Two federal questions arise on the record, in these cases, contained in the following propositions affirmed by the plaintiffs in error:
First, that the act of April 3, 1878, and the taxes levied in pursuance of it, if enforced as it is sought to be, in these judgments, in effect take the property of the defendants below without due process of law; and, second, that they constitute a denial of the equal protection of the laws; in both particulars violating the fourteenth amendment to the constitution of the United States.
In support of the first of these propositions, it is contended, on behalf of the plaintiffs in error, that, by the enforcement of these judgments, they will be deprived of their property without due process of law, because the valuation of their property under the act is made by the board of railroad commissioners without the right on their part to notice of the proceeding, or the right to be heard in opposition to any proposed action of the board, in its progress. It has, however, been repeatedly decided by this court that the proceedings to raise the public revenue by levying and collecting taxes are not necessarily judicial, and that 'due process of law,' as applied to that subject, does not imply or require the right to such notice and hearing as are considered to be essential to the validity of the proceedings and judgments of judicial tribunals. Notice by statute is generally the only notice given, and that has been held sufficient. 'In judging what is 'due process of law," said Mr. Justice BRADLEY, in Davidson v. New Orleans, 96 U.S. 97, 107, 'respect must be had to the cause and object of the taking, whether under the taxing power, the power of eminent domain, or the power of assessment for local improvements, or none of these; and, if found to be suitable or admissible in the special case, it will be adjudged to be 'due process of law;' but if found to be arbitary, oppressive, and unjust, it may be declared to be not 'due process of law."
In its application to proceedings for the levy and collection of taxes, it was said in McMillen v. Anderson, 95 U.S. 37, 42, that it 'is not and never has been considered necessary to the validity of a tax' 'that the party charged should have been present, or had an opportunity to be present, in some tribunal when he was assessed.' This language, it is true, was used in the deision of a case in reference to a license tax where all the circumstances of its assessment were declared by statute, and nothing was intrusted to the discretion of public officers; but, in the State Railroad Tax Cases, 92 U.S. 575, 610, where the ascertainment of the taxable value of railroads was the duty of a board, as in the present cases, whose assessment was challenged for the reason that the proceeding was not 'due process of law,' for want of notice and a hearing, it was said by Mr. Justice MILLER, delivering the opinion of the court: 'This board has its time of sitting fixed by law. Its sessions are not secret. No obstruction exists to the appearance of any one before it to assert a right or redress a wrong; and in the business of assessing taxes this is all that can be reasonably asked.'
In the proceedings questioned in these cases there was, in fact and in law, notice and a hearing. The railroad company, by its president or chief officer, is required by law at a specified time to return to the auditor of public accounts, under oath, a statement showing 'the total length of such railroad, including the length thereof beyond the limits of the state, and designating its length within this state, and in each county, city, and incorporate town therein, together with the average value per mile thereof, for the purpose of being operated as a carrier of freight and passengers, including engines and cars and a list of the depot grounds and improvements and other real estate of the said company, and the value thereof, and the respective counties, cities, and incorporated towns in which the same are located. That if any of said railroad companies owns or operates a railroad or railroads out of this state, but in connection with its road in this state, the president or chief officer of such company shall only be required to return such proportion of the entire value of all its rolling stock as the number of miles of its railroad in this state bears to the whole number of miles operated by said company in and out of this state.'