It may, then, be fairly said that any state law which does not deny to citizens of other states substantial equality of private right will not violate the comity clause. A statute requiring residents of other states to consent to the jurisdiction of the state's courts in suits brought in these courts as a condition of doing business within the state does not necessarily affect that substantial equality. Since such a statute applies to citizens of the state residing abroad it might well be argued that the comity clause does not touch it at all. The only possible answer to this reasoning is that the number of citizens residing temporarily abroad and doing business in the state of their domicile is negligible, and hence the statute as a practical matter applies only to non-citizens.66

Citizens of a state doing business in its territory, whether through an agent or not, are liable to suit in, and subject to, its courts. To permit citizens of other states to do business within the state without being similarly amenable to process is to discriminate against domestic enterprise. A statute should not, however, attempt to extend the jurisdiction of the courts over non-citizens to a greater extent than that exercised over citizens. If, for example, a personal judgment may not be given against a citizen without personal service, a

a statute allowing such a judgment against a non-citizen will be unconstitutional.67 But the fact that "personal service" has been used ambiguously to cover both service on the defendant in person and service by leaving the writ at his home, may explain a number of cases. 68 The statutes upon which service in these cases was based provided for service on a resident defendant in person, or if that be impossible, then by leaving the writ at his house, while they provided for service on a non-resident by leaving process with his agent.69 The courts were thus immediately impressed by the ap

66 In this section of the article non-resident and non-citizen are used interchangeably.

67 KENTUCKY CODE OF PRACTICE OF 1895, $$ 48, 56, 419; Moredock v. Kirby, 118 Fed. 180 (1902).

ENCYCL. OF PL. & PR. 613; ALDERSON, JUDICIAL WRITS AND PROCESS, 179; Johnston v. Robins, 3 Johns. (N. Y.) 440 (1808); Dunkle v. Elston, 71 Ind. 585 (1880); MINN. Stat. 1913, § 7732.

69 MINN. STAT. 1913, § 7732, LAWS OF 1901, ch. 278; DELAWARE Rev. CODE 1893, ch. 102, § 2, ch. 192; LOUISIANA-GARLANDS REV. CODE OF PRAC. 1914, § 187 et seq.; CODE OF TENN. 1896, § 4535 and cases and sections there cited, 98 4516, 4542; Cabanne v. Graf, 87 Minn. 510, 92 N. W. 46 (1902); Caldwell o. Armour, 1 Pen. (Del.) 545, 43 Atl. 517 (1899); Aikmann o. Sanderson, 122 La. 265, 47 So. 600 (1908); Brooks v. Dun, 51 Fed. 138 (1892).





parent discrimination against non-citizens in making them subject to personal judgments under a substituted service while citizens were only subject to such judgments under personal service, using the term in the broader sense. The courts have found no difficulty in supporting service at the home of a non-citizen temporarily within the state,70 for that is personal service in the broader sense to which citizens are subject.

The difference in the circumstances surrounding citizens and noncitizens makes a difference in the method of service upon the two necessary. No discrimination is involved if the difference in the means adopted to put all business enterprises operating in the state upon an equal footing bears a fair relation to the difference in the conditions attending each. Both citizens and non-citizens are subjected to the jurisdiction of the courts upon substituted service. It is natural to serve the citizen at his home, while in the great majority of cases such service would not be possible on non-citizens. The obvious place to serve process upon the latter is at his place of business. Apart from the possibility of discrimination the method of service is immaterial provided it be reasonably calculated to give the defendant notice of the controversy and afford him an opportunity to be heard in court. In Pennoyer v. Neff," the leading case in this field of the law, the opinion of the court expressly recognizes the right of a state to impose this condition on non-citizens.72

But even were it admitted that such a statute did to some extent tend to infringe upon the guarantees of the comity clause, it might nevertheless be supported as a proper exercise of the police power. While the scope of the police power has never been exactly delimited, it is certain that "it extends to regulations designed to promote public convenience or the general prosperity.” 73 It is also





