Dissenting Opinion.
Mb. Chile Justice Nealdelivered the dissenting opinion.
The issues involved in this and companion cases are vital to these taxpayers and also the State. I fully realize the grave responsibility which rests upon this Court, and each member thereof, in deciding these important cases. In assuming my individual responsibility, I am debtor alone to my own conscience and must act accordingly.
I will later refer to the State Board of Equalization as the “Board” and to the Bailroad and Public Utilities Commission as the ‘ ‘ Commission. ’ ’ In my judgment the valuation of these properties by the Commission and certified to the Board for ad valorem taxation is illegal; that the method adopted by the Commission, and which was later approved by the Board, was in violation of the statute. The action of the Commission in determining assessed valuation was known to the Board to be preconceived, arbitrary, and without authority of law.
It is not necessary to pass upon alleged overvaluation as evidence of constructive fraud in making assessments, *272although such, valuation miglat.be looked, to: in ¡determining the question of equalization.o.f assessments.
The record reveals without contradiction that long-prior to fixing the amount .of these assessments two members of the Commission,-Leon Jourolman and Samuel S. Pharr, publicly announced that assessments against all railroad properties for the biennium 1945-1946 would be greatly increased. At that time no railroad had filed any return as to tlae value of any property as required by law. The record further shows, also without contradiction, that these two Commissioners made extensive inspection of railroad properties throughout the State, including both localized and distributable property, and that ‘they failed and refused to place upon record, as required by statute, the nature of the property inspected and where it was located. The record fails to show where they went on their inspection tours or what they saw; and the said Commissioners admitted that their judgment had been definitely affected as a result of personal inspection.
The only claim made by the Commission that the result of personal inspection was reduced to writing is found in the following statement of the Chairman. When asked if he had reduced the results of his inspection to writing, he replied, “Certainly the records of the Commission, the -Minute Books which we keep, which are also our hooks on localized distributable property, reflect the results of our investigation.” This simply begs the question altogether.. No member of the Commission points to any particular property that was personally inspected and there is no writing filed as to any value fixed thereon as a result of any such inspection.
In this situation these railroad taxpayers were deprived of their right to introduce- any evidence to dis*273prove the results.of these official.inspections. Code sec. 1523. • .' -
Following the tentative assessment by the Commission, the railroads were given notice that all exceptions must be filed on or before August 16,1945, and that all hearings on exceptions would be held on August 17, 1945. It is alleged in the petition for certiorari (and it is not contradicted by the record) that on August 17, 1945, the Commission disposed of about 200 exceptions which had been filed by various railroads and utilities; that the railroads here involved requested an opportunity to offer additional evidence, which was twice refused. It thus appears that these companies were illegally and wilfully denied their right to offer proof in contradiction of values fixed by the Commission. Later the Commission appeared before the. State Board and made a motion to strike the several appeals for review of these assessments, seeking thereby to prevent any hearing whatever of their action in the premises. '
The mere fact that this motion was overruled, and there was a hearing de novo, does not remove the stigma-of illegality from these assessments, since the Board expressly ratified and approved everything that had been done, holding that each and every' assessment made was correct, without the reduction of as much as one penny.
Under our statute an' assessment is void for illegality if made on the basis of a personal inspection of officers who did not reduce to writing and put in the record the evidence so obtained. Louisville & N. R. Co. v. Bate, 80 Tenn. 573. The statute, Section 4, Acts of 1877, that was under consideration in this case, was quite similar in its provisions to the statute governing the assessment of railroad property by the present Commission. Thus the *274Act of 1877 provided: “That all proof taken by said assessors shall be reduced to writing, and he sworn to and signed by the parties. ’ ’
Our present statute (Code sec. 1532), requiring the Commission to file and preserve proof taken by it, provides: “. . '. and they shall have carefully preserved and filed away all reports, documents, and proof taken and used by them, and which shall be public records, subject to inspection by the taxpayer under reasonable regulations.” (Emphasis supplied.)
