing Co. v. McGillivray, 104 Fed. 258; Roller v. Holly, 176 U. S. 398, 44 L. ed. 520, 20 Sup. Ct. Rep. 410.

No tax can be upheld if not within the letter of the statute, although it is within the spirit thereof.

American Net & Twine Co. v. Worthington, 141 U. S. 468, 35 L. ed. 821, 12 Sup. Ct. Rep. 55; Parker v. Overman, 18 How. 137, 15 L. ed. 318; M'Clung v. Ross, 5 Wheat. 116, 5 L. ed. 46; Commercial Bank v. Sandford, 103 Fed. 98; Williams v. Peyton, 4 Wheat. 77, 4 L. ed. 518; Davis v. St. Louis County, 65 Minn. 310, 33 L. R. A. 432, 67 N. W. 997; Hagner v. Hall, 10 App. Div. 581, 42 N. Y. Supp. 63; Davidson v. New Orleans, 96 U. S. 97, 24 L. ed. 616; Fallbrook Irrig. Dist. v. Bradley, 164 U. S. 157, 41 L. ed. 388, 17 Sup. Ct. Rep. 56; Bauman v. Ross, 167 U. S. 548, 42 L. ed. 270, 17 Sup. Ct. Rep. 966; Savannah, F. & W. R. Co. v. Savannah, 96 Ga. 680, 23 S. E. S47.

Even the killing of a dog for police purposes cannot be justified except upon no

tice.

People ex rel. Shand v. Tighe, 9 Misc. 607, 30 N. Y. Supp. 368; Loesch v. Kochler, 144 Ind. 278, 35 L. R. A. 682, 41 N. E.

326.

In all cases where an assessment without notice has been upheld, it has been by reason of the fact that the collector or treasurer was compelled to collect by a suit in court where the taxpayer could have an opportunity to be heard.

Hagar v. Reclamation Dist. No. 108, 111 U. S. 701, 28 L. ed. 569, 4 Sup. Ct. Rep. 663; Walston v. Nevin, 128 U. S. 578, 32 L. ed. 544, 9 Sup. Ct. Rep. 192; State v. Weyerhauser, 72 Minn. 519, 75 N. W. 718, 68 Minn, 353, 71 N. W. 265; Redwood County v. Winona & St. P. Land Co. 40 Minn. 515, 42 N. W. 473; Winona & St. P. R. Co. v. Minnesota, 159 U. S. 526, 40 L. ed. 247, 16 Sup. Ct. Rep. 83.

But in the case at bar the provision for collection by suit in court is merely cumulative. The statute expressly provides that the collection may be by distress and sale at the option of the treasurer. In such case the law is invalid, since it gives a hearing only by the favor of the treasurer, not as of right.

Scott v. Toledo, 1 L. R. A. 688, 36 Fed. 385; Meyers v. Shields, 61 Fed. 713.

Plaintiff in error was aggrieved because 183 U. S. U. S., Book 46.

he was called before the auditor for a hear ing without any valid provision of law therefor. The law providing for no notice to him, he had no notice. It cannot be held that because he had notice in fact, was subpœnaed, and appeared and testified under protest, he was not aggrieved.

Kuntz v. Sumption, 117 Ind. 1, 2 L. R. A. 655, 19 N. E. 474; Eaton v. Union County Nat. Bank, 141 Ind. 159, 40 N. Ε. 693.

An executor is not in court for the purpose of meeting claims against the estate, and is not bound to answer unless he has been brought in in due form of law and after the lapse of the time prescribed, and until then the court has no jurisdiction over him.

Scott v. Dailey, 89 Ind. 477. The statute denies to citizens of other states owning property in Indiana a privilege and immunity granted to a citizen of the state resident in the county, that is, notice.

