Lehman v. Robinson

STONE, J.— Under the act “ designating the subjects and sources, and prescribing the rates and mode of taxation,” approved February 9th, 1850—Pamph. Acts, 3—are found the following provisions: “ See. 3. . . . Property shall be assessed in the county where it is at the time, or was on the first day of March preceding the assessment; and in the case of land, where a tract lies partly in one county and partly in another, that county in which the greater part lies; but all property [is] liable to be taxed in some county; and the assessor, as well as the collector, and other officers, shall take care to make diligent inquiry, and embrace all property which has escaped taxation since the year 1843, as well as all that is liable at the time, so as to render the burthen equal and uniform as possible, on all tax-payers alike.” In the act “ prescribing the mode of electing, and defining the duties of tax-assessors and collectors,” approved February 11th, 1850—Pamph. Acts, 12—are the following clauses: “ Sec. 5. . . . And the assessor shall annually assess and value all real estate that may have been omitted, or have become taxable since the last assessment, and such as may have materially increased or decreased in value; and where the ownership is changed, he is required so to change the name as to show the real owner. “ Sec. 12. That it shall be the duty of each and every tax-collector diligently to inquire for any- and all property of every species, subject to taxation by the revenue laws of this State, which from any cause may not have been assessed, either for the current year, or for any year since 1843, and particularly to inquire of any person or persons who may have recently moved into their respective-counties from any other county or counties in this State, and who may not have paid taxes on their property, and to assess the same in the same manner, and under the same restrictions, that assessors, appointed by the provisions of this act are required — 232 — to do; and after such assessment is thus made, and entered into the said books above provided, to collect the taxes thereon, as if the same had been assessed by the assessor; and the said tax-collector shall return the assessment thus made, under oath, to the several assessors of the counties in which said property is assessed, who shall add up the respective amounts, and make and send copies to the Comptroller, in the manner and under the same penalties imposed in reference to original assessments by assessors,” &e. The substance of the foregoing statutory provisions was carried into the Code of 1852. Speaking of the duties of the tax-assessor, that Code said: “Section 433. All property subject to taxation, and not assessed, in any year since 1843, must be assessed to the person such property should have been assessed, the year or years it escaped assessment; and in such cases the assessment must show the years such property was not assessed, the assessment for each of such years, and the persons to whom assessed for each year.” Under the title “ Duties of the tax-collector,” that Code said : “ Section 453. It is the duty of the tax-collector : “1........... “ 2. To assess, as required under the provisions of this chapter, any property that has not been assessed, and to collect the taxes thereon. “ 3. To note in writing any errors made in the assessment of property.” In the act “ To establish revenue laws of the State of Alabama,” approved February 22d, 1866—Pamph. Acts, 3— are the following provisions: “ Sec. 33. That whenever the assessor shall discover persons who, or property which have escaped taxation in any previous assessments, he shall assess the taxes thereon for such years as such persons or property have escaped taxation, and where he has reason to believe that any person .who has been assessed, is about to leave the county, he shall at once notify the tax-collector, and on the failure of the tax-collector to act, he shall collect .the taxes of such person, and pay the same over to the tax-collector, taking his receipt therefor. “ Sec. 52. That it shall be the duty of the collector, while engaged in the collection of taxes, to assess the taxes of all persons who have escaped the tax-assessor, entering up all such assessments in the back part of the books of assessments for each year.” The Revenue Law, approved February 19th, 1867, Pamph. — 233 — .Acts, 259, contains the same provisions, numbered as sections 32 and 51. Each of said statutes contains a repealing -clause. The statute last mentioned enacts as follows : “ Sec. 108. That the act to secure taxes from transient -dealers, and all laws and parts of laws conflicting with the .provisions of this act be and the same are hereby repealed.” Under these statutes, the author of the Revised Code, in ■lieu of section 433 of the Code of 1852, substituted section 33 of the act “ To establish revenue laws for the State of Alabama,” copied above; and -numbered the section 480 <(433). This was done, manifestly, because the statute was the later expression of the legislative will, and the repealing clause in the act, repealed section 433 as it originally -stood. So, section 52, copied above, of the Revenue Law of 1866, covers the ground of that portion of section 453 of the Code of 1852, which we have copied, and repealed it. 