This Court, in commenting on the failure of the Commission to comply with the Act of 1877, said:
“It may be the assessors based their estimates of value upon their personal knowledge, formed from inspection and examination. This they might have done, but like all other testimony it should have been reduced to writing, and an opportunity to cross-examine allowed to the parties in interest.” (Emphasis supplied.) Railroad v. Bate, 80 Tenn. 573.
We think the language thus used in the Bate Case is most persuasive when we come to apply it to Code sec. 1532 above quoted. This section of the Code expressly requires the Commission to “file a-way” all the evidence “taken and used by them,” and is made subject to “inspection by the taxpayer.” I construe this as a positive mandate upon them to reduce to writing the result of their personal inspection to the end, as said in the Bate Case, that the “parties in interest” be given an “opportunity to cross examine” them, and to offer proof in rebuttal. The evil resulting from a failure to filé a full report of the property inspected is the taxpayer would have no way of knowing what the taxing official considered in arriving at an assessed valuation of the property. *275The case of Railroad v. Bate, and the reasons underlying the decision, finds support in Interstate Commerce Commission v. Louisville & N. R. Co., 227 U. S. 88, 33 S. Ct. 185, 57 L. Ed. 431; Ohio Bell Tel. Co. v. Public Utilities Commission, 301 U. S. 292, 57 S. Ct. 724, 81 L. Ed. 1093.
In Interstate Commerce Commission v. Louisville & N. R., supra, it was said [227 U. S. 88, 33 S. Ct. 187]:
“In such cases the Commissioners cannot act upon their own information, as could jurors in primitive days. All parties must be fully apprised of the evidence submitted or to be considered, and must he given opportunity to cross-examine witnesses, to inspect documents, and to offer evidence in explanation or rebuttal. In no other way can a party maintain its rights or make its defense.” (Emphasis supplied.)
In Ohio Bell Tel. Co. v. Public Utilities Commission, supra, it was held [301 U. S. 292, 57 S. Ct. 728]:
“The fundamentals of a trial were denied to the appellant. when rates previously collected were ordered to be refunded upon the strength of evidential facts not spread upon the records.”
Mr. Justice Caedozo expressed strong disapproval of this procedure in the following language: “This is not the fair hearing essential to due process. It is condemnation without trial.” Conceding that the Commission was clothed with broad ■ discretionary powers and “exempt from supervision” if certain “[legal] restraints have been obeyed”, he says: “All the more insistent is the need, when power has been bestowed so freely, that the 'inexorable safeguard’ (St. Joseph Stock Yards Co. v. United States, 298 U. S. 38, 73, 56 S. Ct. 720, 735, 80 *276L. Ed. 1033) of . a fair and .open hearing he maintained in its integrity.” (Citing-cases.)
■ In the Ohio Bell Telephone Case, supra, the Commission “reported its conclusion, but not the underlying proofs.”
The situation confronting us in the instant case is analogous to that which was ■ expressly found in • the Ohio Bell Telephone Case, by Justice .Cardozo.-
.■ The.majority of the Court, for. whom I entertain great respect, seem to be-of opinion that the question of “personal inspection” of .the property is of little moment. But to my mind it involves the fundamental right of the taxpayer to be heard in protest against an excessive or illegal assessment. I am more than ever convinced of its importance in the light of the greatly increased assessment upon .the defendant’s property over and above any previous assessment.
I am well aware of the holding of this Court in Nashville C. & St. L. Ry. v. Browning, 176 Tenn. 245, 140 S. W. (2d) 71, that there can be no review of the action of any taxing authority except to determine if such authority acted illegally, fraudulently, or exceeded its jurisdiction. I make reference to the excessive amount of these assessments over previous assessments as showing the importance of requiring that the taxing authority comply with the statute and disclose to the public, and especially the taxpayer, every material fact upon which an assessment is made. If this is not done, it amounts to a denial of due process.
I think the assignments of error should be overruled and the judgment of the trial court affirmed.