That is to say, the Supreme Court had already decided that the taxpayer being in default of return was not entitled to be heard upon the valuation of his property, except for the purpose of attacking the assessment for "fraud or corruption" in the assessing officer, and the testimony did not show such excessive valuation as within the rule laid down in both decisions would avoid the action of the comptroller-general.

The record discloses that for many years this class of property was not regarded as taxable in Georgia, and was not returned for taxation in the State. But it is contended that the taxpayer here stands in the attitude of one acting contumaciously, and denying the validity of the tax after this court had practically decided its validity against the plaintiffs in error in Wright v. Railroad Co., 195 U. S. 219. But, as we have seen, the Supreme Court of Georgia has expressly eliminated the element of bad faith in the taxpayer from the findings upon which its decision rests. The Wright case was held not to have concluded the contention that plaintiffs were denied the equal protection of the laws, in that no other person or corporation in Georgia was assessed upon stock in a foreign corporation, nor the validity of the claim that the stock was not held in Georgia, nor other grounds alleged in the petitions, except so far as the Georgia Railroad was concerned. for the year 1900. 124 Georgia, 607. We must decide the case in view of its relations to a taxpayer not fraudulently concealing his property and honestly contending, with reasonable grounds for the contention, that it is not taxable under the laws of the State.

As we have seen, the system provided in Georgia by the statutes of the State as construed by its highest court requires of the taxpayer that he return all his property, whether its liability is fairly contestable or not, upon pain of an ex parte valuation, against which there is no relief in the tax proceedings or in the courts, except in those cases where fraud or corruption can be shown in the action of the assessing officer.

Reluctant as we are to interfere with the enforcement of

the tax laws of a State, we are constrained to the conclusion that this system does not afford that due process of law which adjudges upon notice and opportunity to be heard, which it was the intention of the Fourteenth Amendment to protect against impairment by state action.

The judgments of the Supreme Court of Georgia are reversed and the cases remanded for further proceedings not inconsistent with this opinion.

CHAMBERS v. BALTIMORE AND OHIO RAILROAD

COMPANY.

ERROR TO THE SUPREME COURT OF THE STATE OF OHIO.

No. 22. Argued October 17, 18, 1907.-Decided November 18, 1907.

This court has jurisdiction to review the judgment on writ of error under § 709, Rev. Stat., if the opinion of the highest court of the State clearly shows that the Federal question was assumed to be in issue, was decided adversely, and the decision was essential to the judgment rendered. The right to sue and defend in the courts of the States is one of the privileges and immunities comprehended by § 2 of Art. IV of the Constitution of the United States, and equality of treatment in regard thereto does not depend upon comity between the States, but is granted and protected by that provision in the Constitution; subject, however, to the restrictions of that instrument that the limitations imposed by a State must operate in the same way on its own citizens and on those of other States. The State's own policy may determine the jurisdiction of its courts and the character of the controversies which shall be heard therein.

The statute of Ohio of 1902 providing that no action can be maintained in the courts of that State for wrongful death occurring in another State except where the deceased was a citizen of Ohio, the restriction operating equally upon representatives of the deceased whether they are citizens of Ohio or of other States, does not violate the privilege and immunity provision of the Federal Constitution.

73 Ohio St. 1, affirmed.

THE facts are stated in the opinion.

207 U. S.

Argument for Plaintiff in Error.

Mr. Charles Koonce, Jr., with whom Mr. R. B. Murray and Mr. W. S. Anderson were on the brief, for plaintiff in error:

The right to maintain a transitory action by a citizen of one of the States of the United States, in the courts of a sister State, is one of the privileges and immunities comprehended by § 2 of Art. IV of the Constitution of the United States. Corfield v. Coryell, 4 Wash. C. C. 371-380; Ward v. Maryland, 12 Wall. 418, 430; Cole v. Cunningham, 133 U. S. 107-114; Blake v. McClung, 172 U. S. 239–256; Moredock v. Kirby, 118 Fed. Rep. 180-182; Paul v. Virginia, 8 Wall. 168-180; Cofrode v. Gartner, 79 Michigan, 332-343; Railroad Co. v. Hendricks, 41 Indiana, 48; Schell v. Youngstown Sheet & Tube Co., 26 O. C. C. Reps. 209; State v. Cadigan, 73 Vermont, 245; Hoadley v. Insurance Commissioners, 37 Florida, 564; S. C., 33 L. R. A. 388; Roby v. Smith, 131 Indiana, 342; Shirk v. Lafayette 52 Fed. Rep. 857; Farmers' &c. Co. v. Railroad Co., 27 Fed. Rep. 146; State v. Duckworth, 5 Idaho, 642; S. C., 39 L. R. A. 365.