'The rule is, that if there be any part of the statute which can not stand with any of the provisions of, a former law, to such extent the later enactment repeals the older. Yet, the codifier, while incorporating said section 52 in his Code, as section 501 (454e), still retained, in its entirety, said section of the original Code, and numbered it 496 (453). But, possibly we need not consider this. Several revenue laws have been enacted, since the one of 1866.—See Acts of 1867, page 259; Act of 1868, page 298, sections 39 and 50; Act of 1875, page 3, sections 32 and 46, and Acts of 1875-6, pages 56 and 61, sections 6 and 7. In each of these enactments, when declaring the duties of the assessor, the language employed is, “ whenever the assessor shall discover persons who, or property which have escaped taxation in any previous assessment, he shall assess the taxes thereon,” &c. While, in speaking of the duties of the tax-collector, the language invariably employed is, “ it shall be the duty of the collector, while engaged in the collection of taxes, to assess the taxes of persons who have escaped the tax-assessor.” The act of 1868, approved December 31st, like the statutes of 1866 and 1867, repeals “ all laws or parts of laws, of a general or special character, except those enacted for municipal purposes, upon the subject of taxation in this State.” So also, the act approved March 19th, 1875, .and the act approved March 6th, 1876, each contains a repealing clause, which would, of itself, repeal the provisions ■of the act of 1850, and the special sections of the two editions of the Code which we have been considering, independent of the repugnancy, which repeals by implication. — 234 — Lehman, Durr & Co., a firm doing a somewhat varied business, had had their taxes assessed by the tax-assessor for each preceding year. The tax-collector, claiming that in each of the years since 1869, they were the owners of property and other subjects of taxation which should have been but were not assessed, proceeded on information to assess them for such alleged subjects of taxation, as persons who had escaped the tax-assessor. The question is raised, had he authority to do so ? It will be observed that while the statute of 1850 and the Code of 1852, employ substantially the same language in conferring power severally on the assessor and collector in the assessment of taxes which had escaped taxation, from 1866 to the present time the powers of these officers have been expressed in different language. In Potter’s Dwarris on Statutes, 175, speaking of the laws of their interpretation, it is said, “the design and intent of' the former, where it can be indisputably ascertained, shall prevail; quod verba intentioni inservire debent. If such be the case, as a maxim of universal jurisprudence it will be of constant application: it will extend under partial modifications, to the interpretation of all instruments; wills, deeds and grants, equally with the construction of statutes.” On page 200, the same author, quoting from ~V. C. Wigram, says, “ In construing an act of parliament, the same rules of’ construction must be applied as in the construction of other writings.”—See Salkeld v. Johnston, 1 Hare, 210. Words must be construed in their popular sense, unless there is something in the writing which shows they were intended to be employed in some other sense. “ The words of a statute are to be taken in their ordinary and familiar signification and import, and regard is to be had to their general and proper use; for jus et norma loquendi is governed by usage; and the meaning of words, spoken and written, ought to be allowed as it has constantly been taken.”—Pot. Dwar. 193. In construing a statute, regard must be had to the whole act; and, if need be, to other statutes passed on the same subject; for it frequently happens that the meaning of one clause is shown by another that is not stated in connection with it. The object being to ascertain the framer’s intention in the use of the language he employs, that intention is oftentimes more certainly learned by comparing one clause with another, and noting their correspondences and differences. In Sedg. on Cons, and Stat. Law, page 200, it is said that. — 235 — “ in construing any part of a law, the whole must be considered ; the different parts reflect light on each other; and, if possible, such a construction is to be made, as will avoid any contradiction or inconsistency.” So, in Pot. Dwar. 188, it is said, “ it is the most natural and genuine exposition of a statute, to construe one part by another of the same statute,, for that best' expresses the meaning of the makers.”—See-also, ib. 189. So Chancellor Kent, 1 Com. 461-2, says, “ it is-an established rule in the exposition of statutes, that the intention of the law-giver is to be deduced from a view of the whole, and of every part of a statute, taken and compared together.”—See also U. S. v. Collier, 3 Blatch. 333. “ Statutes are to be so construed, if possible, as to give same effect to every clause, and not to place one portion in antagonism to another.” A construction which leaves to a. sentence or clause of a statute no field of operation, should be avoided, if any other reasonable construction of the language can be given.