Edward P. Gallup, a resident in the State of New Hampshire,
acted as the executor of the will of William P. Gallup, deceased,
of the County of Marion in the State of Indiana. He was served with
notice, under sections 8560 and 8587 of the Revised Statutes of
Indiana, of an intention of the county auditor in that county to
add to the list of the taxable personal property in his possession
as executor, and was required to appear and show cause why that
should not be done. The Supreme Court of Indiana held, against his
objection, that he was, at the time that the proceeding by the
auditor began, an official resident of Marion County, and was
therefore within the express terms of the statute.
Held
that this was a construction or application of the statute to the
case in hand which was binding on this Court.
The method followed by the auditor in assessing the additional
taxes was perhaps open to criticism, but was approved by the
circuit and supreme courts of the state, and presents no question
over which this Court has jurisdiction.
This is a writ of error to a judgment of the Circuit Court of
Marion County, State of Indiana, entered in pursuance of a final
judgment of the Supreme Court of that state, in a case wherein
Edward P. Gallup, executor of William P. Gallup, deceased, was
plaintiff in error, and William H. Schmidt, Treasurer of said
Marion county, was defendant in error.
The main facts in the case were thus stated in the opinion of
the supreme court, 154 Ind.196:
"William P. Gallup, having for thirty-one years been a resident
therein, died testate in the City of Indianapolis, Marion County,
in December, 1893, the owner and in possession of a large personal
estate in said county. His will was duly admitted to probate in the
Marion Circuit Court, and Edward P. Gallup, a resident of the State
of New Hampshire, the principal and residuary legatee, was
qualified as executor in January, 1894, and March 5, 1894, filed an
inventory showing a personal estate of $492,628.26. Subsequently,
in the spring of 1894,
Page 183 U. S. 301
said executor listed to the assessor for taxation for the year
1894 personal property of the estate aggregating $383,906.46.
January 15, 1895, Taggart, then Auditor of Marion County,
discovered, on what he believed to be credible information, that a
large amount of personal property belonging to and in possession of
said decedent had not been listed for taxation for the years 1881
to 1893, both inclusive, and upon that day, acting under section
8560, Burns' Rev.Stat. 1894, caused to be served by the sheriff
upon Edward P. Gallup, as executor, who was at the time in
Indianapolis, engaged in the settlement of said estate, notice in
writing of his intention to add such omitted property to the tax
duplicate, and requiring such executor to appear before him within
five days to show cause, if any, why such property should not be so
added. The notice specified the property to be added as county,
township, town, and other bonds, notes, mortgages, claims, dues,
demands, and other credits, money on hand and on deposit."
"January 19, 1895, the executor appeared before the auditor, and
filed written objections to the authority of the auditor to proceed
further, which were overruled. The executor then filed an answer to
the notice, and on the 21st day of January, 1895, the auditor
issued a subpoena for the executor, requiring him to appear
forthwith before him, and to bring with him all notes, mortgages,
and bonds in his possession, as such executor, to testify in said
proceeding. The executor appeared on the 24th day of January, 1895,
and filed further objections to the jurisdiction of the auditor,
which were overruled, and thereupon he was examined under
oath."
"Upon consideration of the evidence, the auditor found that
William P. Gallup, in addition to the property returned by him for
taxation, was the owner and in possession of other taxable personal
property not listed and not taxed during the several years from
1881 to 1893 specifically stated for each year, and January 25,
1895, placed the same upon the tax duplicates, and computed and
extended taxes thereon for the whole of said period, including
statutory penalties and interest, the sum of $61,233.59. After the
same was placed upon the duplicate in the treasurer's hands, he
made demand upon the executor
Page 183 U. S. 302
to pay said additional taxes, but he refused to pay all or any
part thereof."
"The executor, on the 4th day of January, 1895, filed in the
circuit court his final settlement report, and gave notice that the
same would be finally heard on the 26th day of January, 1895, and
upon the day set for the hearing of the report, the same being the
next day after the additional assessments had been placed upon his
duplicate, Holt, as Treasurer of Marion County, filed in said
court, under section 8587, Burns' Rev.Stat. 1894, in the term
thereof that was then running, his petition for an order upon the
executor to show cause why he should not pay the taxes assessed by
the auditor. The order was granted, and on February 9, 1895, the
executor appeared and filed his motion to dismiss the said
proceedings for the reason that the court had no jurisdiction to
proceed to hear the cause, for the reason that the county treasurer
was not authorized under the law to present said claim to the court
at the January term, 1895."