70 Harrison v. Farrington, 35 N. J. Eq. 4 (1882); Davidson o. Hastings, 2 Keen 509 (1838).

95 U. S. 714 (1877). 72 At page 735 Mr. Justice Field states: “Neither do we mean to assert that a State may not require a non-resident ... to appoint an agent ... to receive service of process and notice in legal proceedings (arising out of business done within the state) ... As was said by the Court of Exchequer in Vallee v. Dumergue, 'It is not contrary to natural justice that a man who has agreed to receive a particular mode of notification of legal proceedings should be bound by a judgment in which that particular mode of notification has been followed'..."

73 Sligh v. Kirkwood, 237 U. S. 52, 59 (1914); Noble State Bank o. Haskell, 219 U. S. 104 (1910).

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well recognized that the extent of several of the guarantees of the Federal Constitution is limited by the exercise of the police power of the states.74 Nor is the comity clause an exception. Statutes forbidding the sale of liquor without a license which will be granted only to citizens, have time and again been upheld in the state courts and finally in the United States Supreme Court," as proper police measures.

If the purpose of the statute be within the scope of the police power, two further inquiries remain: (1) Does the statute bear a real relation to the accomplishment of that purpose? (2) Does it “operate alike upon all persons and proper

persons and property under the same circumstances and conditions”? With reference to the first inquiry it might well be argued that the statute should not be broader in terms than is reasonably required to secure the end sought and therefore that it should be restricted to cover suits brought by citizens of the state, or at any rate suits arising out of the business done within the state. Thus restricted it certainly makes for the security of commercial transactions within the state, and clearly coincides with the sentiment of the business public. Passing to the second inquiry, if a difference in treatment of groups is based upon and bears a relation to a substantial difference in the conditions surrounding each, then it does not violate the Fourteenth Amendment.77 There is obviously a real difference in the accessibility of citizens and noncitizens in courts of justice. Statutes such as those in question, which merely provide a different and more appropriate method of substituted service on non-residents than that used for residents would seem to be constitutional beyond any question, although this point has not been discussed in any of the cases. Numerous similar statutes, many of them on all fours with those under discussion, have been sustained on this theory. 78



75 Welsh o. State, 126 Ind. 71, 25 N. E. 883 (1890); Mette v. McGuckin, 18 Neb. 223, 25 N. W. 338 (1885), 149 U. S. 781 (1892).

76 See collection of authorities in 14 L. R. A. 582, particularly Haney v. Marshall, 9 Md. 194 (1856), and kindred cases; see the physician cases in 1 Mich. L. Rev. 286, cited supra.

77 Barbier v. Connelly, 113 U. S. 27, 31-32 (1884).

78 Nearly every state in the Union has statutes regulating non-resident persons and associations, whether incorporated or not, engaging in the business of insurance within its limits. These statutes invariably require the appointment of an agent within the state to receive service of process as a condition of the right to do business. Not

It is now settled that a statute requiring foreign corporations engaged in interstate commerce to submit to the jurisdiction of the state courts disputes arising out of interstate business transacted within the state is justified as an exercise of the police power before action by Congress.79 The numerous quarantine and other regulations previously supported on the same ground made this an almost necessary result. By a parity of reasoning a similar statute covering individuals engaged in interstate commerce should be supported.80 As it will hardly be contended that the right of citizens to do business within a state is of a more sacred nature than that of a corporation engaged in interstate commerce, these cases have a very close bearing on our main problem. 81

