
    Hammond, County Treasurer, v. Winder, Receiver.
    
      Taxation — State tax commission — Abstract transmitted by county auditor — Section 5612, General Code (107 O. L„ 35) — Powers and duties of commission — Sections 5612 to 5615, General Code —Duties of county auditor mandatory,-when — Notice of revaluation unnecessary, zvhen — Special assessments and general taxes distinguished — Constitutional law. ^
    1. By the provisions of Section 5612, General Code (107 O. L., 35), it is the duty of each county auditor, when required by the Tax Commission of Ohio, to 'make out and transmit to the commission an abstract of the real and personal property of / each taxing district in his county, in which he shall set forth the aggregate amount and value of each'class of real and personal property as it appears from his tax list and from the statements in his office.
    2. The Tax Commission of Ohio' is required by Sections 5612 to 5615, inclusive, General Code,' to annually determine whether the real and personal property and the various classes thereof in the different counties, cities, villages and taxing districts have been assessed at their true value in money. If not, the commission may increase or decrease the aggregate value of the real or personal property, _ or any class thereof, in any such subdivision or district, by such rate per cent, or amount as will place it on the tax list at its true value in money. The commission is not empowered'to act with respect'to any particular piece or parcel of property of any particular owner in a taxing district. But it acts with reference to the aggregate value of the real and personal property, or any class thereof, in the district, except in cases of appeal under Section 5610, General Code, and with respect to the property of public utilities.
    3. When the county auditor has received from the Tax Commission a statement of an amount or rate per cent, to be added to or deducted from the valuation of such property, or class thereof, in the manner provided by' Section 5614, General Code, his duty is mandatory to forthwith add to, or deduct from, each tract, lot or parcel of real estate or class of real property the required per cent., or • amount of the valuation thereof, in the manner specified in Section 5615, General Code. 28
    
      4. Where the action of the Tax Commission, pursuant to statute, relates to the aggregate value of the real property, or a class thereof, in a taxing district as units, the fact that no notice is required to be given of such action does not render the statute unconstitutional or the action of the commission invalid.
    5. While special burdens by way of special assessments cannot be laid on property without notice to the owner and opportunity to him to be heard, no special notice of the proceedings by which general taxes are laid by aggregate assessments upon the property, or classes thereof, in counties or other taxing districts as units, is necessary. The statutory provisions under which the taxing authorities proceed in that behalf are sufficient notice in the absence of affirmative requirement by statute,
    (No. 16272
    Decided December 23, 1919.)
    Error to the Court of Appeals of Perry county.
    John H. Winder, Receiver of The Sunday Creek Coal Company, brought suit in the common pleas court of Perry county against Charles. W. Hammond, as County Treasurer, to obtain a decree enjoining the treasurer from collecting certain taxes which had been added by the county auditor to the tax lists of the county against certain real estate located in the county and owned by the company.
    The petition sets out the property owned by the company in the several taxing districts of Perry county and describes it as being of a particular class, that of coal bearing and mining properties. The petition states the aggregate valuation of this property as assessed for taxation prior to the increase complained of, and alleges that it was the true valuation thereof in money. It also states the amount of taxes due on said assessed valuation, to-wit, the sum of $5,514.01, which is averred to be the true amount of taxes due on said property; and further states that after said assessment, to-wit, on or about the 15th day of November, 1917, the county auditor arbitrarily, capriciously, and without any investigation, evidence or information whatever to warrant such action, made an addition to the taxes upon said lands and tenements in the amount of 40 per centum upon the amount of taxes charged against said lands and tenements. The petition sets out that the said additions were made by the auditor without any notice served upon the receiver, or upon the company, and without publication of such proposed action in any newspaper, and that the plaintiff had no knowledge thereof until after the additions had been made and certified to the defendant as county treasurer for collection.
    . The petition further avers that the additions so made were without authority of law; and alleges that plaintiff tendered the true amount of taxes and brings the same into court and continues the tender until the hearing and judgment of the court.
    The answer of the* defendant admits the increase stated, but denies that it' was made arbitrarily, capriciously, or without any investigation, evidence or information to warrant such action, and alleges, that the said increased taxes arose out of the increase in the assessed valuation of the separately owned coal rights or properties of the company entered by the county auditor under statutory mandate, pursuant to an order made by the Tax Commission of Ohio; that upon the request of the Tax Commission of Ohio the county auditor as provided in Section 5612, General Code, made out and transmitted to the.Tax Commission an abstract of the real and personal property of each taxing district of said county, in which abstract were set forth the aggregate amount and value of each class of real and personal property in said county as appeared in said auditor’s tax list or on the books, statements and returns on file in his office; that, thereafter, pursuant to the provisions of Section 5613; General Code, the Tax Commission of Ohio proceeded to consider and determine whether the real and personal property and the various classes thereof in the several counties, cities, villages and taxing districts of the state, including said taxing districts of Perry county, as shown by said abstract, had been assessed at their true value in money, and said commission did find and determine that the real and personal property and the various classes thereof in Perry county, as shown by said abstract, were assessed at their true value in money, except that a certain class of said property, to-wit, separately owned coal rights or property owned and held in the several taxing districts of the county, was not assessed at its true value in money, and with respect to this class of property that the same was assessed at less than its true value, and ordered that the assessed valuation of separately owned coal property in the county should be increased by ,40 per cent.; that in obedience to an order transmitted to him by the commission, pursuant to the provisions of Section 5614, General Code, the auditor forthwith added.to each tract, lot or parcel the required 40 per cent.
    
