was based upon the assumption that the law was not capable of justification as a tax law, because it attempted to tax property not within the jurisdiction of the state.

However that may be, the Multnomah County case was decided on the theory, not that the obligation of a contract was not impaired, but that property had not been taken without due process of law, since the tax complained of was imposed upon property within the jurisdiction of the state. But while it was apparently assumed that the taxation of property not within the jurisdiction might be regarded as a taking of property without due process of law,' no case was cited to prove that such was the accepted rule of constitutional law.

The first case in which the Supreme Court has squarely held that a state tax on property not within the jurisdiction of the state constitutes a taking of property without due process of law is Louisville and Jeffersonville Ferry Company v. Kentucky,2 decided in 1902. In this case the state of Kentucky attempted to assess for taxation the franchise of a ferry company to operate a ferry on the Ohio river to the Indiana shore. The franchise attempted to be taxed was granted by the state of Indiana. The court held that this franchise, which it regarded as an incorporeal hereditament, was not within the jurisdiction of the state of Kentucky, and that its taxation by Kentucky was "a deprivation by that state of the property of the ferry company without due process of law in violation of the fourteenth amendment of the Constitution of the United States." This principle was later applied to coal situated out of the state, in Delaware, Lackawanna and Western Railway Company v. Pennsylvania,3 and to rolling stock similarly situated, in Union Refrigerator Transit Company v. Kentucky. For the decision in the Louisville and Jeffersonville Ferry case, support was found in St. Louis v. The Wiggins Ferry Company; and in the

1 The court said: "The case then reduces itself to the question whether this tax act, as applied to mortgages owned by citizens of other states and in their possession outside of the state of Oregon, deprives them of their property without due process of law."

2 188 U. S. 385.

3198 U. S. 341 (1904).

199 U. S. 194 (1905).

5 Supra, p. 409.

Union Refrigerator Transit Company case reference is made to Railroad Company v. Jackson and to State Tax on ForeignHeld Bonds." It may therefore be said that a rule which was enunciated by the court prior to the passage of the fourteenth amendment, and which was applied by virtue of its jurisdiction in cases of diversity of citizenship and not because the cases themselves arose under the Constitution and laws of the United States, has of recent years been made the basis for finding a violation of the fourteenth amendment. In 1868 taxation of property not within the jurisdiction of the taxing state was held to be invalid simply because the state law could not operate beyond the state boundaries. In 1902 such taxation was found to be unconstitutional because contrary to due process of law.

Up to the present time, however, the court has confined the application of the due process provision of the fourteenth amendment (except in one instance, to which attention will be called later) to the taxation of real property and of tangible personal property. In the taxation of intangible personal property it has held that the state legislatures have almost as much discretion now as they had prior to the passage of the fourteenth amendment. Thus it has been decided that state taxation of intangible personal property is valid in the following cases where mortgages on property situated outside of the state are owned by a resident of the state 3; where the land on which mortgages are placed is in the state, even though the mortgagee is a non-resident; where the written evidences of credits for money loaned in the state by a non-resident through a resident agent are kept within the state together with collateral security 5; and finally where money is loaned in the state by non-residents through resident agents, although the notes which are evidence of the loan transactions are kept for the most part out of the state and are only sent to the state for col

1 Supra, p. 409.

Kirtland v. Hotchkiss, Ico U. S. 491.

2 Supra, p. 410.

Savings Society v. Multnomah County, 169 U. S. 392;

Stempel, 175 U. S. 309.

New Orleans v.

* State Assessors v. Comptoir National d'Escompte, 191 U. S. 388.

lection. The one case in which state taxation of intangible personal property has been found to be irreconcilable with due process of law, because the taxing state lacked jurisdiction, is Buck v. Beach,' decided in 1907. In this case the court holds that the mere presence in a state of unendorsed promissory notes with the mortgages by which they are secured is not sufficient, where the owner of such notes and mortgages is a non-resident and the property mortgaged is in another state, to give jurisdiction to the state in which the notes are kept, and that the attempt of such state to tax these notes is a violation of the fourteenth amendment.

