due process of law." Kelly v. Pittsburgh, 101 U. S. 78, 26 L. Ed. 658.

The decisions of the Supreme Court of the United States seem to indicate that the provision applies to every exercise of the gov-portant to the public welfare. It may be vital "The prompt payment of taxes is always imernmental power of a state whereby a citizen to the existence of the government. The idea may be deprived of property in a manner that every taxpayer is entitled to the delays of which is not in accordance with the law of litigation is unreasonable." Springer v. United the land or with the due course of law. In States, 102 U. S. 586, 26 L. Ed. 253. determining what amounts to due process of law, the nature of the governmental power

called into exercise should be considered as

well as the result which is to be accomplished by the proceeding, and the method or process adopted should be suited to a proper and efficient exercise of the governmental power and should be adapted to attain the desired result. It should be just to the parties to be affected, and should provide for a notice and hearing when necessary to a just protection of private rights. Turpin v. Lemon, 187 U. S. 51, 23 Sup. Ct. 20, 47 L. Ed. 70. A notice and hearing are held to be essential to proceedings which involve the life or liberty of a citizen. Hagar v. Reclamation Dist., supra; Simon v. Craft (1900) 182 U. S. 427, 21 Sup. Ct. 836, 45 L. Ed. 1165; Japanese Immigrant Case, 189 U. S. 86, 100, 23 Sup. Ct. 611, 47 L. Ed. 721.

"Due process of law in each particular case means such an exercise of the powers of government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs." Cooley, Const. Lim. 441.

The means

[6] What amounts to due process of law government which is being exercised and the must depend to some extent on the power of purpose to be accomplished. adopted must be appropriate to the power and suitable to the end to be attained. In the exercise of the power to levy taxes for the support of government, a notice and hearing as to the amount of the tax and the manner in which it shall be apportioned is not generally necessary to due process of law; but the means which are suitable and adequate in the exercise of such power, where special benefits are not involved, would not necessarily be adapted to reach the desired result where assessments are to be made in accordance with special benefits.

There can be no doubt that special assessments, imposed on property affected by a local improvement of a public nature to pay the costs and expenses of such improvement, are regarded as a species of taxation; but it is equally true that money so raised does not constitute any part of the general revenue of the state or of any municipality organized for governmental purposes. Such special assessments differ from taxes levied for A notice and a hearing of a judicial nature government revenue in several important is not essential in all cases to due process of particulars. In the purposes for which they law, for the reason that such a proceeding are imposed, in the principles upon which is not ordinarily appropriate to the exercise they are based, and in the objects for which of the particular governmental power in- their proceeds are expended, such assessvoked, and is not well adapted to accomplishments are so dissimilar to general taxes as the result desired. No such procedure is to clearly differentiate the one from the required by the Fourteenth Amendment, other. where a state is engaged in the exercise of its police power. Bartemeyer v. Iowa, 18 Wall. 129, 21 L. Ed. 929. In the case of Murrays' Lessee v. Koboken Land Co., 18 How. 272, 15 L. Ed. 372, it was held that a notice and hearing of a judicial nature was not essential to due process of law in the enforcement of a balance due from a collector of customs by a distress warrant issued by executive authority prescribed by law.

[5] It is thus seen that due process of law does not, in all cases, require a regular proceeding in a court of justice or after the manner of such courts. In the exercise of the taxing power for the purpose of raising revenue to defray the expenses of government, due process of law does not require that the property subject to the tax or the amount of tax to be raised should be determined by a judicial inquiry. It is said:

"Taxes have not, as a general rule, in this country since its independence, nor in England before that time, been collected by regular judicial proceedings. The necessities of government, the nature of the duty to be performed, and the customary usages of the people, have established a different procedure, which, in regard to that matter, is and always has been,