merely have none of these statutes been upset because of this provision, but they have always been expressly upheld except where the statutes were obviously calculated in other respects to put non-residents at a disadvantage, and the discrimination had no basis in a difference of position between residents and non-residents adequate to justify it. People v. Gay, 107 Mich. 422, 65 N. W. 292 (1895); State v. Stone, 118 Mo. 388, 24 S. W. 164 (1893); but see State v. Ins. Commrs., 37 Fla. 564, 20 So. 772 (1896); Barnes v. People, 168 IV. 425, 48 N. E. 91 (1897); 25 L. R. A. 238 for statutes upset because clearly discriminatory. Many statutes making it more difficult for non-citizens to obtain relief in domestic courts have been sustained, because the difference in position between citizens and non-citizens required different provision to protect all parties to litigation. The presence of the citizen and his property within the jurisdiction affords a surety lacking in the case of non-citizens. In Haney v. Marshall, 9 Md. 194 (1856), the statute required security for costs from non-residents. In Head u. Daniels, 38 Kan. 1, 15 Pac. 911 (1887), the statute dispensed with an undertaking in attachment proceedings where defendants were non-residents. Campbell v. Morris, 3 Harr. & McH. (Md.) 535 (1797), was another case making a different provision for non-residents with respect to attachments. See also the liquor license and physician cases cited supra, notes 75, 76; also see 14 L. R. A. 582.

79 International Harvester Co. v. Kentucky, 234 U. S. 579 (1913); Western Union Tel. Co. o. Pleasants, 46 Ala. 641 (1871); Tauza o. Susquehanna Coal Co., 220 N. Y. 259 (1917).

80 Adams Express Co. o. Crenshaw, 78 Ky. 136 (1879).

81 It seems settled on authority that the problem of getting jurisdiction by consent over non-incorporated associations of citizens of other states is not different from that of getting jurisdiction similarly over individual citizens of other states. As res integra one might have quarreled with the decision in Paul v. Virginia, 8 Wall. (U.S.) 168, dividing all extra-state enterprises into corporations not entitled to the benefit of the comity clause and citizens who are. It might have been argued that the corporate group was simply a convenient form of organization employed by citizens in commercial undertakings and equally entitled with citizens to the protection of the comity clause. If, however, the distinction had to be drawn between citizens and group units which are not citizens, the point might have been made that all groups must be withdrawn from the scope of the comity clause, because each unit has an identity although not a legal personality distinct from its members, the citizens.

As a matter of fact, most of the statutes attempting to extend the jurisdiction of the courts over non-citizens doing business within the territory show not the slightest intention on the part of the state to bargain or to admit the group or individual to do business on the condition that it or he consent to the jurisdiction of the courts. Those statutes which disclose such a state of mind very sensibly forbid the parties to do business until they have filed with a state officer a designation of an agent to accept service. The insurance statutes are all of this type; as also is the Kentucky provision for service on non-residents engaging in the surety business within the


Most of the statutes seem to assume the existence of jurisdiction over the parties and merely provide a method of service. Generally the courts, which have held this type of statute unconstitutional, have made the validity of this assumption, or rather its invalidity, one of their two principal rationes decidendi. The other has been the alleged infringement of the rights secured to citizens of other states by the comity clause previously discussed. We must now proceed to investigate the validity of the assumption made by the statutes, that is, to what extent, if any, jurisdiction through presence may be obtained over non-resident individuals and groups.

The problem of obtaining jurisdiction by presence calls for the application of several principles already laid down. A restatement of the problem will probably aid in its solution. Where an individual is not (1) present within the state, or (2) domiciled there, (3) owes it no allegiance, and (4) has not consented to its jurisdiction, the state's courts have no power to render a personal judgment against him since Pennoyer v. Neff. 83 In the case under discussion, while the individual is not personally present in the state, he is doing business there either as an individual entrepreneur or as a member of a group of entrepreneurs, through agents who represent him. The latter case, while giving rise to the more numerous and vital problems in the modern state, theoretically affords us less difficulty than the former. Today we have great aggregations of capital doing a business which recognizes no territorial limits, with every conceivable form of organization; partnership, limited partnership, joint stock company, and trust, possessing vast powers for

82 KENTUCKY STATUTES, 1915 (Carroll), $ 3720 d.

95 U. S. 714 (1877).

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