State ex rel. Hoadley v. Insurance Comrs. 37 Fla. 564, 33 L. R. A. 288, 20 So. 772; Paul v. Virginia, 8 Wall. 168, 19 L. ed. 357; Sprague v. Fletcher, 69 Vt. 69, 37 L. R. A. 840, 37 Atl. 239; O'Connell v. Menominee Bay Shore Lumber Co. 113 Mich. 124, 71 N. W. 449; Corfield v. Coryell, 4 Wash. C. C. 380, Fed. Cas. No. 3,230; Blake v. MeClung, 172 U. S. 239, 43 L. ed. 432, 19 Sup. Ct. Rep. 165.

Statutes in relation to guardians show that "official residence" would lead to inextricable difficulties.

Burns's Rev. Stat. (Ind.) § 8421, pars. 57; Wright v. Wright, 72 Ind. 149.

It is the residence of the man, and not

the place of appointment of the officer, that gives jurisdiction.

Amory v. Amory, 95 U. S. 186, 24 L. ed. 428; Rice v. Houston, 13 Wall. 66, 20 L. ed. 484; Davies v. Lathrop, 20 Blatchf. 397, 12 Fed. 353.

Where the suit is by the obligee of a bond who is a mere naked trustee, as a marshal's or sheriff's bond, the citizenship of the beneficiaries, the real parties in interest, is the test.

Susquehanna & W. Valley R. & Coal Co. v. Blatchford, 11 Wall. 172, 20 L. ed. 179; McNutt v. Bland, 2 How. 9, 11 L. ed. 159; Browne v. Strode, 5 Cranch, 303, 3 L. ed.

108.

In case of an executor or administrator, on the other hand, he has the title to the property, and no one else can sue, and his personal residence determines jurisdiction.

Dodd v. Ghiselin, 27 Fed. 405; Lamar v. Micou, 112 U. S. 452, 28 L. ed. 751, 5 Sup. Ct. Rep. 221; Harper v. Norfolk & W. R. Co. 36 Fed. 103; Goff v. Norfolk & W. R. Co. 36 Fed. 299; Semmes v. Whitney, 50 Fed. 666; New Orleans v. Gaines, 138 U. S. 595, sub nom. New Orleans v. Whitney, 34 L. ed. 1102, 11 Sup. Ct. Rep. 428.

The legislature of Indiana has recognized that residence is not affected by court appointment to a trusteeship by attempting to forbid such appointment.

14

Shirk v. LaFayette, 52 Fed. 857.

209

159 U. S. 526, 40 L. ed. 247, 16 Sup. Ct. Rep. 83; Davidson v. New Orleans, 96 U. S. 97, 24 L. ed. 616; Re Converse, 137 U. S. 624, 34 L. ed. 796, 11 Sup. Ct. Rep. 191; Marchant v. Pennsylvania R. Co. 153 U. S. 380, 38 L. ed. 751, 14 Sup. Ct. Rep. 894; Kentucky Railroad Tax Cases, 115 U. S. 321, sub nom. Cincinnati, N. O. & T. P. R. Co. v. Kentucky, 29 L. ed. 414, 6 Sup. Ct. Rep. 57; Spencer v. Merchant, 125 U. S. 345, 31 L. ed. 763, 8 Sup. Ct. Rep. 921; Lent v. Tillson, 140 U. S. 316, 35 L. ed. 419, 11 Sup. Ct. Rep. 825; McMillen v. Anderson, 95 U. S. 37, 24 L. ed. 335; Palmer v. McMahon, 133 U. S. 660, 33 L. ed. 772, 10 Sup. Ct. Rep. 324; Paulsen v. Portland, 149 U. S. 30, 37 L. ed. 637, 13 Sup. Ct. Rep. 750; Pittsburgh, C. C. & St. L. R. Co. v. Backus, 154 U. S. 421, 38 L. ed. 1031, 14 Sup. Ct. Rep. 1114; Gallup v. Schmidt, 154 Ind. 196, 56 Ν. Ε. 443; Murdock v. Cincinnati, 44 Fed. 726; Garvin v. Daussman, 114 Ind. 429, 16 N. E. 826; Johnson v. Lewis, 115 Ind. 490, 18 N. E. 7; Kizer v. Winchester, 141 Ind. 694, 40 Ν. Ε. 265.

