court below and to a majority of the judges of this court, to be an abuse of law, an act of confiscation, and not a valid exercise of the taxing power.

That this decision did not go to the extent claimed by the plaintiff in error in this case is evident, because in the opinion of the majority it is expressly said that the decision was not inconsistent with our decisions in Parsons v. District of Columbia, 170 U. S. 45, 56; and in Spencer v. Merchant, 125 U. S. 345, 357." In Tonawanda v. Lyon, 181 U. S. 389, the Court said: "It was not the intention of the court, in that case (Norwood v. Baker, 172 U. S. 269), to hold that the general and special taxing systems of the states, however long existing and sustained as valid by their courts, have been subverted by the Fourteenth Amendment of the Constitution of the United States. The purpose of that amendment is to extend to the citizens and residents of the states the same protection against arbitrary state legislation affecting life, liberty, and property, as is afforded by the Fifth Amendment against similar legislation by Congress. The case of Norwood v. Baker presented, as the judge in the court in the present case well said, 'considerations of peculiar and extraordinary hardship,' amounting, in the opinion of a majority of the judges of this court, to actual confiscation of private property to public use, and bringing the case fairly within the reach of the Fourteenth Amendment." See King v. Portland, 184 U. S. 61; Voigt v. Detroit, 184 U. S. 115; Chadwick v. Kelly, 187 U. S. 540; Hibben v. Smith, 191 U. S. 310; Seattle v. Kelleher, 195 U. S. 351; Willoughby v. Chicago, 235 U. S. 45.

§ 158. Collection of taxes by summary proceedings. How far the summary methods of seizure and sale necessarily employed in the collection of taxes are consistent with the principles involved in due process of law is a question which has given rise to grave discussion in both the state and Federal courts. It has been held in several states that a forfeiture of lands can not be declared by

the state as a penalty for the nonpayment of taxes without adequate provision for some procedure in which the owner may have the opportunity upon notice to defend against such forfeiture. See Marshall v. McDaniel, 12 Bush 378; Griffin v. Mixon, 38 Miss. 424; Parish v. East Coast Cedar Co., 133 N. Car. 478. In other states absolute forfeiture have been held to be constitutional. Wild v. Serpell, 10 Gratt. 405; Levasser v. Washburn, 11 Gratt. 572; McClure v. Maitland, 24 W.Va. 561; Holly River Coal Co. v. Howell, 36 W. Va. 486. When in McMillen v. Anderson, 95 U. S. 37, the Supreme Court of the United States was called upon to deal with the subject under the Fourteenth Amendment, it was held that it does not require that taxes shall be collected through a judicial proceeding; neither does it require that the person taxed by a state law shall be present or have an opportunity to be present when the tax is assessed against him. The Court said: "The mode of assessing tax in the states by the Federal Government, and by all governments, is necessarily summary, that it may be speedy and effectual. By summary is not meant arbitrary, or unequal, or illegal. It must, under our Constitution, be lawfully done. But that does not mean, nor does the phrase 'due process of law' mean by a judicial proceeding. The Nation from whom we inherit the phrase 'due process of law' has never relied upon the courts of justice for the collection of her taxes, though she passed through a successful revolution in resistance to unlawful taxation. We need not here go into the literature of that constitutional provision, because, in any view that can be taken of it, the statute under consideration does not violate it."

In 1898 was decided the case of King v. Mullins, 171 U. S. 404, in which the Court said: "The question of constitutional law thus presented is one of unusual gravity. On the one hand, it must not be forgotten that the clause in the national Constitution which this court is now asked to interpret is a part of the supreme law of the land, and that it must be given full force and effect throughout the