      The answer further admits that no notice was served upon the plaintiff.or the coal company with respect to such action increasing the valuation of the company’s separately owned coal properties, and that no publication was made of the proposed action of the Tax Commission' or of the county auditor in pursuance to the order of the commission. ■ '
    Further answering, defendant denies each and all of the allegations of the petition.
    The cause was heard in the common pleas court on, the plaintiff’s petition, the defendant’s answer, and a motion made by the plaintiff for judgment on Jhe pleadings. The court sustained the motion and entered a decree permanently enjoining the defendant from collecting the taxes complained of, and, on appeal, the court. of appeals of Perry county entered a like decree. This proceeding is •brought to reverse the judgments of the courts below.
    
      Mr. John G. Price, attorney general; Mr. William J. Ford, special counsel, and Mr. Mell G. Underwood, prosecuting attorney, for plaintiff in error.
    
      Mr. John T. Pyle, for defendant in error.
   Johnson, J.

Some ten years ago there had come to be in Ohio more than the usual discontent that results from inequalities in taxation.

One phase of it was manifested by a general feeling that the system in use for many years for the decennial appraisement of real estate for taxation was wholly inadequate, and resulted in glaring and unjust discriminations.

The constant variations in the actual and relative values of various classes of real estate in the different industrial, commercial and agricultural' localities were regarded as imperative reasons for the adoption of a system by which a more frequent and intelligent appraisement of property should be made, in the hope of making an approach to the equality and justice which are necessary to give strength and vigor to measures of popular government.

The different governors and general assemblies have devoted themselves to the subject of improvements in the system, and substantial progress has been made. The effort should go on even though all realize that “no faultless tax plan e’er was or is or e’er shall be.”

The decennial appraisement was abolished. The Tax Commission of Ohio was created, and its powers and duties have been enlarged from time to time.

Changes have been made in the new system in the light of experience, and the question presented in this case requires a determination of the state of the law at the time of the commencement of the action.

The court below entered a decree in favor of the- defendant in error on the pleadings. This judgment was based on the conclusion that the answer stated no valid defense to the petition. As shown in the foregoing statement of the case the petition alleges three grounds upon which the prayer is based. Substantially they are: 'First, that the premises of the coal company were appraised and listed for taxation prior to the increase complained of at the true value thereof in money; second/ that the county auditor arbitrarily, capriciously and without any investigation made the addition complained of; third, that the addition was made without notice to the plaintiff or the company and without publication of the proposed action.

As to the first ground, it is traversed by the general denial contained in the answer. The second allegation is specifically denied in the answer, which alleges that the auditor’s action was taken in obedience to statutory requirement under order of the Tax Commission of Ohio, which was made pursuant to statutory provision. As to the third ground, the answer admits .that no notice was given to the plaintiff or ,to the company of the action of the Tax Commission or the auditor. Therefore, the question remaining concerns the authority of the Tax Commission at the time it made the order complained of to make such an order; and, if it had such authority, whether or not it is necessary to give notice to taxpayers affected by an order increasing the taxable valuation of the property of a particular class in a particular taxing district. The action was taken with reference to the taxes for the year 1917, so that the statutes to be. considered are those then in force.

