Page:Harvard Law Review Volume 32.djvu/628

592 592 HARVARD LAW REVIEW to the taxpayer; and the taxation of property without such an equivalent is a taking of property without due process of law. No property can be taxed which is not within the territorial jurisdic- tion of the taxing power. The most famihar example is that of land ; and no legislature has assumed to place a tax on foreign land. But the argument against taxing foreign property applies with equal cogency to tangible personal property beyond the jurisdic- tion. It is not only beyond the sovereignty of the taxing state, but does not and cannot receive protection under its laws. There is an obvious difference between tangible and intangible prop- erty, in the fact that the latter is held secretly; there is no method by which its existence or ownership can be ascertained in the state of its situs; and if the owner be discovered, there is no way in which he can be reached there by process. Tangible property is visible. Mr. Justice Holmes, in a dissenting opinion, said: "It seems to me that the result reached by the court probably is a desirable one, but I hardly understand how it can be deduced from the Fourteenth Amendment." It is indeed difficult to prove that a practice which had pre- vailed in half the states of the Union for a century was contrary to due process of law. The few authorities cited by the court as supporting the decision are easily distinguishable. The court did not even notice the true nature of the tax, as a personal tax, not a tax on property, and in the actual case a tax on an artificial per- son, owing its very existence and its right to hold its property to the taxing state. It was soon held that ^he doctrine of this case does not apply to a chattel having no taxable situs elsewhere, like a vessel ^^ or a freight car,^^ which, though having no situs within the owner's domicile, is never permanently enough in any other state to be taxed there; and by the very terms of Union Refrigerator Transit Co. V. Kentucky it does not apply to intangible property .^^ The ground of distinction between cases where a tax upon the owner could, and where it could not, take into account personal property 26 New York Central R. R. v. Miller, 202 U. S. 584 (1906). " "There is an obvious distinction between the tangible and intangible prop- erty. . . . The latter. . . may be taxed at the domicil of the owner," per Brown, J.
 * Southern Pacific Co. v. Kentucky, 222 U. S. 63 (191 1).