#### J. H. HART et al. v. BOARD OF COMMISSIONERS OF BURKE COUNTY.

(Filed 15 September, 1926.)

1. Taxation — Constitutional Daw — Statutes—Revenue—Machinery Act— County Commissioners — Revaluation oí Property.

A statute that provides for the revaluation and equalization of the value of property by the county commissioners, to be levied in accordance with an existing constitutional statute, is not in its strict sense a revenue law requiring the separate readings before each branch of the Legislature upon the separate days, etc., prescribed by Art. II, sec. 14, of the State Constitution, but is in the nature of a machinery act, which does not fall within this constitutional requirement.

2. Taxation — Constitutional Daw — Classification of Property — Uniformity.

Under the provisions of a statute authorizing the county commissioners to reassess, revalue and equalize property therein for the purpose of taxation, the determination of the commissioners thereunder is not objectionable as not being uniform when the assessment of each class of property is uniform within its own proper classification.

3. Taxation — Counties—Assessment — Revaluation — Notice — Constitutional Daw.

Where a statute authorizes a county through its commissioners to revalue and reassess the property therein for taxation, and accordingly the board fixes a time therefor and adjourns for the purpose of having formulated the necessary information upon which they should act, and notice of the time for the taxpayers to be heard has been incorrectly published in a newsiiaper, and verbally at a certain day of the week and month, and correction likewise made sufficient to apprise the taxpayers in time to appear before the board and be heard: *Held,,*the proceedings of the commissioners will not be declared invalid by reason of such error.

4. Taxation- — Counties—Statutes—Remedies—Appeal—Courts.

Where the property owner is given sufficient notice to appear before the board of county commissioners and object to the valuation placed on his property for taxation, and fails to do so and pursue his remedy by appeal in accordance with the remedy prescribed by the statute applicable, he may not by independent action proceed in our courts to object to the valuation on his property fixed by the commissioners.

*162Civil aotioN, beard by *Webb, J.,*at March Term, 1926, of Btuoas.

The facts necessary to the presentation of the merits of the controversy are set out in the judgment, which is as follows:

“The above-entitled action coming on for hearing, and being heard upon the pleadings and the affidavits offered by plaintiffs and defendants, the court finds as a fact that chapter 545 of the Public-Local Laws of North Carolina of 1925, ratified 9 March, 1925, was not read on three separate days in each House, and that the yeas and nays on the second and third readings were not entered on the journal, and being of the opinion upon inspection and consideration of said statute that the same merely provides for a revaluation and assessment of property in Burke County during the year 1925, and that the same, therefore, was not required to be enacted in accordance with the provision of section 14, Article II of the Constitution; the court is further of the opinion that the said statute is in all respects legal, valid and binding and in no way in conflict with the Constitution.

The court further finds as a fact that under the authority given and conferred on them by said statute and in the exercise of the discretion thereby conferred upon them the defendant, board of commissioners of Burke, entered an order for and caused a revaluation and assessment of all property to be made in Burke County during the year 1925, the same not being completed until the latter part of the summer of 1925, and that after the same had been completed the said defendant, board of commissioners of Burke County, sat as a county board of equalization, and heard complaints of the citizens of Burke County in regard to valuation and assessment, in some instances reducing them and in other instances increasing the valuation placed on said property by the tax listers and assessors.

The court further finds as a fact that the work of the tax lister and assessors not having been fully completed by the second Monday in July, the consideration of all complaints was deferred by the defendant, board of commissioners, until the assessments had been completed, and that on 22 September, 1925, when the defendant, board of commissioners finally sat as a county board of equalization for the purpose of hearing complaints of the citizens as to the valuations placed upon their property by the tax listers and assessors, and that in addition to verbal notices generally given by said board the following written notices were given of the time when complaints would be heard, the same being published in the *News-Herald,*a newspaper published in Morganton, Burke County. In the weekly publication or issue of 10 September, 1925, the following notice:

“ ‘Monday, 21 September, for hearing tax complaints. The county commissioners have set aside Monday, 21 September, as the time for hearing tax complaints.’

*163“And tbe said newspaper in its issue of 16 September, 1925, contained tbe following notice:

“ ‘Tuesday, tbe 22nd, is tbe day for tax complaints. Attention is called to tbe fact tbat Tuesday, 22 September, is tbe date set by tbe county commissioners for bearing tax complaints. By error, it was given in last week’s paper as Monday, 21st.’