entire Union. The due process of law enjoined by the Fourteenth Amendment must mean the same thing in all the states. On the other hand, a decision of this court declaring that that amendment forbids a state, by force alone of its Constitution or statutes, and without inquisition or inquiry in any form, to take to itself the absolute title to lands of the citizen because of his failure to put them on record for taxation or to pay the taxes, might greatly disturb the land titles of two states, under a system which has long been upheld and enforced by their respective legislatures and courts. Under these circumstances, our duty is not to go beyond what is necessary to the decision of the particular case before us. If the rights of the parties in this case can be fully determined without passing upon the general question whether the clause of the West Virginia Constitution in question, alone considered, is consistent with the national Constitution, that question may properly be left for examination until it arises in some case in which it must be decided." While thus postponing the decision of the vital question, the court declared that where the contention is made that a state constitution provides for a forfeiture of property for nonpayment of taxes without due process of law, it will examine the statutes of the state in connection with the constitution as a connected whole in order to determine whether a system of taxation exists which in its especial features is consistent with due process of law. The end was not reached until the decision made in 1909 in King v. West Virginia, 216 U. S. 92, the author being of counsel, in which the court assumed that the vital question it had declined in express terms to pass upon in King v. Mullins, had been actually decided in that case. The language used is this: "The only serious question in the case, if we assume that King saved it, is whether the West Virginia Constitution and statute are consistent with the Fourteenth Amendment. But that question was answered in King v. Mullins, 171 U. S. 404. The construction of the state constitution by the state

court as not confined in its operation to the title vested and remaining in the state when the Constitution went into effect (which, of course, is final) is the only natural construction and was to be expected. The question is not open and we shall discuss it no more." Thus, by an unprecedented method of reasoning, the conclusion was finally reached that a state constitution which provides absolutely that lands shall be forfeited for nonpayment of taxes and a failure for five years in succession to place them on the land books, guarantees due process of law, provided the legislature subsequently passes statutes affording an opportunity to be heard which the constitution itself expressly denied. See to the same effect Kentucky Union Co. v. Kentucky, 219 U. S. 140, in which the Court said: "The state of West Virginia, by its Constitution, in 1872, inaugurated a system of forfeiture of lands for nonpayment of taxes in some respects analogous to the one now under consideration. In the present case the statute does not undertake to forfeit the lands for the failure to register them and pay the taxes upon them for the years stated without a judicial proceeding by which the owner of the title may have the taxes assessed, and, upon payment thereof the forfeiture avoided; and the forfeiture is declared only after a judicial proceeding instituted by the commonwealth's attorney, in which there is opportunity for a hearing and after which the forfeiture may be declared. The case of King v. Mullins, supra, was followed and approved in this court in King v. West Virginia, 216 U. S. 92, and in Fay v. Crozier, 217 U. S. 455.❞

§ 159. Notice and hearing in tax proceedings. Even in the most summary proceedings for the collection of taxes, including such as the West Virginia and Kentucky tax cases just cited, involving a forfeiture of the title to the land itself, the courts always recognize the principle that the legislature must afford to the taxpayer notice of some kind and a hearing, or an opportunity to be heard. As

the character of the notice and the nature of the hearing differ widely according to the subject-matters involved, nothing like precise definitions of either can be attempted. It is only possible to reproduce the more notable indications given by the Supreme Court as to what will or will not be considered by it as adequate notice and hearing in certain classes of cases. The right in question practically disappears when the legislature itself levies directly general taxes, in the form of an annual levy, a fixed time being given within which the assessment shall be made, a fixed time and place being set for the equalization of the assessment and the levy of the tax. In Turpin v. Lemon, 187 U. S. 58, the Court said: "Exactly what due process of law requires in the assessment and collection of general taxes has never yet been decided by this court, although we have had frequent occasion to hold that, in proceedings for the condemnation of land under the laws of eminent domain or for the imposition of special taxes for local improvements, notice to the owner at some stage of the proceedings, as well as an opportunity to defend, is essential. Spencer v. Merchant, 125 U. S. 345; Huling v. Kaw Valley R. R. & Improv. Co., 130 U. S. 559; Hagar v. Reclamation Dist. No. 108, 111 U. S. 701; Paulsen v. Portland, 149 U. S. 30. But laws for the assessment of general taxes stand upon a somewhat different footing and are construed with the utmost liberality sometimes even to the extent of holding that no notice whatever is necessary. Due process of law was well defined by Mr. Justice Field in Hagar v. Reclamation Dist. No. 108, 111 U. S. 701, in the following words: 'It is sufficient to observe here that by 'due process' is meant one which, following the forms of law, is appropriate to the case, and just to the parties to be affected. It must be pursued in the ordinary mode prescribed by law; it must be adapted to the end to be attained; and whenever it is necessary for the protection of the parties it must give them an opportunity to be heard respecting the justice of the judgment sought.'" Proceedings for the assessment