Jenkins, Justice.
1. One against whom an unlawful exaction in the. form of a tax is sought to be made, by virtue of unconstitutional statute or procedure, is entitled to an injunction to restrain its collection, if adequate remedy at law by affidavit of illegality is not provided; and it is not necessary that he first tender any part of the wholly illegal tax, or resort to arbitration under invalid or inapplicable statutes, or await the levy of a tax execution. Harris Orchard Co. v. Tharpe, 177 Ga. 547 (2) (170 S. E. 811, 88 A. L. R. 1212); City of Atlanta v. Jacobs, 125 Ga. 523 (2), 527 (53 S. E. 534), and cit.; McIntyre v. Harrison, 172 Ga. 65, 72 (157 S. E. 499), and cit.; Wright v. Union Tank Line Co., 143 Ga. 765 (85 S. E. 994); Lane v. Unadilla, 154 Ga. 577 (2) (114 S. E. 630); Southwestern Railroad v. Wright, 68 Ga. 311 (2), 320; Wright v. S. W. R., 64 Ga. 783, 789; Vincent v. Poole, 181 Ga. 718, 720 (184 S. E. 269); 61 C. J. 781, § 1005.
2. “A county, being a corporation created by and existing under the laws of this State, can exercise only such powers as are conferred on it by law; and when it undertakes through its constituted authorities to exercise the power of taxation in any given manner, a clear and manifest legal right to do so must appear.” [221] Albany Bottling Co. v. Watson, 103 Ga. 503 (30 S. E. 276) ; Bowers v. Banks, 152 Ga. 659 (111 S. E. 38), and cit.; McCrory Co. v. Board of Commissioners of Fulton County, 177 Ga. 242 (170 S. E. 18).
3. “The assessment of a tax is action judicial in its nature, requiring for the legal exertion of the power such opportunity to appear and be heard as the circumstances of the case require. . . Somewhere during the process of the assessment the taxpayer must have an opportunity to be heard, and . . this notice must be provided as an essential part of the statutory provision, and not awarded as a mere matter of favor or grace.” A denial of this right, as under former laws relating to assessments by the comptroller-general, prior to amendment now providing an opportunity to be heard, is a failure to afford due process of law within the intention of the 14th amendment of the Federal constitution, and of art. 1, par. 3, of the State constitution (Code, § 2-103). Central of Ga. Ry. Co. v. Wright, 207 U. S. 127, 138, 141, 142 (28 Sup. Ct. 47, 52 L. ed. 134, 12 Ann. Cas. 463), and cit.; Turner v. Wade, 254 U. S. 64 (41 Sup. Ct. 27, 65 L. ed. 134); City of Macon v. Ries, 179 Ga. 320, 323 (176 S. E. 21), and cit.; Lane v. Unadilla, supra; Shippen Lumber Co. v. Elliott, 134 Ga. 699 (3), 702 (68 S. E. 509). As to the amendment of the original law relating to State-comptroller assessments, and correcting the former infirmity, see State v. Western & Atlantic R. Co., 136 Ga. 619, 627 (71 S. E. 1055); Gaulden v. Wright, 140 Ga. 800, 802 (79 S. E. 1125); Code, §§ 92-6002 et seq., 92-6103, 92-6802, 92-6803.
4. While chapter 92-69 of the Code, creating in the several counties of the State a county board of tax-assessors, and prescribing their duties with reference to omitted or undervalued properties in the county, makes provision, in §§ 92-6911 et seq., for notice, hearing, and arbitration in behalf of taxpayers desiring to contest assessments made against them, where tax returns have been made or should have been made to the tax-receiver of the county (Code, §§ 92-6902, 92-6911), yet § 92-6901 provides that “nothing in this chapter shall apply to those persons, firms, or corporations who are required to make their returns to the comptroller-general.” § 92-6915 contains a like exception. These two latter sections, therefore, expressly exclude any one in the group mentioned from [222] having the benefit of any such “due process” procedure as may be afforded under this chapter.
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Jenkins, Justice.