A revenue law of a state may be in harmony with the 14th Amendment, although such law does not furnish an opportunity to be present when the tax is assessed, nor that the tax shall be collected by suit. If the taxpayer has a right to enjoin collection this is due process of law.

McMillen v. Anderson, 95 U. S. 37, 24 L. ed. 335.

But the estate of William P. Gallup is not a nonresident estate. It is a resident

estate, hence nonresidence of the executor is

of no possible moment where the court has control of the property.

Gallup v. Schmidt, 154 Ind. 196, 56 N. Ε. 443; Schmidt v. Failey, 148 Ind. 150, 37 L. R. A. 442, 47 Ν. Ε. 326.

Laws are to be construed liberally in aid of the taxing power, and all taxes are presumed to be valid until the contrary is af. firmatively shown, and no irregularities will invalidate them that do not affect the

error:

In general terms "due process of law" is synonymous with "law of the land."

Cooley, Const. Lim. chap. 11, p. 430; 2 Hare, Am. Const. Law, p. 836; Dent v. West Virginia, 129 U. S. 114, 32 L. ed. 623, 9 Sup. Ct. Rep. 231; Den ex dem. Murray v. Hoboken Land & Improv. Co. 18 How. 272, 15 L. ed. 372.

"Due process of law" is an investigation indimai machinery; a judicial investiga

tion under the form and with the machinery provided by the wisdom of successive ages for the investigation, judicially, of the truth of the matter in controversy.

Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 457, 33 L. ed. 980, 3 Inters. Com. Rep. 209, 10 Sup. Ct. Rep. 462, 702; Pen noyer v. Neff, 95 U. S. 733, 24 L. ed. 572.

The notice, assessment, and levy of taxes and delivery of duplicate to the collecting officer, and a regular demand and sale, after the notice prescribed by law, fulfil all requirements of "due process of law" or "the law of the land."

French v. Barber Asphalt Paving Co. 181 U. S. 324, 45 L. ed. 879, 21 Sup. Ct. Rep. 625: Kelly v. Pittsburgh, 104 U. S. 78, 26 L. ed. 658; Springer v. United States, 102 U. S. 586, 26 L. ed. 253; Keely v. Sanders, 99 U. S. 441, 25 L. ed. 327; De Treville v. Smalls, 98 U. S. 517, 25 L. ed. 174; Davidson v. New Orleans, 96 U. S. 97, 24 L. ed. 616; McMillen v. Anderson, 95 U. S. 37, 24 L. ed. 335; Den ex dem. Murray v. Hoboken Land & Improv. Co. 18 How. 272, 15 L. ed. 372.

The legislature may prescribe the kind of notice and the mode in which it shall be given.

Kuntz v. Sumption, 117 Ind. 1, 2 L. R. A. 655, 19 N. E. 474; Stuart v. Palmer, 74 Ν. Υ. 188, 30 Am. Rep. 289.

*Mr. Justice Shiras delivered the opinion[303] of the court:

To answer the questions presented to us in this record requires an examination of

two sections of the Indiana Revised Statutes, which read as follows:

"Sec. 8560. Whenever the county auditor shall discover or receive credible information, or if he shall have reason to believe that any real or personal property has, from any cause, been omitted, in whole or in part in the assessment of any year or number of years, from the assessment book or from the tax duplicate, he shall proceed to correct the tax duplicate, and add such property thereto, with the proper valuation, and charge such property and the owner thereof with the proper amount of taxes thereon, to enable him to do which he is invested with all the powers of assessor under this act. But before making such correction or addition, if the person claiming to own such property, or occupying it, or in possession thereof, resides in the county and is not present, he shall give such person notice, in writing, of his intention to add such property to the tax duplicate, describing it in general terms, and requiring such person to appear before him at his office at a speci fied time, within five days after giving such notice, and to show cause, if any, why such property should not be added to the tax duplicate; and if the party so notified does not appear, or if he appears and fails to show any good and sufficient cause why such assessment *shall not be made, the same [304] shall be made, and the county auditor shall in all cases file in his office a statement of the facts or evidence on which he made such

correction; but he shall in no case reduce the amount returned by the assessor, with out the written consent of the auditor of state, given on the statement of facts submitted by the county auditor."