A distinction should be drawn and observed between the power to levy and collect taxes for general governmental purposes and the power to make such special assessments. The power to tax for the purpose of raising revenue to administer the affairs of government is the highest sovereign power. The amount of money which a government has power to raise by taxes for such purposes is limited only by the necessities of the government. The government extends to the citizen the protection of its laws, and he enjoys the rights, privileges, and immunities of citizenship. One of the highest duties of a citizen is to contribute to the public support of the government under which he lives. Taxes levied for general revenue purposes are not based on the principle of special or peculiar benefit to the individual taxpayer, but are levied for the general benefit and welfare of the nation, state, or municipality. Such taxes are not apportioned on the theory that each citizen is specially benefited by the maintenance of the government to the extent of the amount of the tax imposed. The benefits ac cruing to a taxpayer as a result of living un

Supreme Court of the United States, have generally applied the same tests that are re sorted to in determining the validity of stat

case of French v. Barber Asphalt Paving Co., 180 U. S. 325, 21 Sup. Ct. 625, 45 L. Ed. 879, it was decided that special assessments to pay the cost of a local improvement are a species of taxation, and that the rule that no judicial hearing as to the amount of such assessments, or as to the property against which they shall be assessed, is essential to constitute due process of law. The decision in that case attempts to distinguish the case of Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed.

ciple underlying special assessments to meet the cost of public improvements is that the property upon which they are imposed is peculiarly benefited, and that, therefore, the owners do not in fact pay anything in excess of what they receive by reason of such improvements. The court said:

"In our judgment, the exaction from the ownbenefits accruing to him is, to the extent of improvement in substantial excess of the special such excess, a taking, under the guise of taxation, of private property for public use without compensation."

der organized government are of such a nature that they can not be measured in money, and any attempt to adjust such taxes in accordance with the actual benefits in fact re-utes on the subject of general taxation. In the ceived by each taxpayer would be impractical if not absurd. In imposing taxes of this character under the general taxing power, there can be no doubt as to the application of the rules announced in the cases to which we have referred. The Legislature has power to determine the amount of money to be raised by the tax, to decide upon what persons or prop erty it shall be imposed, and to fix a rule for apportioning or assessing such tax against the persons and property subjected to taxation. These matters when so determined as a mat-443, wherein it was announced that the printer of law are binding on the taxpayer and the courts, unless the law contravenes some constitutional provision on the subject of general taxation. A statute so framed affords due process of law for imposing a tax for revenue purposes, but it does not follow that similar provisions in a statute providing for special assessments would afford due process of law for fixing such assessments on the proper of private property of the cost of a public erty to be affected. As distinguished from taxes for revenue, special assessments are not levied for the purpose of paying the expense of administering the government of any nation, state, or municipality, but for the purThe rule announced in the case of Norwood pose of paying the cost and expenses of mak- v. Baker, supra, seemed to be a departure ing a local improvement of a public nature. from the rule announced in the earlier cases The amount which can be raised by such as- decided on the subject by the Supreme Court sessments for such a purpose is limited by the of the United States, but the rule in that case actual benefits which accrue to the property has not been consistently followed. Most of affected thereby. In theory the benefits which the later cases on the subject follow the rule accrue to the general public are paid by the announced in Spencer v. Merchant (1887) 125 municipality in which the improvement is lo- U. S. 345, 8 Sup. Ct. 921, 31 L. Ed. 763, and cated, out of its general revenue raised by other earlier decisions by that court. By that taxation, while the property, which is affect- rule the Legislature has the power to detered and benefited by the improvement in a mine the amount of the tax to be raised, the manner not common to the public, is assessed property to be benefited by local improvement, with the special and peculiar benefits which and to fix a rule by which the apportionment actually accrue to it as a result of the im- shall be made to the several pieces of properprovement. The amount so assessed is not re- ty affected, as by the front foot, according to garded as a burden imposed for the support area or according to value. These decisions of government; but the theory on which such proceed upon the assumption that all such asassessments are sustained is that the proper- sessments must be based on actual benefits acty on which they are imposed is increased in cruing to the property affected, but they hold value or otherwise peculiarly benefited to an that the Legislature has power to determine amount equal to the assessment. It is evident, as a fact that certain property will be benefittherefore, that the power to impose special as- ed by an improvement, and that each parcel sessments should be limited to the amount of of the property affected will be actually beneactual benefits accruing to the property affect- fited to an amount to be ascertained by the ed by the improvement. The amount of ac- application of the rule fixed, whether that be tual benefit which will accrue to any particu-in proportion to frontage, area, or value. lar piece of property by reason of an improve- These facts being the subject of legislative ment is a fact which must be determined determination, it is held that such a determinfrom the circumstances of each particular ation is binding on the property owner and case. There may be room for controversy as the courts. In the case last cited the court to the amount of such actual benefits, and the said: amount in each particular case is susceptible of proof and judicial determination.