“Tbe court finds as a fact tbat no notice was given to tbe plaintiffs of tbe notice of 22 September, 1925, other than tbe notice published in tbe paper.

“Tbe court further finds as a fact many of tbe citizens of tbe county of Burke appeared before tbe county board of commissioners on 22 September, 1925, sitting as a board of equalization, made complaints as to tbe valuation of their property which were beard and passed upon by said board, and some appeals taken from their ruling, and tbat at frequent intervals since tbat date complaints have been made to tbe defendant board by tbe citizens of said county of tbe valuation placed upon their property, and tbat tbe defendant board is still attempting to obtain evidence and ascertain whether any real property in said county has been valued too high and correct any errors or mistaken valuation placed thereon and remedy and remove such injustice, if any, done any taxpayers of said county.

“Tbe court further finds tbat in tbe revaluation and assessment made by tbe tax listers and assessors there is probable cause to believe tbat mistakes and errors have been made and committed in ascertaining tbe value of real estate owned by some of tbe citizens of Burke County, such errors and mistakes being common and unavoidable in all assessments, but tbe court is of tbe opinion tbat tbe statutes of this State point out and prescribe tbe remedy and tbe method which must be pursued in order to correct or cure such errors and mistakes in assessments, and tbe court is of tbe opinion tbat it should not restrain tbe collection of tbe taxes in Burke County by reason of such errors and mistakes in tbe valuation or assessments in individual cases, and tbat the plaintiffs herein or any one of said plaintiffs should pursue tbe remedy pointed out by tbe statutes and tbe decisions of tbe Supreme Court.

“It is, therefore, considered, ordered and adjudged by tbe court tbat tbe restraining order applied for be, and tbe same is hereby denied, and tbat this action be, and tbe same is hereby dismissed, and tbat tbe plaintiffs and' tbe sureties on their prosecution bond pay tbe cost of this action, to be taxed by tbe clerk of tbe court.”

*Avery & Patton, Huffman & Cowan for plaintiff.*,

*Avery & Hairfield, S. J. Ervin and S. J. Ervin, Jr., for defendant.*

*164Brogden, J.

Cbapter 545, Public-Local Laws of 1925, authorizes the board of commissioners of Burke County in tbeir discretion “to cause a revaluation and assessment to be made of all tbe real estate and personal property in Burke County liable for taxation, in tbe manner provided in chapter 12, Public Laws 1923, and to levy taxes thereon based upon such revaluation and assessment ... as now provided by law.”

Tbe controversy between tbe parties arises from tbe construction of this act of tbe Legislature. Tbe plaintiffs contend: First, That said act is a revenue act, and therefore under Article II, sec. 14, of tbe Constitution, tbe act should have been “read three several times in each House of tbe General Assembly and passed three several readings, which readings shall have been on three different days, and agreed to by each House respectively, and tbe yeas and nays on tbe second and third readings of tbe bill entered on tbe journal; second, that tbe defendants adopted a nonuniform method of making valuations and assessments; third, that no proper notice was given by tbe bpard of equalization of its meeting to equalize tbe assessments made under tbe act referred to.

Article II, sec. 14, of tbe Constitution, establishes tbe method by which revenue bills must be passed by tbe Legislature. But tbe question standing at tbe threshold of this aspect of tbe case is whether or not tbe act in question is, as a matter of fact, a revenue bill. “Revenue bills, as defined by law, are those that levy taxes in tbe strict sense of tbe word and are not bills for other purposes which may incidentally create revenue.” 1 Story Constitution, sec. 880; *Twin City National Bank v. Nebeker,*167 U. S., 196; 42 L. Ed., 134; *Millard v. Roberts,*202 U. S., 429; 50 L. Ed., 1090; *Anderson v. Ritterbusch,*98 Pac., 1002; 26 R. C. L., sec. 55; *Northern Counties Investment Trust v. Sears,*35 L. R. A. (O. S.).

In *the Anderson case, supra,*tbe act under consideration was “An act for tbe discovery of property not listed for taxation, providing for its assessment and collection of taxes thereon.” Tbe Court held that this was not a bill for raising revenue, placing its decision upon tbe principle announced by *Judge Story.*Indeed,, an examination of tbe act discloses that it was obviously designed to authorize tbe revaluation of property in Burke County, and expressly provided that taxes should be levied “as now provided by law.” Therefore, tbe act was not a revenue bill, but in tbe nature of a machinery act, and hence did not require compliance with Article II, sec. 14, of tbe Constitution.

