Under a Nevada law providing only for an ad valorem
on property, a state board valued the tangible and intangible
personal property used within the state by a foreign express
company at so much for each mile of its line employed there in
local and in interstate commerce, and an assessor, in listing the
part within his county at the valuation per mile so fixed,
inaccurately characterized the property as consisting of the right
to carry on an express business. Accepting as conclusive that his
action must be construed under and controlled by the state statute
and the action of the board, as decided by the state court,
that the tax was not on the privilege of engaging in
interstate commerce, but on the property in the county. P.
248 U. S.
In an action to enforce the tax, if the valuation was excessive
and burdensome to interstate commerce, the company, under Nevada
Rev.Laws, 1912, § 3664, was entitled to prove the facts and secure
a reduction, but, in this case, it failed to do so. P. 248 U. S.
A tax is not wanting in due process, even if the valuation is
originally made ex parte,
if it is enforced only through a
judicial proceeding affording notice and opportunity for full
38 Nev. 505 affirmed.
The case is stated in the opinion.
Page 248 U. S. 166
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This was an action to enforce a tax levied in Humboldt County,
Nevada, against the express company. Several objections were
interposed, some presenting local, and others federal, questions,
but all were overruled and payment of the tax directed. 38 Nev.
505. This writ of error was allowed prior to the Act of September
6, 1916, c. 448, 39 Stat. 726.
The federal questions are all that we can consider, and they are
whether the tax was laid on the privilege or act of engaging in
interstate commerce, whether the tax proceedings were without due
process of law, and whether they otherwise were such as to make the
tax a burden on interstate commerce.
The company is a Colorado corporation engaged in the express
business in this and other countries. One of its lines extends
through Humboldt and other counties in Nevada, over the Southern
Pacific Railroad, and is used in both intrastate and interstate
commerce, but principally the latter. The tax was for the year
As construed by the state court, the statute *
under which the
tax was imposed does not provide for a privilege or franchise tax,
but only for an ad valorem
property tax. Acting under the
statute, a state board valued the company's personal property,
tangible and intangible, used in its express business within the
state at $300 per mile of line, and it then became the duty of the
assessor of Humboldt County to enter or list on the assessment roll
at that valuation so much of the line as was in his county. In
making the entry, he accurately gave the length of the line in the
county, the railroad over which the same was operated, and the
valuation fixed by the state board, but
Page 248 U. S. 167
inaccurately described the property as consisting of the right
to carry on an express business there.
Looking only at that entry, there is strong ground for saying
that the tax was laid on the privilege or act of doing an express
business which was principally interstate. On the other hand, the
action of the state board, on which the assessment concededly was
predicated, indicates that what was taxed was the company's
property in Humboldt County. The difference is vital, for,
consistently with the commerce clause of the federal Constitution,
the state could not tax the privilege or act of engaging in
interstate commerce, but could tax the company's property within
the state, although chiefly employed in such commerce. Adams
Express Co. v. Ohio, 165 U. S. 194
165 U. S. 220
s.c., 166 U. S. 166
185, 166 U. S. 218
Galveston, Harrisburg & San Antonio Ry. Co. v. Texas,
210 U. S. 217
210 U. S.
-227; Cudahy Packing Co. v. Minnesota,
246 U. S. 450
246 U. S.
The company insists that the state is concluded by the entry on
the assessment roll. But the state court, as shown in its opinion,
rejects that view and holds in effect that the entry must be
construed in the light of the statute and the action of the state
board, and that, when this is done, it is apparent that the tax was
not laid on the privilege or act of engaging in interstate
commerce, but on the company's property within the county. We
perceive no ground for disturbing that ruling. Insofar as it turns
on the authority of the state board and the assessor under the
statute and the relative effect to be given to their acts, it is
not reviewable here, and insofar as it relates to what really was
the subject of the tax, we think it was right. See Cudahy
Packing Co. v. Minnesota, supra,
p. 246 U. S. 454
Evidently the company at one time took this view of the tax, for in
an amendment to its answer, we find an allegation that the state
"valued the property used by this defendant at the rate or sum
Page 248 U. S. 168
$300 for every mile of railroad over which this defendant
transacted business and apportioned said assessment or tax to the
various counties of the state in accordance with the number of
miles of such railroad so situated within said county, and that the
tax herein sued for was not otherwise levied or assessed."
A want of due process of law in the sense of the Fourteenth
Amendment is asserted because the valuation by the state board was
made without notice to the company or according it an opportunity
to be heard. Assuming that the premise is correct (as to which the
record is not entirely clear), we are unable to accept the
conclusion. In Nevada, the mode of enforcing a tax such as this is
by a judicial proceeding wherein process issues and an opportunity
is afforded for a full hearing. Only after there is a judgment
sustaining the tax is payment enforced. Rev.Laws 1912, §§
3659-3665. This, as repeatedly has been held, satisfies the
requirements of due process of law. Hagar v. Reclamation
District, 111 U. S. 701
Winona & St. Peter Land Co. v. Minnesota, 159 U.
, 159 U. S. 537
Gallup v. Schmidt, 183 U. S. 300
183 U. S.
It also is asserted that the state board, in valuing the
property, acted on inaccurate data and applied erroneous standards
which resulted in a valuation so excessive as to make the tax a
burden on interstate commerce. It is true that some inaccurate data
and some computations following erroneous standards were presented
to the board by a state officer in support of a suggestion that the
property be valued at $500 or more per mile of line. But the
suggestion was not adopted, and it is not shown that the board's
valuation was based on the data and computations so presented.
Besides, if the valuation was excessive, the company was entitled
in the present suit to show the true value and to have the tax
reduced accordingly. Rev.Laws 1912, § 3664. An attempt at such a
showing was made, but the state court concluded
Page 248 U. S. 169
therefrom that a valuation of $300 per mile, as fixed by the
board, was not excessive. It may be that the showing was not
complete, but, even if so, it was the company's showing, and was
all that was before the court. After examining it, we think it
discloses no ground for condemning the tax as a burden on
* Revised Laws 1912, §§ 3621, 3622, 3624, 3797-3801, 3807.