[7] In considering the due process of law provision of the Fourteenth Amendment in connection with statutes providing for imposing special assessments as a test of the validity of such statutes, the courts, including the

"The question of special benefit and the property to which it extends is of necessity a question of fact, and when the Legislature determines it in a case within its general power its decision must of course be final. We can see in the determination reached possible sources we are not at liberty to say that the tax on the of error and perhaps even of injustice, but property covered by the law of 1881, was im

38

a

posed without reference to special benefits. The Legislature practically determined that the lands described in that act were peculiarly benefited by the improvement to certain specified amount which constituted a just proportion of the whole cost and expense; and while it may be that the process by which the result was reached was not the best attainable, and some other might have been more accurate and just, we cannot for that reason question an enactment within the general legislative power. * * * The precise wrong of which complaint is made appears to be that the landowners now assessed never had opportunity to be heard as to the original apportionment, and find themselves now practically bound by it as between their lots and those of the owners who paid. But that objection becomes a criticism upon the action of the Legislature and the process by which it determined the amount to be raised and the property to be assessed. Unless by special permission, that is a hearing never granted in the process of taxation. The Legislature and determines expenditures amounts to be raised for their payment, the whole discussion and all questions of prudence and propriety and justice being confided to its jurisdiction. It may err, but the courts cannot review its discretion."

It is thus seen that no distinction is observed between taxes levied and collected for general revenue and special assessments made for local improvements, it being held that the Legislature has the same power and may pursue the same methods in imposing such special assessments as in imposing taxes for general revenue purposes, and that by so doing it does not violate the "due process of law" provision of the Fourteenth Amendment.

While this court recognizes the obligation resting on it to follow the decisions of the Supreme Court of the United States in the construction and application of the Fourteenth Amendment to the federal Constitution, it finds difficulty in reconciling the decisions since the case of Norwood v. Baker, supra. Prior to that time the decisions of the United States Supreme Court were consistent in holding that the legislative branch of government had power, in its discretion, to declare as a matter of law that certain property described either as abutting property or as located within an assessment district would be specially benefited by a local improvement to the extent of the entire cost of such improvement, and that each parcel of land affected would be specially benefited to an amount to be determined by the application of a standard or rule of apportionment which the Legislature had power to fix. County of Mobile v. Kimball, 102 U. S. 691, 703, 26 L. Ed. 238; Spencer v. Merchant (1887) 125 U. S. 345, 8 Sup. Ct. 921, 31 L. Ed. 763.

In applying such laws and in making assessments under them in accordance with the standard or rule of apportionment fixed, the real benefit resulting to separate tracts, as a matter of fact, was not considered. The Legislature was regarded as having power to determine the amount of special benefits and to apportion them to the several tracts of land affected as a matter of law; and such law, whether just or unjust in its application, was

regarded as binding on property owners and on the courts. It was uniformly held that such statutes afforded due process of law to the property owner for ascertaining and fixing the special assessments against his property and that they were not violative of the Fourteenth Amendment in that regard. County of Mobile v. Kimball, supra; Spencer v. Merchant, supra; Parsons v. Dist. of Columbia (1897) 170 U. S. 45, 18 Sup. Ct. 521, 42 L. Ed. 943; Mattingly v. Dist. of Columbia, 97 U. S. 687, 24 L. Ed. 1098.