—Brooks v. Mobile School Commissioners, 31 Ala. 277; Sedg. Cons, and Stat. Law, 200; Pot. Dwar. 189, 194, 197; Torreyson v. Board of Examiners, 7 Nev. 19.; Leversee v. Reynolds, 13 Iowa, 310; City of San Francisco v. Kelsey, 5 Cal. 169; Aldridge v. Mardoff, 32 Texas, 204. "Words or phrases twice used in the same statute, are presumptively used in the same sense. “ If the same words occur in different parts of a statute or will, they must be taken to ha.ve been everywhere used in the same sense.”—Pot. Dwar. 194. But, “if there be a material alteration in the language used in the different clauses, it is to be inferred that-the legislature knew how to use terms applicable to the subject-matter.”—Pot. Dwar. 198. In Edrich’s case, 5 Rep. 118, a question arose on varying phraseology in a statute. “Thejudges said, they ought not to make any construction against the express letter of the statute. . . and the several inditing and penning of the former part [of the statute] concerning distress given to executors, and of this branch, doth argue that the makers did intend a difference of the purviews and remedies, or otherwise they would have followed the same words.” In Rich v. Keyser, 54 Penn. Stat. 86, the question arose-under two statutes, each of which gave to a landlord a summary remedy to dispossess his tenant who held over. The act of 1772 gave the remedy before two justices of the peace, when the term was ended, and three months notice to quit had been given, and the tenant had neglected and refused to do so. Under this statute it was ruled sufficient, if the three — 236 — months notice to quit was given before the commencement of the proceedings, although after the termination of • the lease. By the act of 1863, the remedy was given before .a single justice or alderman. The language of the later statute was, “ where any person or persons in this State having leased or demised any lands or tenements to any person or persons for a term of one or "more years, or at will, shall be desirous upon the determination of said lease to have again and repossess such demised premises, having given three months notice of such intention to his lessee or tenant, and said lessee shall refuse to leave,” &c. This statute further provided that on the hearing before the justice or aider-man, it should be proved that the term is fully ended, “ and that three months’ previous notice had been given.” It was ■contended for plaintiff that, as ruled under the act of 1772, it was sufficient under the later statute if the notice to quit was given three months before the institution of the proceedings to dispossess. The court, speaking of the act of 1863, said, “ The phraseology of this section in both places where the notice is mentioned, does certainly imply that the notice is to be given three months before the expiration of the term. The expiration of the term is the period which the legislative language assumes, and “ having given three months notice,” means that at that period having given it; and three months previous notice, means previous to that pei’iod:—the end of the term. . . Herein the act of 1863 plainly differs from the act of 1772. ■ Was the discrepancy accidental or intentional? The legislature of 1863 must be presumed to have known what the language of the act of 1772 was, and what j udicial construction had been placed upon it. Then, knowing this, and yet not following it, but substituting for it different language, did they not mean that we should construe their language according to its ordinary import? I see no other ground for judicial construction to rest upon. Indeed, the Words of a statute, when unambigious, are the true guide to the legislative will. That they differ from the words of prior statute on the same subject, are an intimation that they are to have a different, and not the same construction ; for it is as legitimate use of the legislative power to alter prior statutes, as to displace the common-law.” In this case, it will be observed, the old statute had stood as a rule for giving notice in such cases for near a centuiy, before the second statute was enacted. The case of Moses v. Newman, 6 Bing. 556, raised the question of the construction of section 5 of the bankrupt act — 237 — of 6 George IV- The language of the section is as follows : “'That if any trader, having been arrested or committed to prison for debt, or on any attachment for non-payment of' money, shall, upon such, or any other arrest or commitment for debt or non-payment of money, or upon any detention for debt, lie in prison for twenty-one days, or having been arrested or committed to prison for any other cause, shall lie in prison for twenty-one' days after any detainer for debt lodged against him, and not discharged, every such trader shall be thereby deemed to have committed an act of bankruptcy ; or if any such trader, having been arrested, commited, or detained for debt, shall escape out of prison or custody, every such trader shall be deemed to have thereby eommited an act of bankruptcy from the time of such arrest, commitment or detention.” One Marshall had been arrested and committed to prison for debt, had lain in prison twenty-one days, and