By the provisions of Section 5548, General Code (107 O. L., 38), each county is made the unit for assessing real estate for taxation purposes, and it is provided that the county auditor shall be the assessor for all the real estate in hi§ county for the purposes of taxation, reserving, however, to the Tax Commission the power to assess and value the property of public utilities. It is made the auditor’s duty to ascertain whether the real property as it then appears on the tax duplicate is assessed for taxation at its true value in money, and to report his findings to the board of county commissioners, who shall, at a hearing, after public notice, confirm, modify or set aside the same by order entered on their journal. If by such order it is determined that the real estate is not on the duplicate at its true value in money, the county auditor shall proceed to assess such real estate in such subdivision or subdivisions.

Under Section 5548-1, General Code, after the county auditor has made the assessment of all the real estate in any taxing district in the manner authorized in the preceding section, he is empowered on notice to the owner thereof to re-assess any part of the real estate in the district in the manner provided in that section, if he finds that the value has changed, or the property is not on the duplicate at its true value in money.

Section 5580, General Code, and those following-on pag'es 40 and 41 of 107 Ohio Laws, to and including Section 5595, provide for the organization of a county board of revision, and by Sections 5605 and 5609, General Code, the board of revision is empowered on its own motion or on complaint to review the assessed valuation of real estate in any tax district which has been assessed and valued by the county auditor for the current year.

Section 5599, General Code, provides that the county board of revision shall not increase any valuation or listed amount of taxable property without giving notice to the person in whose name the property affected thereby is listed, affording him an opportunity to be heard.

Section 5610, General. Code, -affords an appeal from the decision of the county board of revision to the Tax Commission of Ohio by any person affected, or by the county auditor.

• It will be observed that there .is provided in the statutes a comprehensive system, for the assessing and valuation of real estate and for re-assessing it in the different counties and taxing districts of the state. There is also provision for notice to the public and to individuals particularly affected, as well as for hearings and appeals in the manner above described. Then as part of the general scheme, the powers of the Tax Commission, which has statewide jurisdiction, are defined and specified.

Section 5579, General Code (106 O. L., 246), imposes upon the Tax Commission the duty to direct and supervise the assessment for taxation of all real and personal property of the state, and provides that the county auditor under the direction of the commission shall be the chief supervising assessing officer of his county. But there is not conferred upon the Tax Commission any jurisdiction to review or otherwise determine the assessment or valuation of any particular lot, parcel or tract of property in any taxing district, except on appeal from the decision of boards of revision, as provided in Section 5610, General Code. The appraisement of particular pieces of individuals is left to the local authorities.

The answer of the defendant in this case shows that the action of the Tax Commission, complained of in the petition, was taken pursuant to Sections 5612 to 5615, inclusive, General Code. Substantially those sections provide that when required by the Tax Commission each county auditor shall make out and transmit to it an abstract of the real and personal property of each tax district in his county, in which he shall set forth the aggregate amount and value of each class of real and personal property; that the commission shall annually determine whether the real and personal property and the various classes thereof have been assessed at their true value, and, if it finds that any class of real or personal property in any county or district is not listed at its true value in money, it may increase or decrease the aggregate value of the real property or any class of real or personal property in such county or- district by such rate per cent, as will place it on the list at its true value in money; and that it shall transmit its conclusion to the county auditor who shall forthwith add to or deduct from each tract, lot or parcel of real property, or class of real property, the required per cent. The duty of the auditor in such cases is mandatory.

The manifest purpose of the legislature was to confer upon the Tax Commission the duty of equalizing aggregate tax values of various classes of property in the manner stated. It has no power under those sections to make any order with respect to the particular property of any taxpayer in the district. Its authority and its action must be taken with respect to all the property of the particular class as units, and concerns the aggregate value of the'property in the particular class dealt with. '

From what has been said it will be seen that the plan contemplates the Tax Commission as a directing and supervising authority, and that its orders are general, except in the cases of appeal specially provided for as heretofore set forth.

