dissenting:
Upon application for judgment and an order for sale of lands for taxes the county court has no power to revise the assessment and re-value the premises on the ground that the valuation is too high, but it is within the power and duty of the court to determine as to the validity of the assessment made and deny the application if the tax is illegal. The single question in this case is whether the court ought to have rendered judgment for taxes based upon an assessment beyond the true value of the property, where the owner, without fault or negligence on his part, was deprived of a hearing before the board of review.
The sole ground upon which it is claimed that the court was justified in enforcing the tax by a sale of the lands is, that the tax-payer might by a suit in mandamus have compelled the taxing authorities to observe the requirements of the law. With that conclusion I cannot agree. I understand all the authorities as holding that a tax is illegal if the tax-payer has been denied his lawful right to a hearing before a board of review. Judge Cooley, in his work on Taxation, (2d.ed. p. 365,) says: “Whatever statutory provisions are made for notice and hearing must be regarded, under the rules of construction already^ given, as mandatory. A compliance with them in all essential particulars should therefore be held a condition precedent to any further proceedings.” Speaking of the question whether the right to be heard is a constitutional right, and indefeasible, he says (p. 363): “Upon this subject there is a general concurrence of authorities in the affirmative. It is a fundamental rule that in judicial or quasi judicial proceedings affecting the rights of the citizen he shall have notice and an opportunity to be heard before any judgment, decree, order or demand shall be given or established against him.”
In Black on Tax Titles it is said (2d ed. sec. 130): “The proceeding for the assessment of taxes, though not strictly judicial, is quasi judicial in its character; and hence, in accordance with well settled principles, it is essential to its validity that the law authorizing it should provide some kind of notice, and an opportunity to be heard.respecting it, before the proceeding becomes final, or it will want the essential element of due process of law. If, therefore, the law provides a board of equalization having power to alter the assessments of the property of individuals, it is necessary that the tax-payer should have adequate notice of any application or proposal or intention to change the amount of his assessment, or of the time and .place where he himself may complain of an erroneous assessment, and be accorded an opportunity to be heard; failing this, the action taken by the board is null.”
The same rule is stated in Desty on Taxation, (vol. 1, p. 597,) as follows: “It is a fundamental principle that before a person, can be deprived of a right, even by judicial suit, he must have notice and reasonable opportunity to be heard in defense of his rights. A tribunal invested by law with power to affect the property of a subject is bound to give such subject an opportunity of being heard before it proceeds. The rule is of universal application, and is founded on the plainest principles of justice. The power to tax is plenary, but taxation implies public interest, and also that the proceedings are in pais, in some of which the tax-payers have a right to a hearing; and any attempt to levy the burden in disregard of those principles must be inoperative. No person can be deprived of his property without a hearing; and this constitutional provision may apply to the assessment of taxes for the support of the government. If a party is illegally deprived of opportunity for a hearing in opposition to the assessment, the defect is jurisdictional and cannot be cured. * * * And where the statute requires it, the failure to give notice and opportunity to be heard in any appellate tribunal, after assessment, is fatal to the validity of the tax.”
The assessment lies at the foundation of every tax, and is the basis for the distribution of public burdens. No tax can be legal or enforceable which does not rest upon a valid and legal assessment. No authority has been cited or found which differs from the foregoing, and this court has heretofore adopted and followed the same rules, and held that the observance of all the material requirements of the statute which are designed for the security of the tax-payer are conditions precedent to any lawful demand whatever upon him. Cleghorn v. Postelwaite, 43 Ill. 428; Darling v. Gunn, 50 id. 424; Howe v. People, 86 id. 288.
Hough v. Hastings, 18 Ill. 312, was an action of ejectment by Hough, based on a tax deed executed in pursuance of á judgment and sale. The defendant, Hastings, offered evidence tending to'show that there was no meeting of the town board of review for the hearing of complaints. There was judgment for the defendant, which this court affirmed, saying (p. 317): “The statute prescribing such meeting is not merely directory, but is imperative,—as much so as that the property should be originally assessed by the assessor. It was a tribunal established by law, to which the owner of property might appeal from the assessment made by the assessor, with authority to reduce the assessment. A right to a hearing before these revisers was granted by the law to every tax-payer, and if deprived of this right he could not be bound by the assessment. The right of the owner of the land to raise objections of this character upon the trial of the tax title has been repeatedly settled by the decisions of this court and will not be re-considered now.”
