Kuntz v. Sumption

• Citation: 19 N.E. 474,117 Ind. 1
• Decision Date: 22 January 1889
• Docket Number: 11,391
• Parties: Kuntz v. Sumption, Treasurer
• Court: Supreme Court of Indiana

19 N.E. 474

117 Ind. 1

Kuntz v. Sumption, Treasurer

No. 11,391

Supreme Court of Indiana

January 22, 1889

From the Randolph Circuit Court.

Judgment reversed, with instructions to overrule the demurrer to the complaint.

I. P Gray, P. Gray and D. Turpie, for appellant.

W. A Thompson, J. W. Thompson and L. T. Michener, Attorney General, for appellee.

OPINION

Elliott, C. J.

The board of equalization of Randolph county entered an order reading thus: "On motion, the board increased the assessment of Peter Kuntz on personal property twenty thousand dollars." Prior to the meeting of the board Kuntz had listed his property for taxation. He was subpoenaed before the board, and testified as a witness, but did so under protest.

We have given to the principal question in this case much and careful study, and we are compelled to hold that the statutory provisions concerning the authority of the county board of equalization to increase the valuation of the property of an individual taxpayer, listed by him for taxation, are unconstitutional. We limit our decision to this point, and mark the limit as distinctly and definitely as we can. We do not affirm that the provisions of the statute conferring authority upon the county board to change the general levy are invalid, nor do we affirm that they are invalid in so far as they confer authority to make orders affecting taxpayers generally. We do, however, affirm that they are invalid in so far as they assume to confer authority upon the board to conclusively change the valuation placed upon property by an individual taxpayer, or to add property to his list. We are satisfied that the statute is in conflict with the Constitution, for the reason that it assumes to confer authority upon the board to add to a citizen's taxes without giving him an opportunity to be heard, and thus denies him due process of law. Our judgment is, that, after a citizen has listed his property, no change in the list can be compulsorily made by an officer or tribunal whose decision is final, until, by due process of law, he has had an opportunity to vindicate the correctness of his list or resist an attempt to increase the valuation. The presumption is that men obey the law, and act in good faith and under this long settled rule it must be held that, until the contrary is shown, the taxpayer is entitled to have his list accepted as correct and just. The contrary can not be legally and conclusively shown unless he has an opportunity to be heard, and this opportunity he can not have unless notice is given him before a conclusive decision is made. The statute does not provide for notice to taxpayers whose taxes it is proposed to increase, and this infirmity destroys it, in so far as it affects such citizens. It is not enough that in fact the taxpayer does have some notice or information, for the law must provide for notice or else no legal notice can be given. A man may be subpoenaed as a witness in an action pending against him, but unless he is summoned or notified as a party, under some law authorizing a summons or a notice, the proceedings are utterly void. A man may be served with a written notice that a petition for a ditch is pending, but if there be no law authorizing notice it will be unavailing. A notice not authorized by law is, in legal contemplation, no notice.

We do not assert that the proceedings would be void where there is some notice, although not given in strict conformity to law, for we know that a defective notice, assumed to be given under a statute, will be sufficient to uphold jurisdiction as against a collateral attack. Montgomery v. Wasem, 116 Ind. 343, 15 N.E. 795; Hume v. Conduitt, 76 Ind. 598.

But there must be an assumption of the right to give notice, and there must be some law authorizing this assumption. At all events, there must be color of right, and without a law authorizing notice there can be none. We approve, as fully as language can do, the doctrine of former decisions, that the Legislature has ample authority to prescribe what the notice shall be. Johnson v. Lewis, 115 Ind. 490, 18 N.E. 7; Garvin v. Daussman, 114 Ind. 429, 16 N.E. 826; Carr v. State, etc., 103 Ind. 548, 3 N.E. 375; Hobbs v. Board, etc., 103 Ind. 575, 3 N.E. 263.