While the doctrine of comity with reference to the maintenance of an action applies as between the citizens of different nations, and between the citizens of foreign nations and the several States of the United States, it is not the foundation upon which the citizens of the several States rest their right in invoking the courts of sister States. The foundation of that right is the privilege and immunity provision of the Federal Constitution and it is not within the power of either legislature or court to annul a constitutional right on the pretended theory that the right exists only in comity and is.subject to the rules and principles governing comity rather than those which control constitutional guarantees.

The statute is not saved by the holding of the Supreme Court of Ohio that non-resident next of kin have equal rights, and the courts of Ohio are equally open to them, as to resident next of kin, provided only that the person whose wrongful death is the subject of action, was at the time of his death a citizen of Ohio.

The real purpose and effect of the act, as construed, was and

Argument for Defendant in Error.

207 U.S.

is to discriminate in favor of citizens of Ohio and against citizens of other States. Theoretical exceptions cannot save it from the ban of the constitutional provision herein in question.

The statute, as construed, is a denial of the right of the citizens of a sister State to have the cause of action resulting from the wrongful act enforced in favor of his wife and children.

The State of Ohio cannot forbid citizens of other States from suing in its courts, that right being enjoyed by its own people. Eingartner v. Steel Company, 94 Wisconsin, 70-78; Blake v. McClung, 172 U. S. 239–256.

In order that the statement that it is against the public policy of the State of Ohio to enforce in its courts a cause of action in favor of a citizen of another State can avail, it must first appear that it would be against the public policy of said State to enforce a like cause of action in favor of a citizen of its own State, or a like cause of action arising in its own State. 'The only qualification which can be attached to the right of such non-resident to maintain his action in the courts of a sister State is that the character of the cause of action must not be against the actual public policy of the State. And, to justify a court in refusing to enforce a right of action accruing under the laws of another State because against the policy of the laws of the forum, it must appear that it is against good morals or natural justice. Huntington v. Attrill, 146 U. S. 657, and cases there cited; Stewart v. B. & O. R. R. Co., 168 U. S. 445; Railroad Co. v. Rouse, 178 Illinois, 132; Railroad Company v. Babcock, 154 U. S. 190; Law v. Railroad Company, 91 Fed. Rep. 817; Davidow v. Railroad Company, 85 Fed. Rep. 193; Van Dorn v. Railroad Company, 35 C. C. A. 282; Wilson v. Footle, 55 Fed. Rep. 211; Walsh v. Railroad Company, 160 Massachusetts, 571; Burns v. Railroad Company, 113 Indiana, 169.

Mr. George F. Arrel, with whom Mr. James P. Wilson and Mr. John G. Wilson were on the brief, for defendant in error: This statute creates no discrimination between the citizens of Ohio and citizens of any other State. Under its provisions

207 U.S.

Argument for Defendant in Error.

it is only essential to the maintenance of the action to enforce the right in the courts of Ohio, that the decedent shall have been, at the time of his death, a citizen of Ohio. If the beneficiary under the statute of the State, giving the right, and in which the wrongful act took place, and the death resulted, happens to be a citizen of Ohio, the right secured by the statute could not be enforced in the courts of Ohio.

Unless an act of the state legislature in fact, and in some way discriminates as to the right in question between its citizens and citizens of another State, such act does not offend against this provision in the Federal Constitution. Paul v. Virginia, 8 Wall. 180; Slaughter House Cases, 16 Wall. 36.

True, the right to maintain the action in the courts of Ohio is made to depend in part upon the fact that the decedent at the time of his wrongful death was a citizen of Ohio, but such fact does not in any wise tend to show discrimination between or among beneficiaries, no matter where they may reside, or of what State or States they may be citizens. The act is open to no constitutional objection on the ground that it provides that an action may be maintained in the courts of Ohio for the wrongful death of one of its citizens, if the statutory law of the State in which he came to his death by wrongful act gives a right of such action. In other words, the act is free from objection in so far as it relates to the death of a citizen of Ohio. It is only objectionable, if at all, when applied to the maintenance of an action in the courts of Ohio for the wrongful death of a citizen of another State. It cannot be possible that by this provision of the Federal Constitution, the legislature of Ohio is inhibited from providing that where a citizen of another State meets his death by wrongful act in the State of which he is a citizen, that an action to recover compensation for his death cannot be maintained in the courts of Ohio.

The decision of the Supreme Court of Ohio herein clearly determines and establishes the public policy of the State of Ohio upon this subject, and this public policy, so determined and established, is clearly the .esult not only of legislative VOL. CCVII-10