Tbe second contention of tbe defendant is based upon tbe idea that there were inequalities in tbe assessment of property. “It has -been said that perfect uniformity and perfect equality of taxation, in all tbe *165aspects in which the human mind can view it, is a baseless dream. With reference to' locality, a tax is uniform when it operates with equal force and effect in every place where the subject of it is found, and with reference to classification, it is uniform when it operates without distinction or discrimination upon all persons composing the described class.” *R. R. v. Lacy,*187 N. C., 615; *Edge v. Robertson,*112 U. S., 580; 28 L. Ed., 798; Cooley on Taxation, ch. 6; *Lacy v. Packing Co.,*134 N. C., 567; *S. v. Denson,*189 N. C., 173.

However, the law in its wisdom has created tribunals to equalize values and to correct inequalities, to wit, county boards of equalization and the State Board of Assessment.

The third contention of the plaintiff raises the question as to whether proper notice was given by the board of equalization. It is a sound and just principle of law and one worthy of acceptation that “absence of notice or opportunity to be heard, violates the due process of law provision.” *Lumber Co. v. Smith,*146 N. C., 199; *Markham v. Carver,*188 N. C., 615. The trial judge found as a fact that the board of commissioners of Burke County met as a board of equalization on the second Monday in July as required by law, and finding that the assessors had not completed the work assigned, deferred consideration of all complaints, and set 22 September, 1925, as the time for hearing complaints of citizens as to the valuation placed upon their property, and that, in addition to verbal notice generally given by said board, the following written notices were given of the time when complaints would be heard, same being published in the *News-Herald,*a newspaper liublished in Morganton, Burke County, in the weekly publication or issue of 10 September, 1925: “Monday, 21 September, hearing tax complaints. The county commissioners have set aside Monday, 21 September, as the time for hearing tax complaints,” and the said newspaper in its issue on 16 September, 1925, contained the following notice: “Tuesday, the 22nd, is the day for tax complaints. Attention is called to the fact that Tuesday, 22 September, is the date set by the county commissioners for hearing tax complaints. By error, it was given in last week’s paper as Monday, the 21st.”

Chapter 12, Public Laws of 1923, sec. 70, provides for “notice in one newspaper, or by poster put up,” etc. The law is that the board of equalization must meet on the second Monday of July and continue until the work of revision is completed; that it must fix a time for hearing of complaints, and that notice of such hearing must be given. *Comrs. v. R. R.,*86 N. C., 541; *Wolfenden v. Comrs.,*152 N. C., 84; *Markham v. Carver,*188 N. C., 615. After the board has completed its work of revision it cannot thereafter increase valuation without special notice to the taxpayers. *Wolfenden v. Comrs.,*152 N. C., 84; *Markham v. Carver.*188 N. C., 615.

*166Tbis record discloses tbat tbe board of equalization could not complete its work at tbe July meeting because tbe assessors bad not completed tbe work of assessing property in Burke County. It was therefore tbe duty of tbe board to adjourn until tbis preliminary work could be completed. Tbis tbe board did. It was also tbe duty of tbe board to give reasonable notice of tbe time set for bearing complaints of property owners. Tbe board performed tbis duty in a substantial manner.

Tbe plaintiffs did not appeal from tbe assessments made by tbe board of equalization of Burke County. It is a generally accepted principle of law tbat in cases of tbis sort a taxpayer is not allowed to resort to tbe courts until be bas first pursued and exhausted tbe remedies before tbe administrative boards established by law for such purposes. Thus in *Mfg. Co. v. Comrs.,*189 N. C., 103, *Hoke, C. J.,*says: “From a consideration of these and other pertinent provisions of tbe law, it is clear, in our opinion, tbat tbe State Board of Assessment is given supervisory powers to correct improper assessments on tbe part of tbe local boards, and tbat on complaint made in apt time and on notice duly given and on sufficient and proper proof before tbis State board, plaintiff could have obtained or bad full opportunity to obtain tbe relief be now seeks. Tbis being true, tbe judgment of bis Honor sustaining tbe demurrer must be upheld, for it is tbe accepted position tbat a taxpayer is not allowed to resort to tbe courts in cases of tbis character until be bas pursued and exhausted tbe remedies provided before tbe duly constituted administrative boards having such matters in charge.”

We must bold, therefore, tbat tbe judgment as rendered be

Affirmed.