"More than two years afterwards, to-wit, December 18, 1897, the
court overruled appellant's [the executor's] motion to dismiss, and
on June 18, 1898, appellant [the executor] filed his answer in
eight paragraphs. A demurrer to each, the third, fourth, fifth, and
sixth was sustained. A trial was had before the court upon the
issues joined upon the petition, answers of general denial, payment
and set-off, and, upon a special finding of facts and conclusions
of law favorable to appellee [the treasurer], judgment was rendered
against appellant [the executor] that he pay to appellee [the
treasurer] on account of said omitted taxes the sum of
$46,996.69."
Appeals were taken by both parties from the decree of the
Circuit Court of Marion County to the supreme court of the state.
That court was of opinion that the executor, as appellant, was not
entitled to a reversal, but that, for error of the circuit court in
allowing the executor a certain credit of $5,750 upon the amount
recovered, the judgment must be reversed with instructions to
restate conclusions of law in accordance with the opinion of the
supreme court, and render judgment thereon in favor of the
treasurer for the sum of $52,746.69, with interest from October 31,
1898, and final judgment for said amount was accordingly so entered
by the Circuit Court of
Page 183 U. S. 303
Marion County, to which judgment a writ of error was allowed,
and the cause brought to this Court.
MR. JUSTICE SHIRAS delivered the opinion of the Court.
To answer the questions presented to us in this record requires
an examination of two sections of the Indiana Revised Statutes,
which read as follows:
"SEC. 8560. Whenever the county auditor shall discover or
receive credible information, or if he shall have reason to believe
that any real or personal property has, from any cause, been
omitted, in whole or in part in the assessment of any year or
number of years, from the assessment book or from the tax
duplicate, he shall proceed to correct the tax duplicate and add
such property thereto, with the proper valuation, and charge such
property and the owner thereof with the proper amount of taxes
thereon, to enable him to do which he is invested with all the
powers of assessor under this act. But before making such
correction or addition, if the person claiming to own such
property, or occupying it, or in possession thereof, resides in the
county and is not present, he shall give such person notice, in
writing, of his intention to add such property to the tax
duplicate, describing it in general terms, and requiring such
person to appear before him at his office at a specified time,
within five days after giving such notice, and to show cause, if
any, why such property should not be added to the tax duplicate,
and if the party so notified does not appear, or if he appears and
fails to show any good and sufficient cause why such
Page 183 U. S. 304
assessment shall not be made, the same shall be made, and the
county auditor shall in all cases file in his office a statement of
the facts or evidence on which he made such correction; but he
shall in no case reduce the amount returned by the assessor without
the written consent of the auditor of state, given on the statement
of facts submitted by the county auditor."
"SEC. 8587. It shall be the duty of every administrator,
executor, guardian, receiver, trustee, or person having the
property of any decedent, infant, idiot, or insane person in
charge, to pay the taxes due upon the property of such decedent,
ward, or party, and, in case of his neglecting to pay any
installment of taxes when due, when there is money enough on hand
to pay the same, the county treasurer shall present to the circuit
or other proper court of the county, at its next term thereafter, a
brief statement in writing, signed by him as such county treasurer,
setting forth the fact and amount of such delinquency, and such
court shall at once issue an order directed to such delinquent,
commanding him to show cause within five days thereafter why such
tax and penalty and costs should not be paid, and, upon his failing
to show good and sufficient cause for such nonpayment, the court
shall order him to pay such tax out of the assets in his hands
belonging to the estate of said decedent, ward, or other person,
and such delinquent shall not be entitled to any credit, in any
settlement of said trust, for the penalty, interest, and cost
occasioned by such delinquency, or by the order to show cause, but
the same shall be a personal charge against him, and he shall be
liable on his official bond for such penalty, interest, and
costs."
Having alleged that he was and during all of his life had been a
citizen of the United States, and that at no time during the year
1894 or since has he resided in Marion County, Indiana, but that,
during said year and ever since, he has continually been and still
was a resident and citizen of Lebanon, in the State of New
Hampshire, Edward P. Gallup claimed in the courts below that in
section 8560, providing for the assessment of omitted property by
the county auditor, no provision whatever is made for notice to any
person not a resident of the county in which said omitted property
is proposed to be assessed,
Page 183 U. S. 305
but that the sole provision for such notice is to person or
persons resident of such county, and that, by reason of the
premises, said statute is in violation of the Fourteenth Amendment
to the Constitution of the United States in that said statute
deprived him of his property without due process of law, denied to
him the equal protection of the laws, also denies to him, as a
citizen of New Hampshire, the privileges and immunities enjoyed by
a citizen of Marion County, Indiana, contrary to the second section
of Article IV of the Constitution of the United States, and that
said statute is further invalid in that it grants to a class of
citizens -- namely, residents of the particular county in which the
property sought to be assessed is situate -- privileges and
immunities which upon the same terms do not equally belong to all
citizens.
