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CRS Annotated Constitution

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Procedure in Taxation

Generally.—Exactly what due process requires in the assessment and collection of general taxes has never been decided by the Supreme Court. While it was held that “notice to the owner at some stage of the proceedings, as well as an opportunity to defend, is essential” for imposition of special taxes, it has also ruled that laws for assessment and collection of general taxes stand upon a different footing and are to be construed with the utmost liberality, even to the extent of acknowledging that no notice whatever is necessary.132 Due process of law as applied to taxation does not mean judicial process;133 neither does it require the same kind of notice as is required in a suit at law, or even in proceedings for taking private property under the power of eminent domain.134 If a taxpayer is given an opportunity to test the validity of a tax at any time before it is final, whether the proceedings for review take place before a board having a quasi–judicial character, or before a tribunal provided by the State for the propose of determining such questions, due process of law is not denied.135

Notice and Hearing in Relation to Taxes.—“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[p.1660]or a restaurant, or selling liquors, or cigars, or clothes, he has only to pay the amount required by 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.”136

Notice and Hearing in Relation to Assessments.—“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 proceedings 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.”137

Nevertheless, it has never been considered necessary to the validity of a tax that the party charged shall have been present, or had an opportunity to be present, in some tribunal when he was assessed.138 Where a tax board has its time of sitting fixed by law and where its sessions are not secret, no obstacle prevents the appearance of any one before it to assert a right or redress a wrong and in the business of assessing taxes, this is all that can be reasonably asked.139 Nor is there any constitutional command that notice of an assessment as well as an opportunity to contest it be given in advance of the assesment. It is enough that all available defenses may be presented to a competent tribunal during a suit to collect the tax and before the demand of the State for remittance becomes final.140 A hearing before judgment, with full opportunity to submit evidence and arguments being all that can be adjudged vital, it follows that rehearings and new trials are not essential to due process of law.141 One hearing is sufficient to constitute due[p.1661]process,142 and the requirements of due process are also met if a taxpayer, who had no notice of a hearing, does receive notice of the decision reached there and is privileged to appeal it and, on appeal, to present evidence and be heard on the valuation of his property.143

However, when special assessments are made by a political subdivision, a taxing board or court, according to special benefits, the property owner is entitled to be heard as to the amount of his assessments and upon all questions properly entering into that determination.144 The hearing need not amount to a judicial inquiry,145 but a mere opportunity to submit objections in writing, without the right of personal appearance, is not sufficient.146 If an assessment for a local improvement is made in accordance with a fixed rule prescribed by legislative act, the property owner is not entitled to be heard in advance on the question of benefits.147 On the other hand, if the area of the assessment district was not determined by the legislature, a landowner does have the right to be heard respecting benefits to his property before it can be included in the improvement district and assessed, but due process is not denied if, in the absence of actual fraud or bad faith, the decision of the agency vested with the initial determination of benefits is made final.148 The owner has no constitutional right to be heard in opposition to the launching of a project which may end in assessment, and once his land has been duly included within a benefit district, the only privilege which he thereafter enjoys is to a hearing upon the apportionment, that is, the amount of the tax which he has to pay.149 Nor can he rightfully complain because the statute renders conclusive, after a hearing, the determination as to apportionment by the same body which levied the assessment.150


More specifically, where the mode of assessment resolves itself into a mere mathematical calculation, there is no necessity for a hearing.151 Statutes and ordinances providing for the paving and grading of streets, the cost thereof to be assessed on the front foot rule, do not, by their failure to provide for a hearing or review of assessments, generally deprive a complaining owner of property without due process of law.152 In contrast, when an attempt is made to cast upon particular property a certain proportion of the construction cost of a sewer not calculated by any mathematical formula, the taxpayer has a right to be heard.153


132 Turpin v. Lemon, 187 U.S. 51, 58 (1902) ; Glidden v. Harrington, 189 U.S. 255 (1903) .
133 McMillen v. Anderson, 95 U.S. 37, 42 (1877) .
134 Bell’s Gap R.R. v. Pennsylvania, 134 U.S. 232, 239 (1890) .
135 Hodge v. Muscatine County, 196 U.S. 276 (1905) .
136 Hagar v. Reclamation Dist., 111 U.S. 701, 709–10 (1884) .
137 Id. at 710.
138 McMillen v. Anderson, 95 U.S. 37, 42 (1877) .
139 State Railroad Tax Cases, 92 U.S. 575, 610 (1876) .
140 Nickey v. Mississippi, 292 U.S. 393, 396 (1934) . See also Clement Nat’l Bank v. Vermont, 231 U.S. 120 (1913) .
141 Pittsburgh C. C. & St. L. Ry. v. Backus, 154 U.S. 421 (1894) .
142 Michigan Central R.R. v. Powers, 201 U.S. 245, 302 (1906) .
143 Pittsburgh C. C. & St. L. Ry. v. Board of Pub. Works, 172 U.S. 32, 45 (1898) .
144 St. Louis Land Co. v. Kansas City, 241 U.S. 419, 430 (1916) ; Paulsen v. Portland, 149 U.S. 30, 41 (1893) ; Bauman v. Ross, 167 U.S. 548, 590 (1897) .
145 Tonawanda v. Lyon, 181 U.S. 389, 391 (1901) .
146 Londoner v. Denver, 210 U.S. 373 (1908) .
147 Withnell v. Ruecking Constr. Co., 249 U.S. 63, 68 (1919) ; Browning v. Hooper, 269 U.S. 396, 405 (1926) . Likewise, the committing to a board of county supervisors of authority to determine, without notice or hearing, when repairs to an existing drainage system are necessary cannot be said to deny due process of law to landowners in the district, who, by statutory requirement, are assessed for the cost thereof in proportion to the original assessment. Breiholz v. Board of Supervisors, 257 U.S. 118 (1921) .
148 Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 168, 175 (1896) ; Browning v. Hooper, 269 U.S. 396, 405 (1926) .
149 Utley v. Petersburg, 292 U.S. 106, 109 (1934) ; French v. Barber Asphalt Paving Co., 181 U.S. 324, 341 (1901) . See also Soliah v. Heskin, 222 U.S. 522 (1912) .
150 Hibben v. Smith, 191 U.S. 310, 321 (1903) .
151 Hancock v. Muskogee, 250 U.S. 454, 458 (1919) . Likewise, a taxpayer does not have a right to a hearing before a state board of equalization preliminary to issuance by it of an order increasing the valuation of all property in a city by 40%. Bi–Metallic Co. v. Colorado, 239 U.S. 441 (1915) .
152 City of Detroit v. Parker, 181 U.S. 399 (1901) .
153 Paulsen v. Portland, 149 U.S. 30, 38 (1893) .
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