1. One against whom an unlawful exaction in the. form of a tax is sought to be made, by virtue of unconstitutional statute or procedure, is entitled to an injunction to restrain its collection, if adequate remedy at law by affidavit of illegality is not provided; and it is not necessary that he first tender any part of the wholly illegal tax, or resort to arbitration under invalid or inapplicable statutes, or await the levy of a tax execution. Harris Orchard Co. v. Tharpe, 177 Ga. 547 (2) (170 S. E. 811, 88 A. L. R. 1212); City of Atlanta v. Jacobs, 125 Ga. 523 (2), 527 (53 S. E. 534), and cit.; McIntyre v. Harrison, 172 Ga. 65, 72 (157 S. E. 499), and cit.; Wright v. Union Tank Line Co., 143 Ga. 765 (85 S. E. 994); Lane v. Unadilla, 154 Ga. 577 (2) (114 S. E. 630); Southwestern Railroad v. Wright, 68 Ga. 311 (2), 320; Wright v. S. W. R., 64 Ga. 783, 789; Vincent v. Poole, 181 Ga. 718, 720 (184 S. E. 269); 61 C. J. 781, § 1005.
2. “A county, being a corporation created by and existing under the laws of this State, can exercise only such powers as are conferred on it by law; and when it undertakes through its constituted authorities to exercise the power of taxation in any given manner, a clear and manifest legal right to do so must appear.” [221] Albany Bottling Co. v. Watson, 103 Ga. 503 (30 S. E. 276) ; Bowers v. Banks, 152 Ga. 659 (111 S. E. 38), and cit.; McCrory Co. v. Board of Commissioners of Fulton County, 177 Ga. 242 (170 S. E. 18).
3. “The assessment of a tax is action judicial in its nature, requiring for the legal exertion of the power such opportunity to appear and be heard as the circumstances of the case require. . . Somewhere during the process of the assessment the taxpayer must have an opportunity to be heard, and . . this notice must be provided as an essential part of the statutory provision, and not awarded as a mere matter of favor or grace.” A denial of this right, as under former laws relating to assessments by the comptroller-general, prior to amendment now providing an opportunity to be heard, is a failure to afford due process of law within the intention of the 14th amendment of the Federal constitution, and of art. 1, par. 3, of the State constitution (Code, § 2-103). Central of Ga. Ry. Co. v. Wright, 207 U. S. 127, 138, 141, 142 (28 Sup. Ct. 47, 52 L. ed. 134, 12 Ann. Cas. 463), and cit.; Turner v. Wade, 254 U. S. 64 (41 Sup. Ct. 27, 65 L. ed. 134); City of Macon v. Ries, 179 Ga. 320, 323 (176 S. E. 21), and cit.; Lane v. Unadilla, supra; Shippen Lumber Co. v. Elliott, 134 Ga. 699 (3), 702 (68 S. E. 509). As to the amendment of the original law relating to State-comptroller assessments, and correcting the former infirmity, see State v. Western & Atlantic R. Co., 136 Ga. 619, 627 (71 S. E. 1055); Gaulden v. Wright, 140 Ga. 800, 802 (79 S. E. 1125); Code, §§ 92-6002 et seq., 92-6103, 92-6802, 92-6803.
4. While chapter 92-69 of the Code, creating in the several counties of the State a county board of tax-assessors, and prescribing their duties with reference to omitted or undervalued properties in the county, makes provision, in §§ 92-6911 et seq., for notice, hearing, and arbitration in behalf of taxpayers desiring to contest assessments made against them, where tax returns have been made or should have been made to the tax-receiver of the county (Code, §§ 92-6902, 92-6911), yet § 92-6901 provides that “nothing in this chapter shall apply to those persons, firms, or corporations who are required to make their returns to the comptroller-general.” § 92-6915 contains a like exception. These two latter sections, therefore, expressly exclude any one in the group mentioned from [222] having the benefit of any such “due process” procedure as may be afforded under this chapter.