We affirm, too, that whether the notice is by publication or by personal service, it will sustain jurisdiction, provided there is back of it some law providing for notice. While affirming these various propositions, we also affirm that where individual property rights are affected there must be provision for notice made by law before there can be a final and conclusive adjudication. Only the law can prescribe the form of the notice, and the law must provide for it. Where, therefore, individual rights are concerned, and the matter is one upon which a party is entitled to be heard, a proceeding conclusively and finally disposing of individual property rights will be void, unless founded upon a law providing for notice of some kind. Where the matter to be decided is one of pure discretion, and the tribunal decides upon its own judgment, unaided by evidence, then notice is not essential. State, ex rel., v. Johnson, 105 Ind. 463, 5 N.E. 553; Fries v. Brier, 111 Ind. 65, 11 N.E. 958; Trimble v. McGee, 112 Ind. 307, 14 N.E. 83; Weaver v. Templin, 113 Ind. 298, 14 N.E. 600.

But, in adding to property listed by the taxpayer, or in increasing the valuation put upon listed property by him, a board of equalization does not exercise arbitrary power or unrestricted discretion; on the contrary, it must be guided by the law and the facts, and has no right to add to the list of the taxpayer property he does not own; nor has it authority to increase the valuation of property without giving the taxpayer legal notice, thus affording him an opportunity to adduce evidence or furnish information. It is a serious matter to charge a person with fraudulently or falsely listing his property, and to add to his list, or to increase the valuation of property, imposes upon him a burden, for it deprives him of property in the form of money.

That notice is required in all cases where individual property rights are involved, and the matter is not one of pure discretion, has been again and again decided by our own and other courts. Strosser v. City of Fort Wayne, 100 Ind. 443; Troyer v. Dyar, 102 Ind. 396, 1 N.E. 728; Jackson v. State, etc., 103 Ind. 250, 2 N.E. 742; Johnson v. Lewis, supra; Board, etc., v. Gruver, 115 Ind. 224, 17 N.E. 290, and cases cited.

That the notice must be authorized by law, is affirmed by many cases. The rule is thus stated in one case: "It is not enough that the owners may by chance have notice, or that they may as a matter of favor have a hearing. The law must require notice to them, and give them the right to a hearing and an opportunity to be heard." Stuart v. Palmer, 74 N.Y. 183.

Judge Cooley, in speaking of the correction of tax lists, says: "It is a fundamental rule that in judicial or quasi judicial proceedings affecting the rights of the citizen, he shall have notice and be given an opportunity to be heard before any judgment, decree, order or demand shall be given and established against him. Tax proceedings are not in the strict sense judicial, but they are quasi judicial, and as they have the effect of a judgment, the reasons which require notice of judicial proceedings are always present when the conclusive steps are to be taken." Cooley Taxation (2d ed.), 363.

An author who has recently written on the subject concludes his discussion by saying: "There is really but one logical and consistent position in the matter, and that is that a statute that does not provide for notice is invalid." Lewis Eminent Domain, section 368.

A very thorough discussion of the question will be found in Johnson v. Joliet, etc., R. R. Co., 23 Ill. 202. We need not, however, look beyond our own reports, for our own decisions declare that the statute itself must provide for notice. Campbell v. Dwiggins, 83 Ind. 473; Jackson v. State, etc., 104 Ind. 516, 3 N.E. 863; Fries v. Brier, supra; Johnson v. Lewis, supra.

We said in Jackson v. State, etc., supra, that "The notice must assume to be such as the law requires, but, in order to repel a collateral attack, it need not be a valid notice." And in Garvin v. Daussman, supra, we said: "It is, without doubt, essential to the validity of every law under which proceedings may be had for the taking of property, or to impose a burden upon it which may result in taking it, that the law make provision for giving some kind of notice at some stage in the proceeding."

The ultimate conclusion which we reach is, that, where a conclusive decision is authorized, the statute itself must provide for notice, and secure it to the...