had been therefor adjudged a bankrupt. The suit was by the assignee, and the sole question was whether the bankruptcy should date from Marshalls arrest, or from the expiration of the twenty-one-days of his imprisonment. In support of the first branch of the proposition, it Avas shown that under prior bankrupt laws, where the act of bankruptcy consisted in lying in prison for a given length of time under arrest for debt, the bankruptcy, by relation, took affect from the date of the arrest; and the Parliament, it Avas contended, must be presumed to have intended such relation under the present statute. But the court held otherwise. C. J. TlNDAL, delivering the leading opinion of the court, said, “ that in the-one case, the act of bankruptcy shall be reckoned from the-end of the twenty-one days; in the other, from the first arrest. And the distinction may be said to appear historically; for the clause of relation is omitted in the first statute, 1 Jac. I,, ch. 15, inserted in the next, 21 Jac. I, ch. 19, and continued ever since till the passing of the 5 G. IV, and 6 G. IV, ch. 16, Avhen it appears to have been omitted by design, the period of confinement constituting an act of bankruptcy having been materially abridged.” PARK, J., said : “ I am of the same opinion, and think the question historically clear; for when Ave observe the legislature sometimes inserting and sometimes omitting the clause of relation, we must presume-their attention has been drawn to the point, and that the last omission, at least, is designed.” BOSANQUET, J., said: “ Seeing that this clause has been omitted after previous insertions, we must consider the omission designed.” Gaselee, J.,, — 238 — concurred.—See, also, Cantwell v. Owens, 14 Md. 215. The following authorities are strongly corroborative of the same principle of construction: Campbell v. Campbell, 4 Bro. C. C. 15; Rawlings v. Jennings, 13 Ves. 39, 45-6; Nanfan v. Legh, 7 Taunton, 85. Commenting on a question kindred to the one we are discussing, Chief Justice Marshall, in the case of the Schooner Paulina’s Cargo v. U. S., 7 Cr. 52, 60, said : “ In construing these laws, it has been truly stated to be the duty of the court to effect the intention of the legislature; but this intention is to be searched for in the words which the legislature has employed to convey it. The legislature has declared its object to be to lay an embargo on the vessels of the United States, and to prevent the transportation of any article whatever from the United States to any foreign port or place; and therefore such transportation is prohibited. To prevent evasions of this law, certain acts which do not in •themselves amount to a breach of the embargo, but which may lead to it, have been successfully prohibited under such penalties as the wisdom of Congress has prescribed. . . . But should this court conjecture that some other act, not expressly forbidden, and which is in itself the mere exercise of that power over property which all men possess, might .also be a preliminary step to a violation of the law, and ought therefore to be punished for the purpose of effecting the legislative intention, it would certainly transcend its own -duties and powers, and would create a rule instead of applying one already made. It is the province of the legislature to declare, in explicit terms, how far the citizen shall be restrained in the exercise of that power over property which ownership gives; and it is the province of the court to apply the rule to the case thus explicitly described—not to some other case which judges may conjecture to be equally dangerous.” Speaking of the legislative intent which is to govern in the construction of statutes, in Potter’s Dwarris, 182, it is said, “ it must be such an intention as the legislature have used fit words to express. Although the spirit of an instrument is to be regarded no less than its letter, yet the spirit is to be collected from the letter.” In Cooley’s Cons. Lim. 55, it is said : “ In the case of all written laws, it is the intent of the lawgiver that it is to be enforced. But this intent is to be found in the instrument itself. It is to be presumed that language has been employed with sufficient precision to convey it, and unless examination — 239 — ■demonstrates that the presumption does not hold good in the particular case, nothing will remain except to enforce it. Where a law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction. Possible, or even probable meanings, when one is plainly declared in the instrument itself, the courts are not at liberty to search for elsewhere.” What we have shown above is, we think, ample elucidation of the principles which must govern in the interpretation of chapter 5, section 6, and chapter 6, section 7, of the revenue law approved March 6th, 1876, under which the present assessment was made. It will be observed that for many years, commencing in 1850, the powers of the assessor and collector in regard to escaped taxes, were conferred in language substantially the same, and must, therefore, have been co-extensive. We have shown, further, that in the revenue law of 1866, and in every one since, there has uniformly been a difference in the language which defined their several powers, while the language