cause, except on proof of dual assessment, or of payment of the taxes for which the property was sold prior to the date of sale, unless the proceeding to annul is instituted within three years from the adoption of this constitution, as to sales already made. Constitution 1898, p. 61.

The record showed that defendants and their authors had been, since 1882, in quiet, peaceable possession of the property in question under a tax title, the validity of which had not been impeached by any direct proceeding; that more than three years had elapsed before the institution of the present action since the adoption of the constitution (and more than that since the passage of the act of February 10, 1897, and the issue of the patent, November 22, 1897), and that at any time within such three years plaintiff or its authors might have instituted suit against defendants to annul the sale.

And the decision of the state Supreme Court that, in these circumstances, article 233 made good defendants' title rested on a ground independent of the act of 1897, and involved no Federal question.

Writ of error dismissed.

UNION REFRIGERATOR TRANSIT COMPANY v. KEN

TUCKY.

ERROR TO THE COURT OF APPEALS OF THE COMMONWEALTH OF

KENTUCKY.

No. 84. Argued October 13, 16, 1905.-Decided November 13, 1905.

The power of taxation is exercised upon the assumption of an equivalent rendered in the protection of the property and person of the taxpayer, and if such equivalent cannot possibly be rendered because the property taxed is wholly beyond the jurisdiction of the taxing power the taxation thereof within the domicil of the owner amounts to a taking of property without due process of law.

While there may be individual cases where the weight of the tax neces

sarily falls unequally on account of special circumstances the general rule is that in classifying property for taxation, some benefit to the property taxed is a controlling consideration, and a plain abuse of the power in this respect may justify judicial interference.

The proper use of a legal fiction is to prevent injustice and the maxim mobilia sequuntur personam may only be resorted to when convenience and justice so require. That doctrine does not apply to tangible personal property permanently located in another State where it is employed and protected, acquires a situs and is subject to be there taxed irrespective of the domicil of the owner; and an attempt on the part of the State in which the owner is domiciled to tax such property amounts to a deprivation of property without due process of law within the purview of the Fourteenth Amendment.

So held in regard to the taxation of cars owned by a transit refrigerating company and which were permanently employed without the State in which the company was domiciled.

THIS proceeding was begun by a statement filed by the revenue agent of the Commonwealth in the Jefferson County Court, praying that certain personal property belonging to the plaintiff in error be assessed for taxation for state, county and municipal taxes, and be also adjudged to pay a penalty of twenty per cent on the aggregate amount of the tax.

To this statement the Transit Company filed certain demurrers and answers, upon which, and upon the deposition of the controller of the company in St. Louis, Missouri, the case went to a hearing, and resulted in a finding of facts that the Transit Company was the owner of two thousand cars in September, 1897, 1898, 1899 and 1900, to which years the recovery was limited, of the value of $200 each; that its cars were employed by the company by renting them to shippers, who took possession of them from time to time at Milwaukee, Wisconsin, and used them for the carriage of freight in the United States, Canada and Mexico, the company being paid by the railroads in proportion to the mileage made over their lines; that the correct method of ascertaining the number of cars which should be assessed for taxation was to ascertain and list such a proportion of its cars as, under a system of averages upon their gross earnings, were shown to be used in the State of Kentucky, during the fiscal year, the court finding by this method that

Argument for Plaintiff in Error.

199 U. S.

there were subject to assessment in Kentucky twenty-eight cars for the year 1897, twenty-nine for the year 1898, forty for the year 1899, and sixty-seven for 1900.

The court also found that the cars other than those mentioned were not liable to assessment.

The order of the County Court was affirmed by the Circuit Court, and an appeal taken to the Court of Appeals of Kentucky, which reversed the judgment of the court below, and found that the company was liable to taxation upon its entire number of two thousand cars, and directed the court below to enter judgment against it for the taxes appropriate to this number. 80 S. W. Rep. 490.

To review this judgment this writ of error was sued out.

Mr. William H. Field and Mr. Alexander P. Humphrey for plaintiff in error:

Section 4020, Kentucky Statutes, as applied in this case violates the provisions of the Fourteenth Amendment.

The legislature of Kentucky had no power to authorize the assessment for taxation of tangible personal property which has acquired a taxable situs outside the territorial limits of the State and in other jurisdictions.

