As declared by Justice Harlan in his dissenting opinion, in French v. Barber Asphalt Paving Co., it is uncertain whether or not the court intended definitely to repudiate the doctrine that a special assessment upon a piece of property in substantial excess of the benefits conferred upon that property by the improvement, is a taking of property without due process of law. This uncertainty became still more evident by the decisions of the court in Louisville & Nashville R. R. Co. v. Barber Asphalt Paving Co.,20 decided in 1905, and Martin v. District of Columbia," decided in 1907.

The first case was a proceeding under a Kentucky statute to enforce a lien upon a lot for grading, curbing, and paving a carriage highway. The plaintiff in error pleaded that its only interest in the lot was for a right of way for a railroad, and that neither this right of way nor the lot would or could get any benefit from the improvement, but that, on the contrary, the property would be injured by the increase of travel close to the plaintiff's tracks. To the argument that this assessment was, therefore, in violation of the Fourteenth Amendment, the Supreme Court, however, answered that the reasoning assumed an exactness in the premises which did not exist. The amount of benefit which a piece of property will derive from a public improvement is, it is declared, a matter of forecast and estimate, not of direct and exact statement. "In its general aspects, at least, it is peculiarly a thing to be decided by those who make the laws." The court then go on to state the doctrine, which it declares to have been implied in the earlier cases, that so long as an act is in general fair and just, it is not rendered invalid by the fact that, as to particular areas, the benefits are less than the assessments. "If a particular case of hardship arises under it in its natural and ordinary application that hardship must be borne as one of the imperfections of human things."

seems to me that the words 'due process of law' mean the same in both Amendments. The intimidation to the contrary in the opinion of the court is, I take leave to say, without any foundation upon which to rest, and is most mischevious in its tendency."

20 197 U. S. 430; 25 Sup. Ct. Rep. 466; 49 L. ed. 819. 21 205 U. S. 135; 27 Sup. Ct. Rep. 440; 51 L. ed. 743.

In Martin v. District of Columbia 2 was involved a law of Congress relating to the District of Columbia providing for the opening of alleys and the assessment of damages upon the lots in the squares concerned. Contest was made by certain lot owners that their properties would not be benefited, at least to the extent of the assessments, by the opening of alleys. The court, after referring to the terms of the law, say:

"The law is not a legislative adjudication concerning a particular place and a particular plan, like the one before the court in Wight v. Davidson, 181 U. S. 371; 21 Sup. Ct. Rep. 616; 45 L. ed. 900. It is a general prospective law. The charges in all cases are to be apportioned within the limited taxing district of a square, and therefore it well may happen, it is argued, that they exceed the benefit conferred, in some case of which Congress never thought and upon which it could not have passed. The present is said to be a flagrant instance of that sort. If this be true, perhaps the objection to the act would not be disposed of by the decision in Louisville & N. R. Co. v. Barber Asphalt Paving Co., 197 U. S. 430; 25 Sup. Ct. Rep. 466; 49 L. ed. 819. That case dealt with the same objection, to be sure, in point of form, but a very different one in point of substance. The assessment in question. there was an assessment for grading and paving, and it was pointed out that a legislature would be warranted in assuming that grading and paving streets in a good-sized city commonly would benefit adjoining land more than it would cost. The chance of the cost being greater than the benefit is slight, and the excess, if any, would be small. These and other considerations were thought to outweigh a merely logical and mathematical possibility on the other side, and to warrant sustaining an old and familiar method of taxation. It was emphasized that there should not be extracted from the very general language of the 14th Amendment, a system of delusive exactness and merely logical form.

"But when the chance of the cost exceeding the benefit grows large, and the amount of the not improbable excess is great, it may not follow that the case last cited will be a precedent. Constitu22 205 U. S. 135; 27 Sup. Ct. Rep. 440; 51 L. ed. 743.

tional rights like others are matters of degree. To illustrate: Under the police power, in its strict sense, a certain limit might be set to the height of buildings without compensation; but to make that limit five feet would require compensation and a taking by eminent domain. So it well might be that a form of assessment that would be valid for paving would not be valid for the more serious expenses involved in the taking of land. Such a distinction was relied on in French v. Barber Asphalt Paving Co. (181 U. S. 324; 21 Sup..Ct. Rep. 625; 45 L. ed. 879) to reconcile the decision in that case with Norwood v. Baker (172 U. S. 269; 19 Sup. Ct. Rep. 187; 43 L. ed. 443)."