The trend of judicial opinion in this state prior to the decision in the Norwood Case, supra, was in accord with the rule adopted and announced in those decisions. Snyder v. Rockport (1855) 6 Ind. 237; Goodrich v. Richmond (1866) 26 Ind. 119; Ray v. Jeffersonville (1883) 90 Ind. 567; Ross v. Stackhouse (1887) 114 Ind. 200, 16 N. E. 501; Garvin v. Daussman (1887) 114 Ind. 429, 16 N. E. 826, 5 Am. St. Rep. 637; Barber, etc., Co. v. Edgerton (1890) 125 Ind. 455, 25 N. E. 436; City of Terre Haute v. Mack (1894) 139 Ind. 99, 38 N. E. 468.

In the Norwood Case the Supreme Court of the United States held that assessments made against property to pay for local improvements of a public nature must be based on the actual benefits which, as a matter of fact, accrue to such property as a result of such improvement, and that any assessment made in excess of benefits which in fact accrue to such property is as to such excess void. After the decision in that case this court adopted the rule there announced, and has adhered to it to the present time. Adams v. Shelbyville (1899) 154 Ind. 467, 57 N. E. 114, 49 L. R. A. 797, 77 Am. St. Rep. 484; Park Co. Coal Co. v. Campbell (1894) 140 Ind. 28, 39 N. E. 149, 558; Watson v. Armstrong (1913) 180 Ind. 49, 102 N. E. 273; Williams v. Osborne (1913) 181 Ind. 670, 104 N. E. 27.

The rule announced by the court in the Norwood Case, supra, seems to be so directly at variance with the rule formerly followed by that court as to amount to an entirely new and different construction and application of the "due process of law" provision of the Fourteenth Amendment in relation to special assessments. The difference between the two rules was recognized in the opinion of this court in the case of Adams v. City of Shelbyville, supra, and the distinction was clearly pointed out by Justice Baker in the dissenting opinion, wherein it is said:

"The federal Constitution is not what the citizen may read it to be, but is what the Supreme Court of the United States declares it to be. I concur in the statement that, prior to the Norwood v. Baker decision (172 U. S. 269, 19 Sup. Ct. 187, 42 L. Ed. 443), the method stated in section 752 of Dillon was constitutional; that is, that the Legislature in its discretion might declare as a matter of law that the whole cost of a street improvement and the special benefits to abutting property equaled each other, and that the cost should be apportioned according to frontage, and that the property owners were entitled to a hearing before a tribunal authorized to review the assessment and see

HARMON V. BOLLEY

39

that it justly conformed to the frontage basis., ute making no provision for a judicial hearFor brevity, I shall call this the 'old' Consti- ing as to the benefits in fact received by the tution. I concur in the statement that, since

the Norwood-Baker decision, the method stated property affected, but providing for the apin section 752 of Dillon is unconstitutional, and portionment of the entire cost in accordance that nothing short of the method stated in to a fixed rule or standard established by the section 761 of Dillon is constitutional; that is, Legislature. In the case last cited the court, that the Legislature must provide a method by which the special benefits to contributing prop- speaking on this subject through Justice erty shall be determined as a question of fact, Field, said: and that the excess of cost above the sum of special benefits is a general benefit to be paid for from the general treasury, and that property owners are entitled to a hearing before a tribunal authorized to review the assessment and see that it justly conforms to the bases of benefits in fact received. For brevity, I shall call this the 'new' Constitution. The text-books and reports are full of the general statement that the only basis for special assessments is special benefits.' Concerning this proposition there has never been any disagreement, so far as I have been able to learn. But from this common starting point two very dissimilar lines of thought have been followed. In one it was said: 'Special benefits are the only legitimate basis for special assessments, but the Legislature may declare as a matter of law that the property owner's special benefits are exactly equal to his special assessment by frontage.' In the other it was said: 'Special benefits are the only legitimate basis for special assessments, but the property owner may not be specially assessed beyond his special benefits found as a matter of fact.' So, finding in reported cases the expression that special benefits are the only legitimate basis for special assessments does not of itself show which theory a court has adopted. It is hardly conceivable that a court would be following out the two theories at the same time. They seem as far apart as the poles, as essentially different as a question of law is from a question of fact."