The growth of the country has produced properties which lie partly in one and partly in another sovereignty and it is competent, in ascertaining the value of such property for taxation, to consider the value of the whole as affecting the value of each part. West. Un. Tel. Co. v. Taggart, 163 U. S. 1; Pittsburg, Cincinnati &c. Ry. v. Backus, 154 U. S. 439. Property also which, while not connected into one whole as a railroad may be considered by the union of its rails, or a telegraph line by the union of its wires, may yet, through a unity of use, take a character similar to a physical unity. In such cases a State, in valuing that part within the sovereignty, may take into consideration the value of the whole. Adams Exp. Co. v. Ohio, 165 U. S. 194; Adams Exp. Co. v. Indiana, 165 U. S. 194; Adams Exp. Co. v. Kentucky, 166 U. S. 172.

199 U.S.

Argument for Plaintiff in Error.

So also as to vessels plying the ocean or rivers. In Hays v. Pacific Mail, 17 How. 596; Morgan v. Parham, 16 Wall. 471; St. Louis v. Ferry Co., 11 Wall. 423; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196; Old Dominion S. S. Co. v. Virginia, 198 U. S. 299, the tax was held valid or invalid in accordance with the determination of the actual situs. So also in reference to ordinary personal property. In State Tax on Foreign-held Bonds, 15 Wall. 300, the State could tax bonds of Pennsylvania corporations held by non-residents of Pennsylvania. Blackstone v. Miller, 188 U. S. 212, held that this decision has been cut down to the precise point that the bonds could not be taxed because they were held out of the State. And see as to the right of States to tax personal property in the State notwithstanding the fact that the owner is not in the State. Coe v. Errol, 116 U. S. 524; Diamond Match Co. v. Ontonagon, 188 U. S. 93; Brown v. Houston, 114 U. S. 622; Pittsburg Coal Co. v. Bates, 156 U. S. 577; New Orleans v. Stempel, 175 U. S. 309; Bristol v. Washington County, 177 U. S. 145.

It is impossible to ascertain how many cars constantly moving are in any State on any named day and a State has a right to devise a fair method of ascertaining the average number without regard to what is the particular car and to tax the average number of cars in the State although the owner may be a non-resident corporation. Pullman Co. v. Pennsylvania, 141 U. S. 22; Am. Refrigerator Co. v. Hall, 174 U. S. 70; Union Refrigerator Co. v. Lynch, 177 U. S. 149.

These cases establish that personal property capable of acquiring a situs separate from the domicil of the owner can be taxed where it has acquired such situs and that the rule of mobilia sequuntur personam is a fiction which must give way to facts, and has been broken down upon that side. See also D., L. & W. v. Pennsylvania, 198 U. S. 341.

The right to tax personalty as well as realty rests upon the fact that such personalty as well as realty is situated within the territorial jurisdiction of the sovereignty levying the tax. The domicil of the owner is an immaterial circumstance in the

Argument for Plaintiff in Error.

199 U.S.

case of personal as well as of real property and property of the character sought to be reached in this case is capable of acquiring and does acquire a situs in every sovereignty in which it is used.

Either personal property may be taxed both by the State in which its owner resides and by the State in which it has its situs, or alone by the State in which it has its situs. The absence of the owner does not exclude power to tax, and the absence of the property excludes the power to tax, in other words, that actual situs is as essential an element of the power to tax in the case of personal property as in the case of real property. Revenue statutes of a State can have no extraterritorial effect and cannot affect property, the taxable situs of which is elsewhere. The cars of this plaintiff in error have a taxable situs outside of Kentucky, and this court has upheld their taxation elsewhere. Transit Co. v. Lynch, 177 U. S. 149.

It is thus established beyond question that these cars of the plaintiff in error actually acquire a situs of their own, distinct from the domicil of their owner, beyond the territorial limits of the State of Kentucky, and that they are subject to taxation by those jurisdictions in which they may be found. 1 Cooley, Taxation, 3d ed., 84.

"Taxation and protection are reciprocal," and in the foundation of the Government's right to tax the property of its citizens there lies the corresponding duty upon the Government to protect that property. 1 Cooley on Taxation, 3d ed., 2, 22, 27; Rorer on Interstate Law, 204; State v. Falkenbridge, 3 Green (N. J.), 320; Wilkey v. City of Pekin, 19 Illinois, 160; New Orleans v. Stempel, 175 U. S. 310; People v. Commissioner, 35 N. Y. 441; Pullman v. Twombley, 29 Fed. Rep. 658; Baldwin v. Shine, 84 Kentucky, 502.

This being a fundamental principle of taxation, a State which assumes the right to tax property that is situated beyond its limits cannot perform the corresponding duty to protect that property. As the property is protected by the State wherein