CRS Annotated Constitution

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Discrimination in Private Rights

Not only has judicial construction of the comity clause excluded certain privileges of a public nature from its protection, but the courts also have established the proposition that the purely private and personal rights to which the clause admittedly extends are not in all cases beyond the reach of state legislation which differentiates citizens and noncitizens. Broadly speaking, these rights are[p.875]held subject to the reasonable exercise by a State of its police power, and the Court has recognized that there are cases in which discrimination against nonresidents may be reasonably resorted to by a State in aid of its own public health, safety and welfare. To that end a State may reserve the right to sell insurance to persons who have resided within the State for a prescribed period of time.196 It may require a nonresident who does business within the State197 or who uses the highways of the State198 to consent, expressly or by implication, to service of process on an agent within the State. Without violating this section, a State may limit the dower rights of a nonresident to lands of which the husband died seized while giving a resident dower in all lands held during the marriage,199 or may leave the rights of nonresident married persons in respect of property within the State to be governed by the laws of their domicile, rather than by the laws it promulgates for its own residents.200 But a State may not give a preference to resident creditors in the administration of the property of an insolvent foreign corporation.201 An act of the Confederate Government, enforced by a State, to sequester a debt owed by one of its residents to a citizen of another State was held to be a flagrant violation of this clause.202

Access to Courts

The right to sue and defend in the courts is one of the highest and most essential privileges of citizenship and must be allowed by each State to the citizens of all other States to the same extent that it is allowed to its own citizens.203 The constitutional requirement is satisfied if the nonresident is given access to the courts of the State upon terms which, in themselves, are reasonable and adequate for the enforcing of any rights he may have, even though they may not be technically the same as those accorded to resident citizens.204 The Supreme Court upheld a state statute of limitations which prevented a nonresident from suing in the State’s courts after expiration of the time for suit in the place where the cause of action arose205 and another such statute which suspended[p.876]its operation as to resident plaintiffs, but not as to nonresidents, during the period of the defendant’s absence from the State.206 A state law making it discretionary with the courts to entertain an action by a nonresident of the State against a foreign corporation doing business in the State was sustained since it was applicable alike to citizens and noncitizens residing out of the State.207 A statute permitting a suit in the courts of the State for wrongful death occurring outside the State, only if the decedent was a resident of the State, was sustained, because it operated equally upon representatives of the deceased whether citizens or noncitizens.208 Being patently nondiscriminatory, a Uniform Reciprocal State Law to secure the attendance of witnesses from within or without a State in criminal proceedings, whereunder an Illinois resident, while temporarily in Florida, was summoned to appear at a hearing for determination as to whether he should be surrendered to a New York officer for testimony in the latter State is not violative of this clause.209


In the exercise of its taxing power, a State may not discriminate substantially between residents and nonresidents. In Ward v. Maryland,210 the Court set aside a state law which imposed specific taxes upon nonresidents for the privilege of selling within the State goods which were produced in other States. Also found to be incompatible with the comity clause was a Tennessee license tax, the amount of which was dependent upon whether the person taxed had his chief office within or without the State.211 In Travis v. Yale & Towne Mfg. Co.,212 the Court, while sustaining the right of a State to tax income accruing within its borders to nonresidents,213 held the particular tax void because it denied to nonresidents exemptions which were allowed to residents. The “terms ‘resident’ and ‘citizen’ are not synonymous,” wrote Justice Pitney, “. . . but a general taxing scheme . . . if it discriminates against all[p.877]nonresidents, has the necessary effect of including in the discrimination those who are citizens of other States; . . .”214 Where there were no discriminations between citizens and noncitizens, a state statute taxing the business of hiring persons within the State for labor outside the State was sustained.215 This section of the Constitution does not prevent a territorial government, exercising powers delegated by Congress, from imposing a discriminatory license tax on nonresident fishermen operating within its waters.216

However, what at first glance may appear to be a discrimination may turn out not to be when the entire system of taxation prevailing in the enacting State is considered. On the basis of over–all fairness, the Court sustained a Connecticut statute which required nonresident stockholders to pay a state tax measured by the full market value of their stock while resident stockholders were subject to local taxation on the market value of that stock reduced by the value of the real estate owned by the corporation.217 Occasional or accidental inequality to a nonresident taxpayer is not sufficient to defeat a scheme of taxation whose operation is generally equitable.218 In an early case the Court brushed aside as frivolous the contention that a State violated this clause by subjecting one of its own citizens to a property tax on a debt due from a nonresident secured by real estate situated where the debtor resided.219

Clause 2. A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.[p.878]


Duty to Surrender Fugitives From Justice

Although this provision is not in its nature self–executing, and there is no express grant to Congress of power to carry it into effect, that body passed a law shortly after the Constitution was adopted, imposing upon the Governor of each State the duty to deliver up fugitives from justice found in such State.220 The Supreme Court has accepted this contemporaneous construction as establishing the validity of this legislation.221 The duty to surrender is not absolute and unqualified; if the laws of the State to which the fugitive has fled have been put in force against him, and he is imprisoned there, the demands of those laws may be satisfied before the duty of obedience to the requisition arises.222 But, in Kentucky. v. Dennison,223 the Court held that this statute was merely declaratory of a moral duty; that the Federal Government “has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it; . . .”,224 and consequently that a federal court could not issue a mandamus to compel the governor of one State to surrender a fugitive to another. Long considered a constitutional derelict, Dennison was finally formally overruled in 1987.225 Now, States and Territories may invoke the power of federal courts to enforce against state officers this and other rights[p.879]created by federal statute, including equitable relief to compel performance of federally–imposed duties.226