applied to each has undergone no change. “ Persons who, and property which have escaped taxation,” is the stereotyped mandate to the assessor; while for the same unbroken period, the authority to the collector to assess, has been expressed in the words, “ persons who have escaped the tax-assessor.” Under the rules above laid down, we now proceed to draw the conclusions applicable to this case, which we think those rules and principles force upon us : First. The legislature, in speaking of the duties of the asesssor, use the compound phrase, “ persons who,” and “ property which.” They must have had some object in using the last branch of the sentence; must have thought it embodied some idea, and that, that idea was not embraced in the first branch. To hold otherwise, would be to convict them of a persistent employment of language, having no aim or meaning ; a mere tautology. It is our duty, if we can, to attach some meaning to every part of a statute. If, then, the words, “property which,” have any independent meaning when applied to the assessor, then the powers conferred by that clause on the assessor are not conferred on the collector. Only “persons who have escaped the tax-assessor,” are committed to his jurisdiction. The words, “persons who,” being found in identical language in each grant of power, and the two grants being in one and — 240 — the same statute, with no surroundings to indicate that they were employed in a different sense, it is our duty to presume-the legislature, in each section, intended to convey the same- and no other idea, and to confer the same and no other power,, by the words, “ persons who,” which are common to both-If we hold that the legislature intended to confer the same-powers on each of these officers, we thereby convict them of' employing the words, “ property which,” without purpose or meaning, or, of using the words, “ persons who,” in one sense as to the assessor, and in another and larger sense as to the collector. Each of these constructions is alike forbidden by the principles and adjudged cases stated above. Second. The legislature, at one time, conferred powers, in language substantially identical, on the assessor and collector, in reference to tax assessments previously overlooked, or withheld. Subsequently a change was made in the language of the statute, by which the powers were conferred on these officers in separate sections, and in changed and varying language. This changed language, differing as to the separate powers of the two officers, was preserved and persevered in, without alteration in any respect material to this case, in the several revenue statutes, extending through a period of five years. The authorities cited above show, that when the legislature makes a material change in the language of a statute, we must presume they intended what their changed language imports—a changed meaning. Third. To hold that the collector has co-equal powers with the assessor in the matter of taxes of “ persons who and property which have escape d taxation,” is, in effect, to arm him with the authority to supervise and review all assessments made in past years by the assessor, whenever, in his opinion, such assessment is incomplete as to subjects of taxation, or values affixed, and this, running through all previous assessments ; we can not think such was the intention of the legislature. Fourth. We think the language of the statute, ex vi terminorum, forces a discrimination in the powers of the two officers. The transitive verb, escape, in the sense here employed, means “to avoid the notice of; to pass unobserved by; to evade.” One who has been assessed by the assessor, although imperfectly, does not fall within either of these definitions. He has not avoided the 'notice of the assessor, has not passed by him unobserved, has not evaded him. In no sense, popular or natural, can it be affirmed of such person that he has “ escaped the tax-assessor.” — 241 — Chapter 5, section 14, of the revenue law of 1876, fixes the rate of commissions to be paid the assessor for assessing taxes. After providing a tariff of rates for ordinary assessments, it adds: “ Upon the amount of taxes assessed upon property which has escaped taxation in assessments for the previous years, ten per cent.” The same rate is also allowed him for similar county assessments. It may be argued that under the construction we have given above to the varying phraseology as to the two officers, to be consistent, we must deny to the assessor all compensation for assessing taxes of “ persons who” have escaped taxation in any previous assessment ; as the law allowing the enlarged compensation to him only applies to “ property which has escaped taxation.” The phrase, “property which has escaped taxation,” is much more comprehensive—much more nearly generic, than the phrase, “persons who.” The former embraces everything covered by the latter, except the simple item of poll-tax. We all agree that the words “ property,” when employed in those sections, is the equivalent of subjects of taxation. To hold otherwise, would be to allow neither officer any compensation for either assessing or collecting taxes, other than those levied on property proper. Then, the phrase, “ property which,” is broad enough