But it is evident that the court itself felt that a position was being taken which could not be clearly harmonized with earlier cases, for the opinion continues:

"And yet it is evident that the act of Congress under consideration is very like earlier acts that have been sustained. That passed upon in Wight v. Davidson, it is true, dealt with a special tract, and so required the hypothesis of a legislative determination as to the amount of benefit conferred. But the real ground of the decision is shown by the citation of Bauman v. Ross (167 U. S. 548; 17 Sup. Ct. Rep. 966; 42 L. ed. 270), when the same principle was sustained in a general law. It is true again that in Bauman v. Ross the land benefited was to be ascertained by the jury instead of being limited by the statute to a square; but it was none the less possible that the sum charged might exceed the gain. As only half the cost was charged in that case it may be that, on the practical distinction to which we have adverted in connection with Louisville & N. R. Co. v. Barber Asphalt Paving Co. the danger of such an excess was so little that it might be neglected, but the decision was not put on that ground.

"In view of the decisions to which we have referred it would be unfortunate if the present act should be declared unconstitu-, tional after it has stood so long. We think that without a violent construction of the statute it may be read in such a way as not to raise the difficult question with which we have been concerned. It is true that the jury is to apportion an amount equal to the

amount of the damage ascertained, but it is to apportion it according as each lot or part of lot of land in such square may be benefited by the opening, etc.' Very likely it was thought in general, having regard to the shortness of the alleys, the benefits would be greater than the cost. But the words quoted permit, if they do not require, the interpretation that in any event the apportionment is to be limited to the benefit, and if it is so limited all serious doubt as to the validity of the statute disappears."

§ 529. Summary.

Summarizing the result, or rather the tendency of the cases reviewed, it would appear that the Supreme Court has drawn away from the doctrine stated in its earlier cases that a special assessment will be upheld if apportioned according to a rule which, in its general operation, distributes the burden of the tax in proportion to the benefits received, even though such assessments may, as to particular pieces of property, be in substantial excess of the benefits received. In place of this doctrine the court, though with considerable falterings, has declared that "when the chance of the cost exceeding the benefit grows large, and the amount of the not improbable excess is great" the assessment will not be sustained. Except in such extreme cases, however, the legislative determination as to the propriety of the assessment and of the mode of its apportionment will be held controlling.

§ 530. Property Taxed Must Be Within the Jurisdiction of the State.

By reason of the due process clause of the Fourteenth Amend ment, and as a result from the fact that no State may give extraterritorial force to its laws, the States of the Union are constitutionally disqualified from levying taxes upon property without their several territorial jurisdictions. This principle, simple and absolute in itself, often becomes, however, difficult of application because of the difficulty in determining, in certain cases, when a given piece of property may be legally considered within the juris

diction of the State attempting to tax it. illustrated in the sections which follow.

This difficulty is

§ 531. Personal Liability of the Property Owners.

The right to tax depending upon the actual or constructive presence within the jurisdiction of the property taxed, and the tax thus operating in rem rather than in personam against the owner, it follows that, strictly speaking, the owner, not domiciled in the State, cannot be made personally liable for the tax.23 Thus in Dewey v. City of Des Moines,2 decided in 1899, was held void a state statute authorizing special assessments for local improvements and attempting to make non-resident lot owners personally liable for such assessments, the court saying: "The principle which renders void a statute providing for the personal liability of a non-resident to pay a tax of this nature is the same which prevents a State from taking jurisdiction through its courts by virtue of a statute, over a non-resident not served with process within the State, to enforce a mere personal liability, and where no property of the non-resident has been seized or brought under the control of the court. A judgment, without personal service against a non-resident, is only good so far as it affects the property which is taken or brought under the control of the court or other tribunal in an ordinary action to enforce a personal liability, and no jurisdiction is thereby acquired over the person of a non-resident further than respects the property so taken. This is as true in the case of an assessment against a non-resident of such a nature as this one as in the case of a more formal judgment."

In Corry v. Baltimore,25 decided in 1905, a law of Maryland was upheld which provided that stock in domestic corporations held by non-residents might be taxed, the tax to be paid by the

23 So far as a tax operates upon persons, domiciliation in the State is the test. The terms " residents" and "inhabitants" when used in tax laws are, therefore, generally to be construed as referring to persons domiciled in the State.

24 173 U. S. 193; 19 Sup. Ct. Rep. 379; 43 L. ed. 665.

25 196 U. S. 466; 25 Sup. Ct. 297; 49 L. ed. 556.