Opinion of the Court

sential to render the proceedings due process of law. In Davidson v. New Orleans this court decided this precise point. In that case an assessment levied on certain real property in New Orleans for draining the swamps of that city was resisted on the ground that the proceeding deprived the owners of their property without due process of law, but the court refused to interfere, for the reason that the owners of the property had notice of the assessment and an opportunity to contest it in the courts. After stating that much misapprehension prevailed as to the meaning of the terms "due process of law," and that it would be difficult to give a definition that would be at once perspicuous and satisfactory, the court, speaking by Mr. Justice Miller, said that it would lay down the following proposition as applicable to the case, "That whenever by the laws of a State, or by State authority, a tax, assessment, servitude, or other burden is imposed upon property for the public use, whether it be for the whole State or of some more limited portion of the community, and those laws provide for a mode of confirming or contesting the charge thus imposed in the ordinary courts of justice, with such notice to the person, or such proceeding in regard to the property as is appropriate to the nature of the case, the judgment in such proceedings cannot be said to deprive the owner of his property without due process of law, however obnoxious it may be to other objections." (96 U. S., 97.)

This decision covers the cases at bar. The assessment under consideration could, by the law of California, be enforced only by legal proceedings, and in them any defence going either to its validity or amount could be pleaded. In ordinary taxation assessments, if not altered by a board of revision or of equalization, stand good, and the tax levied may be collected by a sale of the delinquent's property; but assessments in California, for the purpose of reclaiming overflowed and swamp lands, can be enforced only by suits, and, of course, to their validity it is essential that notice be given to the tax-payer and opportunity be afforded him to be heard respecting the assessment. In them he may set forth, by way of defence, all his grievances. Reclamation District No. 108 v. Evans, 61 Cal. 104.

Opinion of the Court.

If property taken upon an assessment, which can only be enforced in this way, be not taken by due process of law, then, as said by Mr. Justice Miller, in the New Orleans case, these words as used in the Constitution, can have no definite meaning. The numerous decisions cited by counsel, some of which are given in the note, as to the necessity of notice and of an opportunity of being heard, are all satisfied where a hearing in court is thus allowed.*

The objection that the law of California authorizing the assessment in question, impairs the obligation of a contract created between the United States and the State by the act of Congress of September 28th, 1850, commonly known as the Arkansas Swamp Act, is founded upon a misapprehension of its provisions. 9 Stat. 519, ch. 84 It is true the act granted to the State all the swamp and overflowed lands within its limits, on condition that the proceeds of the lands, "whether from sale or by direct appropriation in kind," should be applied, as far as necessary, in reclaiming the lands by means of levees and drains. Hence the contention of counsel is that the State is bound to carry out this condition, and apply the proceeds to the reclamation, or provide for their application to that end, and that its legislation imposing an assessment upon other lands to raise the necessary funds for that purpose, is in violation of this contract, and therefore void. The answer to this position is twofold. In the first place, if a contract was created by the Arkansas act, when the State accepted its benefits, it is for the United States to complain of the breach if there be any. The plaintiff is not a party to the contract, and is in no position to

*Overing v. Foote, 65 N. Y., 263, 269; Stuart v. Palmer, 74 id. 183; Cooley, Law of Taxation, 265–6, 298; Thomas v. Gain, 35 Mich. 155, 164; Jordan v. Hyatt, 3 Barb., 275, 283; Wheeler v. Mills, 40 id. 644 ; Ireland v. Rochester, 51 ià. 414, 430, 431; The State v. Jersey City, 24, N. J. L. 4 Zabr. 662, 666; The State v. Newark, 31, id. 360, 363; The State v. Trenton, 36 id. 499, 504; The State v. Elizabeth, 37 id. 357; The State v. Plainfield, 38 id. 97; The State v Newark, 1 Dutch. 399, 411, 426; Patten v. Green, 13 Cal. 325; Mulligan v. Smith, 59, id., 206; Griffin v. Mixon, 38 Miss. 424, 438; County of San Mateo v. Southern Pacific R. R. Co. 8 Sawyer, 238; County of Santa Clara v. Same, 9 id.; Darling v. Gunn, 50 Ill. 424. See also Gatch v. City of Des Moines, N. W. Rep. 310, 311, 313.