to take in all the subjects of taxation belonging to every tax-payer, whether he has personally escaped the tax assessor, or not, except the single item of poll-tax. It may be that the legislature omitted to provide compensation to the assessor, for assessing this one item of escaped poll-tax, through oversight or otherwise. We can only learn what they intended, from what they have said. It Is theirs to command, ours to obey. When their language is plain, no discretion is left to us. We have no right to stray into the mazes of conjecture, or to search for an imaginary purpose to do equal justice to these equally meritorious public officers, and make such imaginary purpose an excuse for placing one construction—giving one unbending interpretation, to phrases essentially different. Better, far better, attribute this failure to accidental omission; a mishap from which the most cautious and practised draftsman is not always free. Moreover, the language employed in fixing the compensation of the tax-collector for assessing such taxes as he is authorized to assess, follows neither the language found in either of the grants of power to assess escaped taxes, nor the language in which the assessor’s compensation is conferred. After defining the scale of commissions for the collection' of — 242 — taxes, it adds, “ on the amount of taxes by him assessed, ten per cent.;” thus fixing the rate. We do not think the language of the statute in declaring the compensation for assessing escaped taxes by the assessor justifies us in disregarding the plain canons of interpretation herein above laid down. If it be contended that under the revenue law of 1866, which so far as the question we have been considering is concerned, has not been materially changed in ten years, the tax-collectors throughout the State have uniformly been in the habit of assessing the taxes on property which has escaped taxation in previous assessments, to the same extent as assessors have been authorized to do ; that this was a cotemporaneous construction of the statute, by officers charged with its execution, and such construction may be looked to, as one of the aids in interpreting the language of the statute; we answer, first, that we do not know to what extent the habit has prevailed, or whether it has been sufficiently general, to entitle it to be considered as one of the aids in the interpretation. Second, such interpretation by non-judicial minds, should never be allowed to prevail, or exert influence in the construction of the plain and unambiguous language. When language is plain, there is no room for construction. Third, the statute of 1850, as we have shown in the opening of this opinion, conferred co-equal powers on the assessor and collector, in the assessment of back taxes, or property which had escaped taxation. That legislative authority existed without material modification for fifteen years; and during that time, it is fair to suppose—rather, it may be assumed, that assessments of such property were made by the assessor and collector indifferently, as the oue or the other officer discovered property which had escaped assessment. This was clearly legal at that time. Persons engaged in assessing and collecting taxes are usually not much skilled in the law. The question of the changed powers of the two officers was never before raised in any court that we are aware of. These officers would be more likely to fall into and follow a habit they found prevailing, than to study the statute, or take counsel with a view of learning the extent of their powers under it. We think if collectors, since 1866, have been in the habit of assessing back taxes co-extensively with assessors, it is to be credited rather to the precedent they found and followed, than to any interpretation they placed on the language of the statute of 1866, and those following it. — 243 — The revenue laws have, with studied care and particularity of detail, provided that ample notice shall be given to the tax-payer, and opportunity afforded him to be present and be heard when taxes are assessed against him. The assessor is required to give thirty days notice of the time he will attend in each precinct, by bills posted at five or more public places in the precinct; and must attend twice in each precinct, that the tax-payers, thus notified, may meet him, and be present at the making of their tax lists, and after making and filling these two appointments, “ he shall make a demand in person, or by deputy, upon delinquent tax-payers, or such as have failed to meet him at his appointments, wherever he may find them, and when unable to find them he may leave a written notice at the residence of such delinquent,” &c. After all these prerequisites have been complied with, and not till then, having failed to procure “ from any delinquent his list of taxable property before the first day of June, the assessor shall ascertain, from inquiry or otherwise, the property and other items of taxation upon which such person is liable to be taxed, to the best of his information and judgment.”