While the foregoing quotation is couched in very strong language, it is clear that the point is well made. If the thing to be determined is the amount to be contributed by each tract of land benefited, to be ascertained by an apportionment according to some fixed standard or rule this can be done by a legislative declaration of law on the subject; but, if the result to be reached is the ascertainment of the special benefit which will in fact accrue to each particular tract, this can be determined only from a consideration of evidence showing the location, the extent, the value, and other characteristics of the tracts to be assessed as well as the nature of the improvement and its effect on the value and usefulness of the property. The peculiar benefits which will, in fact, accrue to any particular tract of land as a result of an improvement can be determined only by a judicial inquiry involving a notice, a hearing, the consideration of evidence, and the decision of a question of fact. Such a proceeding is judicial in its nature. Hagar v. Reclamation Dist., 111 U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569. It must therefore follow that, if the end to be attained in making special assessments is to apportion and fix them on the several tracts of land affected in accordance with the peculiar benefits which each in fact receives, this result can be reached only by a judicial investigation, and that due process of law cannot be afforded by a stat

mental principle was violated in the assessment "The appellant contends that this fundaof his property, inasmuch as it was made without notice to him, or without his being afforded any opportunity to be heard respecting it, the law authorizing it containing no provision for such notice or hearing. His contention is that notice and opportunity to be heard are essential to render any proceeding due process of law which may lead to the deprivation of life, liberty, or property. Undoubtedly where life and liberty are involved, due process requires that there be a regular course of judicial proceedings, which imply that the party to be affected shall have notice and an opportunity to be heard; so, also, where title or possession of property is involved. But where the taking of property is in the enforcement of a tax, the proceeding is necessarily less formal, and whether notice to him is at all necessary may depend upon the character of the tax, and the manner in which its amount is determinable. * the state may impose, there is a vast number * * Of the different kinds of taxes which 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 question that the proceeding is due process of deprived of his property. Yet there can be no law, as there is no inquiry into the weight of evidence, or other element of a judicial nature, taxpayer. No right of his is therefore invaded." and nothing could be changed by hearing the

The converse of the propositions stated in the extract just quoted from the opinion may be stated thus: If the result to be attained involves the determination of facts from a consideration of evidence, and if the result could be changed by a hearing in case provision were made for notice and an opportunity to be heard, the substantial rights of the party affected would be involved by a failure of the statute to provide for such hearing. The only inference which could follow is that a statute making no provision for a hearing as to such traversable facts would fail to afford due process of law. It is clear that the converse of the proposition would apply to a statute authorizing special assessments based on the benefits which are in fact received by property benefited by a local improvement. The rule recognizing the right of the legislative branch of government to fix a standard by whicn special benefits shall be apportioned to property affected by a local improvement does not respect any right of a property owner to be heard as to benefits which will in fact accrue to his property. In fixing the rule by which such apportionment shall be made, the Legis

lature, without doubt, would attempt to adopt, (1915) 239 U. S. 254, 36 Sup. Ct. 58, 60 L. Ed. a method which, as a general rule, would 266; Embree v. Kansas City R. Dist. (1915) result in an apportionment of the cost of the 240 U. S. 245, 36 Sup. Ct. 317, 60 L. Ed. 624. improvement approximately in accordance That rule is not followed, however, where it with the actual special benefits to be received appears that the application of the fixed by each parcel of land affected. The applica- standard of apportionment under the facts tion of such a rule results in the fixing of assessments which may, in the cases to which it ordinarily applies, approximate the benefits to be received by the property, but that is the most that could be accomplished by such a rule. There is no means by which such assessment can be made to correspond with actual benefits. Even in such cases, the resulting assessments would vary from the actual benefits received to a greater or less degree, and some cases may arise in which the assessment resulting will be grossly in excess of actual benefits.