In the matter of inheritance or succession taxes, it is clear that the fourteenth amendment can give no greater protection against double taxation than it gives in the matter of ordinary property taxes. It may perhaps be construed to give less protection. The Supreme Court has held that the discretionary power of the several state legislatures to determine what tangible movable property is within their jurisdiction for purposes of taxation is limited by the requirement of due process. Succession taxes, however, as is noted above, are not, in legal theory, taxes upon the property transferred but on its transfer. The state in which the decedent was domiciled may impose a tax upon the transfer of the entire personal estate, wherever situated. Other states in which particular assets are situated may impose a tax upon the transfer of these assets. The Supreme court has not as yet made it clear that in the matter of succession taxes the protection of the fourteenth amendment will extend to tangible movable property. The only important case in which the effect of the situs of property upon the power of the state to tax the succession has been fully considered is Blackstone v. Miller,3 decided in 1902. In this case the state of New York attempted to impose a succession tax on a sum of money belonging to the estate of a non-resident decedent and deposited in a New York bank. The court held

Bristol v. Washington Company, 177 U. S. 133; Metropolitan Life Insurance Company . New Orleans, 205 U. S. 395.

2206 U. S. 392.

3188 U. S. 189.

the tax not to be a deprivation of property without due process of law. It declared that the transfer of the money deposited depended upon the law of New York, "because of the practical fact of its power over the person of the debtor." It did not consider as pertinent "any theoretical speculation concerning the whereabouts of the debt." "Power over the person of the debtor confers jurisdiction. . . And this being so, we perceive no better reason for denying the right of New York to impose a succession tax on debts owed by its citizens than upon tangible chattels found within the state at the time of death." But in the recent case of Keeney v. New York,2 decided in 1912, in which a tax imposed by New York upon a transfer of stocks and bonds by deed intended to take effect on the death of the grantor, a resident of the state, was held to be constitutional, the court said: "The real estate and tangible property in Texas were not within the taxing jurisdiction of the state of New York, and there was no effort to tax the transfer of that property"—apparently implying that if the attempt had been made to tax the transfer of the tangible personal property in Texas, it would not have been approved. If this is to be the rule adopted by the Supreme Court, the attempt of a state to tax the transfer of tangible personal property actually in another state will be quite as unconstitutional as the attempt to impose a property tax on such property.

It will be seen accordingly, that the Supreme Court has not as yet been able and willing to protect personal property against double taxation, except in the case of tangible movables. These it has protected against double property taxes and may protect against double succession taxes. To intangible personal property it has been either unable or unwilling to give similar protection, although it recognizes that the taxation of property outside of the jurisdiction of the taxing state is a taking of property without due process of law.

1 It will be remembered, however, that this " power over the person of the debtor" was held not to give jurisdiction in State Tax on Foreign-Held Bonds.

2222 U. S. 525.

II

If any relief from the conditions of injustice which now prevail is to be expected, either it must be sought from the coöperation of the states, which is most difficult to secure, or the attempt must be made to show that Congress possesses powers in the premises which it may exercise with a reasonable hope of attaining the end sought. On account of the length of time during which state-rights feelings have controlled political thought in this country, and, to a considerable extent, judicial reasoning also, and on account of the general persistence of these feelings today, any proposal which looks towards an increase in the powers hitherto exercised by Congress is apt to meet with disapproval, not only from the viewpoint of its political expediency but also from that of its constitutionality. It is therefore incumbent upon anyone who makes such a proposal to overcome a presumption of congressional incompetence. This presumption is based, not alone upon the fact that the United States government is one of enumerated powers, but also upon a theory of congressional power which has behind it many years of historical tradition and of political if not judicial interpretation.

Is there, then, reasonable ground for believing that Congress has powers of legislation which may be employed to remedy the conditions of injustice in the field of state taxation which have been noticed?

In answering this question, it must at once be admitted that Congress has no such authority except as it may be found in the fourteenth amendment. Up to the present time the provisions of this amendment have been so frequently used by the federal courts to circumscribe the field of state legislative action that any suggestion that this amendment confers wider legislative powers upon Congress seems at first blush almost absurd. And yet the fifth and last section of the amendment provides: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

Inasmuch as the last sections of both the thirteenth and fifteenth amendments make similar grants of power to Congress, an examination of the decisions defining the powers of Con