Page:Harvard Law Review Volume 32.djvu/925

BUSINESS JURISDICTION OVER NONRESIDENTS 889 except where his physical body is. But it would seem that it is as easy to apply the doctrine of "implied" consent to an individual nonresident, as to a foreign corporation. If the mere fact that a corporation does business in a state constitutes a consent to the conditions which the state may properly and does impose, it is hard to see why the doing of business by an individual is not a consent to the conditions which the state may properly and does impose. The mere fact that the state may not properly impose conditions upon individuals which it may impose upon corporations is immaterial, as long as the conditions it does impose are proper. Furthermore if, according to Judge Hand's theory, a corporation is boimd by conditions imposed by the state, not because it has consented to be bound, but because by voluntarily doing business within the state it is just and proper to hold that it is bound by the reasonable regulations of that business by the state, there is no good reason why an individual should not likewise be bound. There are several grounds, however, on which it may be urged that it is possible to reconcile the decision in Flexner v. Parson with the principles discussed above. The Kentucky statutes do not make provision for any form of substituted or constructive service upon residents in a proceeding in personam. In Kentucky the only form of service upon residents in such a proceeding is personal service. Does the provision for service upon the agent of a nonresident doing business within the state discriminate against nonresidents in such a way as to violate the constitutional provisions as to privileges and immunities? It would seem not. It is not necessary to put residents and nonresi- dents on an exact equality. Nonresidents have by virtue of their nonresidence a certain advantage over residents. It is more diffi- cult to find them within the Jurisdiction and to effect personal serv- ice upon them. Since the discrimination merely removes this advantage, it is not a violation of the constitutional provisions,®^ The case of Ballard v. Hunter ^^ is instructive on this point. In that case a proceeding in rem was brought in Arkansas for the sale of land in that state for nonpayment of taxes. Service was made '* Guenther v. American Steel Hoop Co., 116 Ky. 580, 591, 76 S. W. 419 (1903). The opposite view was taken in Moredock v. Kirby, 118 Fed. 180 (C. C, W. D., Ky., 1902), and in Caldwell v. Armour, i Pen. (Del.) 545 (1899). " 204 U. S. 241 (1907).