If this method of fixing assessments affords due process of law, the assessments made in accordance therewith must be valid and enforceable, even though they exceed the benefits in fact accruing to the property assessed, and this must be true whether such excess be

of the particular case will result in assessments which would be substantially in excess of actual benefits, or which would be manifestly unequal or unjust. Gast Realty Co. v. Schneider Granite Co. (1915) 240 U. S. 55, 36 Sup. Ct. 254, 60 L. Ed. 523; Martin v. District of Columbia, 205 U. S. 135, 27 Sup. Ct. 440, 51 L. Ed. 743. Speaking on that subject in Wagner v. Baltimore, supra, the court said:

*

"We do not understand this to mean that there may not be such flagrant abuse of legislative power as would warrant the intervention of a court of equity to protect the constitutional right of landowners, because of arbitrary and wholly unwarranted legislative action."

In the case of Houck v. Little River, etc., Dist., supra, it is said:

unless the exaction is a flagrant abuse, and by reason of its arbitrary character is mere confiscation of particular property, it cannot be maintained that the state has exceeded its taxing power."

"The state in its discretion may lay such asgreat or small. On the other hand, if such sessments in proportion to position, frontage, area, market value, or to benefits estimated by method of apportioning assessments to prop-commissioners. * And, as we have said, erty affected does not afford due process of law, and resulting deprivation of property, however small, would be in violation of the Fourteenth Amendment, for a state has no more power under that amendment to deprive a citizen of property without due process of law where the amount is small than it has to do so where the amount is great.

If followed to its legitimate results, the rule established in the Norwood Case, supra, is inconsistent with the rule previously followed by the Supreme Court of the United States in similar cases, as was pointed out in a dissenting opinion filed in the case of French v. Barber Asphalt Co., supra, by Justice Harlan, with whom concurred Justice White and Justice McKenna. The two rules are incompatible; the courts cannot consistently follow both; one or the other must prevail. If the legislative branch of government has power to establish an arbitrary rule for apportioning the cost of a local improvement to the several tracts of land, and if such legislative act is held to afford due process of law, then all assessments made in accordance with the standard so established are valid, even though grossly in excess of actual benefits; but, if such a method of fixing assessments for special benefits does not afford due process of law, then all assessments so fixed are void.

As before stated, the Supreme Court of the United States has in most cases followed the old rule as announced in Spencer v. Merchant, supra; French v. Barber, etc., Co. (1900) 181 U. S. 324, 21 Sup. Ct. 625, 45 L. Ed. 879; Tonawanda v. Lyon (1900) 181 U. S. 389, 21 Sup. Ct. 609, 45 L. Ed. 908; Wagner v. Baltimore (1915) 239 U. S. 207, 36 Sup. Ct. 66, 60 L. Ed. 230; Houck v. Little River Dist.

Such expressions seem to indicate that the validity of such laws is to be tested by the court's judgment as to their reasonableness and justness, and that the court should declare such a statute void if, in its opinion, the Legislature has abused its power by adopting a standard of apportionment which in its application proves to be unreasonable or unjust.

Such standards are always absolute and unchanging and are not adaptable to varying conditions. Under some conditions arising the application of such a rule may result in assessments which are approximately in accordance with actual benefits, but the standard applied under other conditions may result in assessments which are so unjust and inequitable as to amount to a practical confiscation of property. If assessments result which are unjust or which are substantially in excess of actual benefits, it is because of a defect in the law under which they are apportioned in making no provision for a hearing in which they may be adjusted to conform to actual benefits. If such a defect renders the law void, it is not so because the law is unjust or unreasonable, or because it is the result of an abuse of legislative power, but it is void because it violates the "due process of law" provision of the federal Constitution.

Is it conceivable that a statute or ordinance providing a given standard of appor tionment could be held to be constitutional as applied to one state of facts and unconstitu tional as applied to a different state of facts?