It will be further noted that after the county auditor has made an assessment of all the real property in any district and desires to re-value or re-assess any part of the same, he is required to give notice to the owner thereof, but the statute does not require notice to be given by the Tax Commission of action taken by it pursuant to the statutory provisions above referred to. Acting in the nature of an equalization board, it is not required to give notice in order that its actions shall be valid. A board of equalization may raise or lower the entire assessment of any particular district without notice to the individual taxpayers, or the people of the district, when it is made to appear that the assessment in one district is relatively higher or lower than in another. 27 Am. & Eng. Ency. Law (2 ed.), 708.

The fact that the statute does..not require notice to be given by the Tax Commission does not render it obnoxious to the constitution.

In the State Railroad Tax Cases, 92 U. S., 575, which were actions brought to restrain the collection of taxes, it was held that the action of the board of equalization in increasing the assessed value of the property of a railroad company, or an individual, above the return made to the board, does not require a notice to the party to make it valid. The court say, at page 609: “If the increased valuation of property by the board without notice is void as to the railroad companies, it must be equally void as to every other owner of property in the State, when the value assessed upon it by the local assessor has been increased by the board of equalization. * * * If they find that a county has had its property assessed too high in reference to the general standard, they may reduce its valuation; if it has been fixed too low, they raise it to that standard. When they raise it in any county, they necessarily raise it on the property of every individual who owns any in that county. * * * The very moment you come to apply to the individual the right claimed by the corporation in this case, its absurdity is apparent.” To the same effect are Lewis, Auditor, v. State, ex rel., 69 Ohio St., 473, and Lander v. Mercantile Bank, 186 U. S., 458.

A general tax is very different from a special assessment. A burden by way of a special assessment cannot be levied upon property without notice to the owner, and the special assessment must hot exceed the special benefit. If it does, it impairs the inviolability of private property guaranteed by the constitution. Walsh v. Barron, Treas., 61 Ohio St., 15.

But the authorities are uniform that where such a board in the exercise of statutory powers acts not upon the property assessments of individual or particular taxpayers, but upon the aggregate assessments of various classes in the several taxing districts as units, no notice is required to be given to individual property owners who may be affected by the action of the board in increasing the valuation of all the property or the property of a particular class in the taxing district. Hubbard v. Goss., Treas., 157 Ind., 485; Bi-Metallic Investment Co. v. State Board of Equalization of Colorado, 239 U. S., 441, and Spalding, Tax Collector, v. Hill, 86 Ky., 656.

In Bi-Metallic Co. v. Board of Equalization, supra, it is. said at page 445: “The question then is whether all individuals have a constitutional right to be heard before a matter can be decided in which all afe equally concerned — here, for instance, before a superior board decides that the local taxing officers have adopted a system of undervaluation throughout a county, as notoriously often has been the case.”

The impossibility of the State Tax Commission giving notice to each property owner before it acts with reference to valuations of different classes of property in the different taxing districts is very apparent.

Moreover, the fact that provision has been made by the general assembly in the enactment of Section 12075, General Code, by which suit may be instituted in the common pleas court to enjoin the collection of illegal taxes assessed against any taxpayer, fulfills the constitutional requirement of due process of law in the assessment and collection of taxes. Davidson v. New Orleans, 96 U. S., 97; State, ex rel., v. Jones, Auditor, 51 Ohio St., 492, 516, and The C. & E. Rd. Co. v. Keith et al., 67 Ohio St., 279, 292.

The taxpayer is afforded full opportunity for relief against improper valuations by appearing before the county board of revision in the exercise of its function of correcting tax valuations on complaint, on appeal to the Tax Commission under the provisions of Section 5610, and by the action in common pleas court above referred to.

We think it clear that the allegations of the answer setting forth that the action of the county auditor was taken in obedience to the order of the Tax Commission of Ohio, which had proceeded in full compliance with the provisions of Sections 5612 to 5615, inclusive, General Code, stated a good defense and that no notice of such action was required in order to give it validity under the state or federal constitution.

The judgment of the court of appeals will be reversed and the cause remanded for further proceedings in accordance with this opinion.

Judgment reversed.

Jones, Matthias, Wanamaker and Robinson, JJ., concur.

Merrell, J., not participating.  