Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1885-12-26
THE RAILROAD TAXES.
A COMPARISON OF THE KENTUCKY
AND CALIFORNIA CASES.
An Impartial Outline of the Two
Cases, and Analysis of the
Principles Involved.
Isan Francisco Post, December 18th

while politicians and many others have
come to regard il with interest not only ON
account of the influence it has on the
financial condition of the State Govern
ment, but from principles involved The
railroads claim they are contending for
principle and equality of taxation, while a
certain class of politicians have found it
convenient and profitable TO harangue the
unlnformed on the arrogance and injustice
of the course pursued by these powerful
aggregations Of wealth and influence. The
recent decisions made by the United States
Supreme Court in what are commonly
known as the Kentucky cases" have
given rise TO a diversity of opinion. and
produced an anomalous condition of af
fairs, inasmuch as each side claims a
victory. One would suppose that under
such condition Of affairs each side would
be coTespondingly happy and all further
discussion cease, but such is the inconsist
ency OF human nature that the matter is
still agitated and still shrouded i'm the
mysterious arguments Of the lawyers" as
a morning contemporary puts it, Among
the numerous columns of newspaper
articles devoted to this subject | have seen
no comparison Of the California and Ken
lucky cases, and no fair ANALYSIS of the
principles involved, while brief COMPARE
son and almost superficial examination of
the two would suffice to convince any
intelligent observer whether the decision
OF the kentucky cases initiates against the
cause OF tn e railroads in this State, or vice
versa.
TEE POINTS AT ISSUE.
In recent issue a morning paper says
( a. -rrsst .,s, =
the railways had no notice Of the assess
ment and were, therefore. in danger of
having their property taken without due
process OF law, and the point that a differ
encc III the method employed for assessing
railway property and the method employed
Tor assessing other property was in viola
ton of the Fourteenth Amendment-tb
Supreme Court reversed the decision of
Judges Field and Sawyer sitting in circuit.
That Judge Field concurred in REVERSING
his own decision is not natural he may
have had reasons of his own. He NAV
nave seen the error Of his previous waysn
That Judge Field concurred in the decis
ion IS true, and he did SO without giving a
written opinion, but that he intended there
by to reverse himself is absurd, and could
emanate from no source except one of we'll
known hostility to the eminent iurist. No
one acquainted with Judges Field and Saw
yer doubts for moment that either would
have any hesitancy in reversing his own
decision if convinced of his error. bat the
eminent standing of each. coupled with
the gravity Of the act, would seem to re-
quire that the reasons therefor should be
published 10 the world, as all decisions of
importance are. Judge Field concurred in
the kentucky cases, and an analysis Of
Justice Matthews opinion will be found to
afnrm the doctrines enunciated by Judge
Field in the California eases and dispel the
fallacy contained in the above excerpt
As to the point that the railroads had on
notice of the assessment. 1t is true this
point was raised in the Kentucky case, and
decided, but it was not decided that no no.
hce was necessary, and the entire opinion
on this point is in complete harmony with
the views of Judges Field and Sawyer. In
the Kentucky case it WIS contended that
the taxation of the roads by the State was
an attempt to take the property without
- due process Of law for the reason that
they had no notice of the proceeding. or
right to be heard, when assessed by the
State Board of Railroad Commissioners.
On this question Justice Matthews saws:
1t has been repeatedly decided by this
Court that proceeding to raise public
revenue by levying and collecting tax is not
necessarily judicial, and that due process
of law as applied to that subject, does not
require the right to such notice and hear
ing as are considered to be essential to the
validity of the proceedings and the iudg-
ments of judicial tribunals Notice by sta
tute is generally the only notice given, and
that has been held sufficient"
STATUTORY NOTICE
Further on the opinion says: "This
Board has its time of sittings fixed by law.
and in the proceedings questioned in these
cases there was, in fact and in law, a notice
and hearing"
The Court decided by the above language
that notice by statute was sufficient notice
for the purposes of assessment and taxa
ton, and IN support of the position quoted
as follows (96 Z. 5. 81, 1917, the same au-
thority relied on by Justice Fl Id in the
California cases
In Judging what is due process of law,
respect must be had to the cause and object
of taxing, whether under the taxing power
of eminent domain or the power of assess
ment for local improvements, or none of
these, and if found TO be suitable or admis-
sible in the special case, it will be adiudged
10 be due process Of Law; but if found to
be arbitrary, oppressive and unjust it NAV
be declared not due process of law"
THE Kentucky cases then de ;ided Tor ra-
ther affirmed, rs there were no new points
presented by the record and the appeals
were rather frivolous than otherwise that
personal notice was not necessary that no
tice by statute was sufficient; that the pro-
ceeding was not judicial, and that the power
of taxation came within the provisions of
the Fourteenth Amendment"
Let us next examine the opinion of Mr.
Justice Field on this point, and we find
that he in no way differs from Justice
Matthews. In deciding the Santa Clara
case he saws 10 SAWYER Dob
The notice to which we refer need not
be personal citation it is sufficient if it be
given by a law designating the time and
place where parties may contest the Justice
of the valuation. As general rule only
statutory notice IS given. The State may
designate the kind of notice and the man
ner in which it shall be given All that
we assert or have asserted is that there must
be notice OF some kind"
Justice Sawyers opinion is TO the same
effect. He says % Sawyer, 225-S):
In my Judgment, the authorities es-
tablisb, beyond all controversy, that some
where in the process of assessing tax, I'M
der a law or a State Constitution, at some
point before the assessment becomes ire
vocably fixed, the person affected should
have notice. The notice may not be re-
quired to be personal to each individual or
anything other than statutory"
OPPORTUNITY TO BE HEARD.
And again, at the time the assessment
in question was made, neither the Consti-
tuition nor any statute of California gave
the defendant any right, or afforded it any
legal notice of the proceeding or opportu-
nifty to be heard
In view of the above excerpts it is diff
cult to perceive how there can be any diff
ference of opinion as to whether the two
sets of cases are in harmony or variance on
the question of notice 1t is true that the
attorneys for the State and counties in the
California cases claimed that statute ex-
listed providing for notice the Act of
March H. lSSi-but in the trial of the cases
it was proven by the original written Jour
mails in the custody of the Secretary of State
that the bill did not receiye the constitu-
tional majority on its final passage in the
Assembly and notwithstanding it was
printed among the statutes of the State
and purported to be valid law, it was de-
clared unconstitutional and void This
being principally question of fact it is
extremely improbable that the ruling of
Judges Field and Sawyer in this regard
will be disturbed. 1t is also true that the
Legislature of 1888 passed an Act providing
for notice. but This cOuld not affect fhe as