City of Nashville v. Weiser, 54 Ill. 245, was an application for judgment against lands for taxes levied by the city for school and other purposes. The charter required the city council to fix a time for hearing objections to the assessment and to give notice of time and place. The council fixed the time but failed to attend. This court affirmed the judgment refusing the application, saying (p. 249): “It was important to the tax-payers to have an opportunity afforded them to appear and be heard before the city council on the valuation placed upon their property, and the council is powerless to repeal the provision of the law conferring the right. Nor can they deprive the tax-payer of its exercise, and enforce the collection of the tax. They fixed a time for a hearing, but for some reason failed to meet, thus as effectually depriving the tax-payers of their rights as if no time had been specified for the purpose. Failing to meet at the time named it was their plain duty to have fixed another time and given the notice required by their charter. For the failure to comply with this material requirement of the law the tax is void and cannot be collected.”
On application for judgment the tax-payer has a right to present any defenses which go to the validity of the tax. (Black on Tax Titles,—2d ed.—sec. 175.) Of course, the owner of the land in Hough v. Hastings, supra, might have had a writ of mandamus to compel the town board of review to meet, and the tax-payers of the city of Nashville, in the above case, might by like process have compelled the city council to hold a meeting; but so far as the sale of their lands was concerned it was wholly unnecessary, because the taxes could not be enforced in that way. An essential element of a valid assessment was wanting and the tax was therefore illegal. This is on the ground, clearly stated in the authorities on the subject, that notice and an opportunity to be heard are part of the “due process of law” guaranteed to the citizen, without which there can be no assessment. It makes no difference that the assessor valued the property if the owner was denied an opportunity to be heard by the board of review, because the valuation by the assessor was only one step in the assessment, and his action would be void unless followed by the meeting of the board of review and an opportunity to the tax-payer to be heard, which is just as essential as the original valuation by the assessor. City of Nashville v. Weiser, supra.
There was no valid assessment against the property of appellant in this ca,se, since the agreed statement of facts shows that he was deprived of his constitutional right to a hearing by the board of review, aúd I can see no reason for requiring him to institute a suit the only object of which would be to compel a legal assessment. He did everything that a tax-payer is required by law to do, by filing his written complaint and using every reasonable effort to obtain a hearing. The duty rested on the taxing authorities to obey the law and on the board of review to grant him a hearing as a condition precedent to imposing the burden - of taxation on his lands. The objection affects the substantial justice of the tax and comes within the provision of the statute. No court can say what the result of a hearing would have been, and appellant would have been bound by the judgment of the board on such hearing, but, regardless of such questions, he could not be deprived of his constitutional right to the hearing. If there was no valid assessment he had a right to make that defense, and as the court could not assess the property or validate the illegal assessment it seems to me that judgment should have been refused. The offer of appellant to pay whatever tax had been charged against his land upon its actual value was a voluntary concession on his part, but it did not go beyond the amount so offered or justify the judgment entered.
I do not regard the decisions that equity will not interfere to restrain a tax where the party aggrieved has an adequate remedy at law as applicable to this case in any way. Equity rarely interferes with the assessment or collection of taxes. It requires the tax-payer to bring his case within some recognized head of equity jurisdiction and to show that he has no adequate legal remedy. It has been considered sufficient, in some cases, to refuse relief in equity that there was a remedy by mandamus, but I do not understand that a party is barred of one legal remedy which he has selected because he might have had another. Mandamus is one legal remedy, and in some cases and as to some forms of property it may be a very desirable one, but where the People seek to enforce a tax by the sale of lands the statute gives the tax-payer a remedy by way of objection to the validity of the tax. Appellant availed himself of that defense by objecting that there was no valid assessment. It seems to me that he is not barred from making his defense merely'because he did not take up the burden of compelling a valid assessment by instituting a suit for that purpose.
■ Mr. Justice Hand: I concur in the foregoing dissenting opinion.