Opinion of the Court.

invoke its protection. But, in the second place, the appropriation of the proceeds rests solely in the good faith of the State. Its discretion in disposing of them is not controlled by that condition, as neither a contract nor a trust following the lands was thereby created. This was distinctly held after elaborate consideration in the recent case of Mills County v. Railroad Companies, 107 U. S. 557, 566.

There are several other objections urged upon our consideration in the elaborate brief of the appellant's counsel, but we do not deem it necessary to consider them, for they raise only questions of local law and procedure which have been considered and determined in the courts of the State, from whose conclusions we should not depart.

Decrees affirmed.

NOTE.

Legislation of the Colonies prior to the Revolution, and of the States since, giving to the tax-payer an opportunity to be heard respecting the justice of the assessment of his property before it becomes final.

In Massachusetts, an act passed in 1692, for defraying the public and necessary charges arising within each county of the province, provided that "If any person or persons think themselves overrated in any such assessment, they shall be eased by the assessors making the same to appear, or, in default thereof, by the court of quarter sessions." (Laws of Massachusetts Bay, p. 19.) In Connecticut, an act passed prior to 1750 made it the duty of the listers to hear complaints of parties complaining that they were overrated. "But if such listers will not give just relief, then upon application made by the aggrieved party to an assistant, or justice of the peace, with two of the selectmen of the town (notifying two or more of the listers to show reason, if any they have, why relief should not be granted them), they shall consider the case, and give such relief as they shall judge just and reasonable." (Acts and Laws of His Majesty's English Colony of Connecticut, 136 and 262.)

In South Carolina, by an act passed in 1701, for raising money for the public use and defence of the province, provision is made that the commissioners appointed by the act shall, upon complaint or appeal from any one feeling aggrieved at the rating, examine the person complaining upon his oath, touching the value of his real and personal estate, "and upon due examination abate or defaulk proportionably the said assessments, and the same so abated shall be certified by the commissioners aforesaid, or any two of them, to the receiver, and such assessment so certified as aforesaid shall be deemed firme and valid, and to that end the commissioners are hereby required to meet together for the determining of such complaint and appeal accordingly." 2 Statutes of South Carolina, 184.)

Opinion of the Court.

By other and subsequent statutes the tax-payer was allowed to "swear off” so much as he should think himself overrated for his stocks or stores, and the assessors were required to give notice for that purpose, and were authorized to administer oaths and to allow the abatement. (3 Statutes of South Carolina, 241, 260, 476, and 506.)

In Maine and Massachusetts, the tax-payer may make his complaint first to the assessor, and, if he refuse to grant the relief demanded, to the county commissioners. (Me. Rev. Statutes, 1871, p. 144; Mass. General Statutes, 1860, p. 79.)

In Rhode Island he may petition the Supreme Court or Court of Common Pleas, and the court must hear and determine his complaint. (General Statutes, p. 107.)

In Vermont, complaints may be heard before listers, and an appeal lies from their decision to the selectmen of the town. (General Statutes, 520.)

In New Hampshire, the tax-payer may apply to the selectmen of the town, and, if dissatisfied with their decision, may apply, by petition, to the Supreme Court, in the county, at a trial term, which shall make such order thereon as justice requires. (General Statutes, 123.)

In Connecticut, a board of relief, to consist of five "judicious electors," is annually elected in each town, for hearing and determining appeals from decisions of the assessors. (General Statutes, pp. 24, 159.)

In New York, complaints may be made to the board of assessors. (Rev. Statutes, 5th Ed., 911 and 912.)

In New Jersey, to the commissioners of appeal, in tax cases. (Rev. Statutes, 1142, 1148.)

In Pennsylvania and Delaware, to county commissioners. (Penn., Purdon's Dig., p. 937, § 23; Del. Rev. Statutes, 1852, p. 62, §12.)