"Sec. 8587. It shall be the duty of every administrator, executor, guardian, receiver, trustee, or person having the property of any decedent, infant, idiot, or insane person in charge, to pay the taxes due upon the property of such decedent, ward, or party, and, in case of his neglecting to pay any instalment of taxes when due, when there is money enough on hand to pay the same, the county treasurer shall present to the circuit or other proper court of the county, at its next term thereafter, a brief statement in writing, signed by him as such county treasurer, setting forth the fact and amount of such delinquency, and such court shall at once issue an order directed to such delinquent, commanding him to show cause within five days thereafter why such tax and penalty and costs should not be paid, and, upon his failing to show good and sufficient cause for such nonpayment, the court shall order him to pay such tax out of the assets in his hands belonging to the estate of said decedent, ward, or other person; and such delinquent shall not be entitled to any credit, in any settlement of said trust, for the penalty, interest, and cost occasioned by such delinquency, or by the order to show cause, but the same shall be a personal charge against him, and he shall be liable, on his official bond, for such penalty, interest, and costs."

Having alleged that he was and during all of his life had been a citizen of the United States, and that at no time during the year 1894 or since has he resided in Marion county, Indiana, but that during said year and ever since he has continually been and still was a resident and citizen of Lebanon, in the state of New Hampshire, Edward P. Gallup claimed, in the courts below, that in $8560, providing for the assessment of omitted property by the county auditor, no provision whatever is made for notice to any person not a resident of the county in which said omitted property is proposed to

on the fact that Edward P. Gallup, though acting as executor of William P. Gallup, deceased, in the county of Marion, Indiana, was, at the time he was served with the auditor's notice, not a resident of that county, but was a resident of the state of New Hampshire; and the contention is that, though he received such a notice, yet he was not within the letter of the statute because not a resident of the county in which the property was situated, and therefore the notice actually given him was not a notice in point of law, and the auditor, in proceeding with the duties of his office, acted without jurisdiction, and that consequently the plaintiff in error has been deprived of his property without due process of law.

The Supreme Court of Indiana disposed of this contention by holding "that appellant [Edward P. Gallup] was an official resident of Marion county at the time the proceeding by the auditor was commenced, and therefore within the express terms of the section."

This construction of the section is criticized by the learned counsel of the plaintiff in error as novel, and unsupported by authority. However this may be, it is a construction or application of the statute to the case in hand, and is binding upon us.

It is strongly urged that whether the view of the Indiana supreme court be sound or not, in interpreting the section to cover the [306] case of an official residence, the result is to deprive the plaintiff in error of rights and privileges secured to him by the Constitution of the United States; and numerous cases are cited to the effect that assessments and special burdens upon taxpayers are void unless the law provides for notice, and that notice in fact is not equivalent to notice in law. It is claimed that the plaintiff in error has been afforded no opportunity to be heard, and that because the section provides for notice to residents of the county, and for no notice whatever to nonresidents of the state and county, a case of discriminative legislation is created whereby nonresidents are denied the equal protection of the laws.

To these suggestions the supreme court of Indiana replied by saying:

and immunities enjoyed by a citizen of Marion county, Indiana, contrary to the 2d section of article 4 of the Constitution of the United States; and that said statute is further invalid in that it grants to a class of citizens, namely, residents of the particular county in which the property sought to be assessed is situate, privileges and immunities which, upon the same terms, do not equally belong to all citizens.