5. The Code, § 92-5902, which embodies as part of the general law certain provisions in the general tax act of 1927 (Ga. L. 1927, p. 97) thus re-enacted in the adoption of the Code (Ga. L. 1935, p. 84), provides in terms that “all persons or companies owning or operating railroads . . or sleeping-cars in this State . . shall be required- to malee annual lax returns of all property located in this State to the comptroller-general; and the laws now in force providing for the taxation of railroads in this State shall be applicable to the assessments of taxes on the businesses above stated.” See also the general tax act of 1935. Ga. L. 1935, p. 65. Following the sections of the Code (§§ 92-2601 et seq.) relating to returns, assessments, and payments of taxes to the comptroller-general on rolling stock and other properties of railroads, the Code, § 92-2605, also embodying part of the general tax act of 1927 (§ 9 (2), Ga. L. 1927, p. 97), further provides that: "Each nonresident person or company whose sleeping-cars are run in this State shall be taxed as follows: ascertain the whole number of miles of railroad over which sleeping-cars are run and the entire value of all sleeping-cars of such person or company, then tax such sleeping-cars at the regular tax rate imposed upon the property in this State on a valuation based on the proportion to the .entire value of such sleeping-cars that the length of lines in this State over which such cars are run bears to the length of lines of 'all railroads over which such sleeping-cars are run. The returns shall be made lo the comptroller-general. . . If the taxes herein provided are not paid, the comptroller-general shall issue executions against the owners of such cars, which may be levied by the sheriff of any county in this State upon the sleeping-car or cars of the owners who have failed to pay the taxes.” These sections requiring “companies owning or operating . . sleeping-cars in this State” and “non-resident” companies “whose sleeping-cars are run in this State” to make their returns to the comptroller-general, such a company necessarily falls within the express exception of the Code, § 92-6901, where an assessment is made or attempted to be made by a county board oE tax-assessors as to its sleeping-cars within a county for county taxation. As to such an assessment by a county board, therefore, that section and other sections of [223] chapter 92-69 of the Code fail to provide in favor of the sleeping-car company any “due process” for resisting the assessment by the board, such as this chapter may provide in cases of other taxpayers, and such an application of the statutes and procedure by the county board as to the sleeping-car company contravenes the Federal and State constitutions. The procedure of the Code, §§ 92-6002 et seq. and 92-6103, under which railroads are given opportunity for a hearing and arbitration in resistance of assessments on omitted or undervalued property, even if applicable to sleeping-car companies under §§ 92-5902 and 92-2605, is by express terms limited to assessments made by the comptroller-general. Accordingly, since the assessments in this case were made only by the Fulton County board of tax assessors under chapter 92-69 of the Code and the procedure of that chapter, without any assessment or participation by the comptroller-general, the procedure in cases of assessments by him would have no application. For the same reason, §§ 92-6802 and 92-6803, providing for notice, arbitration, and opportunity to contest by petition in equity, being also limited to assessments and procedure through the comptrollei’-general, are without application. And for a like reason, that the petition in no way indicates any notice or assessment by the county tax-receiver, or any procedure other than by the county board of tax-assessors, under chapter 92-69 of the Code, the procedure of §§ 92-6701 et seq., and 92-6804, limited to notices and assessments by county tax-receivers, could not be applied.
6. Under the preceding rulings, the application by the county authorities of the tax-assessment statutes to the assessments by the county board of tax-assessors on sleeping-cars of the petitioner in Fulton County failed to afford it “due process of law;” and for this reason, while the court correctly denied the motion to dismiss the action, it was error to refuse an injunction and to dissolve the previous restraining order.
7. Under the foregoing rulings, it is unnecessary to determine whether other statutes and procedure attacked by the petition aTe unconstitutional or invalid on the grounds urged; or what, if any, powers may exist in the comptroller-general under the statutes mentioned or other laws to assess sleeping-cars for county taxation, as in cases of railroad rolling-stock under the Code, §§ 92-2701 et seq., relating to railroad companies; or whatj if any, powers [224] may exist in county boards of tax-assessors (in view of the powers delegated by statute to the comptroller-general) to assess sleeping-cars actually “located” in their respective, counties, and the proper basis for any such taxation; or irrespective of what powers may exist in the comptroller-general or in the county boards of tax-assessors; under what facts sleeping-cars temporarily in particular counties may be lawfully so assessed, and the proper basis for any such county taxation.
Judgment reversed on the main bill of exceptions; affirmed on the cross-bill of exceptions.
All the Justices concur.