196 LaTourette v. McMaster, 248 U.S. 465 (1919).
197 Doherty & Co. v. Goodman, 294 U.S. 623 (1935).
198 Hess v. Pawloski, 274 U.S. 352, 356 (1927).
199 Ferry v. Spokane P. & S. Ry. Co., 258 U.S. 314 (1922), followed in Ferry v. Corbett, 258 U.S. 609 (1922).
200 Conner v. Elliott, 18 How. (59 U.S.) 591, 593 (1856).
201 Blake v. McClung, 172 U.S. 239, 248 (1898).
202 Williams v. Bruffy, 96 U.S. 176, 184 (1878).
203 Chambers v. Baltimore & Ohio R.R., 207 U.S. 142, 148 (1907); McKnett v. St. Louis & S.F. Ry. Co., 292 U.S. 230, 233 (1934).
204 Canadian Northern Ry. Co. v. Eggen, 252 U.S. 553 (1920).
205 Id., 563.
206 Chemung Canal Bank v. Lowery, 93 U.S. 72, 76 (1876).
207 Douglas v. New York, N.H. & H. R. Co., 279 U.S. 377 (1929).
208 Chambers v. Baltimore & Ohio R.R., 207 U.S. 142 (1907).
209 New York v. O’Neill, 359 U.S. 1 (1959). Justices Douglas and Black dissented.
210 12 Wall. (79 U.S.) 418, 424 (1871). See also Downham v. Alexandria Council, 10 Wall. (77 U.S.) 173, 175 (1870).
211 Chalker v. Birmingham & Nw. Ry. Co., 249 U.S. 522 (1919).
212 252 U.S. 60 (1920).
213 Id., 62–64. See also Shaffer v. Carter, 252 U.S. 37 (1920). In Austin v. New Hampshire, 420 U.S. 656 (1975), the Court held void a state commuter income tax, inasmuch as the State imposed no income tax on its own residents and thus the tax fell exclusively on nonresidents’ income and was not offset even approximately by other taxes imposed upon residents alone.
214 252 U.S. 60, 78–79 (1920).
215 Williams v. Fears, 179 U.S. 270, 274 (1900).

Supplement: [P. 877, in text following n.215, add:]

The Court returned to the privileges–and–immunities restrictions upon disparate state taxation of residents and nonresidents in Lunding v. New York Tax Appeals Tribunal.1 In this case, the State denied nonresidents any deduction from taxable income for alimony payments, although it permitted residents to deduct such payments. While observing that approximate equality between residents and nonresidents was required by the clause, the Court acknowledged that precise equality was neither necessary nor in most instances possible. But it was required of the challenged State that it demonstrate a “substantial reason” for the disparity, and the discrimination must bear a “substantial relationship” to that reason.2 A State, under this analysis, may not deny nonresidents a general tax exemption provided to residents that would reduce their tax burdens, but it could limit specific expense deductions based on some relationship between the expenses and their in–state property or income. Here, the State flatly denied the exemption. Moreover, the Court rejected various arguments that had been presented, finding that most of those arguments, while they might support targeted denials or partial denials, simply reiterated the State’s contention that it need not afford any exemptions at all.

216 Haavik v. Alaska Packers Assn., 263 U.S. 510 (1924).
217 Travellers’ Inc. Co. v. Connecticut, 185 U.S. 364, 371 (1902).
218 Maxwell v. Bugbee, 250 U.S. 525 (1919).
219 Kirtland v. Hotchkiss, 100 U.S. 491, 499 (1879). Cf. Colgate v. Harvey, 296 U.S. 404 (1935), in which discriminatory taxation of bank deposits outside the State owned by a citizen of the State was held to infringe a privilege of national citizenship, in contravention of the Fourteenth Amendment. The decision in Colgate v. Harvey was overruled in Madden v. Kentucky, 309 U.S. 83, 93 (1940).
220 1 Stat. 302 (1793), 18 U.S.C. Sec. 3182 . The Act requires rendition of fugitives at the request of a demanding “Territory,” as well as of a State, thus extending beyond the terms of the clause. In New York ex rel. Kopel v. Bingham, 211 U.S. 468 (1909), the Court held that the legislative extension was permissible under the territorial clause. See Puerto Rico v. Branstad, 483 U.S. 219, 229–230 (1987).
221 Roberts v. Reilly, 116 U.S. 80, 94 (1885). See also Innes v. Tobin, 240 U.S. 127 (1916). Said Justice Story: “[T]he natural, if not the necessary conclusion is, that the national government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, judicial, or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the Constitution;” and again “it has, on various occasions, exercised powers which were necessary and proper as means to carry into effect rights expressly given, and duties expressly enjoined thereby.” Prigg v. Pennsylvania, 16 Pet. (41 U.S.) 539, 616, 618–619 (1842).
222 Taylor v. Taintor, 16 Wall. (83 U.S.) 366, 371 (1873).
223 24 How. (65 U.S.) 66 (1861); cf. Prigg v. Pennsylvania, 16 Pet. (41 U.S.) 539, 612 (1842).
224 24 How. (65 U.S.) 66, 107 (1861). Congress in 1934 plugged the loophole created by this decision by making it unlawful for any person to flee from one State to another for the purpose of avoiding prosecution in certain cases. 48 Stat. 782 , 18 U.S.C. Sec. 1073 .
225 Puerto Rico v. Branstad, 483 U.S. 219 (1987). “Kentucky v. Dennison is the product of another time. The conception of the relation between the States and the Federal Government there announced is fundamentally incompatible with more than a century of constitutional development.” Id., 230.
226 Id., 230.

Supplement Footnotes

1 522 U.S. 287 (1998) .
2 522 U.S. at 298.
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