This arraignment of the statute is based

dence and the absence of any provision in § 8560 for service of notice on nonresidents, still he is not in a situation to complain that he has had no day in court. The assessment by the auditor, right or wrong, was not a final judgment. It was only prima facie correct. The courts were open to appellant, even though a nonresident, to challenge it by injunction. Failing thus to seek relief against it, the treasurer appealed to the circuit court for an order against

him to show cause why he did not pay the taxes. The jurisdiction of the circuit court over its executor will not be controverted, even though his personal residence is in New Hampshire. He was ordered by the court to show cause, if he had any, why he did not pay the taxes. In response to the order any defense he had or ever had was open to him.

"It is no longer an open question in this state that if a party against whose property an assessment has been made is, at any time in the course of the proceeding be

[307] fore a conclusive judgment, *afforded by law an opportunity to contest its correctness, he is accorded due process of law."

It has frequently been held by this court, when asked to review tax proceedings in state courts, that due process of law is afforded litigants if they have an opportunity to question the validity or the amount of an assessment or charge before the amount is determined, or at any subsequent

ance rendering it void in case other insurance had been or should be made upon the property unless by agreement indorsed thereon or attached thereto, because its agent had notice or knowledge of the existence of other insurance in another company at the time he delivered the policy and received the premium, where such policy also provided that "no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of the policy may be the

subject of agreement indorsed hereon or added

hereto; and as to such provisions or conditions no officer, agent, or representative shall have power or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto: nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached."

[No. 60.]

any time before final judgment is entered. Walker v. Sauvinet, 92 U. S. 90, 23 L. ed. 678; Davidson v. New Orleans, 96 U. S. 97, 24 L. ed. 616; Spencer v. Merchant, 125 U. S. 345, 31 L. ed. 763, 8 Sup. Ct. Rep. 921; Allen v. Georgia, 166 U. S. 138, 41 L. ed. 949, 17 Sup. Ct. Rep. 525; Orr v. Gilman, 183 U. S. 278, post, 196, 22 Sup. Ct. Rep. 213. In the present case the plaintiff in error not only had an opportunity to appear and to set up any defense that he may have had, but actually did appear, and, after his demurrers and motion to dismiss had been overruled, answered, and was fully heard in the trial court. His objections to the findings and rulings of that court have been heard and considered by the supreme court

of the state.

The method followed by the auditor in assessing the additional taxes was perhaps open to criticism, but was approved by the circuit and supreme courts, and presents no question over which we have jurisdiction.

Failing to see that any rights or privileges secured to the plaintiff in error by the Constitution of the United States have been denied him, we are of opinion that the judgment of the Supreme Court of Indiana must be affirmed.

6, 1902.

N WRIT of Certiorari to the United States Circuit Court of Appeals for the Eighth Circuit to review a decision which affirmed a judgment of the Circuit Court for the District of Nebraska in favor of plaintiff in an action on a policy of fire insurance. See same case below, 41 C. C. A. 207, 101 Fed. 77.

Reversed.

Statement by Mr. Justice Shiras:

*In September, 1898, the Grand View [309]

Building Association, a corporation organized under the laws of Nebraska, in the district court of Lancaster county of that state, brought an action against the Northern Assurance Company of London, incorporated under the laws of the Kingdom of Great Britain and Ireland, seeking to recover the sum of $2,500 as due under the terms of a policy of insurance that had been issued by the assurance company to the plaintiff company on December 31, 1896, on certain property situated in said Lancaster county, and which, on June 1, 1898, had been destroyed by fire.

Thereupon the defendant company filed in the said county court a petition and bond, in due form, and prayed for an order reinoving the cause to the circuit court of the United States for the district of Nebraska; and on September 29, 1898, the county court approved the bond, and entered an order granting the prayer of the petition for re moval.

Subsequently the case was put at issue on the petition, answer, and reply in the circuit court of the United States, and was so proceeded in that, on October 20, 1898, a special verdict was found by the jury empaneled in the case, and on January 14, 1899, a final judgment was entered for the plaintiff and against the defendant company