—See Rev. Law of 1876, chap. 5, §§2, 4, 5. And the act “ to prescribe and regulate the mode of assessment in this State,” approved February 8, 1877, Pamph, Acts, 3—makes more emphatic, if possible, the requirement that the tax-payer shall have the privilege of appearing before the tax-assessor, when his property is assessed for taxation. It will be observed that under these statutes, before the assessor assesses any one’s taxes on personal knowledge, or on information obtained on inquiry, he must first put him in the category of a delinquent, by affording him two advertised opportunities to meet him'in the precinct, and there, by personal demand made on him, or left at his residence, if unable to find him. It may be said that these provisions relate to the regular assessment, and not to the exceptional assessments of property wrhich has escaped taxation. True, section 6 chap. V, declares “that whenever the assessor shall discover persons who, or property which have escaped taxation in any previous assessment, he shall assess the taxes thereon for such years as such persons or property have escaped taxation.” Nothing said in this section about notice, demand, or the presence of the tax-payer. Discover, is the language used. How discover? Is it reasonable to hold that such assessment is, at all times, to be made privately and ex parte ? If on information, how obtained, how authenticated? How much information, and how communicated, is the assessor to — 244 — have, on which he can say officially that he has discovered “ property which has escaped taxation ?” Is it consonant, with the fairness of official dealings that the taxable property of any and every tax-payer shall be made the subject of an ex parte inquisition, when such owner is near at hand, and may be notified ? Such is not the usual course of official transactions. We think that under the general policy indicated by the statute from which we have copied, no assessment should be made of property which it is alleged has escaped taxation, without notice first given to the tax-payer, if he is accessible. In the case of City of Philadelphia v. Miller, 49 Penn. State, 440, the Supreme Court of Pennsylvania, speaking of a tax proceeding, said: “ Notice, or at least the means of knowledge, is an essential element of every just proceeding which affects rights of persons or property.” In Darling v. Gunn, 50 Ill. 424, it was said: “ It is eminently just that no person should be deprived of his property without being heard; and’it may be that he can not, until such opportunity is afforded, even in the assessment of taxes for the support of government.” In Builer v. Supervisors, 26 Mich. 22, the court, Judge Cooley delivering the opinion, said: “ The power to tax is indeed plenary; but taxation implies public interest; and in cases like these now in question, it also implies proceedings in pais, in some of which the tax-payers have a right to take part and be heard.” In the case of Cleghorn v. Postlethwaite, 43 Ill. 428, it was said : “ The law never designed that property owners should be put so completely in the power of the assessor, as he would be, did the assessor have the authority, secretly, and without the knowledge of the owner, to re-assess the property.” Judge Cooley, in his work on Taxation, 266, says: “We should say that notice of proceedings in such cases, and an opportunity for a hearing of some description, were matters-of constitutional right. It has been customary to provide for them as a part of what is ‘ due process of law ’ for these cases; and it is not to be assumed that constitutional provisions, carefully framed for the protection of property, were intended, or could be construed to sanction legislation under which officers might secretly assess one for any amount in their discretion, without giving him an opportunity to contest the justice of the assessment.” But we do not decide that an assessment of escaped taxes, made without notice, is, for that reason, void. The tax-collector had no authority to make the assessments, shown in this record, and the same are void. — 245 — What is the remedy when there is an erroneous, excessive, or unauthorized assessment of taxes? Evidently, not an appeal to the courts, in the first instance. Section 3, chapter "VIL, of the Revenue Law of 1876, provides a remedy that must be first invoked. If the complaint be of the regular assessment, it must be brought before the Court of County Commissioners (Board of Revenue, in this county,) at the August term. If the assessment be made at an irregular time, it should go to the first term of the court afterwards 5 or, to a special term, as the case may be. Assessments of “ property that have escaped taxationif complained of as excessive or illegal, should not be collected by coercive process, until passed upon by the Court of County Commissioners, or the court filling its place. Less than this would not be “ due process of law.” • Should an illegal or erroneous assessment fail of correction in the Court of County Commissioners, we will not say the courts of the country will not redress the wrong. The present case was not passed on primarily by the Board of Revenué, and the City Court had no jurisdiction of the case. In the appeal of Lehman, Durr & Co. the judgment of1 the City Court is reversed. The appeal of Patrick Robinson is dismissed. The costs of the two appeals in this court and in the court below are imposed equally on the two parties.