The Delaware Act of 1796 (2 Laws of Del., 1255, § 14), provided that commissioners should give notice in each hundred, and at the time and place specified meet and "hear and determine the complaints of any person or persons that may be aggrieved, and shall generally arrange the said valuations, so that no person or persons may be unequally or overrated; provided always, that no person or persons shall be prevented from appealing to the Levy Court and Court of Appeals of his or their respective county as heretofore."

In Virginia and Georgia, if the tax-payer and assessor cannot agree as to valuation, each can choose an arbitrator, and they an umpire, to whom the matter of disagreement is submitted for final determination. (Geo. Code, 1873, § 840; Va. Code, 1860, p. 201.)

In Maryland, North Carolina, Florida, and Alabama the boards of county commissioners constitute tribunals for hearing and determining complaints in regard to assessments; except in Baltimore the board of control and review constitute such tribunal. (Md. Code, Sup., 1861-67, p. 279, § 175; N. C. Laws, 1874-5, p. 222, § 18; Thompson Dig. Laws of Florida, 97; Ala. Code of 1876.)

In North Carolina, under the Act of 1819, three freeholders, appointed by the Court of Common Pleas and Quarter Sessions, constitute a board of appeal for adjustment of assessments. (2 Laws of N. C., p. 1480, § 2.)

Opinion of the Court.

In Arkansas, Mississippi, and Kentucky, the county Boards of Supervisors constitute boards for the equalization of assessments. (Ark. Acts of Assembly, 1873, p. 58; Miss. Rev. Code, 1871, p. 351, § 1685; Ky. Gen'l Sts., 1873, p. 724.)

In South Carolina such a board is constituted of the county commissioner, auditor, and treasurer; in Louisiana, of the county clerk, recorder and sheriff; in Tennessee, of the assessor and two freeholders; and in Missouri of the presiding judge of the county court and the county surveyor and assessor. (Rev. Sts. S. C., 69; Voorhies Rev. Sts. La., 840; 1 Sts. Tenn., § 581 Mo.; Mo. Rev. Stats., 2 vol., §§ 6719, 6720, 6726.)

In West Virginia, the aggrieved party may apply for relief to the county court with an appeal to the Circuit Court. (Rev. Sts., 1063.) In Texas he may apply to the county court, and its determinations are final. (Paschal's Dig., 869, Art. 5176.)

Boards of Equalization or Review are provided for, consisting:

In Illinois, of the assessor, clerk and supervisor. (Ill. Rev. Sts., 1874, p. 871.) In Indiana, of the county auditor, commissioners, and appraisers. (1 Gavin & Hord's Stats. of Indiana, p. 82, § 54, 320.)

In Michigan, Iowa, and Nevada, of the boards of supervisors. (1 Compiled Laws of Mich., 366; Code of Iowa of 1873, p. 140; General Laws of Nev., § 3139.)

In California, of the boards of supervisors, except where the property assessed consists of the franchise, roadway, roadbed, rails, and rolling-stock of railroads operated in more than one county, in which case the State board of equalization acts as assessor, and over its decisions there is no revisory tribunal. (Political Code of Cal., §§ 3673, 3692.)

In Kansas and Nebraska, of county commissioners. (Kans. Comp. Laws, 1879, 953; Neb. Gen'l Sts., 907.)

In Ohio, of the county commissioners and county auditor, except in certain cities, where the board consists of the county auditor and persons appointed by the city authorities. (Rev. Sts., 1880, p. 731.)

In Oregon, of the county judge, assessor, and clerk. (Deady & Lane's Gen'l Laws of Oregon of 1874, 756.)

In Wisconsin, the chairman of the board of supervisors, clerk, and assessors of each town, and the mayor, clerk, and assessors of each city, and the president, clerk, and assessors of each incorporated village, constitute a board of review for such town, city, or village. (1 Taylor's Statutes, 1871, p. 406, § 53.) The function of these boards of review, by whatever name called, is essen. tially the same.