This arraignment of the statute is based on the fact that Edward
P. Gallup, though acting as executor of William P. Gallup,
deceased, in the County of Marion, Indiana, was, at the time he was
served with the auditor's notice, not a resident of that county,
but was a resident of the State of New Hampshire, and the
contention is that, though he received such a notice, yet he was
not within the letter of the statute because not a resident of the
county in which the property was situated, and therefore the notice
actually given him was not a notice in point of law, and the
auditor, in proceeding with the duties of his office, acted without
jurisdiction, and that consequently the plaintiff in error has been
deprived of his property without due process of law.
The Supreme Court of Indiana disposed of this contention by
holding
"that appellant [Edward P. Gallup] was an official resident of
Marion County at the time the proceeding by the auditor was
commenced, and therefore within the express terms of the
section."
This construction of the section is criticized by the learned
counsel of the plaintiff in error as novel and unsupported by
authority. However this may be, it is a construction or application
of the statute to the case in hand, and is binding upon us.
It is strongly urged that whether the view of the Indiana
Supreme Court be sound or not, in interpreting the section to
Page 183 U. S. 306
cover the case of an official residence, the result is to
deprive the plaintiff in error of rights and privileges secured to
him by the Constitution of the United States, and numerous cases
are cited to the effect that assessments and special burdens upon
taxpayers are void unless the law provides for notice, and that
notice in fact is not equivalent to notice in law. It is claimed
that the plaintiff in error has been afforded no opportunity to be
heard, and that, because the section provides for notice to
residents of the county, and for no notice whatever to nonresidents
of the state and county, a case of discriminative legislation is
created whereby nonresidents are denied the equal protection of the
laws.
To these suggestions, the Supreme Court of Indiana replied by
saying:
"He [Gallup] was in a situation to avail himself of all the
rights and privileges he asserts are unjustly denied to
nonresidents, and, while himself not aggrieved, he will not be
permitted to assail a revenue statute on behalf of others who are
making no complaint. The courts are open to those only who are
injured. . . . Conceding all that appellant affirms concerning his
residence and the absence of any provision in section 8560 for
service of notice on nonresidents, still he is not in a situation
to complain that he has had no day in court. The assessment by the
auditor, right or wrong, was not a final judgment. It was only
prima facie correct. The courts were open to appellant,
even though a nonresident, to challenge it by injunction. Failing
thus to seek relief against it, the treasurer appealed to the
circuit court for an order against him to show cause why he did not
pay the taxes. The jurisdiction of the circuit court over its
executor will not be controverted, even though his personal
residence is in New Hampshire. He was ordered by the court to show
cause, if he had any, why he did not pay the taxes. In response to
the order, any defense he had or ever had was open to him."
"It is no longer an open question in this state that, if a party
against whose property an assessment has been made is, at any time
in the course of the proceeding before a conclusive judgment,
Page 183 U. S. 307
afforded by law an opportunity to contest its correctness, he is
accorded due process of law."
It has frequently been held by this Court, when asked to review
tax proceedings in state courts, that due process of law is
afforded litigants if they have an opportunity to question the
validity or the amount of an assessment or charge before the amount
is determined, or at any subsequent proceedings to enforce its
collection, or at any time before final judgment is entered.
Walker v. Sauvinet, 92 U. S. 90;
Davidson v. New Orleans, 96 U. S. 97;
Spencer v. Merchant, 125 U. S. 345;
Allen v. Georgia, 166 U. S. 138;
Orr v. Gilman, ante, 183 U. S. 278.
In the present case, the plaintiff in error not only had an
opportunity to appear and to set up any defense that he may have
had, but actually did appear, and, after his demurrers and motion
to dismiss had been overruled, answered, and was fully heard in the
trial court. His objections to the findings and rulings of that
court have been heard and considered by the supreme court of the
state.
The method followed by the auditor in assessing the additional
taxes was perhaps open to criticism, but was approved by the
circuit and supreme courts, and presents no question over which we
have jurisdiction.
Failing to see that any rights or privileges secured to the
plaintiff in error by the Constitution of the United States have
been denied him, we are of opinion that the judgment of the Supreme
Court of Indiana must be
Affirmed.
